Exculpation. 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 Mortgage or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against the Borrower or any direct or indirect members, partners or shareholders of Borrower or the employees, agents, directors or officers of Borrower or its Affiliates, except that Lender may bring an action against Borrower, including a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender to enforce and realize upon its interest under the Note, this Agreement, the Mortgage and the other Loan Documents, or in the Property, the Business Income, or any other collateral given to Lender pursuant to the Loan Documents or any other assets of 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 Property, in the Business Income in any other collateral given to Lender or any other assets of Borrower, and Lender, by accepting the Note, this Agreement, the Mortgage and the other Loan Documents, shall not ▇▇▇ for, seek or demand any deficiency judgment or any other monetary payment against Borrower or the direct or indirect members, partners or shareholders of Borrower or the employees, agents, directors or officers of Borrower or its Affiliates in any such action or proceeding under or by reason of or under or in connection with the Note, this Agreement, the 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 Mortgage; (c) affect the validity or enforceability of any guaranty or indemnity made in connection with the Loan (including, without limitation, the Guaranty) or any of the rights and remedies of Lender thereunder; (d) impair the right of Lender to obtain the appointment of a receiver; (e) impair the enforcement of the Assignment of Leases; or (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 Loan (including the security granted by the Mortgage) or any other assets of Borrower or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against such security (including the Property or any other assets of Borrower). (a) Nothing contained in this Section 11.22 shall limit the rights of Lender to proceed against Borrower for any of the following (or against Guarantor under the Guaranty, on the additional terms and conditions thereof and subject to any limitations set forth herein or therein): (i) to enforce any Leases entered into by Borrower or its Affiliates as Tenant; (ii) to recover damages for fraud, material misrepresentation, material breach of warranty or intentional physical waste; (iii) to recover any Condemnation Proceeds or Insurance Proceeds or other similar funds which have been misappropriated by Borrower or which, under the terms of the Loan Documents, should have been paid to Lender; (iv) to recover (A) any Tenant security deposits, Tenant letters of credit or other deposits or fees paid to Borrower or (B) prepaid rents for a period of more than thirty (30) days in advance of its due date which have not been delivered to Lender; (v) to recover Business Income received by Borrower during an Event of Default which have not been applied to the Loan or in accordance with the Loan Documents to operating and maintenance expenses of the Property; (vi) to recover damages, costs and expenses arising from, or in connection with the provisions of the Mortgage pertaining to Hazardous Materials or the Environmental Indemnity; (vii) to recover any amount expended by Lender in connection with the foreclosure of the Mortgage, but only in the event that any Borrower or any Guarantor takes action to impede such foreclosure or otherwise contests the foreclosure in bad faith; (viii) to recover damages, costs and expenses arising from, or in connection with, the failure by Borrower to pay Taxes and Insurance Premiums when due to the extent that Borrower was not required to deposit such amounts with Lender pursuant to Section 6 hereof, but only to the extent there was available revenue from the Property for the period in question sufficient to pay such Taxes and Insurance Premiums, and provided further that Lender does not prevent such proceeds from being so applied; (ix) to recover damages, costs and expenses arising from the failure of the representations set forth in Section 3.1.8 to be true or Borrower’s failure to comply with the provisions of Sections 4.2.11 of this Agreement; and (x) to recover damages, costs and expenses arising from, or in connection with, any Lien arising from a written instrument executed by any Borrower or any Affiliate thereof expressly creating such Lien, to the extent such Lien is prohibited under this Agreement. (b) Notwithstanding the foregoing, the agreement of Lender not to limit recourse liability as set forth in Section 11.22(a) above SHALL BECOME NULL AND VOID and shall be of no further force and effect and the Debt shall be fully recourse to Borrower (and to Guarantor under the Guaranty, on the additional terms and conditions thereof and subject to any limitations set forth herein or therein) in the event that: (i) any Borrower commences a voluntary bankruptcy or insolvency proceeding; (ii) an involuntary bankruptcy or insolvency proceeding is commenced against any Borrower and is not dismissed within 90 days of filing; or (iii) voluntary Transfer of the Property occurs by written instrument executed by any Borrower or any Affiliate thereof, which instrument expressly effects such Transfer, or a Secondary Financing is voluntarily incurred in violation of the Loan Documents, except as otherwise consented to by Lender in writing (which consent may be withheld in Lender’s sole discretion). (c) Notwithstanding the provisions of clauses (i) and (ii) of Section 11.22(b) no Guarantor shall be liable for any amount related to a Qualified Involuntary Bankruptcy. (d) In addition, this agreement shall not waive any rights which Lender would have under any provisions of Title 11 of the Bankruptcy Code to file a claim for the full amount of the Debt or to require that the Property shall continue to secure all of the Debt.
Appears in 1 contract
Exculpation. Subject to the qualifications below, Lender shall not enforce the liability and obligation of Borrower or its constituent members, partners, shareholders, directors, employees or agents or the direct or indirect constituent members, partners, shareholders, directors, employees or agents thereof (collectively, the “Borrower Parties”) or any other Person, to perform and observe the obligations contained in the Note, this Agreement, the Mortgage Note or any of the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against any of the Borrower Parties or any direct or indirect members, partners or shareholders of Borrower or the employees, agents, directors or officers of Borrower or its Affiliatesother Person, except that Lender may bring an action against Borrower, including a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender to enforce and realize upon its interest under the Note, this Agreement, the Mortgage and the other Loan Documents, or in the Property, the Business Income, Rents or any other collateral given to Lender pursuant to this Agreement and the other Loan Documents or any other assets of BorrowerDocuments; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against the Borrower Parties only to the extent of Borrower’s their interest in the Property, in the Business Income Rents and in any other collateral given to Lender or any other assets of BorrowerLender, and Lender, by accepting the Note, this Agreement, the Mortgage Note and the other Loan Documents, agrees that it shall not ▇s▇▇ for, seek or demand any deficiency judgment against any of the Borrower Parties or any other monetary payment against Borrower or the direct or indirect members, partners or shareholders of Borrower or the employees, agents, directors or officers of Borrower or its Affiliates Person in any such action or proceeding under or by reason of or under or in connection with the Note, this Agreement, the Mortgage Note or any of 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 this Agreement, the Note or any of the other Loan Documents; (bii) impair the right of Lender to name any of the Borrower Parties, as a party defendant in any action or suit for foreclosure and sale under the Mortgage; (ciii) affect the validity or enforceability of any guaranty or indemnity made in connection with the Loan (including, without limitation, the Guaranty) or any of the rights and remedies of Lender thereunder; (div) impair the right of Lender to obtain the appointment of a receiver; (ev) impair the enforcement of the Assignment of LeasesLeases and Rents; or (fvi) constitute a prohibition against waiver of the right of Lender to seek a deficiency judgment enforce the liability and obligation of Borrower (but not against any members of Borrower (other than Guarantor to the extent provided in order to fully realize on any security given by Borrower in connection with the Loan (including the security granted by the MortgageNon-Recourse Guaranty) or their direct or indirect constituent members or partners or any other assets Person), by money judgment or otherwise, to the extent of Borrower any loss, damage, cost, expense, liability, claim or to commence other obligation (but excluding any other appropriate action punitive, consequential or proceeding in order for speculative damages) incurred by Lender to exercise its remedies against such security (including the Property or any other assets attorneys’ fees and costs reasonably incurred) arising out of Borrower).
(a) Nothing contained in this Section 11.22 shall limit the rights of Lender to proceed against Borrower for any of the following (or against Guarantor under the Guaranty, on the additional terms and conditions thereof and subject to any limitations set forth herein or therein):
(i) to enforce any Leases entered into by Borrower or its Affiliates as Tenant;
(ii) to recover damages for fraud, material misrepresentation, material breach of warranty or intentional physical waste;
(iii) to recover any Condemnation Proceeds or Insurance Proceeds or other similar funds which have been misappropriated by Borrower or which, under the terms of the Loan Documents, should have been paid to Lender;
(iv) to recover (A) any Tenant security deposits, Tenant letters of credit or other deposits or fees paid to Borrower or (B) prepaid rents for a period of more than thirty (30) days in advance of its due date which have not been delivered to Lender;
(v) to recover Business Income received by Borrower during an Event of Default which have not been applied to the Loan or in accordance with the Loan Documents to operating and maintenance expenses of the Property;
(vi) to recover damages, costs and expenses arising from, or in connection with the provisions of the Mortgage pertaining to Hazardous Materials or the Environmental Indemnity;following:
(viia) to recover any amount expended fraud or intentional misrepresentation by Lender Borrower or Guarantor in connection with the foreclosure Loan;
(b) intentional physical waste of the MortgageProperty (including, but only in the event that any not limited to, waste due to gross negligence) by Borrower or any Guarantor takes action affiliate thereof; provided, however, such physical waste shall exclude wear and tear to impede such foreclosure the Property that occurs in the ordinary course of business of the Property by Borrower or otherwise contests the foreclosure in bad faithany affiliate thereof;
(viiic) to recover damagesthe material breach of any representation, costs and expenses arising fromwarranty, covenant or indemnification provision in the Environmental Indemnity or in connection withthis Agreement concerning Environmental Laws, the failure by Borrower to pay Taxes and Insurance Premiums when due to the extent that Borrower was not required to deposit such amounts with Lender pursuant to Section 6 hereof, but only to the extent there was available revenue from the Property for the period in question sufficient to pay such Taxes and Insurance Premiums, and provided further that Lender does not prevent such proceeds from being so appliedHazardous Substances or Asbestos;
(ixd) to recover damages, costs and expenses arising from the failure removal or disposal by Borrower or any affiliate thereof of any portion of the representations set forth Property after an Event of Default has occurred and while it is continuing, unless such portion of the Property is replaced by an item of equal or greater value as determined by Lender in Section 3.1.8 its reasonable discretion;
(e) the misapplication or conversion by Borrower or any affiliate thereof of (i) any insurance proceeds paid by reason of any loss, damage or destruction to be true the Property, (ii) any awards or Borrower’s other amounts received in connection with the condemnation of all or a portion of the Property, (iii) any Rents following an Event of Default or (iv) any Rents paid more than one (1) month in advance;
(f) failure to comply pay charges for labor or materials or taxes or other charges that can create liens superior to the lien of the Mortgage on any portion of the Property unless such taxes or other charges are being contested in accordance herewith or such taxes or charges have been delivered to Lender in accordance with the provisions of Sections 4.2.11 of this AgreementSection 3.3 hereof or Borrower has complied with Section 5.2 hereof; and
(xg) to recover damages, costs and expenses arising from, or in connection with, any Lien arising from a written instrument executed security deposits collected by any Borrower or any Affiliate affiliate thereof expressly creating such Lienwith respect to the Property which are not delivered to Lender upon a foreclosure of the Property or action in lieu thereof, except to the extent any such Lien is prohibited under this Agreementsecurity 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.
(b1) Notwithstanding the foregoingif any petition for bankruptcy, the agreement reorganization or arrangement pursuant to federal bankruptcy law, or any similar federal or state law, shall be filed by Borrower or Guarantor, or (2) if Borrower or Guarantor files an answer consenting to, or otherwise joining in, any involuntary petition for bankruptcy, reorganization or arrangement pursuant to federal bankruptcy law, or any similar federal or state law filed against it by any other Person, or is found pursuant to a final, unappealable order of Lender not a court of competent jurisdiction to limit recourse liability as set forth have solicited or caused to be solicited creditors to file any involuntary petition for bankruptcy, reorganization or arrangement pursuant to federal bankruptcy law, or any similar federal or state law against Borrower or Guarantor, or (3) if Borrower or Guarantor are found, pursuant to a final unappealable order of a court of competent jurisdiction, to have been in collusion with creditors that initiate a bankruptcy action or proceeding against Borrower or Guarantor or (F) an Event of Default described in Section 11.22(a8.1(s) above SHALL BECOME NULL AND VOID and hereof shall be of no further force and effect and the Debt shall be fully recourse to Borrower (and to Guarantor under the Guaranty, on the additional terms and conditions thereof and subject to any limitations set forth herein or therein) in the event that:
(i) any Borrower commences a voluntary bankruptcy or insolvency proceeding;
(ii) an involuntary bankruptcy or insolvency proceeding is commenced against any Borrower and is not dismissed within 90 days of filing; or
(iii) voluntary Transfer of the Property occurs by written instrument executed by any Borrower or any Affiliate thereof, which instrument expressly effects such Transfer, or a Secondary Financing is voluntarily incurred in violation of the Loan Documents, except as otherwise consented to by Lender in writing (which consent may be withheld in Lender’s sole discretion)have occurred.
(c) Notwithstanding the provisions of clauses (i) and (ii) of Section 11.22(b) no Guarantor shall be liable for any amount related to a Qualified Involuntary Bankruptcy.
(d) In addition, this agreement shall not waive any rights which Lender would have under any provisions of Title 11 of the Bankruptcy Code to file a claim for the full amount of the Debt or to require that the Property shall continue to secure all of the Debt.
Appears in 1 contract
Exculpation. Subject Notwithstanding anything herein or in any other Loan Document to the qualifications belowcontrary, except as otherwise set forth in this Section 18.32 to the contrary, Lender shall not enforce the liability and obligation of Borrower or (a) if Borrower is a partnership, its constituent partners or any of their respective partners, (b) if Borrower is a trust, its beneficiaries or any of their respective Partners (as hereinafter defined), (c) if Borrower is a corporation, any of its shareholders, directors, principals, officers or employees, or (d) if Borrower is a limited liability company, any of its members, managers, officers or directors (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 Mortgage Security Instrument or any of the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against the Borrower or any direct or indirect members, partners or shareholders of Borrower or the employees, agents, directors or officers of Borrower or its AffiliatesPartners, except that Lender may bring an action against Borrower, including a foreclosure action, an action for specific performance performance, or any other appropriate action or proceeding (including, without limitation, an action to enable obtain a deficiency judgment) solely for the purpose of enabling Lender to enforce and realize upon its (i) Borrower’s interest under the Note, this Agreement, the Mortgage and the other Loan Documents, or in the Property, (ii) the Business Income, Rent to the extent received by Borrower (or received by its Partners) after the occurrence of an Event of Default and not either delivered to Lender (or Lender’s agent) or applied to ordinary and necessary expenses of owning and operating the Property (the “Recourse Distributions”) and (iii) any other collateral given to Lender pursuant to under the Loan Documents or any other assets of Borrower(the collateral described in the foregoing clauses (i) - (iii) is hereinafter referred to as 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 or the Partners, as the case may be, only to the extent of Borrower’s interest in the Property, in the Business Income in any other collateral given to Lender or any other assets of Borrower, and Lender, by accepting the Note, this Agreement, the Mortgage and the other Loan Documents, shall not ▇▇▇ for, seek or demand any deficiency judgment or any other monetary payment against Borrower or the direct or indirect members, partners or shareholders of Borrower or the employees, agents, directors or officers of Borrower or its Affiliates in any such action or proceeding under or by reason of or under or in connection with the Note, this Agreement, the Mortgage 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 Security Instrument or secured by any of the other Loan DocumentsDocuments or the right of Lender to foreclose this Security Instrument following the occurrence of an Event of Default; (b) impair the right of Lender to name Borrower as a party defendant in any action or suit for judicial foreclosure and sale under the Mortgagethis Security Instrument; (c) affect the validity or enforceability of any guaranty or indemnity made in connection with the Loan (includingNote, without limitationthis Security Instrument, the Guaranty) or any of the rights and remedies other Loan Documents, or impair the right of Lender thereunderto seek a personal judgment against the Guarantor; (d) impair the right of Lender to obtain the appointment of a receiver; (e) impair the enforcement of the Assignment of LeasesAssignment; or (f) impair the right of Lender to bring suit for a monetary judgment against Borrower with respect to any losses resulting from fraud, material misrepresentation, or failure to disclose a material fact, any untrue statement of a material fact or omission to state a material fact in the written materials and/or information provided to Lender or any of its affiliates by or on behalf of Borrower, Guarantor or any of their Affiliates in connection with this Security Instrument, the Note or the other Loan Documents, and the foregoing provisions shall not modify, diminish or discharge the liability of Borrower, Guarantor or any of their Affiliates with respect to same; (g) impair the right of Lender to bring suit for a monetary judgment against Borrower to obtain the Recourse Distributions received by Borrower including, without limitation, the right to bring suit for a monetary judgment to proceed against Guarantor to the extent of Guarantor’s liability under any guaranty delivered by Guarantor and the foregoing provisions shall not modify, diminish or discharge the liability of Borrower or Guarantor with respect to same; (h) impair the right of Lender to bring suit for a monetary judgment against Borrower with respect to any losses resulting from Borrower’s misappropriation of tenant security deposits or Rent (other than rent deemed “additional rent” under the Leases) collected more than one (1) month in advance, and the foregoing provisions shall not modify, diminish or discharge the liability of Borrower with respect to same; (i) impair the right of Lender to obtain Loss Proceeds due to Lender pursuant to this Security Instrument to the extent actually paid by the insurer; (j) impair the right of Lender to enforce the provisions of Sections 2.02(g), 16.01 or 16.02, inclusive of this Security Instrument, even after repayment in full by Borrower of the Debt or to bring suit for a monetary judgment against Borrower with respect to any losses resulting from any obligation set forth in said Sections; (k) prevent or in any way hinder Lender from exercising, or constitute a prohibition defense, or counterclaim, or other basis for relief in respect of the exercise of, any other remedy against any or all of the collateral securing the Note as provided in the Loan Documents; (l) impair the right of Lender to bring suit for a monetary judgment against Borrower with respect to any losses resulting from any misappropriation or conversion of Loss Proceeds, and the foregoing provisions shall not modify, diminish or discharge the liability of Borrower with respect to same; (m) impair the right of Lender to ▇▇▇ for, seek or demand a deficiency judgment against Borrower solely for the purpose of foreclosing the Property or any part thereof, or realizing upon the Default Collateral; provided, however, that any such deficiency judgment referred to in order this clause (m) shall be enforceable against Borrower and Guarantor only to fully realize on the extent of any security given by of the Default Collateral; (n) impair the ability of Lender to bring suit for a monetary judgment against Borrower with respect to any losses resulting from arson or physical waste to or of the Property or damage to the Property in each case resulting from the intentional acts or intentional omissions of Borrower, Guarantor or any of their Affiliates; (o) impair the right of Lender to bring a suit for a monetary judgment against Borrower in connection with the Loan event of the exercise of any right or remedy under any federal, state or local forfeiture laws resulting in the loss of the lien of this Security Instrument, or the priority thereof, against the Property; (including the security granted by the Mortgagep) be deemed a waiver of any right which Lender may have under Sections 506(a), 506(b), 1111(b) or any other assets of Borrower or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against such security (including the Property or any other assets of Borrower).
(a) Nothing contained in this Section 11.22 shall limit the rights of Lender to proceed against Borrower for any of the following (or against Guarantor under the Guaranty, on the additional terms and conditions thereof and subject to any limitations set forth herein or therein):
(i) to enforce any Leases entered into by Borrower or its Affiliates as Tenant;
(ii) to recover damages for fraud, material misrepresentation, material breach of warranty or intentional physical waste;
(iii) to recover any Condemnation Proceeds or Insurance Proceeds or other similar funds which have been misappropriated by Borrower or which, under the terms of the Loan Documents, should have been paid to Lender;
(iv) to recover (A) any Tenant security deposits, Tenant letters of credit or other deposits or fees paid to Borrower or (B) prepaid rents for a period of more than thirty (30) days in advance of its due date which have not been delivered to Lender;
(v) to recover Business Income received by Borrower during an Event of Default which have not been applied to the Loan or in accordance with the Loan Documents to operating and maintenance expenses of the Property;
(vi) to recover damages, costs and expenses arising from, or in connection with the provisions of the Mortgage pertaining to Hazardous Materials or the Environmental Indemnity;
(vii) to recover any amount expended by Lender in connection with the foreclosure of the Mortgage, but only in the event that any Borrower or any Guarantor takes action to impede such foreclosure or otherwise contests the foreclosure in bad faith;
(viii) to recover damages, costs and expenses arising from, or in connection with, the failure by Borrower to pay Taxes and Insurance Premiums when due to the extent that Borrower was not required to deposit such amounts with Lender pursuant to Section 6 hereof, but only to the extent there was available revenue from the Property for the period in question sufficient to pay such Taxes and Insurance Premiums, and provided further that Lender does not prevent such proceeds from being so applied;
(ix) to recover damages, costs and expenses arising from the failure of the representations set forth in Section 3.1.8 to be true or Borrower’s failure to comply with the provisions of Sections 4.2.11 of this Agreement; and
(x) to recover damages, costs and expenses arising from, or in connection with, any Lien arising from a written instrument executed by any Borrower or any Affiliate thereof expressly creating such Lien, to the extent such Lien is prohibited under this Agreement.
(b) Notwithstanding the foregoing, the agreement of Lender not to limit recourse liability as set forth in Section 11.22(a) above SHALL BECOME NULL AND VOID and shall be of no further force and effect and the Debt shall be fully recourse to Borrower (and to Guarantor under the Guaranty, on the additional terms and conditions thereof and subject to any limitations set forth herein or therein) in the event that:
(i) any Borrower commences a voluntary bankruptcy or insolvency proceeding;
(ii) an involuntary bankruptcy or insolvency proceeding is commenced against any Borrower and is not dismissed within 90 days of filing; or
(iii) voluntary Transfer of the Property occurs by written instrument executed by any Borrower or any Affiliate thereof, which instrument expressly effects such Transfer, or a Secondary Financing is voluntarily incurred in violation of the Loan Documents, except as otherwise consented to by Lender in writing (which consent may be withheld in Lender’s sole discretion).
(c) Notwithstanding the provisions of clauses (i) and (ii) of Section 11.22(b) no Guarantor shall be liable for any amount related to a Qualified Involuntary Bankruptcy.
(d) In addition, this agreement shall not waive any rights which Lender would have under any provisions of Title 11 provision of the Bankruptcy Code to file a claim for the full amount of the Debt or to require that the Property all collateral shall continue to secure all of the Debt; (q) impair the right of Lender to bring suit for monetary judgment against Borrower with respect to any losses resulting from any claims, actions or proceedings initiated by Borrower (or any Affiliate of Borrower) alleging that the relationship of Borrower and Lender is that of joint venturers, partners, tenants in common, joint tenants or any relationship other than that of debtor and creditor; (r) impair the right of Lender to bring suit for a monetary judgment with respect to any losses resulting from a Transfer in violation of the provisions of Article IX hereof; (s) impair the right of Lender to bring suit against Borrower for Borrower’s failure to pay any valid taxes, assessments, mechanic’s liens, materialmen’s liens or other liens which could create liens on any portion of the Property superior to the lien or security title of this Security Instrument or the other Loan Documents, except, (1) with respect to any such taxes or assessments, to the extent that funds have been deposited with Lender pursuant to the terms of this Security Instrument specifically for the applicable taxes or assessments and not applied by Lender to pay such taxes and assessments, and (2) to the extent that there is insufficient available cash flow at any time to enable Borrower to pay all operating expenses (including taxes and assessments) then due and payable, necessary property improvement expenditures and amounts due and payable under the Loan Documents (as demonstrated to the reasonable satisfaction of Lender) and Borrower applies all available cash flow to the payment of any one or more of the foregoing item or (t) impair the right of Lender to bring a suit for a monetary judgment against Borrower in that any recordation taxes are due in connection with the recording of this Security Instrument or any penalty payable in connection therewith. The provisions of this Section 18.32 shall be inapplicable to Borrower if (a) any proceeding, action, petition or filing under the Bankruptcy Code, or any similar state or federal law now or hereafter in effect relating to bankruptcy, reorganization or insolvency, or the arrangement or adjustment of debts, shall be filed by, consented to or acquiesced in by or with respect to Borrower, or if Borrower shall institute any proceeding for its dissolution or liquidation, or shall make an assignment for the benefit of creditors or (b) Borrower or any Affiliate contests or interferes with Lender’s enforcement of its rights and remedies hereunder or under the Loan Documents by asserting any defense (x) as to the validity of the obligations under the Loan Documents or in any way relating to the structure of the Borrower or the enforceability of Lender’s rights and remedies under the Loan Documents, or (y) for the purpose of delaying, hindering or impairing Lender’s rights and remedies under the Loan Documents (collectively, a “Contest”) (provided that if any such Person obtains a non-appealable order successfully asserting a Contest, Borrower shall have no liability under this clause (b)), in which event Lender shall have recourse against all of the assets of Borrower including, without limitation, any right, title and interest of Borrower in and to the Property. Section 18.33. Intentionally Deleted Section 18.34. Intentionally Deleted Section 18.35. Intentionally Deleted.
Appears in 1 contract
Exculpation. Subject to the qualifications below, 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, the Confirmation Order or this Agreement, after the Effective Date, neither the Liquidating Trustee nor the Liquidating Trustee’s Agents shall have or incur liability to one another or against any Holder of a Claim or Interest, or any other party in interest, or any of their respective officers, directors, shareholders, members and/or enrollees, employees, representatives, advisors, attorneys, financial advisors, investment bankers, agents, related professionals or affiliates, or any of their successors or assigns, for any act or omission occurring or failing to occur after the Petition Date in connection with, relating to, or arising out of, the Chapter 11 Cases, the negotiation and execution of the Plan, the Disclosure Statement, this Agreement, the Mortgage Asset Purchase Agreement and related sale process, the solicitation of votes for and the pursuit of confirmation of the Plan, the consummation of the Plan, the management of the Liquidating Trust, the liquidation of the Liquidating Trust Assets, the administration of the Plan and/or the property to be distributed under the Plan, including all documents ancillary thereto, all decisions, actions, inactions and alleged negligence or misconduct relating thereto; provided, however, that the foregoing shall not apply if it is determined in a Final Order that the Liquidating Trustee or the Liquidating Trustee’s Agents engaged in fraud, willful misconduct or gross negligence. As of the Effective Date, notwithstanding any provision of the Plan, neither any Holder of a Claim or Interest, nor other Loan Documents by party in interest, nor any of their respective officers, directors, shareholders, members and/or enrollees, employees, representatives, advisors, attorneys, financial advisors, investment bankers, related professionals, agents or affiliates, and no successors or assigns of the foregoing, shall have any right of action or proceeding wherein a money judgment shall be sought against the Borrower or any direct or indirect members, partners or shareholders of Borrower Liquidating Trustee or the employeesLiquidating Trustee’s Agents for any act or omission occurring or failing to occur after the Petition Date in connection with, agentsrelating to, directors or officers arising out of, the Chapter 11 Cases, the negotiation and execution of Borrower or its Affiliatesthe Plan, except that Lender may bring an action against Borrower, including a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender to enforce and realize upon its interest under the NoteDisclosure Statement, this Agreement, the Mortgage Asset Purchase Agreement and related sale process, the solicitation of votes for and the other Loan Documents, or in pursuit of confirmation of the PropertyPlan, the Business Incomemanagement of the Liquidating Trust, the liquidation of Liquidating Trust Assets, the consummation of the Plan, the administration of the Plan and/or the property to be distributed under the Plan, including all documents ancillary thereto, all decisions, actions, inactions and alleged negligence or any other collateral given to Lender pursuant to the Loan Documents or any other assets of Borrowermisconduct relating thereto; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower only to that the extent of Borrower’s interest in the Property, in the Business Income in any other collateral given to Lender or any other assets of Borrower, and Lender, by accepting the Note, this Agreement, the Mortgage and the other Loan Documents, foregoing shall not ▇▇▇ for, seek or demand any deficiency judgment or any other monetary payment against Borrower apply if it is determined in a Final Order that the Liquidating Trustee or the direct or indirect members, partners or shareholders of Borrower or the employees, agents, directors or officers of Borrower or its Affiliates Liquidating Trustee’s Agents engaged in any such action or proceeding under or by reason of or under or in connection with the Note, this Agreement, the 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 Mortgage; (c) affect the validity or enforceability of any guaranty or indemnity made in connection with the Loan (including, without limitation, the Guaranty) or any of the rights and remedies of Lender thereunder; (d) impair the right of Lender to obtain the appointment of a receiver; (e) impair the enforcement of the Assignment of Leases; or (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 Loan (including the security granted by the Mortgage) or any other assets of Borrower or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against such security (including the Property or any other assets of Borrower).
(a) Nothing contained in this Section 11.22 shall limit the rights of Lender to proceed against Borrower for any of the following (or against Guarantor under the Guaranty, on the additional terms and conditions thereof and subject to any limitations set forth herein or therein):
(i) to enforce any Leases entered into by Borrower or its Affiliates as Tenant;
(ii) to recover damages for fraud, material misrepresentation, material breach of warranty willful misconduct or intentional physical waste;
(iii) to recover any Condemnation Proceeds or Insurance Proceeds or other similar funds which have been misappropriated by Borrower or which, under the terms of the Loan Documents, should have been paid to Lender;
(iv) to recover (A) any Tenant security deposits, Tenant letters of credit or other deposits or fees paid to Borrower or (B) prepaid rents for a period of more than thirty (30) days in advance of its due date which have not been delivered to Lender;
(v) to recover Business Income received by Borrower during an Event of Default which have not been applied to the Loan or in accordance with the Loan Documents to operating and maintenance expenses of the Property;
(vi) to recover damages, costs and expenses arising from, or in connection with the provisions of the Mortgage pertaining to Hazardous Materials or the Environmental Indemnity;
(vii) to recover any amount expended by Lender in connection with the foreclosure of the Mortgage, but only in the event that any Borrower or any Guarantor takes action to impede such foreclosure or otherwise contests the foreclosure in bad faith;
(viii) to recover damages, costs and expenses arising from, or in connection with, the failure by Borrower to pay Taxes and Insurance Premiums when due to the extent that Borrower was not required to deposit such amounts with Lender pursuant to Section 6 hereof, but only to the extent there was available revenue from the Property for the period in question sufficient to pay such Taxes and Insurance Premiums, and provided further that Lender does not prevent such proceeds from being so applied;
(ix) to recover damages, costs and expenses arising from the failure of the representations set forth in Section 3.1.8 to be true or Borrower’s failure to comply with the provisions of Sections 4.2.11 of this Agreement; and
(x) to recover damages, costs and expenses arising from, or in connection with, any Lien arising from a written instrument executed by any Borrower or any Affiliate thereof expressly creating such Lien, to the extent such Lien is prohibited under this Agreementgross negligence.
(b) Notwithstanding the foregoing, the agreement of Lender not to limit recourse liability as set forth in Section 11.22(a) above SHALL BECOME NULL AND VOID and shall be of no further force and effect and the Debt shall be fully recourse to Borrower (and to Guarantor under the Guaranty, on the additional terms and conditions thereof and subject to any limitations set forth herein or therein) in the event that:
(i) any Borrower commences a voluntary bankruptcy or insolvency proceeding;
(ii) an involuntary bankruptcy or insolvency proceeding is commenced against any Borrower and is not dismissed within 90 days of filing; or
(iii) voluntary Transfer of the Property occurs by written instrument executed by any Borrower or any Affiliate thereof, which instrument expressly effects such Transfer, or a Secondary Financing is voluntarily incurred in violation of the Loan Documents, except as otherwise consented to by Lender in writing (which consent may be withheld in Lender’s sole discretion).
(c) Notwithstanding the provisions of clauses (i) and (ii) of Section 11.22(b) no Guarantor shall be liable for any amount related to a Qualified Involuntary Bankruptcy.
(d) In addition, this agreement shall not waive any rights which Lender would have under any provisions of Title 11 of the Bankruptcy Code to file a claim for the full amount of the Debt or to require that the Property shall continue to secure all of the Debt.
Appears in 1 contract
Sources: Liquidating Trust Agreement
Exculpation. 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 Mortgage 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 the Borrower or any direct principal, director, officer, employee, beneficiary, shareholder, partner, member, trustee, agent, or indirect members, partners or shareholders affiliate of Borrower (but specifically excluding Guarantor) or any legal representatives, successors or assigns of any of the employeesforegoing (collectively, agents, directors or officers of Borrower or its Affiliatesthe “Exculpated Parties”), except that Lender may bring an action against Borrower, including a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender to enforce and realize upon its interest under the Note, this Agreement, the Mortgage and the other Loan Documents, or in the Property, the Business IncomeRents, or any other collateral given to Lender pursuant to the Loan Documents or any other assets of BorrowerDocuments; 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 Business Income Rents and in any other collateral given to Lender or any other assets of BorrowerLender, and Lender, by accepting the Note, this Agreement, the Mortgage and the other Loan Documents, shall not ▇▇▇ for, seek or demand any deficiency judgment or any other monetary payment against Borrower or any of the direct or indirect members, partners or shareholders of Borrower or the employees, agents, directors or officers of Borrower or its Affiliates Exculpated Parties in any such action or proceeding under or by reason of or under or in connection with the Note, this Agreement, the 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 Mortgage; (c) affect the validity or enforceability of any indemnity, guaranty or indemnity similar instrument made in connection with the Loan (including, without limitation, the Guaranty) or any of the rights and remedies of Lender thereunder; (d) impair the right of Lender to obtain the appointment of a receiver; (e) impair the enforcement of the Assignment of Leases; or (f) impair the right of Lender to enforce Section 4.1.6(g) of this Agreement; (g) 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 Loan (including the security granted by the Mortgage) or any other assets of Borrower Mortgage or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against such security the Property; or (including h) constitute a waiver of the Property or any other assets of Borrower).
(a) Nothing contained in this Section 11.22 shall limit the rights right of Lender to proceed against Borrower for enforce the liability and obligation of Borrower, by money judgment or otherwise, to the extent of any 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 (or against Guarantor under the Guaranty, on the additional terms and conditions thereof and subject to any limitations set forth herein or therein):following:
(i) to enforce fraud or intentional misrepresentation by Borrower, any Leases entered into by Borrower of the Exculpated Parties, Sponsor or its Affiliates as TenantGuarantor in connection with the Loan;
(ii) to recover damages for fraud, material misrepresentation, material breach the gross negligence or willful misconduct of warranty or intentional physical wasteBorrower;
(iii) to recover the breach of any Condemnation Proceeds representation, warranty, covenant or Insurance Proceeds indemnification provision in the Environmental Indemnity or other similar funds which have been misappropriated by Borrower or whichin the Mortgage concerning environmental laws, under the terms hazardous substances and asbestos and any indemnification of the Loan Documents, should have been paid to LenderLender with respect thereto in either document;
(iv) to recover (A) the removal or disposal of any Tenant security deposits, Tenant letters portion of credit or other deposits or fees paid to Borrower or (B) prepaid rents for a period the Property after an Event of more than thirty (30) days in advance of its due date which have not been delivered to LenderDefault;
(v) to recover Business Income received the misapplication, misappropriation or conversion by Borrower during 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, (C) any Rents following an Event of Default which have not been applied or (D) any Tenant security deposits or Rents collected in advance;
(vi) failure to the Loan pay charges for labor or in accordance with the Loan Documents to operating and maintenance expenses materials or other charges that can create Liens on any portion of the Property;
(vi) to recover damages, costs and expenses arising from, or in connection with the provisions of the Mortgage pertaining to Hazardous Materials or the Environmental Indemnity;
(vii) any security deposits, advance deposits or any other deposits collected with respect to recover any amount expended by the Property which are not delivered to Lender in connection with the upon a foreclosure of the MortgageProperty or action in lieu thereof, but only except to the extent any such security deposits were applied in accordance with the event terms and conditions of any of the Leases prior to the occurrence of the Event of Default that any Borrower or any Guarantor takes action gave rise to impede such foreclosure or otherwise contests the foreclosure action in bad faithlieu thereof;
(viii) to recover damagesany representation, costs and expenses arising from, warranty or covenant contained in connection with, the failure by Borrower to pay Taxes and Insurance Premiums when due to the extent that Borrower was not required to deposit such amounts with Lender pursuant to Section 6 hereof, but only to the extent there was available revenue from the Property for the period in question sufficient to pay such Taxes and Insurance Premiums, and provided further that Lender does not prevent such proceeds from being so applied2.5.2 or 6.5 hereof is violated or breached;
(ix) to recover damages, costs and expenses arising from the failure Borrower’s indemnification of the representations Lender set forth in Section 3.1.8 to be true 9.2 of the Security Instrument;
(x) the exercise of any remedies, or the bringing of any action, by the District of Columbia under Section 22.2(b) of the Development Agreement;
(xi) any misstatement or inaccuracy in that certain Real Property Recordation and Transfer Tax Form FP 7/C filed in connection with Mortgage;
(xii) Borrower’s failure to comply deliver evidence satisfactory to Lender evidencing the valid transfer of development rights from the adjoining property to the Property such that the Property shall be in conformance with the provisions building density requirements and zoning regulations of Sections 4.2.11 the District of this Agreement; andColumbia: and/or
(xxiii) to recover damages, costs and expenses arising from, or in connection with, any Lien arising from a written instrument executed by any Borrower or any Affiliate thereof expressly creating such Lien, to the extent such Lien is prohibited under this Agreement.
(b) Notwithstanding the foregoing, the agreement Borrower’s indemnification of Lender not to limit recourse liability as set forth in Section 11.22(a) above SHALL BECOME NULL AND VOID and shall be of no further force and effect and 9.2 hereof. Notwithstanding anything to the Debt shall be fully recourse to Borrower (and to Guarantor under contrary in this Agreement, the Guaranty, on the additional terms and conditions thereof and subject to any limitations set forth herein or therein) in the event that:
(i) any Borrower commences a voluntary bankruptcy or insolvency proceeding;
(ii) an involuntary bankruptcy or insolvency proceeding is commenced against any Borrower and is not dismissed within 90 days of filing; or
(iii) voluntary Transfer of the Property occurs by written instrument executed by any Borrower Note or any Affiliate thereof, which instrument expressly effects such Transfer, or a Secondary Financing is voluntarily incurred in violation of the Loan Documents, except as otherwise consented to by (A) Lender in writing (which consent may be withheld in Lender’s sole discretion).
(c) Notwithstanding the provisions of clauses (i) and (ii) of Section 11.22(b) no Guarantor shall be liable for any amount related to a Qualified Involuntary Bankruptcy.
(d) In addition, this agreement shall not waive be deemed to have waived any rights right which Lender would may have under Section 506(a), 506(b), 1111 (b) or any other provisions of Title 11 of the Bankruptcy Code to file a claim for the full amount of the Debt or to require that the Property shall continue to secure all of the Debt.Code
Appears in 1 contract
Exculpation. Subject to the qualifications below, 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 Agreementno Exculpated Party shall have or incur liability for and each Exculpated Party is hereby released and exculpated from any Cause of Action for any claim related to any act or omission in connection with, relating to, or arising out of, the Mortgage or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against the Borrower or any direct or indirect members, partners or shareholders of Borrower or the employees, agents, directors or officers of Borrower or its Affiliates, except that Lender may bring an action against Borrower, including a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender to enforce and realize upon its interest under the Note, this AgreementChapter 11 Cases, the Mortgage and the other Loan Documentsformulation, preparation, dissemination, negotiation, filing, or in termination of the PropertyRSA and related prepetition transactions, the Business IncomeDIP Facility, the Disclosure Statement, the Plan, the Plan Supplement, the Disinterested Directors’ Settlement, or any Restructuring Transaction, contract, instrument, release, or other collateral given to Lender pursuant to agreement or document (including any legal opinion requested by any Entity regarding any transaction, contract, instrument, document or other agreement contemplated by the Loan Documents or any other assets of 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 Property, in the Business Income in any other collateral given to Lender or any other assets of Borrower, and Lender, by accepting the Note, this Agreement, the Mortgage and the other Loan Documents, shall not ▇▇▇ for, seek or demand any deficiency judgment or any other monetary payment against Borrower Plan or the direct or indirect members, partners or shareholders of Borrower reliance by any Released Party on the Plan or the employees, agents, directors Confirmation Order in lieu of such legal opinion) created or officers of Borrower or its Affiliates in any such action or proceeding under or by reason of or under or entered into in connection with the Note, this AgreementRSA, the Mortgage DIP Facility, the Disclosure Statement, the Plan, the Plan Supplement, the Disinterested Directors’ Settlement, the Chapter 11 Cases, the filing of the Chapter 11 Cases, the pursuit of Confirmation, the pursuit of Consummation, the administration and implementation of the Plan, including the issuance or distribution of securities pursuant to the Plan, or the other Loan Documents. The provisions distribution 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 property under the Mortgage; (c) affect the validity or enforceability of any guaranty or indemnity made in connection with the Loan (including, without limitation, the Guaranty) or any of the rights and remedies of Lender thereunder; (d) impair the right of Lender to obtain the appointment of a receiver; (e) impair the enforcement of the Assignment of Leases; or (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 Loan (including the security granted by the Mortgage) Plan or any other assets of Borrower related agreement, or to commence upon any other appropriate action related act or proceeding omission, transaction, agreement, event, or other occurrence taking place on or before the Effective Date, except for claims related to any act or omission that is determined in order a Final Order by a court competent jurisdiction to have constituted actual fraud, willful misconduct, or gross negligence, but in all respects such Entities shall be entitled to reasonably rely upon the advice of counsel with respect to their duties and responsibilities pursuant to the Plan. The Exculpated Parties and other parties set forth above have, and upon confirmation of the Plan shall be deemed to have, participated in good faith and in compliance with the applicable laws with regard to the solicitation of votes and distribution of consideration pursuant to the Plan and, therefore, are not, and on account of such distributions shall not be, liable at any time for Lender 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 exercise the Plan. Future Source, LLC ▇. ▇. ▇▇▇▇▇▇ Company, Inc. ▇. ▇. ▇▇▇▇▇▇ Corporation, Inc. ▇. ▇. ▇▇▇▇▇▇ de Guatemala, Sociedad Anonimad ▇. ▇. ▇▇▇▇▇▇ de Honduras, S.A. J. ▇. ▇▇▇▇▇▇ Direct Marketing Services, LLC ▇. ▇. ▇▇▇▇▇▇ Export Merchandising Corporation ▇. ▇. ▇▇▇▇▇▇ Business Information Consulting (Shanghai) Co., Ltd. ▇. ▇. ▇▇▇▇▇▇ International, Inc. ▇. ▇. ▇▇▇▇▇▇ Korea ▇. ▇. ▇▇▇▇▇▇ Properties, LLC ▇. ▇. ▇▇▇▇▇▇ Purchasing Corporation ▇. ▇. ▇▇▇▇▇▇ Purchasing Hong Kong Limited ▇. ▇. ▇▇▇▇▇▇ Purchasing India Private Limited ▇. ▇. ▇▇▇▇▇▇ Services India Private Limited JCP Construction Services, Inc. JCP Media, Inc. JCP New Jersey, LLC JCP Procurement, Inc. JCP Real Estate Holdings, LLC JCP Realty, LLC JCP Telecom Systems, Inc. JCPenney Insurance Agency, Inc. JCPenney Puerto Rico, Inc. JCPenney Services, LLC jcpSSC, Inc. The undersigned (“Transferee”) hereby acknowledges that it has read and understands the Restructuring Support Agreement, dated as of (the “Agreement”)1 by and among ▇. ▇. ▇▇▇▇▇▇ Company, Inc. (“JCP”) and its remedies against such security (affiliates and subsidiaries bound thereto and the Consenting First Lien Lenders, including the Property or transferor to the Transferee of any other assets of BorrowerCompany Claims/Interests (each such transferor, a “Transferor”).
(a) Nothing contained in this Section 11.22 shall limit , and agrees to be bound by the rights of Lender to proceed against Borrower for any of the following (or against Guarantor under the Guaranty, on the additional terms and conditions thereof to the extent the Transferor was thereby bound, and subject to any limitations set forth herein or therein):
(i) to enforce any Leases entered into by Borrower or its Affiliates as Tenant;
(ii) to recover damages for fraud, material misrepresentation, material breach of warranty or intentional physical waste;
(iii) to recover any Condemnation Proceeds or Insurance Proceeds or other similar funds which have been misappropriated by Borrower or which, shall be deemed a “Consenting First Lien Lenders” and a [“Consenting Term Lender”] [“Consenting First Lien Noteholder”] under the terms of the Loan Documents, should have been paid Agreement. The Transferee specifically agrees to Lender;
(iv) to recover (A) any Tenant security deposits, Tenant letters of credit or other deposits or fees paid to Borrower or (B) prepaid rents for a period of more than thirty (30) days in advance of its due date which have not been delivered to Lender;
(v) to recover Business Income received be bound by Borrower during an Event of Default which have not been applied to the Loan or in accordance with the Loan Documents to operating terms and maintenance expenses conditions of the Property;
(vi) to recover damages, costs Agreement and expenses arising from, or in connection with the provisions makes all representations and warranties contained therein as of the Mortgage pertaining to Hazardous Materials or the Environmental Indemnity;
(vii) to recover any amount expended by Lender in connection with the foreclosure date of the MortgageTransfer, including the agreement to be bound by the vote of the Transferor if such vote was cast before the effectiveness of the Transfer discussed herein. Date Executed: Name: Title: Address: E-mail address(es): [ABL Loans] First Lien Notes [Second Lien Notes] [Unsecured Notes] Term Loans [Equity Interests] 1 Capitalized terms used but only not otherwise defined herein shall having the meaning ascribed to such terms in the event Agreement. The undersigned (“Joinder Party”) hereby acknowledges that any Borrower or any Guarantor takes action to impede such foreclosure or otherwise contests it has read and understands the foreclosure in bad faith;
Restructuring Support Agreement, dated as of (viiithe “Agreement”),1 by and among ▇. ▇. ▇▇▇▇▇▇ Company, Inc. (“JCP”) to recover damages, costs and expenses arising from, or in connection with, its affiliates and subsidiaries bound thereto and the failure by Borrower to pay Taxes Consenting First Lien Lenders and Insurance Premiums when due to the extent that Borrower was not required to deposit such amounts with Lender pursuant to Section 6 hereof, but only to the extent there was available revenue from the Property for the period in question sufficient to pay such Taxes and Insurance Premiums, and provided further that Lender does not prevent such proceeds from being so applied;
(ix) to recover damages, costs and expenses arising from the failure of the representations set forth in Section 3.1.8 agrees to be true or Borrower’s failure to comply with bound by the provisions of Sections 4.2.11 of this Agreement; and
(x) to recover damages, costs and expenses arising from, or in connection with, any Lien arising from a written instrument executed by any Borrower or any Affiliate thereof expressly creating such Lien, to the extent such Lien is prohibited under this Agreement.
(b) Notwithstanding the foregoing, the agreement of Lender not to limit recourse liability as set forth in Section 11.22(a) above SHALL BECOME NULL AND VOID and shall be of no further force and effect and the Debt shall be fully recourse to Borrower (and to Guarantor under the Guaranty, on the additional terms and conditions thereof to the extent the other Parties are thereby bound, and subject shall be deemed a [“Consenting Term Lender”] [“Consenting First Lien Noteholder”] under the terms of the Agreement. The Joinder Party specifically agrees to be bound by the terms and conditions of the Agreement and makes all representations and warranties contained therein as of the date of this joinder and any limitations set forth herein or therein) further date specified in the event that:
(i) any Borrower commences a voluntary bankruptcy or insolvency proceeding;
(ii) an involuntary bankruptcy or insolvency proceeding is commenced against any Borrower and is not dismissed within 90 days of filing; or
(iii) voluntary Transfer of the Property occurs by written instrument executed by any Borrower or any Affiliate thereof, which instrument expressly effects such Transfer, or a Secondary Financing is voluntarily incurred in violation of the Loan Documents, except as otherwise consented to by Lender in writing (which consent may be withheld in Lender’s sole discretion).
(c) Notwithstanding the provisions of clauses (i) and (ii) of Section 11.22(b) no Guarantor shall be liable for any amount related to a Qualified Involuntary Bankruptcy.
(d) In addition, this agreement shall not waive any rights which Lender would have under any provisions of Title 11 of the Bankruptcy Code to file a claim for the full amount of the Debt or to require that the Property shall continue to secure all of the Debt.Agreement. Date Executed: Name: Title: Address: E-mail address(es):
Appears in 1 contract
Sources: Restructuring Support Agreement (J C Penney Co Inc)
Exculpation. Subject Except with respect to the qualifications matters set forth in subsections (a) and (b) below, Lender's source of satisfaction of the indebtedness evidenced by this Note and all other covenants and obligations under this Note and any other of the Loan Documents shall be limited to the Property, and Lender shall not enforce the liability and obligation seek to procure payment out of Borrower to perform and observe the obligations contained in the Note, this Agreement, the Mortgage or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against the Borrower or any direct or indirect members, partners or shareholders of Borrower or the employees, agents, directors or officers assets of Borrower or its Affiliatesgeneral partners, or seek a judgment (except that Lender as hereinafter provided) for any sums which are or may bring an action against Borrower, including a foreclosure action, an action for specific performance be payable under this Note or any other appropriate action or proceeding to enable Lender to enforce and realize upon its interest under of the Note, this Agreement, the Mortgage and the other Loan Documents, or in claim or seek judgment for any deficiency remaining after foreclosure of the Property, the Business Income, or any other collateral given to Lender pursuant to the Loan Documents or any other assets of BorrowerSecurity Instrument; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower only to that the extent of Borrower’s interest in the Property, in the Business Income in any other collateral given to Lender or any other assets of Borrower, and Lender, by accepting the Note, this Agreement, the Mortgage and the other Loan Documents, foregoing clause shall not ▇▇▇ for, seek or demand any deficiency judgment or any other monetary payment against Borrower or the direct or indirect members, partners or shareholders of Borrower or the employees, agents, directors or officers of Borrower or its Affiliates in any such action or proceeding under or by reason of or under or in connection with the Note, this Agreement, the 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 prejudice the right of Lender to name Borrower as a party defendant in any action enforce the lien of the Security Instrument or suit other security given for foreclosure and sale under the Mortgage; (c) affect the validity payment thereof or enforceability of any guaranty or indemnity made in connection with the Loan (including, without limitation, the Guaranty) or to exercise any of its remedies at law other than the rights and remedies of Lender thereunder; (d) impair the right of Lender to obtain the appointment entry of a receiver; (e) impair the enforcement of the Assignment of Leases; or (f) constitute a prohibition against Lender to seek a deficiency personal money judgment against Borrower in order to fully realize on any security given by Borrower in connection with the Loan (including the security granted by the Mortgage) or any other assets of Borrower or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against such security (including the Property or any other assets of Borrower).. The foregoing notwithstanding:
(a) Nothing contained Borrower and its general partners shall be and remain personally liable for all losses, costs, damages, or expenses incurred by L▇▇▇▇▇ in this Section 11.22 shall limit the rights of Lender to proceed against Borrower for any of the following (or against Guarantor under the Guaranty, on the additional terms and conditions thereof and subject to any limitations set forth herein or therein):instances:
(i) failure to enforce pay or cause to be paid Taxes (except to the extent that Borrower has deposited funds with Lender pursuant to the Security Instrument for the purpose of paying such items) or to pay or cause to be paid charges for labor or materials, or other charges which can create liens on any Leases entered into by Borrower or its Affiliates as Tenantportion of the Property;
(ii) to recover damages for fraudas a result of waste (except ordinary wear and tear), material misrepresentationarson committed or instigated by B▇▇▇▇▇▇▇, material breach any Guarantor or any partner, member or shareholder in Borrower, or a violation of warranty the provisions in the Security Instrument regarding removal, demolition or intentional physical wastestructural alteration of any portion of the Property;
(iii) breach or failure to recover perform or comply with any Condemnation Proceeds of the insurance provisions of the Loan Documents;
(iv) all court costs and reasonable attorneys' fees and costs actually incurred by L▇▇▇▇▇ to the extent that Lender is the prevailing party in any litigation to collect amounts owing pursuant to the provisions of this Section 10;
(v) B▇▇▇▇▇▇▇'s breach or Insurance Proceeds failure to perform or other similar funds which have been misappropriated comply with Section 1.03 (captioned "Hazardous Waste") of the Security Instrument, or Borrower's or any Guarantor's breach or failure to perform or comply with the provisions of the Environmental Indemnification Agreement of even date herewith executed by Borrower for the benefit of Lender;
(vi) misapplication of or which, under failure to deliver to Lender (in accordance with the terms of the Loan Documents), should have been paid to Lender;
the following: (iv) to recover (A1) any Tenant security depositsinsurance or condemnation proceeds; (2) rents, Tenant letters of credit issues or other deposits profits received by B▇▇▇▇▇▇▇/Guarantor or fees paid its agent after L▇▇▇▇▇ makes written demand therefor pursuant to Borrower any Loan Document; or (B3) prepaid rents for a period of more than thirty (30) days in advance of its due date which have not been delivered to Lender;
(v) to recover Business Income received by Borrower during an Event of Default which have not been applied to the Loan or in accordance with the Loan Documents to operating and maintenance expenses of the Property;
(vi) to recover damages, costs and expenses arising from, or in connection with the provisions of the Mortgage pertaining to Hazardous Materials or the Environmental Indemnity;tenant security deposits; or
(vii) to recover violation of any amount expended by Lender in connection with the foreclosure of the Mortgage, but only in the event that any Borrower or any Guarantor takes action to impede such foreclosure or otherwise contests the foreclosure in bad faith;
(viii) to recover damages, costs and expenses arising from, or in connection with, the failure by Borrower to pay Taxes and Insurance Premiums when due to the extent that Borrower was not required to deposit such amounts with Lender pursuant to Section 6 hereof, but only to the extent there was available revenue from the Property for the period in question sufficient to pay such Taxes and Insurance Premiums, and provided further that Lender does not prevent such proceeds from being so applied;
(ix) to recover damages, costs and expenses arising from the failure of the representations set forth in Section 3.1.8 to be true or Borrower’s failure to comply with the provisions of Sections 4.2.11 1.29 and 1.30 (captioned "Single Purpose Entity" and "ERISA", respectively) of this Agreement; and
(x) to recover damages, costs and expenses arising from, or in connection with, any Lien arising from a written instrument executed by any Borrower or any Affiliate thereof expressly creating such Lien, to the extent such Lien is prohibited under this AgreementSecurity Instrument.
(b) Notwithstanding the foregoing, the agreement of Lender not to limit recourse liability as set forth in Section 11.22(a) above SHALL BECOME NULL AND VOID Borrower and its general partners shall be and remain personally liable without exculpation or limitation of no further force liability whatsoever for the entire amount of the indebtedness evidenced by the Note (including all principal, interest, and effect other charges) and the Debt shall be fully recourse all other sums due or to Borrower (and to Guarantor become due under the Guarantyother Loan Documents, on the additional terms and conditions thereof and subject to any limitations set forth herein whether at maturity or therein) by acceleration or otherwise, in the event thatfollowing instances:
(i) violation of any Borrower commences of the provisions of Sections 1.15(c) and (d) of the Security Instrument (captioned, "No Sale/Encumbrance" and "Permitted Transfers", respectively);
(ii) fraud or intentional misrepresentation in connection with the Property, Loan Documents, or Loan Application; or
(iii) the Property or any part thereof becomes an asset in: (1) a voluntary bankruptcy or insolvency proceeding;
proceeding commenced by Borrower; or (ii2) an involuntary bankruptcy or insolvency proceeding is in which: (A) such proceeding was commenced against any Borrower and is not dismissed within 90 days of filing; or
(iii) voluntary Transfer of the Property occurs by written instrument executed by any entity controlling, controlled by or under common control with Borrower (individually or collectively, "Affiliate''), including but not limited to any creditor or claimant acting in concert with Borrower or any Affiliate; or (B) any Affiliate thereof, which instrument expressly effects such Transfer, objects to a motion by Lender for relief from any stay or a Secondary Financing is voluntarily incurred in violation injunction from the foreclosure of the Security Instrument or any other remedial action permitted under the Note, Security Instrument or other Loan Documents, except as otherwise consented to by Lender in writing (which consent may be withheld in Lender’s sole discretion).
(c) Notwithstanding the provisions of clauses (i) and (ii) of Section 11.22(b) no Guarantor shall be liable for any amount related to a Qualified Involuntary Bankruptcy.
(d) In addition, this agreement shall not waive any rights which Lender would have under any provisions of Title 11 of the Bankruptcy Code to file a claim for the full amount of the Debt or to require that the Property shall continue to secure all of the Debt.
Appears in 1 contract
Sources: Loan Agreement (Netreit, Inc.)
Exculpation. 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 Mortgage 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 the Borrower or any direct principal, director, officer, employee, beneficiary, shareholder, partner, member, trustee, agent, or indirect members, partners or shareholders Affiliate of Borrower (but specifically excluding Guarantor) or any legal representatives, successors or assigns of any of the employeesforegoing (collectively, agents, directors or officers of Borrower or its Affiliatesthe “Exculpated Parties”), except that Lender may bring an action against Borrower, including a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender to enforce and realize upon its interest under the Note, this Agreement, the Mortgage Security Instrument and the other Loan Documents, or in the Property, the Business IncomeRents, or any other collateral given to Lender pursuant to the Loan Documents or any other assets of BorrowerDocuments; 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 Business Income Rents and in any other collateral given to Lender or any other assets of BorrowerLender, and Lender, by accepting the Note, this Agreement, the Mortgage Security Instrument and the other Loan Documents, shall not ▇▇▇ for, seek or demand any deficiency judgment or any other monetary payment against Borrower or any of the direct or indirect members, partners or shareholders of Borrower or the employees, agents, directors or officers of Borrower or its Affiliates Exculpated Parties in any such action or proceeding under or by reason of or under or in connection with the Note, this Agreement, the Mortgage 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 MortgageSecurity Instrument; (c3) affect the validity or enforceability of any indemnity, guaranty or indemnity made in connection with the Loan similar instrument (including, without limitation, the Guarantyindemnities set forth in Article 12 hereof, Section 11.2 hereof, in the Guaranty and in 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 of Lender to obtain the appointment of a receiver; (e5) impair the enforcement of the Assignment assignment of Leasesleases and rents contained in the Security Instrument; or (f6) impair the right of Lender to enforce Section 4.12(e) of this Agreement; (7) 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 Loan (including the security granted by the Mortgage) or any other assets of Borrower Security Instrument or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against such security the Property; or (including 8) constitute a waiver of the Property or any other assets of Borrower).
(a) Nothing contained in this Section 11.22 shall limit the rights right of Lender to proceed against Borrower for enforce the liability and obligation of Borrower, by money judgment or otherwise, to the extent of any Losses incurred by Lender (including attorneys’ fees and costs reasonably incurred) arising out of or in connection with any of the following (or against Guarantor under the Guaranty, on the additional terms and conditions thereof and subject to any limitations set forth herein or therein):following:
(i) fraud or intentional misrepresentation or any failure to enforce disclose a material fact by Borrower, any Leases entered into by SPE Component Entity, Guarantor, or any Borrower or its Affiliates as TenantParty in connection with the Loan;
(ii) to recover damages for fraudthe gross negligence or willful misconduct of Borrower, material misrepresentationany SPE Component Entity, material breach Guarantor or any Borrower Party or the commission of warranty a criminal act by Borrower, any SPE Component Entity, Guarantor or intentional physical wasteany Borrower Party which results in any seizure or forfeiture of the Property, or any portion thereof, or Borrower’s interest therein;
(iii) material physical waste to recover the Property caused by the intentional acts or intentional omissions of Borrower, any Condemnation Proceeds SPE Component Entity, Guarantor or Insurance Proceeds any Borrower Party (including, without limitation, any arson or abandonment of the Property) and/or the removal or disposal of any portion of the Property after an Event of Default by Borrower, any SPE Component Entity, Guarantor or any Borrower Party;
(iv) the misapplication, misappropriation 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 similar amounts received in connection with the Condemnation of all or a portion of the Property, (C) any Rents following an Event of Default or (D) any Tenant security deposits or Rents collected more than one (1) month in advance;
(v) failure to pay any Taxes or Other Charges, charges for labor or materials or any other charges that can create liens on any portion of the Property to the extent that the revenue from the Property is sufficient to pay such amounts (other than (x) amounts deposited with Lender as Tax Reserve Funds for Taxes or Other Charges where Lender elects not to apply such funds which have been misappropriated by Borrower toward payment of such Taxes or which, under Other Charges owed or (y) Taxes or Other Charges owed that are contested strictly in accordance with the terms of the Loan Documents, should have been paid to Lender;
(iv) to recover (A) any Tenant security deposits, Tenant letters of credit or other deposits or fees paid to Borrower or (B) prepaid rents for a period of more than thirty (30) days in advance of its due date which have not been delivered to Lender;
(v) to recover Business Income received by Borrower during an Event of Default which have not been applied to the Loan or in accordance with the Loan Documents to operating and maintenance expenses of the Property);
(vi) failure to recover damages, costs and expenses arising from, or in connection maintain insurance as required by this Agreement to the extent that the revenue from the Property is sufficient to pay the Insurance Premiums relating thereto (other than the failure to pay amounts deposited with the provisions Lender as Insurance Reserve Funds for Insurance Premiums to be paid to maintain such insurance where Lender elects not to apply such funds toward payment of the Mortgage pertaining to Hazardous Materials or the Environmental Indemnitysuch Insurance Premiums);
(vii) to recover the breach of any amount expended by Lender in connection with the foreclosure of the Mortgagerepresentation, but only warranty, covenant or indemnification provision in the event that any Borrower Environmental Indemnity, this Agreement or any Guarantor takes action to impede such foreclosure or otherwise contests in the foreclosure Security Instrument, in bad faitheach case, concerning Environmental Laws and Hazardous Substances;
(viii) any fees or commissions paid by Borrower after the occurrence of any Event of Default to recover damagesGuarantor and/or any Affiliate of Borrower and/or Guarantor in violation of the terms of the Note, costs and expenses arising from, or in connection withthis Agreement, the failure by Borrower to pay Taxes and Insurance Premiums when due to Security Instrument or the extent that Borrower was not required to deposit such amounts with Lender pursuant to Section 6 hereof, but only to the extent there was available revenue from the Property for the period in question sufficient to pay such Taxes and Insurance Premiums, and provided further that Lender does not prevent such proceeds from being so appliedother Loan Documents;
(ix) to recover damages, costs and expenses arising from the failure of the representations set forth in Section 3.1.8 to be true or Borrower’s breach of, or failure to comply with, the representations, warranties and covenants contained in Article 15 of this Agreement and/or the provisions of Sections 11.2 and 12.3 hereof;
(x) Borrower 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, the Assignment of Management Agreement and the other Loan Documents or Borrower appoints a new property manager or replaces the property manager other than in accordance with the terms of this Agreement, the Assignment of Management Agreement and the other Loan Documents; and/or
(xi) Borrower’s breach of or failure to comply with the provisions of Sections 4.2.11 of this Agreement; and
(x) any representation, warranty or covenant contained in Article 5 hereof, provided, however, that Borrower shall only be liable to recover damages, costs and expenses arising from, or in connection with, any Lien arising from a written instrument executed by any Borrower or any Affiliate thereof expressly creating such Lien, Lender to the extent any such Lien is prohibited under this Agreementbreach or failure with respect to Article 5 was material and, within fifteen (15) days of notice from Lender, Borrower fails to cure such breach or failure and fails to deliver to Lender a New Non-Consolidation Opinion to the effect that such failure does not negate/impair the opinion previously delivered to Lender.
(bxii) Borrower fails to perform the Environmental Work as and when required pursuant to Section 8.9 hereof.
(xiii) any litigation or other legal proceeding related to the Debt filed by Borrower, any SPE Component Entity, Guarantor or any Borrower Party that delays, opposes, impedes, obstructs, hinders, enjoins or otherwise interferes with or frustrates the efforts of Lender to exercise any rights and remedies available to Lender as provided herein and in the other Loan Documents. Notwithstanding anything to the foregoingcontrary in this Agreement, the agreement of Lender not to limit recourse liability as set forth in Section 11.22(a) above SHALL BECOME NULL AND VOID and shall be of no further force and effect and the Debt shall be fully recourse to Borrower (and to Guarantor under the Guaranty, on the additional terms and conditions thereof and subject to any limitations set forth herein or therein) in the event that:
(i) any Borrower commences a voluntary bankruptcy or insolvency proceeding;
(ii) an involuntary bankruptcy or insolvency proceeding is commenced against any Borrower and is not dismissed within 90 days of filing; or
(iii) voluntary Transfer of the Property occurs by written instrument executed by any Borrower Note or any Affiliate thereof, which instrument expressly effects such Transfer, or a Secondary Financing is voluntarily incurred in violation of the Loan Documents, except as otherwise consented to by (A) Lender in writing (which consent may be withheld in Lender’s sole discretion).
(c) Notwithstanding the provisions of clauses (i) and (ii) of Section 11.22(b) no Guarantor shall be liable for any amount related to a Qualified Involuntary Bankruptcy.
(d) In addition, this agreement shall not waive be deemed to have waived any rights right which Lender would may have under Section 506(a), 506(b), 1111(b) or any other provisions of Title 11 of the Bankruptcy Code to file a claim for the full amount of the Debt or to require that the Property all collateral shall continue to secure all of the DebtDebt owing to Lender in accordance with the Loan Documents, and (B) the Debt shall be fully recourse to Borrower in the event that: (i) if any Prohibited Transfer occurs in violation of Article 6 hereof; (ii) Borrower or any SPE Component Entity files a voluntary petition under the Bankruptcy Code or any other Creditors Rights Laws; (iii) an Affiliate, officer, director, or representative which Controls, directly or indirectly, Borrower or any SPE Component Entity files, or joins in the filing of, an involuntary petition against Borrower or any SPE Component Entity under the Bankruptcy Code or any other Creditors Rights Laws, or solicits or causes to be solicited petitioning creditors for any involuntary petition against Borrower or any SPE Component Entity from any Person; (iv) Borrower or any SPE Component Entity files an answer consenting to or otherwise acquiescing in or joining in any involuntary petition filed against it, by any other Person (other than an involuntary petition filed by Lender) under the Bankruptcy Code or any other Creditors Rights Laws, or solicits or causes to be solicited petitioning creditors for any involuntary petition from any Person; (v) any Affiliate, officer, director, or representative which Controls Borrower or any SPE Component Entity consents to or acquiesces in or joins in an application for the appointment of a receiver or similar arrangement under any Applicable Laws (other than an application for the appointment of a receiver sought by Lender); (vi) Borrower or any SPE Component Entity makes an assignment for the benefit of creditors or admits in any legal proceeding its insolvency or inability to pay its debts as they become due (other than an admission in a legal proceeding commenced by Lender in which Borrower or SPE Component Entity is making a truthful statement upon the advice of counsel which is required to be made in such legal proceeding); (vii) there is substantive consolidation of Borrower or any SPE Component Entity (or any Restricted Party) with any other Person in connection with any federal or state bankruptcy proceeding involving the Guarantor or any of its Affiliates (including, without limitation, as a result or any breach or violation by Borrower of any of the representations, warranties or covenants contained in Article 5 hereof); or (viii) Borrower or any SPE Component Entity (or any Restricted Party) contests or opposes any motion made by Lender to obtain relief from the automatic stay or seeks to reinstate the automatic stay in the event of any federal or state bankruptcy or insolvency proceeding involving the Guarantor or its Affiliates.
Appears in 1 contract
Exculpation. Subject Notwithstanding any provision to the qualifications below, Lender shall not enforce the liability and obligation of Borrower to perform and observe the obligations contained contrary ----------- elsewhere in the Note, this Agreement, the Mortgage or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against the Borrower Agreement or any direct or indirect members, partners or shareholders of Borrower or the employees, agents, directors or officers of Borrower or its Affiliates, except that Lender may bring an action against Borrower, including a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender to enforce and realize upon its interest under the Note, this Agreement, the Mortgage and the other Loan Documents, the Agent shall not have any duties or in the Propertyresponsibilities, the Business Incomeexcept those expressly set forth herein, or any other collateral given to Lender pursuant to the Loan Documents trust or fiduciary relationship with any Bank, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Agreement or any other assets Loan Document or otherwise exist against the Agent. Neither the Agent nor any of Borrower; providedits directors, howeverofficers, thatemployees or agents (collectively, except as specifically provided herein, any judgment in any such action or proceeding the "Related Parties") shall be enforceable against Borrower only liable to the extent of Borrower’s interest in the Property, in the Business Income in any other collateral given --------------- Bank for any action taken or omitted to Lender be taken by it under this Agreement or any other assets Loan Document, or in connection herewith or therewith, except for its own willful misconduct or gross negligence, nor shall the Agent or any of Borrowerthe Related Parties be responsible for any recitals or representations or warranties herein or therein, or for the effectiveness, enforceability, validity, or due execution of this Agreement or any other Loan Document, nor shall the Agent or any of the Related Parties be obligated to make any inquiry respecting the performance by the Principal Companies of their obligations hereunder or thereunder, or to inspect the Properties, books or records of the Principal Companies. The Agent shall be entitled to rely upon advice of counsel concerning legal matters and Lenderupon any notice, consent, certificate, statement, or writing which it believes to be genuine and to have been presented by accepting the Notea proper Person. The Agent shall in all cases be fully protected in acting, or in refraining from acting, under this Agreement, the Mortgage Agreement and the other Loan Documents, shall not ▇▇▇ for, seek or demand any deficiency judgment or any other monetary payment against Borrower or the direct or indirect members, partners or shareholders of Borrower or the employees, agents, directors or officers of Borrower or its Affiliates in any such action or proceeding under or by reason of or under or in connection with the Note, this Agreement, the 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 Mortgage; (c) affect the validity or enforceability of any guaranty or indemnity made in connection with the Loan (including, without limitation, the Guaranty) or any of the rights and remedies of Lender thereunder; (d) impair the right of Lender to obtain the appointment of a receiver; (e) impair the enforcement of the Assignment of Leases; or (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 Loan (including the security granted by the Mortgage) or any other assets of Borrower or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against such security (including the Property or any other assets of Borrower).
(a) Nothing contained in this Section 11.22 shall limit the rights of Lender to proceed against Borrower for any of the following (or against Guarantor under the Guaranty, on the additional terms and conditions thereof and subject to any limitations set forth herein or therein):
(i) to enforce any Leases entered into by Borrower or its Affiliates as Tenant;
(ii) to recover damages for fraud, material misrepresentation, material breach of warranty or intentional physical waste;
(iii) to recover any Condemnation Proceeds or Insurance Proceeds or other similar funds which have been misappropriated by Borrower or which, under the terms of the Loan Documents, should have been paid to Lender;
(iv) to recover (A) any Tenant security deposits, Tenant letters of credit or other deposits or fees paid to Borrower or (B) prepaid rents for a period of more than thirty (30) days in advance of its due date which have not been delivered to Lender;
(v) to recover Business Income received by Borrower during an Event of Default which have not been applied to the Loan or Documents in accordance with the Loan Documents to operating and maintenance expenses a request of the Property;
Required Banks (vi) to recover damages, costs and expenses arising from, or in connection with the provisions of the Mortgage pertaining to Hazardous Materials or the Environmental Indemnity;
(vii) to recover any amount expended by Lender in connection with the foreclosure of the Mortgage, but only in the event that any Borrower or any Guarantor takes action to impede such foreclosure or otherwise contests the foreclosure in bad faith;
(viii) to recover damages, costs and expenses arising from, or in connection with, the failure by Borrower to pay Taxes and Insurance Premiums when due to the extent that Borrower was not required to deposit such amounts with Lender pursuant to Section 6 hereof, but only to the extent there was available revenue from the Property for the period in question sufficient to pay such Taxes and Insurance Premiums, and provided further that Lender does not prevent such proceeds from being so applied;
(ix) to recover damages, costs and expenses arising from the failure of the representations set forth in Section 3.1.8 to be true or Borrower’s failure to comply with the provisions of Sections 4.2.11 of this Agreement; and
(x) to recover damages, costs and expenses arising from, or in connection with, any Lien arising from a written instrument executed by any Borrower or any Affiliate thereof expressly creating such Lienor, to the extent this Agreement requires a higher percentage, such Lien is prohibited under this Agreement.
(b) Notwithstanding the foregoinghigher percentage), the agreement of Lender not and such request and any action taken or failure to limit recourse liability as set forth in Section 11.22(a) above SHALL BECOME NULL AND VOID and act pursuant thereto shall be binding upon all the Banks and all future holders of no further force and effect and the Debt Obligations. The Agent shall be fully recourse justified in failing or refusing to Borrower (and to Guarantor take any action under the Guaranty, on the additional terms and conditions thereof and subject to this Agreement or any limitations set forth herein other Loan Document unless it shall first receive such advice or therein) in the event that:
(i) any Borrower commences a voluntary bankruptcy or insolvency proceeding;
(ii) an involuntary bankruptcy or insolvency proceeding is commenced against any Borrower and is not dismissed within 90 days of filing; or
(iii) voluntary Transfer concurrence of the Property occurs by written instrument executed by any Borrower or any Affiliate thereofRequired Banks (or, which instrument expressly effects to the extent this Agreement requires a higher percentage, such Transfer, or a Secondary Financing is voluntarily incurred in violation of the Loan Documents, except higher percentage) as otherwise consented to by Lender in writing (which consent may be withheld in Lender’s sole discretion)it deems appropriate.
(c) Notwithstanding the provisions of clauses (i) and (ii) of Section 11.22(b) no Guarantor shall be liable for any amount related to a Qualified Involuntary Bankruptcy.
(d) In addition, this agreement shall not waive any rights which Lender would have under any provisions of Title 11 of the Bankruptcy Code to file a claim for the full amount of the Debt or to require that the Property shall continue to secure all of the Debt.
Appears in 1 contract
Sources: Credit Agreement (View Tech Inc)
Exculpation. Subject to the qualifications belowBuyer agrees that it does not have and will not have any claims or causes of action against any disclosed or undisclosed officer, Lender shall not enforce the liability director, employee, trustee, shareholder, partner, member, principal, parent, subsidiary or other affiliate of Seller (herein "Seller's Affiliates") or against any disclosed or undisclosed officer, director, employee, trustee, shareholder, partner, member, principal, parent, subsidiary or other affiliate of WHTS, including, without limitation, Tishman Speyer Properties, L.P. and obligation ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co., or any officer, director, employee, trustee, shareholder, member, partner or principal of Borrower to perform and observe the obligations contained in the Noteany such parent, subsidiary or other affiliate (collectively, "WHTS' Affiliates"), arising out of with this Agreement, the Mortgage Closing Certificates, or the other Loan Documents by transactions contemplated hereby. Buyer agrees to look solely to Seller and its assets and to WHTS and its assets for the satisfaction of any action liability or proceeding wherein a money judgment shall be sought against the Borrower or any direct or indirect members, partners or shareholders of Borrower or the employees, agents, directors or officers of Borrower or its Affiliates, except that Lender may bring an action against Borrower, including a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender to enforce and realize upon its interest obligation arising under the Note, this Agreement, the Mortgage and the other Loan Closing Documents, or the transactions contemplated hereby, or for the performance of any of the covenants, warranties or other agreements contained herein or in the Property, the Business Income, or any other collateral given to Lender pursuant to the Loan Documents or any other assets of 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 Property, in the Business Income in any other collateral given to Lender or any other assets of BorrowerClosing Documents, and Lender, by accepting the Note, further agrees not to ▇▇▇ or otherwise seek to enforce any personal obligation against any of Seller's Affiliates or WHTS' Affiliates with respect to any matters arising out of this Agreement, the Mortgage and the other Loan Closing Documents, shall not ▇▇▇ for, seek or demand any deficiency judgment or any other monetary payment against Borrower or the direct or indirect members, partners or shareholders of Borrower or the employees, agents, directors or officers of Borrower or its Affiliates in any such action or proceeding under or by reason of or under or in connection with the Note, this Agreement, the Mortgage or the other Loan Documentstransactions contemplated hereby. The provisions of this Section shall not10.11, however: , shall not apply to Seller's Affiliates to the extent of the amount a Seller's Affiliate has received after the date of this Agreement, if the remaining funds available to Seller to satisfy the obligations of Seller to Buyer pursuant to this Agreement and the Closing Documents are not at least equal to Five Million Dollars (a$5,000,000) constitute a waiveror such lower amount of liability or potential liability as Seller may have under such agreements. In addition, release or impairment the provisions of any obligation evidenced or secured by this Section 10.11 shall not apply to Tishman Speyer/Travelers Real Estate Venture, L.P. and Whitehall Street Real Estate Limited Partnership IX (collectively, the "Members") to the extent of the amount any of the Loan Documents; (b) impair Members has received from the right proceeds of Lender the transactions which is the subject of the WHTS Agreement, if the remaining funds available to name Borrower as a party defendant in any action or suit for foreclosure and sale under WHTS to satisfy the Mortgage; (c) affect the validity or enforceability obligations of any guaranty or indemnity made in connection with the Loan (including, without limitationWHTS to Buyer pursuant to this Agreement, the GuarantyClosing Documents and the WHTS Agreement are not at least equal to Five Million Dollars ($5,000,000) or any such lower amount of the rights and remedies liability or potential liability as WHTS may have under such agreements. The provisions of Lender thereunder; (d) impair the right of Lender to obtain the appointment of a receiver; (e) impair the enforcement of the Assignment of Leases; or (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 Loan (including the security granted by the Mortgage) or any other assets of Borrower or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against such security (including the Property or any other assets of Borrower).
(a) Nothing contained in this Section 11.22 10.11 shall limit survive the rights termination of Lender to proceed against Borrower for any of this Agreement and the following (or against Guarantor under the Guaranty, on the additional terms and conditions thereof and subject to any limitations set forth herein or therein):
(i) to enforce any Leases entered into by Borrower or its Affiliates as Tenant;
(ii) to recover damages for fraud, material misrepresentation, material breach of warranty or intentional physical waste;
(iii) to recover any Condemnation Proceeds or Insurance Proceeds or other similar funds which have been misappropriated by Borrower or which, under the terms of the Loan Documents, should have been paid to Lender;
(iv) to recover (A) any Tenant security deposits, Tenant letters of credit or other deposits or fees paid to Borrower or (B) prepaid rents for a period of more than thirty (30) days in advance of its due date which have Closing Date. This Section 10.11 will not been delivered to Lender;
(v) to recover Business Income received by Borrower during an Event of Default which have not been applied apply to the Loan or in accordance with parties to the Loan Documents to operating and maintenance expenses of the Property;
(vi) to recover damages, costs and expenses arising from, or in connection with the provisions of the Mortgage pertaining to Hazardous Materials Parking Easement or the Environmental Indemnity;
(vii) to recover any amount expended by Lender in connection with the foreclosure of the Mortgage, but only in the event that any Borrower or any Guarantor takes action to impede such foreclosure or otherwise contests the foreclosure in bad faith;
(viii) to recover damages, costs and expenses arising from, or in connection with, the failure by Borrower to pay Taxes and Insurance Premiums when due to the extent that Borrower was not required to deposit such amounts with Lender pursuant to Section 6 hereof, but only to the extent there was available revenue from the Property for the period in question sufficient to pay such Taxes and Insurance Premiums, and provided further that Lender does not prevent such proceeds from being so applied;
(ix) to recover damages, costs and expenses arising from the failure of the representations set forth in Section 3.1.8 to be true or Borrower’s failure to comply with the provisions of Sections 4.2.11 of this Agreement; and
(x) to recover damages, costs and expenses arising from, or in connection with, any Lien arising from a written instrument executed by any Borrower or any Affiliate thereof expressly creating such Lien, Development Indemnity Agreement to the extent such Lien is prohibited under this claim or cause of action relates solely to the Parking Easement Agreement or the Development Indemnity Agreement, as applicable.
(b) Notwithstanding the foregoing, the agreement of Lender not to limit recourse liability as set forth in Section 11.22(a) above SHALL BECOME NULL AND VOID and shall be of no further force and effect and the Debt shall be fully recourse to Borrower (and to Guarantor under the Guaranty, on the additional terms and conditions thereof and subject to any limitations set forth herein or therein) in the event that:
(i) any Borrower commences a voluntary bankruptcy or insolvency proceeding;
(ii) an involuntary bankruptcy or insolvency proceeding is commenced against any Borrower and is not dismissed within 90 days of filing; or
(iii) voluntary Transfer of the Property occurs by written instrument executed by any Borrower or any Affiliate thereof, which instrument expressly effects such Transfer, or a Secondary Financing is voluntarily incurred in violation of the Loan Documents, except as otherwise consented to by Lender in writing (which consent may be withheld in Lender’s sole discretion).
(c) Notwithstanding the provisions of clauses (i) and (ii) of Section 11.22(b) no Guarantor shall be liable for any amount related to a Qualified Involuntary Bankruptcy.
(d) In addition, this agreement shall not waive any rights which Lender would have under any provisions of Title 11 of the Bankruptcy Code to file a claim for the full amount of the Debt or to require that the Property shall continue to secure all of the Debt.
Appears in 1 contract
Exculpation. Subject Notwithstanding any provision in this Agreement to the qualifications contrary (other than the proviso below), Lender it is agreed and understood that Purchaser shall not enforce look solely to the liability and obligation assets of Borrower to perform and observe the obligations contained Seller in the Note, event of any breach or default by Seller under this Agreement, and not to the Mortgage assets of: (a) any person or the other Loan Documents by any action entity which is a member, manager or proceeding wherein partner in Seller, if Seller is a money judgment shall be sought against the Borrower limited liability company or any direct or indirect members, partners or shareholders of Borrower or the employees, agents, directors or officers of Borrower or its Affiliates, except that Lender may bring an action against Borrower, including a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender to enforce and realize upon its interest under the Note, this Agreement, the Mortgage and the other Loan Documentspartnership, or which otherwise owns or holds any ownership interest in the PropertySeller, the Business Incomedirectly or indirectly (each such partner or other holder or owner of any interest in Seller being referred to herein as a "Subtier Owner"); (b) any person or entity which is a member, manager or partner in or otherwise owns or holds any other collateral given to Lender pursuant to the Loan Documents or any other assets of Borrower; provided, however, that, except as specifically provided herein, any judgment ownership interest in any such action Subtier Owner, whether directly or proceeding shall be enforceable against Borrower only to the extent of Borrower’s interest indirectly; (c) any person or entity serving as an officer, director, employee or otherwise for or in the PropertySeller; or (d) any person or entity serving as an officer, in the Business Income director, employee or otherwise for or in any other collateral given to Lender Subtier Owner. This Agreement is executed by one or more persons (the "Signatories", whether one or more) of Seller solely in their capacities as 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 other assets and all personal liability for any matters or claims of Borrower, and Lender, by accepting the Note, this Agreement, the Mortgage and the other Loan Documents, shall not ▇▇▇ for, seek or demand any deficiency judgment or any other monetary payment against Borrower or the direct or indirect members, partners or shareholders of Borrower or the employees, agents, directors or officers of Borrower or its Affiliates in any such action or proceeding under or by reason of or kind which arise under or in connection with the Note, this Agreement, the 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 Mortgage; (c) affect the validity or enforceability of any guaranty or indemnity made in connection with the Loan (including, without limitation, the Guaranty) or any of the rights and remedies of Lender thereunder; (d) impair the right of Lender to obtain the appointment of a receiver; (e) impair the enforcement of the Assignment of Leases; or (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 Loan (including the security granted by the Mortgage) or any other assets of Borrower or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against such security (including the Property or any other assets of Borrower).
(a) Nothing contained in this Section 11.22 shall limit the rights of Lender to proceed against Borrower for any of the following (or against Guarantor under the Guaranty, on the additional terms and conditions thereof and subject to any limitations set forth herein or therein):
(i) to enforce any Leases entered into by Borrower or its Affiliates as Tenant;
(ii) to recover damages for fraud, material misrepresentation, material breach of warranty or intentional physical waste;
(iii) to recover any Condemnation Proceeds or Insurance Proceeds or other similar funds which have been misappropriated by Borrower or which, under the terms of the Loan Documents, should have been paid to Lender;
(iv) to recover (A) any Tenant security deposits, Tenant letters of credit or other deposits or fees paid to Borrower or (B) prepaid rents for a period of more than thirty (30) days in advance of its due date which have not been delivered to Lender;
(v) to recover Business Income received by Borrower during an Event of Default which have not been applied to the Loan or in accordance with the Loan Documents to operating and maintenance expenses of the Property;
(vi) to recover damages, costs and expenses arising from, or in connection with the provisions of the Mortgage pertaining to Hazardous Materials or the Environmental Indemnity;
(vii) to recover any amount expended by Lender in connection with the foreclosure of the Mortgage, but only in the event that any Borrower or any Guarantor takes action to impede such foreclosure or otherwise contests the foreclosure in bad faith;
(viii) to recover damages, costs and expenses arising from, or in connection with, the failure by Borrower to pay Taxes and Insurance Premiums when due to the extent that Borrower was not required to deposit such amounts with Lender pursuant to Section 6 hereof, but only to the extent there was available revenue from the Property for the period in question sufficient to pay such Taxes and Insurance Premiums, and provided further that Lender does not prevent such proceeds from being so applied;
(ix) to recover damages, costs and expenses arising from the failure of the representations set forth in Section 3.1.8 to be true or Borrower’s failure to comply with the provisions of Sections 4.2.11 result of this Agreement; and
. 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 (xif Seller is a limited liability company or a partnership) to recover damagesand any members, costs managers and expenses arising frompartners of any Subtier Owner (if such Subtier Owner is a limited liability company or a partnership) regardless of whether 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 connection withotherwise. Seller acknowledges that Seller’s obligations with respect to any covenant, any Lien arising from a written instrument executed by any Borrower indemnity, representation or any Affiliate thereof expressly creating such Lien, to the extent such Lien is prohibited warranty under this Agreement.
(b) Notwithstanding Agreement which expressly survives the foregoing, the agreement of Lender not to limit recourse liability as set forth in Section 11.22(a) above SHALL BECOME NULL AND VOID and Closing shall be considered a liability for purposes of no further force and effect and the Debt shall be fully recourse to Borrower (and to Guarantor any member distribution limitation imposed under the Guaranty, on the additional terms and conditions thereof and subject to any limitations set forth herein or therein) in the event that:
(i) any Borrower commences a voluntary bankruptcy or insolvency proceeding;
(ii) an involuntary bankruptcy or insolvency proceeding is commenced against any Borrower and is not dismissed within 90 days of filing; or
(iii) voluntary Transfer of the Property occurs by written instrument executed by any Borrower or any Affiliate thereof, which instrument expressly effects such Transfer, or a Secondary Financing is voluntarily incurred in violation of the Loan Documents, except as otherwise consented to by Lender in writing (which consent may be withheld in Lender’s sole discretion)applicable Texas limited liability laws.
(c) Notwithstanding the provisions of clauses (i) and (ii) of Section 11.22(b) no Guarantor shall be liable for any amount related to a Qualified Involuntary Bankruptcy.
(d) In addition, this agreement shall not waive any rights which Lender would have under any provisions of Title 11 of the Bankruptcy Code to file a claim for the full amount of the Debt or to require that the Property shall continue to secure all of the Debt.
Appears in 1 contract
Sources: Agreement of Sale and Purchase (Stratus Properties Inc)
Exculpation. Subject to the qualifications below, The Lender has and shall not enforce the have no liability and or obligation of Borrower to perform and observe the obligations contained in the Note, this Agreement, the Mortgage whatsoever or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against the Borrower or any direct or indirect members, partners or shareholders of Borrower or the employees, agents, directors or officers of Borrower or its Affiliates, except that Lender may bring an action against Borrower, including a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender to enforce and realize upon its interest under the Note, this Agreement, the Mortgage and the other Loan Documents, or in the Property, the Business Income, or any other collateral given to Lender pursuant to the Loan Documents or any other assets of 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 Property, in the Business Income in any other collateral given to Lender or any other assets of Borrower, and Lender, by accepting the Note, this Agreement, the Mortgage and the other Loan Documents, shall not ▇▇▇ for, seek or demand any deficiency judgment or any other monetary payment against Borrower or the direct or indirect members, partners or shareholders of Borrower or the employees, agents, directors or officers of Borrower or its Affiliates in any such action or proceeding under or by reason of or under or howsoever in connection with the Noteconstruction, completion or management of the Improvements, and has no obligation except to make Loan Advances as provided in this Participation Agreement and the Loan Agreement, and the Mortgage Lender is not obligated to inspect the Improvements; nor is the Lender liable and under no circumstances whatsoever shall the Lender be or become liable for the other Loan Documents. The provisions performance or default of this Section shall notany contractor or subcontractor, however: (a) constitute a waiveror for any failure to construct, release complete, protect or impairment insure the Improvements, or any part thereof, or for the payment of any cost or expense incurred in connection therewith, or for the performance or non-performance of any obligation evidenced or secured by any of the Lessor or the Lessee to the Lender or to any other person, firm or entity without limitation; and nothing, including without limitation, any disbursement of Loan Documents; (b) impair the right Advances or acceptance of Lender to name Borrower any document or instrument, shall be construed as a party defendant in any action representation or suit warranty, express or implied, on the Lender's part. Further, the Lessee shall be solely responsible for foreclosure all aspects of the Lessee's business and sale under the Mortgage; (c) affect the validity or enforceability of any guaranty or indemnity made conduct in connection with the Loan (construction, completion and management of the Improvements including, without limitation, the Guaranty) or any of the rights and remedies of Lender thereunder; (d) impair the right of Lender to obtain the appointment of a receiver; (e) impair the enforcement of the Assignment of Leases; or (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 Loan (including the security granted by the Mortgage) or any other assets of Borrower or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against such security (including the Property or any other assets of Borrower).but not limited to:
(a) Nothing contained in this Section 11.22 shall limit the rights of Lender to proceed against Borrower for any The quality and suitability of the following (or against Guarantor under the Guaranty, on the additional terms Plans and conditions thereof and subject to any limitations set forth herein or therein):
(i) to enforce any Leases entered into by Borrower or its Affiliates as TenantSpecifications;
(iib) to recover damages for fraud, material misrepresentation, material breach Supervision of warranty or intentional physical wastethe work of Construction;
(iiic) to recover any Condemnation Proceeds or Insurance Proceeds or other similar funds which have been misappropriated by Borrower or whichThe qualifications, under the terms financial condition and performance of the Loan Documentsall architects, should have been paid to Lenderengineers, contractors, subcontractors and material suppliers and consultants;
(ivd) Conformance of the work of Construction and the Improvements to recover (A) any Tenant security deposits, Tenant letters the requirements of credit or other deposits or fees paid all Applicable Laws and public and private restrictions and requirements and to Borrower or (B) prepaid rents for a period the requirements of more than thirty (30) days in advance of its due date which have not been delivered to Lenderthis Participation Agreement;
(ve) to recover Business Income received by Borrower during an Event The quality and suitability of Default which have not been applied to the Loan or in accordance with the Loan Documents to operating all materials and maintenance expenses of the Property;
(vi) to recover damages, costs and expenses arising from, or in connection with the provisions of the Mortgage pertaining to Hazardous Materials or the Environmental Indemnity;
(vii) to recover any amount expended by Lender in connection with the foreclosure of the Mortgage, but only in the event that any Borrower or any Guarantor takes action to impede such foreclosure or otherwise contests the foreclosure in bad faith;
(viii) to recover damages, costs and expenses arising from, or in connection with, the failure by Borrower to pay Taxes and Insurance Premiums when due to the extent that Borrower was not required to deposit such amounts with Lender pursuant to Section 6 hereof, but only to the extent there was available revenue from the Property for the period in question sufficient to pay such Taxes and Insurance Premiums, and provided further that Lender does not prevent such proceeds from being so applied;
(ix) to recover damages, costs and expenses arising from the failure of the representations set forth in Section 3.1.8 to be true or Borrower’s failure to comply with the provisions of Sections 4.2.11 of this Agreementworkmanship; and
(xf) The accuracy of all requests for the disbursement proceeds of the Loans and the proper application of disbursed proceeds of the Loan. The Lender shall have no obligation to recover damagessupervise, costs and expenses arising frominspect or inform the Lessee, or in connection with, any Lien arising from a written instrument executed by any Borrower the Lessor or any Affiliate thereof expressly creating third party of any aspect of the work or construction of the Improvements or any other matter referred to above. Any inspection or review made by or on behalf of the Lender shall be made for the purpose of determining whether or not the obligations of the Lessee under this Participation Agreement are being properly discharged, and neither the Lessee, the Lessor nor any third party shall be entitled to rely upon any such Lien, inspection or review. The Lender owes no duty of care to the extent such Lien is prohibited under this Agreement.
(b) Notwithstanding Lessee or the foregoingLessor or any third person to protect against or inform the Lessee, the agreement of Lender not to limit recourse liability as set forth in Section 11.22(a) above SHALL BECOME NULL AND VOID and shall be of no further force and effect and the Debt shall be fully recourse to Borrower (and to Guarantor under the Guaranty, on the additional terms and conditions thereof and subject to Lessor or any limitations set forth herein or therein) in the event that:
(i) any Borrower commences a voluntary bankruptcy or insolvency proceeding;
(ii) an involuntary bankruptcy or insolvency proceeding is commenced against any Borrower and is not dismissed within 90 days of filing; or
(iii) voluntary Transfer third person of the Property occurs by written instrument executed by any Borrower existence of negligent, faulty, inadequate or any Affiliate thereof, which instrument expressly effects such Transfer, defective design or a Secondary Financing is voluntarily incurred in violation construction of the Loan Documents, except as otherwise consented to by Lender in writing (which consent may be withheld in Lender’s sole discretion)Improvements.
(c) Notwithstanding the provisions of clauses (i) and (ii) of Section 11.22(b) no Guarantor shall be liable for any amount related to a Qualified Involuntary Bankruptcy.
(d) In addition, this agreement shall not waive any rights which Lender would have under any provisions of Title 11 of the Bankruptcy Code to file a claim for the full amount of the Debt or to require that the Property shall continue to secure all of the Debt.
Appears in 1 contract
Sources: Master Participation Agreement (Eagle Usa Airfreight Inc)
Exculpation. Subject to the qualifications below, 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 Agreementno Exculpated Party shall have or incur, and each Exculpated Party is released and exculpated from any Cause of Action for any claim related to any act or omission in connection with, relating to, or arising out of, the Mortgage or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against the Borrower or any direct or indirect members, partners or shareholders of Borrower or the employees, agents, directors or officers of Borrower or its Affiliates, except that Lender may bring an action against Borrower, including a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender to enforce and realize upon its interest under the Note, this AgreementChapter 11 Cases, the Mortgage and the other Loan Documentsformulation, preparation, dissemination, negotiation, or in filing of the PropertyRSA and related prepetition transactions, the Business IncomeDisclosure Statement, the Plan, or any Restructuring Transaction, contract, instrument, release or other collateral given to Lender pursuant to the Loan Documents agreement or any other assets of Borrower; provided, however, that, except as specifically provided herein, any judgment in any such action document created or proceeding shall be enforceable against Borrower only to the extent of Borrower’s interest in the Property, in the Business Income in any other collateral given to Lender or any other assets of Borrower, and Lender, by accepting the Note, this Agreement, the Mortgage and the other Loan Documents, shall not ▇▇▇ for, seek or demand any deficiency judgment or any other monetary payment against Borrower or the direct or indirect members, partners or shareholders of Borrower or the employees, agents, directors or officers of Borrower or its Affiliates in any such action or proceeding under or by reason of or under or entered into in connection with the Note, this AgreementDisclosure Statement or the Plan, the Mortgage filing of the Chapter 11 Cases, the pursuit of Confirmation, the pursuit of Consummation, the administration and implementation of the Plan, including the issuance of securities pursuant to the Plan, or the distribution of property under the Plan or any other Loan Documentsrelated agreement, except for claims related to any act or omission that is determined in a final order to have constituted actual fraud or gross negligence, but in all respects such Entities shall be entitled to reasonably rely upon the advice of counsel with respect to their duties and responsibilities pursuant to the Plan. The provisions Exculpated Parties have, and upon completion of this Section the Plan shall be deemed to have, participated in good faith and in compliance with the applicable laws with regard to the solicitation of votes and distribution of consideration pursuant to the Plan and, therefore, are not, however: 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. EXHIBIT B Transfer Agreement PROVISION FOR TRANSFER AGREEMENT The undersigned (“Transferee”) (a) constitute a waiverhereby acknowledges that it has read and understands the Restructuring Support Agreement, release or impairment dated as of any obligation evidenced or secured (the “Agreement”),1 by any and among the Company Parties and each of the Loan Documents; Consenting Stakeholders party thereto, (b) impair desires to acquire the right Claims described below (the “Transferred Claims”) from one of Lender to name Borrower as a party defendant in any action or suit for foreclosure the Consenting Stakeholders (the “Transferor”), and sale under the Mortgage; (c) affect the validity or enforceability of any guaranty or indemnity made in connection with the Loan (including, without limitation, the Guaranty) or any of the rights and remedies of Lender thereunder; (d) impair the right of Lender hereby irrevocably agrees to obtain the appointment of a receiver; (e) impair the enforcement of the Assignment of Leases; or (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 Loan (including the security granted be bound by the Mortgage) or any other assets of Borrower or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against such security (including the Property or any other assets of Borrower).
(a) Nothing contained in this Section 11.22 shall limit the rights of Lender to proceed against Borrower for any of the following (or against Guarantor under the Guaranty, on the additional terms and conditions thereof of the Agreement to the same extent the Transferor was thereby bound with respect to the Transferred Claims, and subject to any limitations set forth herein or therein):
(i) to enforce any Leases entered into by Borrower or its Affiliates as Tenant;
(ii) to recover damages for fraud, material misrepresentation, material breach of warranty or intentional physical waste;
(iii) to recover any Condemnation Proceeds or Insurance Proceeds or other similar funds which have been misappropriated by Borrower or which, shall be deemed a “Consenting Stakeholder” and a [“Consenting Creditor”] / [“Consenting Sponsor”] under the terms of the Loan Documents, should have been paid to Lender;
Agreement. The Transferee hereby specifically and irrevocably agrees (ivi) to recover (A) any Tenant security deposits, Tenant letters of credit or other deposits or fees paid to Borrower or (B) prepaid rents for a period of more than thirty (30) days in advance of its due date which have not been delivered to Lender;
(v) to recover Business Income received be bound by Borrower during an Event of Default which have not been applied to the Loan or in accordance with the Loan Documents to operating terms and maintenance expenses conditions of the Property;
(vi) to recover damages, costs and expenses arising from, or in connection with the provisions of the Mortgage pertaining to Hazardous Materials or the Environmental Indemnity;
(vii) to recover any amount expended by Lender in connection with the foreclosure of the Mortgage, but only in the event that any Borrower or any Guarantor takes action to impede such foreclosure or otherwise contests the foreclosure in bad faith;
(viii) to recover damages, costs and expenses arising from, or in connection with, the failure by Borrower to pay Taxes and Insurance Premiums when due to the extent that Borrower was not required to deposit such amounts with Lender pursuant to Section 6 hereof, but only to the extent there was available revenue from the Property for the period in question sufficient to pay such Taxes and Insurance Premiums, and provided further that Lender does not prevent such proceeds from being so applied;
(ix) to recover damages, costs and expenses arising from the failure of the representations set forth in Section 3.1.8 to be true or Borrower’s failure to comply with the provisions of Sections 4.2.11 of this Agreement; and
(x) to recover damages, costs and expenses arising from, or in connection with, any Lien arising from a written instrument executed by any Borrower or any Affiliate thereof expressly creating such Lien, to the same extent such Lien is prohibited under this Agreement.
(b) Notwithstanding applicable to the foregoingTransferred Claims, the agreement of Lender not to limit recourse liability as set forth in Section 11.22(a) above SHALL BECOME NULL AND VOID and shall be of no further force and effect and the Debt shall be fully recourse to Borrower (and to Guarantor under the Guaranty, on the additional terms and conditions thereof and subject to any limitations set forth herein or therein) in the event that:
(i) any Borrower commences a voluntary bankruptcy or insolvency proceeding;
(ii) an involuntary bankruptcy or insolvency proceeding is commenced against any Borrower and is not dismissed within 90 days of filing; or
(iii) voluntary Transfer to be bound by the vote of the Property occurs by written instrument executed by any Borrower or any Affiliate thereof, which instrument expressly effects such Transfer, or a Secondary Financing is voluntarily incurred in violation Transferor if cast prior to the effectiveness of the Loan Documentstransfer of the Transferred Claims, except as otherwise consented to by Lender provided in writing (which consent may be withheld in Lender’s sole discretion).
(c) Notwithstanding the provisions of clauses (i) Agreement, and (iiiii) that each of Section 11.22(b) no Guarantor the Parties shall be liable an express third-party beneficiary of this Provision for any amount related to a Qualified Involuntary Bankruptcy.
(d) In addition, this agreement Transfer Agreement and shall not waive any rights which Lender have the same recourse against the Transferee under the Agreement as such Party would have under any provisions had against the Transferor with respect to the Transferred Claims. Date Executed: , Print name of Title 11 of the Bankruptcy Code to file a claim for the full amount of the Debt or to require that the Property shall continue to secure all of the Debt.Transferee Name: Title: Address: Attention: Telephone: Facsimile:
Appears in 1 contract
Sources: Restructuring Support Agreement
Exculpation. Subject Notwithstanding any contrary provision hereof, (a) the liability of the Landlord Parties to Tenant shall be limited to an amount equal to Landlord’s interest in the qualifications belowBuilding; (b) Tenant shall look solely to Landlord’s interest in the Building for the recovery of any judgment or award against any Landlord Party; (c) no Landlord Party shall have any personal liability for any judgment or deficiency, Lender and Tenant waives and releases such personal liability on behalf of itself and all parties claiming by, through or under Tenant; and (d) no Landlord Party shall be liable for any injury or damage to, or interference with, Tenant’s business, including loss of profits, loss of rents or other revenues, loss of business opportunity, loss of goodwill or loss of use, or for any form of special or consequential damage. Landlord acknowledges and agrees that Tenant shall not enforce the liability and obligation of Borrower be deemed to perform and observe the obligations contained in the Note, this Agreement, the Mortgage or the other Loan Documents by have waived any action or proceeding wherein a money judgment shall be sought against the Borrower or any direct or indirect members, partners or shareholders of Borrower or the employees, agents, directors or officers of Borrower or its Affiliates, except that Lender may bring an action against Borrower, including a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender to enforce and realize upon its interest under the Note, this Agreement, the Mortgage and the other Loan Documents, or in the Property, the Business Income, or any other collateral given to Lender Claim not otherwise waived pursuant to the Loan Documents or any other assets terms of Borrowerthis Lease. For purposes of this Section 20, “Landlord’s interest in the Building” shall include rents paid by tenants, insurance proceeds, condemnation proceeds, and proceeds from the sale of the Building (collectively, “Owner Proceeds”); 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 Business Income in any other collateral given to Lender or any other assets of Borrower, and Lender, by accepting the Note, this Agreement, the Mortgage and the other Loan Documents, that Tenant shall not ▇▇▇ for, seek or demand be entitled to recover Owner Proceeds from any deficiency judgment or any Landlord Party (other monetary payment against Borrower or the direct or indirect members, partners or shareholders of Borrower or the employees, agents, directors or officers of Borrower or its Affiliates in any such action or proceeding under or by reason of or under or in connection with the Note, this Agreement, the 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 Mortgage; (c) affect the validity or enforceability of any guaranty or indemnity made in connection with the Loan (including, without limitation, the Guaranty) or any of the rights and remedies of Lender thereunder; (d) impair the right of Lender to obtain the appointment of a receiver; (e) impair the enforcement of the Assignment of Leases; or (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 Loan (including the security granted by the Mortgagethan Landlord) or any other assets of Borrower third party after they have been distributed or paid to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against such security (including the Property or any other assets of Borrower).
(a) Nothing contained party; provided further, however, that nothing in this Section 11.22 sentence shall limit the rights diminish any right Tenant may have under Law, as a creditor of Lender Landlord, to proceed against Borrower for any of the following (initiate or against Guarantor under the Guaranty, participate in an action to recover Owner Proceeds from a third party on the additional terms and conditions thereof and subject grounds that such third party obtained such Owner Proceeds when Landlord was, or could reasonably be expected to any limitations set forth herein or therein):
(i) to enforce any Leases entered into by Borrower or its Affiliates as Tenant;
(ii) to recover damages for fraudbecome, material misrepresentation, material breach of warranty or intentional physical waste;
(iii) to recover any Condemnation Proceeds or Insurance Proceeds or other similar funds which have been misappropriated by Borrower or which, under the terms of the Loan Documents, should have been paid to Lender;
(iv) to recover (A) any Tenant security deposits, Tenant letters of credit or other deposits or fees paid to Borrower or (B) prepaid rents for a period of more than thirty (30) days in advance of its due date which have not been delivered to Lender;
(v) to recover Business Income received by Borrower during an Event of Default which have not been applied to the Loan insolvent or in accordance with the Loan Documents a transfer that was preferential or fraudulent as to operating and maintenance expenses of the Property;
(vi) to recover damages, costs and expenses arising from, or in connection with the provisions of the Mortgage pertaining to Hazardous Materials or the Environmental Indemnity;
(vii) to recover Landlord’s creditors. Notwithstanding any amount expended by Lender in connection with the foreclosure of the Mortgage, but only in the event that any Borrower or any Guarantor takes action to impede such foreclosure or otherwise contests the foreclosure in bad faith;
(viii) to recover damages, costs and expenses arising from, or in connection with, the failure by Borrower to pay Taxes and Insurance Premiums when due to the extent that Borrower was not required to deposit such amounts with Lender pursuant to Section 6 contrary provision hereof, but only to the extent there was available revenue from the Property for the period in question sufficient to pay such Taxes and Insurance Premiums, and provided further that Lender does not prevent such proceeds from being so applied;
(ix) to recover damages, costs and expenses arising from the failure of the representations set forth in Section 3.1.8 to be true or Borrower’s failure to comply with the provisions of Sections 4.2.11 of this Agreement; and
(x) to recover damages, costs and expenses arising from, or in connection with, any Lien arising from a written instrument executed by any Borrower or any Affiliate thereof expressly creating such Lien, to the extent such Lien is prohibited under this Agreement.
(b) Notwithstanding the foregoing, the agreement of Lender not to limit recourse liability as set forth in Section 11.22(a) above SHALL BECOME NULL AND VOID and shall be of no further force and effect and the Debt shall be fully recourse to Borrower (and to Guarantor under the Guaranty, on the additional terms and conditions thereof and subject to any limitations set forth herein or therein) in the event that:
(i) any Borrower commences a voluntary bankruptcy or insolvency proceeding;
(ii) an involuntary bankruptcy or insolvency proceeding is commenced against any Borrower and is not dismissed within 90 days of filing; or
(iii) voluntary Transfer of the Property occurs by written instrument executed by any Borrower or any Affiliate thereof, which instrument expressly effects such Transfer, or a Secondary Financing is voluntarily incurred in violation of the Loan Documents, except as otherwise consented to by Lender in writing (which consent may be withheld in Lender’s sole discretion).
(c) Notwithstanding the provisions of clauses (i) and (ii) of Section 11.22(b) no Guarantor Tenant Party shall be liable for any amount related to a Qualified Involuntary Bankruptcyform of special or consequential damage, except as provided in Section 16.
(d) In addition, this agreement shall not waive any rights which Lender would have under any provisions of Title 11 of the Bankruptcy Code to file a claim for the full amount of the Debt or to require that the Property shall continue to secure all of the Debt.
Appears in 1 contract
Sources: Office Lease (Actuate Corp)
Exculpation. Subject to the qualifications below, Lender shall not enforce the liability and obligation of any Borrower or its constituent members, partners, shareholders, directors, employees or agents or the direct or indirect constituent members, partners, shareholders, directors, employees or agents thereof (collectively, the "Borrower Parties") or any other Person, to perform and observe the obligations contained in the Note, this Agreement, the Mortgage Note or any of the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against any of the Borrower Parties or any direct or indirect members, partners or shareholders of Borrower or the employees, agents, directors or officers of Borrower or its Affiliatesother Person, except that Lender may bring an action against Borrower, including a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender to enforce and realize upon its interest under the Note, this Agreement, the Mortgage and the other Loan Documents, or in the Property, the Business Income, Rents or any other collateral given to Lender pursuant to this Agreement and the other Loan Documents or any other assets of BorrowerDocuments; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against the Borrower Parties only to the extent of Borrower’s their interest in the Property, in the Business Income Rents and in any other collateral given to Lender or any other assets of BorrowerLender, and Lender, by accepting the Note, this Agreement, the Mortgage Note and the other Loan Documents, agrees that it shall not ▇▇▇ for, seek or demand any deficiency judgment against any of the Borrower Parties or any other monetary payment against Borrower or the direct or indirect members, partners or shareholders of Borrower or the employees, agents, directors or officers of Borrower or its Affiliates Person in any such action or proceeding under or by reason of or under or in connection with the Note, this Agreement, the Mortgage Note or any of 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 this Agreement, the Note or any of the other Loan Documents; (bii) impair the right of Lender to name any of the Borrower Parties, as a party defendant in any action or suit for foreclosure and sale under the Mortgage; (ciii) affect the validity or enforceability of any guaranty or indemnity made in connection with the Loan (including, without limitation, the Guaranty) or any of the rights and remedies of Lender thereunder; (div) impair the right of Lender to obtain the appointment of a receiver; (ev) impair the enforcement of the Assignment of LeasesLeases and Rents executed in connection herewith; or (fvi) constitute a prohibition against waiver of the right of Lender to seek a deficiency judgment enforce the liability and obligation of Borrowers (but not against Borrower in order to fully realize on any security given by Borrower in connection with the Loan members of Borrowers (including the security granted by the Mortgageother than Guarantor) or their direct or indirect constituent members or partners or any other assets Person), by money judgment or otherwise, to the extent of Borrower any loss, damage, cost, expense, liability, claim or to commence any other appropriate action or proceeding in order for obligation incurred by Lender to exercise its remedies against such security (including the Property or any other assets attorneys’ fees and costs reasonably incurred) arising out of Borrower).
(a) Nothing contained in this Section 11.22 shall limit the rights of Lender to proceed against Borrower for any of the following (or against Guarantor under the Guaranty, on the additional terms and conditions thereof and subject to any limitations set forth herein or therein):
(i) to enforce any Leases entered into by Borrower or its Affiliates as Tenant;
(ii) to recover damages for fraud, material misrepresentation, material breach of warranty or intentional physical waste;
(iii) to recover any Condemnation Proceeds or Insurance Proceeds or other similar funds which have been misappropriated by Borrower or which, under the terms of the Loan Documents, should have been paid to Lender;
(iv) to recover (A) any Tenant security deposits, Tenant letters of credit or other deposits or fees paid to Borrower or (B) prepaid rents for a period of more than thirty (30) days in advance of its due date which have not been delivered to Lender;
(v) to recover Business Income received by Borrower during an Event of Default which have not been applied to the Loan or in accordance with the Loan Documents to operating and maintenance expenses of the Property;
(vi) to recover damages, costs and expenses arising from, or in connection with the provisions of the Mortgage pertaining to Hazardous Materials or the Environmental Indemnity;following:
(viia) to recover any amount expended fraud or intentional misrepresentation by Lender in connection with the foreclosure of the Mortgage, but only in the event that any Borrower or any Guarantor takes action to impede such foreclosure or otherwise contests in connection with the foreclosure in bad faithLoan;
(viiib) to recover damagesintentional physical waste of the Property (including, costs and expenses arising frombut not limited to, or in connection with, the failure by Borrower to pay Taxes and Insurance Premiums when waste due to the extent that Borrower was not required to deposit such amounts with Lender pursuant to Section 6 hereof, but only to the extent there was available revenue from the Property for the period in question sufficient to pay such Taxes and Insurance Premiums, and provided further that Lender does not prevent such proceeds from being so applied;
(ixgross negligence) to recover damages, costs and expenses arising from the failure of the representations set forth in Section 3.1.8 to be true or Borrower’s failure to comply with the provisions of Sections 4.2.11 of this Agreement; and
(x) to recover damages, costs and expenses arising from, or in connection with, any Lien arising from a written instrument executed by any Borrower or any Affiliate thereof expressly creating affiliate thereof; provided, however, such Lien, physical waste shall exclude wear and tear to the extent such Lien is prohibited under this Agreement.
(b) Notwithstanding the foregoing, the agreement of Lender not to limit recourse liability as set forth in Section 11.22(a) above SHALL BECOME NULL AND VOID and shall be of no further force and effect and the Debt shall be fully recourse to Borrower (and to Guarantor under the Guaranty, on the additional terms and conditions thereof and subject to any limitations set forth herein or therein) Property that occurs in the event that:
(i) any Borrower commences a voluntary bankruptcy or insolvency proceeding;
(ii) an involuntary bankruptcy or insolvency proceeding is commenced against any Borrower and is not dismissed within 90 days ordinary course of filing; or
(iii) voluntary Transfer business of the Property occurs by written instrument executed by any Borrower or any Affiliate affiliate thereof, which instrument expressly effects such Transfer, or a Secondary Financing is voluntarily incurred in violation of the Loan Documents, except as otherwise consented to by Lender in writing (which consent may be withheld in Lender’s sole discretion).;
(c) Notwithstanding the provisions material breach of clauses (i) any representation, warranty, covenant or indemnification provision in that certain Environmental and (ii) Hazardous Substance Indemnification Agreement of Section 11.22(b) no Guarantor shall be liable for any amount related even date herewith given by Borrowers to a Qualified Involuntary Bankruptcy.Lender or in this Agreement concerning Environmental Laws, Hazardous Substances and Asbestos;
(d) In addition, this agreement shall not waive the removal or disposal by any rights which Lender would have under Borrower or any provisions affiliate thereof of Title 11 any portion of the Bankruptcy Code Property after an Event of Default, unless such portion of the Property is replaced by an item of equal or greater value as determined by Lender in its reasonable discretion;
(e) the misapplication or conversion by any Borrower or any affiliate thereof of (i) any insurance proceeds paid by reason of any loss, damage or destruction to the Property, (ii) any awards or other amounts received in connection with the condemnation of all or a portion of the Property, (iii) any Rents following an Event of Default or (iv) any Rents paid more than one month in advance; 84
(f) failure to pay charges for labor or materials or taxes or other charges that can create liens superior to the lien of the Mortgage on any portion of the Property unless such taxes or other charges are being contested in accordance herewith or such charges have been delivered to Lender in accordance with Section 3.3; and
(g) any security deposits collected by Borrowers or any affiliate thereof with respect to the Property which are not delivered to Lender upon a foreclosure of the 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.
(1) a receiver (other than a receiver appointed by Lender), liquidator or trustee of any Borrower or Guarantor shall be appointed which is not dismissed within ninety (90) days, or (2) if any petition for bankruptcy, reorganization or arrangement pursuant to federal bankruptcy law, or any similar federal or state law, shall be filed by any Borrower or Guarantor, or (3) if Borrower or Guarantor files an answer consenting to, or otherwise joining in, any involuntary petition for bankruptcy, reorganization or arrangement pursuant to federal bankruptcy law, or any similar federal or state law filed against it by any other Person, or is found pursuant to a final, unappealable order of a court of competent jurisdiction to have solicited or caused to be solicited creditors to file any involuntary petition for bankruptcy, reorganization or arrangement pursuant to federal bankruptcy law, or any similar federal or state law against any Borrower or Guarantor, or (4) if any Borrower or Guarantor are found, pursuant to a claim for the full amount final unappealable order of the Debt a court of competent jurisdiction, to have been in collusion with creditors that initiate a bankruptcy action or to require that the Property shall continue to secure all of the Debtproceeding against a Borrower or Guarantor.
Appears in 1 contract
Exculpation. Subject to the qualifications below, The Lender has and shall not enforce the have no liability and or obligation of Borrower to perform and observe the obligations contained in the Note, this Agreement, the Mortgage whatsoever or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against the Borrower or any direct or indirect members, partners or shareholders of Borrower or the employees, agents, directors or officers of Borrower or its Affiliates, except that Lender may bring an action against Borrower, including a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender to enforce and realize upon its interest under the Note, this Agreement, the Mortgage and the other Loan Documents, or in the Property, the Business Income, or any other collateral given to Lender pursuant to the Loan Documents or any other assets of 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 Property, in the Business Income in any other collateral given to Lender or any other assets of Borrower, and Lender, by accepting the Note, this Agreement, the Mortgage and the other Loan Documents, shall not ▇▇▇ for, seek or demand any deficiency judgment or any other monetary payment against Borrower or the direct or indirect members, partners or shareholders of Borrower or the employees, agents, directors or officers of Borrower or its Affiliates in any such action or proceeding under or by reason of or under or howsoever in connection with the Noteconstruction, completion or management of the Improvements, and has no obligation except to make Loan Advances as provided in this Participation Agreement and the Loan Agreement, and the Mortgage Lender is not obligated to inspect the Improvements; nor is the Lender liable and under no circumstances whatsoever shall the Lender be or become liable for the other Loan Documents. The provisions performance or default of this Section shall notany contractor or subcontractor, however: (a) constitute a waiveror for any failure to construct, release complete, protect or impairment insure the Improvements, or any part thereof, or for the payment of any cost or expense incurred in connection therewith, or for the performance or non-performance of any obligation evidenced or secured by any of the Lessor or the Lessee to the Lender or to any other person, firm or entity without limitation; and nothing, including without limitation, any disbursement of Loan Documents; (b) impair the right Advances or acceptance of Lender to name Borrower any document or instrument, shall be construed as a party defendant in any action representation or suit warranty, express or implied, on the Lender's part. Further, the Lessee shall be solely responsible for foreclosure all aspects of the Lessee's business and sale under the Mortgage; (c) affect the validity or enforceability of any guaranty or indemnity made conduct in connection with the Loan (construction, completion and management of the Improvements including, without limitation, the Guaranty) or any of the rights and remedies of Lender thereunder; (d) impair the right of Lender to obtain the appointment of a receiver; (e) impair the enforcement of the Assignment of Leases; or (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 Loan (including the security granted by the Mortgage) or any other assets of Borrower or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against such security (including the Property or any other assets of Borrower).but not limited to:
(a) Nothing contained in this Section 11.22 shall limit the rights of Lender to proceed against Borrower for any The quality and suitability of the following (or against Guarantor under the Guaranty, on the additional terms Plans and conditions thereof and subject to any limitations set forth herein or therein):
(i) to enforce any Leases entered into by Borrower or its Affiliates as TenantSpecifications;
(iib) to recover damages for fraud, material misrepresentation, material breach Supervision of warranty or intentional physical wastethe work of Construction;
(iiic) to recover any Condemnation Proceeds or Insurance Proceeds or other similar funds which have been misappropriated by Borrower or whichThe qualifications, under the terms financial condition and performance of the Loan Documentsall architects, should have been paid to Lenderengineers, contractors, subcontractors and material suppliers and consultants;
(ivd) Conformance of the work of Construction and the Improvements to recover (A) any Tenant security deposits, Tenant letters the requirements of credit or other deposits or fees paid all Applicable Laws and public and private restrictions and requirements and to Borrower or (B) prepaid rents for a period the requirements of more than thirty (30) days in advance of its due date which have not been delivered to Lenderthis Participation Agreement;
(ve) to recover Business Income received by Borrower during an Event The quality and suitability of Default which have not been applied to the Loan or in accordance with the Loan Documents to operating all materials and maintenance expenses of the Property;
(vi) to recover damages, costs and expenses arising from, or in connection with the provisions of the Mortgage pertaining to Hazardous Materials or the Environmental Indemnity;
(vii) to recover any amount expended by Lender in connection with the foreclosure of the Mortgage, but only in the event that any Borrower or any Guarantor takes action to impede such foreclosure or otherwise contests the foreclosure in bad faith;
(viii) to recover damages, costs and expenses arising from, or in connection with, the failure by Borrower to pay Taxes and Insurance Premiums when due to the extent that Borrower was not required to deposit such amounts with Lender pursuant to Section 6 hereof, but only to the extent there was available revenue from the Property for the period in question sufficient to pay such Taxes and Insurance Premiums, and provided further that Lender does not prevent such proceeds from being so applied;
(ix) to recover damages, costs and expenses arising from the failure of the representations set forth in Section 3.1.8 to be true or Borrower’s failure to comply with the provisions of Sections 4.2.11 of this Agreementworkmanship; and
(xf) The accuracy of all requests for the disbursement of Loan proceeds and the proper application of disbursed Loan proceeds. The Lender shall have no obligation to recover damagessupervise, costs and expenses arising frominspect or inform the Lessee, or in connection with, any Lien arising from a written instrument executed by any Borrower the Lessor or any Affiliate thereof expressly creating third party of any aspect of the work or construction of the Improvements or any other matter referred to above. Any inspection or review made by or on behalf of the Lender shall be made for the purpose of determining whether or not the obligations of the Lessee under this Participation Agreement are being properly discharged, and neither the Lessee, the Lessor nor any third party shall be entitled to rely upon any such Lien, inspection or review. The Lender owes no duty of care to the extent such Lien is prohibited under this Agreement.
(b) Notwithstanding Lessee or the foregoingLessor or any third person to protect against or inform the Lessee, the agreement of Lender not to limit recourse liability as set forth in Section 11.22(a) above SHALL BECOME NULL AND VOID and shall be of no further force and effect and the Debt shall be fully recourse to Borrower (and to Guarantor under the Guaranty, on the additional terms and conditions thereof and subject to Lessor or any limitations set forth herein or therein) in the event that:
(i) any Borrower commences a voluntary bankruptcy or insolvency proceeding;
(ii) an involuntary bankruptcy or insolvency proceeding is commenced against any Borrower and is not dismissed within 90 days of filing; or
(iii) voluntary Transfer third person of the Property occurs by written instrument executed by any Borrower existence of negligent, faulty, inadequate or any Affiliate thereof, which instrument expressly effects such Transfer, defective design or a Secondary Financing is voluntarily incurred in violation construction of the Loan Documents, except as otherwise consented to by Lender in writing (which consent may be withheld in Lender’s sole discretion)Improvements.
(c) Notwithstanding the provisions of clauses (i) and (ii) of Section 11.22(b) no Guarantor shall be liable for any amount related to a Qualified Involuntary Bankruptcy.
(d) In addition, this agreement shall not waive any rights which Lender would have under any provisions of Title 11 of the Bankruptcy Code to file a claim for the full amount of the Debt or to require that the Property shall continue to secure all of the Debt.
Appears in 1 contract
Exculpation. Subject to the qualifications below(a) The Agent shall have no duties or responsibilities, Lender implied by application of law or otherwise, except those expressly set out in this Agreement. The Agent shall not enforce be required to make any decision or take any action which may expose it to personal liability or which, in its sole discretion, may be contrary to this Agreement or any Applicable Law. As between the liability Agent and each of the Lenders, neither the Agent nor any of its officers, directors, employees or agents shall be liable for any action taken or omitted to be taken under the Loan Documents or in connection with the Loan Documents, unless caused by their fraudulent conduct or wilful misconduct. Nothing in this Agreement or any of the Loan Documents, expressed or implied, is intended to, or shall be construed in any way so as to, impose upon the Agent any obligation except as expressly set out in this Agreement or the Loan Documents. Without limiting the generality of Borrower to perform and observe the obligations contained in the Note, this Agreementforegoing, the Mortgage Agent shall not be responsible for any calculation, recitals, statements, representations or the other Loan Documents warranties made by any action or proceeding wherein a money judgment shall be sought against the Borrower or any direct Guarantor in the Loan Documents or indirect members, partners which may be contained in any Loan Document subsequently entered into by the Agent or shareholders of Borrower in any verbal or written information provided by the employees, agents, directors or officers of Borrower or its Affiliates, except that Lender may bring an action against Borrower, including a foreclosure action, an action for specific performance any Guarantor or any other appropriate action Subsidiary thereof for the benefit of the Lenders or proceeding to enable Lender to enforce and realize upon its interest under for the Noteauthorization, this Agreementexecution, the Mortgage and the other Loan Documentseffectiveness, genuineness, validity or in the Property, the Business Income, or any other collateral given to Lender pursuant to enforceability of the Loan Documents or any other assets instruments and agreements referred to therein and shall not be required to make any inquiry or investigation concerning the performance, compliance or observance of Borrower; providedany of the terms, however, that, except as specifically provided herein, any judgment in any such action provisions or proceeding shall be enforceable against Borrower only to conditions of the extent of Borrower’s interest in the Property, in the Business Income in any other collateral given to Lender Loan Documents or any other assets instruments or agreements referred to therein or arising therefrom.
(b) Each of Borrowerthe Lenders severally represents and warrants to the Agent that it has made and shall continue to make such independent investigation of the financial condition and affairs of the Borrower and the Guarantors as such Lender deems for itself to be appropriate in connection with any of the Loan Documents and the making and continuance of Advances under the Credit Facilities, that such Lender has and Lendershall continue to make its own appraisal of the creditworthiness of the Borrower and the Guarantors and that such Lender in connection with such investigation and appraisal has not relied upon any information provided to such Lender by the Agent, including any legal advice provided to the Agent by its counsel. The Agent may at any time request instructions or directions from the Lenders with respect to any actions or approvals which, by accepting the Note, terms of this Agreement, the Mortgage Agent is permitted or required to take or to grant, and the other Loan Documents, Agent shall be absolutely entitled to refrain from taking any action or to withhold any approval and shall not ▇▇▇ for, seek or demand be under any deficiency judgment or liability whatsoever to any other monetary payment against Borrower or the direct or indirect members, partners or shareholders of Borrower or the employees, agents, directors or officers of Borrower or its Affiliates in Lender for refraining from taking any such action or proceeding withholding any approval under the Loan Documents until it has received such written instructions or directions from the Lenders. No Lender shall have any right of action or recourse whatsoever against the Agent as a result of the Agent acting or refraining from acting under any of the Loan Documents in accordance with instructions or directions received from the Lenders. The Lenders have reviewed the consequences of entering into and performing obligations and receiving amounts under this Agreement, including the Canadian income tax consequences in respect thereof, and are not relying on any information provided by reason the Agent, including any legal or tax advice provided to the Agent by its counsel.
(c) The Agent may consult with its own legal counsel, Borrower's Counsel, independent public accountants and other experts and advisors selected by it and shall not be liable for any action taken or omitted to be taken in good faith in accordance with the advice of such counsel, accountants, experts or under advisors.
(d) The Agent does not make any warranty or representation to any Lender and is not responsible to any Lender for the accuracy or completeness of any information or data made available to the Lender in connection with the syndication of the Credit Facilities, or for any statements, warranties or representations (whether written or oral) made in or in connection with the Note, this Agreement, the 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 Agent shall have no duty to ascertain or to enquire as to the right of Lender to name Borrower as a party defendant in any action performance or suit for foreclosure and sale under the Mortgage; (c) affect the validity or enforceability observation of any guaranty of the terms, covenants or indemnity made in connection with conditions of the Loan (Documents, where applicable. The Agent shall not be responsible to any Lender for the due execution, legality, validity, enforcement, genuineness, sufficiency or value of any of the Loan Documents and shall not have any duty to procure funds for any payment required hereunder, including, without limitation, the Guaranty) or by charging any account of the rights and remedies of Lender thereunder; (d) impair the right of Lender to obtain the appointment of a receiver; (e) impair the enforcement of the Assignment of Leases; or (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 maintained with the Loan (including the security granted by the Mortgage) or any other assets of Borrower or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against such security (including the Property or any other assets of Borrower).
(a) Nothing contained in this Section 11.22 shall limit the rights of Lender to proceed against Borrower Agent for any of the following (or against Guarantor under the Guaranty, on the additional terms and conditions thereof and subject to any limitations set forth herein or therein):
(i) to enforce any Leases entered into by Borrower or its Affiliates as Tenant;
(ii) to recover damages for fraud, material misrepresentation, material breach of warranty or intentional physical waste;
(iii) to recover any Condemnation Proceeds or Insurance Proceeds or other similar funds which have been misappropriated by Borrower or which, under the terms of the Loan Documents, should have been paid to Lender;
(iv) to recover (A) any Tenant security deposits, Tenant letters of credit or other deposits or fees paid to Borrower or (B) prepaid rents for a period of more than thirty (30) days in advance of its due date which have not been delivered to Lender;
(v) to recover Business Income received by Borrower during an Event of Default which have not been applied to the Loan or in accordance with the Loan Documents to operating and maintenance expenses of the Property;
(vi) to recover damages, costs and expenses arising from, or in connection with the provisions of the Mortgage pertaining to Hazardous Materials or the Environmental Indemnity;
(vii) to recover any amount expended by Lender in connection with the foreclosure of the Mortgage, but only in the event that any Borrower or any Guarantor takes action to impede such foreclosure or otherwise contests the foreclosure in bad faith;
(viii) to recover damages, costs and expenses arising from, or in connection with, the failure by Borrower to pay Taxes and Insurance Premiums when due to the extent that Borrower was not required to deposit such amounts with Lender pursuant to Section 6 hereof, but only to the extent there was available revenue from the Property for the period in question sufficient to pay such Taxes and Insurance Premiums, and provided further that Lender does not prevent such proceeds from being so applied;
(ix) to recover damages, costs and expenses arising from the failure of the representations set forth in Section 3.1.8 to be true or Borrower’s failure to comply with the provisions of Sections 4.2.11 of this Agreement; and
(x) to recover damages, costs and expenses arising from, or in connection with, any Lien arising from a written instrument executed by any Borrower or any Affiliate thereof expressly creating such Lien, to the extent such Lien is prohibited under this AgreementLenders hereunder.
(b) Notwithstanding the foregoing, the agreement of Lender not to limit recourse liability as set forth in Section 11.22(a) above SHALL BECOME NULL AND VOID and shall be of no further force and effect and the Debt shall be fully recourse to Borrower (and to Guarantor under the Guaranty, on the additional terms and conditions thereof and subject to any limitations set forth herein or therein) in the event that:
(i) any Borrower commences a voluntary bankruptcy or insolvency proceeding;
(ii) an involuntary bankruptcy or insolvency proceeding is commenced against any Borrower and is not dismissed within 90 days of filing; or
(iii) voluntary Transfer of the Property occurs by written instrument executed by any Borrower or any Affiliate thereof, which instrument expressly effects such Transfer, or a Secondary Financing is voluntarily incurred in violation of the Loan Documents, except as otherwise consented to by Lender in writing (which consent may be withheld in Lender’s sole discretion).
(c) Notwithstanding the provisions of clauses (i) and (ii) of Section 11.22(b) no Guarantor shall be liable for any amount related to a Qualified Involuntary Bankruptcy.
(d) In addition, this agreement shall not waive any rights which Lender would have under any provisions of Title 11 of the Bankruptcy Code to file a claim for the full amount of the Debt or to require that the Property shall continue to secure all of the Debt.
Appears in 1 contract
Exculpation. Subject to the qualifications below, Lender (a) Optionee agrees that it shall not enforce the liability and obligation of Borrower Optionor to perform and observe the obligations contained in the Note, this Agreement, the Mortgage or the other Loan Documents Agreement by any action or proceeding wherein a money judgment shall be sought against the Borrower or any direct or indirect members, partners or shareholders of Borrower or the employees, agents, directors or officers of Borrower or its Affiliates, except that Lender may bring an action against Borrower, including a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender to enforce and realize upon its interest under the Note, this Agreement, the Mortgage and the other Loan Documents, or in the Property, the Business Income, or any other collateral given to Lender pursuant to the Loan Documents or any other assets of Borrower; provided, however, that, except Optionor 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 Property, in the Business Income in any other collateral given to Lender or any other assets of Borrowerhereinafter defined), and Lender, by accepting the Note, this Agreement, the Mortgage and the other Loan Documents, shall not ▇s▇▇ for, seek or demand any deficiency money judgment or against any other monetary payment against Borrower or the direct or indirect membersmember, partners manager, shareholder, partner, beneficiary or shareholders other owner of Borrower beneficial ownership interests in Optionor, or any director, officer, agent, attorney, employee or trustee of any of the employeesforegoing (each, agentsan “Optionor Exculpated Party” and, directors or officers of Borrower or its Affiliates in any such action or proceeding collectively, the “Optionor Exculpated Parties”) under or by reason of or under or in connection with the Note, this Agreement, the Mortgage or the other Loan Documents. The provisions of this Section 21(a) shall not, however: , (ai) constitute a waiver, release or impairment of any obligation evidenced of Optionor hereunder; or secured by any of the Loan Documents; (bii) impair the right of Lender Optionee to name Borrower Optionor as a party defendant in any action or suit for foreclosure and sale under the Mortgage; (c) affect the validity or enforceability of any guaranty or indemnity made in connection with the Loan (including, without limitation, the Guaranty) or any of the rights and remedies of Lender thereunder; (d) impair the right of Lender to obtain the appointment of a receiver; (e) impair the enforcement of the Assignment of Leases; or (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 Loan (including the security granted by the Mortgage) or any other assets of Borrower or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against such security (including the Property or any other assets of Borrower).
(a) Nothing contained in this Section 11.22 shall limit the rights of Lender to proceed against Borrower for any of the following (or against Guarantor under the Guaranty, on the additional terms and conditions thereof and subject to any limitations set forth herein or therein):
(i) to enforce any Leases entered into by Borrower or its Affiliates as Tenant;
(ii) to recover damages for fraud, material misrepresentation, material breach of warranty or intentional physical waste;
(iii) to recover any Condemnation Proceeds or Insurance Proceeds or other similar funds which have been misappropriated by Borrower or which, under the terms of the Loan Documents, should have been paid to Lender;
(iv) to recover (A) any Tenant security deposits, Tenant letters of credit or other deposits or fees paid to Borrower or (B) prepaid rents for a period of more than thirty (30) days in advance of its due date which have not been delivered to Lender;
(v) to recover Business Income received by Borrower during an Event of Default which have not been applied to the Loan or in accordance with the Loan Documents to operating and maintenance expenses of the Property;
(vi) to recover damages, costs and expenses arising from, or in connection with the provisions of the Mortgage pertaining to Hazardous Materials or the Environmental Indemnity;
(vii) to recover any amount expended by Lender in connection with the foreclosure of the Mortgage, but only in the event that any Borrower or any Guarantor takes action to impede such foreclosure or otherwise contests the foreclosure in bad faith;
(viii) to recover damages, costs and expenses arising from, or in connection with, the failure by Borrower to pay Taxes and Insurance Premiums when due to the extent that Borrower was not required to deposit such amounts with Lender pursuant to Section 6 hereof, but only to the extent there was available revenue from the Property for the period in question sufficient to pay such Taxes and Insurance Premiums, and provided further that Lender does not prevent such proceeds from being so applied;
(ix) to recover damages, costs and expenses arising from the failure of the representations set forth in Section 3.1.8 to be true or Borrower’s failure to comply with the provisions of Sections 4.2.11 of this Agreement; and
(x) to recover damages, costs and expenses arising from, or in connection with, any Lien arising from a written instrument executed by any Borrower or any Affiliate thereof expressly creating such Lien, to the extent such Lien is prohibited under this Agreement.
(b) Notwithstanding Optionor agrees that it shall not enforce the foregoingliability and obligation of Optionee to perform and observe the obligations contained in this Agreement by any action or proceeding against any Optionee Exculpated Party (as hereinafter defined), and shall not s▇▇ for, seek or demand any money judgment against any direct or indirect member, manager, shareholder, partner, beneficiary or other owner of beneficial ownership interests in Optionee, or any director, officer, agent, attorney, employee or trustee of any of the foregoing (each, an “Optionee Exculpated Party” and, collectively, the agreement “Optionee Exculpated Parties”) under or by reason of Lender not to limit recourse liability as set forth or in connection with this Agreement. The provisions of this Section 11.22(a21(b) above SHALL BECOME NULL AND VOID and shall be of no further force and effect and the Debt shall be fully recourse to Borrower (and to Guarantor under the Guarantynot, on the additional terms and conditions thereof and subject to any limitations set forth herein or therein) in the event that:
however, (i) constitute a waiver, release or impairment of any Borrower commences a voluntary bankruptcy obligation of Optionee hereunder; or insolvency proceeding;
(ii) an involuntary bankruptcy impair the right of Optionor to name Optionee as a party defendant in any action or insolvency proceeding is commenced against any Borrower and is not dismissed within 90 days of filing; or
(iii) voluntary Transfer of the Property occurs by written instrument executed by any Borrower or any Affiliate thereof, which instrument expressly effects such Transfer, or a Secondary Financing is voluntarily incurred in violation of the Loan Documents, except as otherwise consented to by Lender in writing (which consent may be withheld in Lender’s sole discretion)suit under this Agreement.
(c) Notwithstanding the The provisions of clauses (i) and (ii) of this Section 11.22(b) no Guarantor 21 shall be liable for any amount related to a Qualified Involuntary Bankruptcy.
(d) In additionsurvive the Closing, this agreement shall not waive any rights which Lender would have under any provisions of Title 11 the expiration of the Bankruptcy Code to file a claim for Option Period and the full amount termination of the Debt or to require that the Property shall continue to secure all of the Debtthis Agreement.
Appears in 1 contract
Exculpation. Subject to the qualifications below, Lender shall not enforce the liability and obligation of Borrower Borrowers to perform and observe the obligations contained in the Note, this Agreement, the Mortgage 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 the Borrower Borrowers or any direct principal, director, officer, employee, beneficiary, shareholder, partner, member, trustee, agent, or indirect membersAffiliate of Borrowers (but specifically excluding Guarantor) or any legal representatives, partners successors or shareholders assigns of Borrower or any of the employeesforegoing (collectively, agents, directors or officers of Borrower or its Affiliatesthe “Exculpated Parties”), except that Lender may bring an action against Borrower, including a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender to enforce and realize upon its interest under the Note, this Agreement, the Mortgage Security Instrument and the other Loan Documents, or in the Property, the Business IncomeRents, or any other collateral given to Lender pursuant to the Loan Documents or any other assets of BorrowerDocuments; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower Borrowers only to the extent of such Borrower’s interest in the Property, in the Business Income Rents and in any other collateral given to Lender or any other assets of BorrowerLender, and Lender, by accepting the Note, this Agreement, the Mortgage Security Instrument and the other Loan Documents, shall not ▇▇▇ for, seek or demand any deficiency judgment against Borrowers or any other monetary payment against Borrower or of the direct or indirect members, partners or shareholders of Borrower or the employees, agents, directors or officers of Borrower or its Affiliates Exculpated Parties in any such action or proceeding under or by reason of or under or in connection with the Note, this Agreement, the Mortgage 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 each Borrower as a party defendant in any action or suit for foreclosure and sale under the MortgageSecurity Instrument; (c3) affect the validity or enforceability of any indemnity, guaranty or indemnity made in connection with the Loan similar instrument (including, without limitation, the Guarantyindemnities set forth in Article 12 hereof, Section 11.2 hereof, in the Guaranty and in 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 each Borrower and/or Guarantor (as applicable) personally and without the effect of the exculpatory provisions of this Article 13); (d4) impair the right of Lender to obtain the appointment of a receiver; (e5) impair the enforcement of the Assignment assignment of Leasesleases and rents contained in the Security Instrument; or (f6) impair the right of Lender to enforce Section 4.12(e) of this Agreement; (7) constitute a prohibition against Lender to seek a deficiency judgment against each Borrower in order to fully realize on any security given by Borrower in connection with the Loan (including the security granted by the Mortgage) or any other assets of Borrower Security Instrument or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against such security the Property; or (including 8) constitute a waiver of the Property or any other assets of Borrower).
(a) Nothing contained in this Section 11.22 shall limit the rights right of Lender to proceed against Borrower for any enforce the liability and obligation of the following (each Borrower, by money judgment or against Guarantor under the Guarantyotherwise, on the additional terms and conditions thereof and subject to any limitations set forth herein or therein):
(i) to enforce any Leases entered into by Borrower or its Affiliates as Tenant;
(ii) to recover damages for fraud, material misrepresentation, material breach of warranty or intentional physical waste;
(iii) to recover any Condemnation Proceeds or Insurance Proceeds or other similar funds which have been misappropriated by Borrower or which, under the terms of the Loan Documents, should have been paid to Lender;
(iv) to recover (A) any Tenant security deposits, Tenant letters of credit or other deposits or fees paid to Borrower or (B) prepaid rents for a period of more than thirty (30) days in advance of its due date which have not been delivered to Lender;
(v) to recover Business Income received by Borrower during an Event of Default which have not been applied to the Loan or in accordance with the Loan Documents to operating extent of any Losses incurred by Lender (including attorneys’ fees and maintenance expenses costs reasonably incurred) arising out of the Property;
(vi) to recover damages, costs and expenses arising from, or in connection with the provisions any of the Mortgage pertaining to Hazardous Materials or the Environmental Indemnity;
(vii) to recover any amount expended by Lender in connection with the foreclosure of the Mortgage, but only in the event that any Borrower or any Guarantor takes action to impede such foreclosure or otherwise contests the foreclosure in bad faith;
(viii) to recover damages, costs and expenses arising from, or in connection with, the failure by Borrower to pay Taxes and Insurance Premiums when due to the extent that Borrower was not required to deposit such amounts with Lender pursuant to Section 6 hereof, but only to the extent there was available revenue from the Property for the period in question sufficient to pay such Taxes and Insurance Premiums, and provided further that Lender does not prevent such proceeds from being so applied;
(ix) to recover damages, costs and expenses arising from the failure of the representations set forth in Section 3.1.8 to be true or Borrower’s failure to comply with the provisions of Sections 4.2.11 of this Agreement; and
(x) to recover damages, costs and expenses arising from, or in connection with, any Lien arising from a written instrument executed by any Borrower or any Affiliate thereof expressly creating such Lien, to the extent such Lien is prohibited under this Agreement.
(b) Notwithstanding the foregoing, the agreement of Lender not to limit recourse liability as set forth in Section 11.22(a) above SHALL BECOME NULL AND VOID and shall be of no further force and effect and the Debt shall be fully recourse to Borrower (and to Guarantor under the Guaranty, on the additional terms and conditions thereof and subject to any limitations set forth herein or therein) in the event thatfollowing:
(i) any Borrower commences a voluntary bankruptcy or insolvency proceeding;
(ii) an involuntary bankruptcy or insolvency proceeding is commenced against any Borrower and is not dismissed within 90 days of filing; or
(iii) voluntary Transfer of the Property occurs by written instrument executed by any Borrower or any Affiliate thereof, which instrument expressly effects such Transfer, or a Secondary Financing is voluntarily incurred in violation of the Loan Documents, except as otherwise consented to by Lender in writing (which consent may be withheld in Lender’s sole discretion).
(c) Notwithstanding the provisions of clauses (i) and (ii) of Section 11.22(b) no Guarantor shall be liable for any amount related to a Qualified Involuntary Bankruptcy.
(d) In addition, this agreement shall not waive any rights which Lender would have under any provisions of Title 11 of the Bankruptcy Code to file a claim for the full amount of the Debt or to require that the Property shall continue to secure all of the Debt.
Appears in 1 contract
Exculpation. 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 Mortgage or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against the Borrower or any direct or indirect members, partners or shareholders of Borrower or the employees, agents, directors or officers of Borrower or its Affiliates, except that Lender may bring an action against Borrower, including a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender to enforce and realize upon its interest under the Note, this Agreement, the Mortgage and the other Loan Documents, or in the Property, the Business Income, or any other collateral given to Lender pursuant to the Loan Documents or any other assets of 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 Property, in the Business Income in any other collateral given to Lender or any other assets of Borrower, and Lender, by accepting the Note, this Agreement, the Mortgage and the other Loan Documents, shall not ▇▇▇ for, seek or demand any deficiency judgment or any other monetary payment against Borrower or the direct or indirect members, partners or shareholders of Borrower or the employees, agents, directors or officers of Borrower or its Affiliates in any such action or proceeding under or by reason of or under or in connection with the Note, this Agreement, the Mortgage or the other Loan Documents. The provisions of this Section shall not, however: (a) constitute a waiverNo Officer shall be liable to any other Officer, release current 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 Mortgage; (c) affect the validity or enforceability of any guaranty or indemnity made in connection with the Loan (including, without limitationformer Manager, the Guaranty) Company, any Related Institutional Person or any of the rights and remedies of Lender thereunder; (d) impair the right of Lender to obtain the appointment of a receiver; (e) impair the enforcement of the Assignment of Leases; or (f) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize on Unitholder for any security given by Borrower in connection with the Loan (including the security granted loss suffered by the Mortgage) Company or any other assets of Borrower or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against such security (including the Property or any other assets of Borrower).
(a) Nothing contained in this Section 11.22 shall limit the rights of Lender to proceed against Borrower for any of the following (or against Guarantor under the Guaranty, on the additional terms and conditions thereof and subject to any limitations set forth herein or therein):
(i) to enforce any Leases entered into by Borrower or its Affiliates as Tenant;
(ii) to recover damages for fraud, material misrepresentation, material breach of warranty or intentional physical waste;
(iii) to recover any Condemnation Proceeds or Insurance Proceeds or other similar funds which have been misappropriated by Borrower or which, under the terms of the Loan Documents, should have been paid to Lender;
(iv) to recover (A) any Tenant security deposits, Tenant letters of credit or other deposits or fees paid to Borrower or (B) prepaid rents for a period of more than thirty (30) days in advance of its due date which have not been delivered to Lender;
(v) to recover Business Income received by Borrower during an Event of Default which have not been applied to the Loan or in accordance with the Loan Documents to operating and maintenance expenses of the Property;
(vi) to recover damages, costs and expenses arising from, or in connection with the provisions of the Mortgage pertaining to Hazardous Materials or the Environmental Indemnity;
(vii) to recover any amount expended by Lender in connection with the foreclosure of the Mortgage, but only in the event that any Borrower or any Guarantor takes action to impede such foreclosure or otherwise contests the foreclosure in bad faith;
(viii) to recover damages, costs and expenses arising from, or in connection with, the failure by Borrower to pay Taxes and Insurance Premiums when due to the extent that Borrower was not required to deposit such amounts with Lender pursuant to Section 6 hereof, but only to the extent there was available revenue from the Property for the period in question sufficient to pay such Taxes and Insurance Premiums, and provided further that Lender does not prevent such proceeds from being so applied;
(ix) to recover damages, costs and expenses arising from the failure of the representations set forth in Section 3.1.8 to be true or Borrower’s failure to comply with the provisions of Sections 4.2.11 of this Agreement; and
(x) to recover damages, costs and expenses arising from, or in connection with, any Lien arising from a written instrument executed by any Borrower or any Affiliate thereof expressly creating such Lien, Unitholder except to the extent such Lien loss is prohibited under this Agreementcaused by such Person’s fraud, breach of any duty (including any fiduciary duty), gross negligence or willful misconduct, or, in the case of a criminal matter, such Person having acted or failed to act with knowledge that such conduct was unlawful, in each case as determined by a final judgment, order or decree of an arbitrator or a court of competent jurisdiction (which is not appealable or with respect to which the time for appeal therefrom has expired and no appeal has been perfected). No Officer shall be liable for errors in judgment or for any acts or omissions that do not constitute fraud, breach of any duty (including any fiduciary duty), gross negligence or willful misconduct or, in the case of a criminal matter, such Person having acted or failed to act with knowledge that such conduct was unlawful.
(b) Notwithstanding anything herein to the foregoingcontrary, no Related Institutional Person or current or former Manager shall be liable to any Officer, current or former Manager, the agreement of Lender not Company, any other Related Institutional Person or any Unitholder for any loss suffered by the Company, any other Manager, or any Unitholder except to limit recourse liability as set forth in Section 11.22(athe extent such loss is caused by (i) above SHALL BECOME NULL AND VOID and shall be of no further force and effect and the Debt shall be fully recourse to Borrower such Person’s fraud, or (and to Guarantor under the Guaranty, on the additional terms and conditions thereof and subject to any limitations set forth herein or thereinii) in the event that:
case of a criminal matter, such Person having acted or failed to act with knowledge that such conduct was unlawful, in each case as determined by a final judgment, order or decree of an arbitrator or a court of competent jurisdiction (i) any Borrower commences a voluntary bankruptcy or insolvency proceeding;
(ii) an involuntary bankruptcy or insolvency proceeding is commenced against any Borrower and which is not dismissed within 90 days of filing; or
(iii) voluntary Transfer of appealable or with respect to which the Property occurs by written instrument executed by any Borrower time for appeal therefrom has expired and no appeal has been perfected). No Related Institutional Person or current or former Manager shall be liable for such Person’s gross negligence, willful misconduct or any Affiliate thereoferrors in judgment or for any acts or omissions that do not constitute fraud or, which instrument expressly effects in the case of a criminal matter, such Transfer, Person having acted or a Secondary Financing is voluntarily incurred in violation of the Loan Documents, except as otherwise consented failed to by Lender in writing (which consent may be withheld in Lender’s sole discretion)act with knowledge that such conduct was unlawful.
(c) Notwithstanding Any Officer or Manager may consult with counsel and accountants in respect of Company affairs, and provided such Person acts in good faith reliance upon the provisions advice or opinion of clauses (i) and (ii) of Section 11.22(b) no Guarantor such counsel or accountants, such Person shall not be liable for any amount related to a Qualified Involuntary Bankruptcyloss suffered by any Officer, current or former Manager, the Company or any Unitholder in reliance thereon.
(d) In addition, this agreement shall not waive any rights which Lender would have under any provisions of Title 11 of the Bankruptcy Code to file a claim for the full amount of the Debt or to require that the Property shall continue to secure all of the Debt.
Appears in 1 contract
Sources: Limited Liability Company Agreement (Project Angel Parent, LLC)
Exculpation. Subject (a) In dealing with this Agreement and any instruments, agreements or documents relating thereto, and in exercising or failing to exercise all or any of the powers conferred upon the Representative hereunder or thereunder (i) the Representative shall not assume any, and shall incur no, responsibility or liability whatsoever to any Company Holder by reason of any error in judgment or other act or omission performed or omitted hereunder or in connection with this Agreement or any other transaction document, unless by the Representative's gross negligence or willful and intentional misconduct, and (ii) the Representative shall be entitled to rely on the advice of counsel, public accountants or other independent experts experienced in the matter at issue, and any error in judgment or other act or omission of the Representative pursuant to such advice shall in no event subject the Representative to liability to any Company Holder unless by the Representative's gross negligence or willful and intentional misconduct. Except as set forth in the previous sentence, notwithstanding anything to the qualifications below, Lender shall not enforce the liability and obligation of Borrower to perform and observe the obligations contrary contained in the Note, this Agreement, the Mortgage Representative shall have no liability whatsoever to Parent or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against the Borrower or any direct or indirect members, partners or shareholders of Borrower or the employees, agents, directors or officers of Borrower or its Affiliates, except that Lender may bring an action against Borrower, including a foreclosure action, an action for specific performance Surviving Corporation or any other appropriate action or proceeding to enable Lender to enforce Person. The Company Holders will indemnify, defend and realize upon its interest under hold harmless the NoteRepresentative from and against any and all losses, this Agreementliabilities, damages, claims, penalties, fines, forfeitures, actions, fees, costs and expenses (including the Mortgage fees and the other Loan Documentsexpenses of counsel and experts and their staffs and all expense of document location, or in the Propertyduplication and shipment) (collectively, the Business Income, or any other collateral given to Lender pursuant to the Loan Documents or any other assets "Representative Losses") arising out of 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 Property, in the Business Income in any other collateral given to Lender or any other assets of Borrower, and Lender, by accepting the Note, this Agreement, the Mortgage and the other Loan Documents, shall not ▇▇▇ for, seek or demand any deficiency judgment or any other monetary payment against Borrower or the direct or indirect members, partners or shareholders of Borrower or the employees, agents, directors or officers of Borrower or its Affiliates in any such action or proceeding under or by reason of or under or in connection with the NoteRepresentative's execution and performance of this Agreement or any other transaction document, in each case as such Representative Loss is suffered or incurred; provided, that in the event that any such Representative Loss is finally adjudicated to have been directly caused by the gross negligence or willful misconduct of the Representative, the Representative will reimburse the Company Holders the amount of such indemnified Representative Loss to the extent attributable to such gross negligence or willful misconduct. If not paid directly to the Representative by the Company Holders, any such Representative Losses may be recovered by the Representative from (i) the funds in the Representative Reimbursement Amount, and (ii) the amounts in the Escrow Fund at such time as remaining amounts would otherwise be distributable to the Company Holders; provided, that while this section allows the Representative to be paid from the Representative Reimbursement Amount and the Escrow Fund, this Agreementdoes not relieve the Company Holders from their obligation to promptly pay such Representative Losses as they are suffered or incurred, nor does it prevent the Mortgage Representative from seeking any remedies available to it at law or otherwise. In no event will the Representative be required to advance its own funds on behalf of the Company Holders or otherwise. The Company Holders acknowledge and agree that the foregoing indemnities will survive the resignation or removal of the Representative or the other Loan Documentstermination of this Agreement. Notwithstanding the foregoing, no Company Holder shall have any liability with respect to Representative Losses in excess of the Merger Consideration received by such Company Holder.
(b) All of the immunities and powers granted to the Representative under this Agreement shall survive until the earlier of (i) the termination of this Agreement or (ii) the distribution of the Representative Reimbursement Amount to Company Holders pursuant to Section 8.2. The provisions of this Section ARTICLE VIII shall notbe binding upon the executors, however: (a) constitute heirs, legal representatives, successors and assigns of each Company Holder, and any references in this Agreement to a waiverCompany Holder or the Company Holders shall mean and include the successors to the Company Holders' rights hereunder, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (b) impair the right of Lender whether pursuant to name Borrower as a party defendant in any action or suit for foreclosure and sale under the Mortgage; (c) affect the validity or enforceability of any guaranty or indemnity made in connection with the Loan (including, without limitationtestamentary disposition, the Guaranty) laws of descent and distribution or any of the rights and remedies of Lender thereunder; (d) impair the right of Lender to obtain the appointment of a receiver; (e) impair the enforcement of the Assignment of Leases; or (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 Loan (including the security granted by the Mortgage) or any other assets of Borrower or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against such security (including the Property or any other assets of Borrower).
(a) Nothing contained in this Section 11.22 shall limit the rights of Lender to proceed against Borrower for any of the following (or against Guarantor under the Guaranty, on the additional terms and conditions thereof and subject to any limitations set forth herein or therein):
(i) to enforce any Leases entered into by Borrower or its Affiliates as Tenant;
(ii) to recover damages for fraud, material misrepresentation, material breach of warranty or intentional physical waste;
(iii) to recover any Condemnation Proceeds or Insurance Proceeds or other similar funds which have been misappropriated by Borrower or which, under the terms of the Loan Documents, should have been paid to Lender;
(iv) to recover (A) any Tenant security deposits, Tenant letters of credit or other deposits or fees paid to Borrower or (B) prepaid rents for a period of more than thirty (30) days in advance of its due date which have not been delivered to Lender;
(v) to recover Business Income received by Borrower during an Event of Default which have not been applied to the Loan or in accordance with the Loan Documents to operating and maintenance expenses of the Property;
(vi) to recover damages, costs and expenses arising from, or in connection with the provisions of the Mortgage pertaining to Hazardous Materials or the Environmental Indemnity;
(vii) to recover any amount expended by Lender in connection with the foreclosure of the Mortgage, but only in the event that any Borrower or any Guarantor takes action to impede such foreclosure or otherwise contests the foreclosure in bad faith;
(viii) to recover damages, costs and expenses arising from, or in connection with, the failure by Borrower to pay Taxes and Insurance Premiums when due to the extent that Borrower was not required to deposit such amounts with Lender pursuant to Section 6 hereof, but only to the extent there was available revenue from the Property for the period in question sufficient to pay such Taxes and Insurance Premiums, and provided further that Lender does not prevent such proceeds from being so applied;
(ix) to recover damages, costs and expenses arising from the failure of the representations set forth in Section 3.1.8 to be true or Borrower’s failure to comply with the provisions of Sections 4.2.11 of this Agreement; and
(x) to recover damages, costs and expenses arising from, or in connection with, any Lien arising from a written instrument executed by any Borrower or any Affiliate thereof expressly creating such Lien, to the extent such Lien is prohibited under this Agreement.
(b) Notwithstanding the foregoing, the agreement of Lender not to limit recourse liability as set forth in Section 11.22(a) above SHALL BECOME NULL AND VOID and shall be of no further force and effect and the Debt shall be fully recourse to Borrower (and to Guarantor under the Guaranty, on the additional terms and conditions thereof and subject to any limitations set forth herein or therein) in the event that:
(i) any Borrower commences a voluntary bankruptcy or insolvency proceeding;
(ii) an involuntary bankruptcy or insolvency proceeding is commenced against any Borrower and is not dismissed within 90 days of filing; or
(iii) voluntary Transfer of the Property occurs by written instrument executed by any Borrower or any Affiliate thereof, which instrument expressly effects such Transfer, or a Secondary Financing is voluntarily incurred in violation of the Loan Documents, except as otherwise consented to by Lender in writing (which consent may be withheld in Lender’s sole discretion)otherwise.
(c) Notwithstanding The adoption of this Agreement and the approval of the transactions contemplated hereby, including the Merger, by the Stockholder Approval shall also be deemed to constitute approval of all arrangements relating to the transactions contemplated hereby and to the provisions of clauses (i) and (ii) of hereof binding upon the Voting Holders, including this Section 11.22(b) no Guarantor shall be liable for any amount related to a Qualified Involuntary Bankruptcy8.3.
(d) In addition, this agreement no event shall not waive any rights which Lender would have under any provisions of Title 11 of the Bankruptcy Code provisions set forth in this ARTICLE VIII be binding upon or result in any liability to file Parent, Acquisition Sub, the Surviving Corporation or any of their respective directors, managers, officers, employees, agents, stockholders or Affiliates (except to the extent that any such directors, managers, officers, employees, agents, stockholders or Affiliates is a claim for the full amount of the Debt or to require that the Property shall continue to secure all of the DebtCompany Holder and then only in their capacity as a Company Holder).
Appears in 1 contract
Exculpation. Subject No Agent shall have any duties or obligations except those expressly set forth herein. Without limiting the generality of the foregoing no Agent or any of such Agent’s directors, officers, employees or agents (i) shall be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (ii) shall have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby the Administrative Agent is required to exercise in writing by the Required Lenders (or such other Lenders as shall be required by Section 13.1), (iii) except as expressly set forth herein, shall have any duty to disclose, and shall not be liable for failure to disclose any information relating to Greektown Holdings or any of its Subsidiaries that is communicated to or obtained by the Person serving as an Agent or any of such Agent’s Affiliates, (iv) shall be liable for any action taken by the such Agent with the consent or at the request of the Required Lenders (or such other number of Lenders as shall be required by Section 13.1), (v) shall be deemed to have knowledge of any Default unless and until written notice thereof is given to the qualifications belowAdministrative Agent by Greektown Holdings, any of its Subsidiaries or a Lender, (vi) shall be liable to any Lender shall not enforce the liability and obligation of Borrower to perform and observe the obligations contained in the Note, this Agreement, the Mortgage or the other Loan Documents by for any action taken or proceeding wherein a money judgment shall omitted to be sought against the Borrower or any direct or indirect members, partners or shareholders of Borrower or the employees, agents, directors or officers of Borrower or its Affiliates, except that Lender may bring an action against Borrower, including a foreclosure action, an action for specific performance taken by it under this Agreement or any other appropriate action or proceeding to enable Lender to enforce and realize upon its interest under the Note, this Agreement, the Mortgage and the other Loan DocumentsDocument, or in connection herewith or therewith, except for such Agent’s own willful misconduct or gross negligence, as determined by a final, non-appealable judgment of a court of competent jurisdiction, (vii) shall be responsible for any recitals or warranties herein or therein, nor for the Propertyeffectiveness, the Business Incomeenforceability, validity or due execution of this Agreement or any other collateral given to Lender pursuant to the Loan Documents or any other assets of Borrower; providedDocument, however, that, except as specifically provided herein, any judgment in any such action or proceeding (viii) shall be enforceable against Borrower only to responsible for the extent of Borrower’s interest in the Propertycreation, in the Business Income in any other collateral given to Lender perfection or any other assets of Borrower, and Lender, by accepting the Note, this Agreement, the Mortgage and the other Loan Documents, shall not ▇▇▇ for, seek or demand any deficiency judgment or any other monetary payment against Borrower or the direct or indirect members, partners or shareholders of Borrower or the employees, agents, directors or officers of Borrower or its Affiliates in any such action or proceeding under or by reason of or under or in connection with the Note, this Agreement, the Mortgage or the other Loan Documents. The provisions of this Section shall not, however: (a) constitute a waiver, release or impairment priority of any obligation evidenced or secured Liens purported to be created by any of the Loan Documents; , (bix) impair shall be responsible for the right of Lender to name Borrower as a party defendant in any action validity, genuineness, enforceability, existence, value or suit for foreclosure and sale under the Mortgage; (c) affect the validity or enforceability sufficiency of any guaranty collateral security or indemnity made in connection with (x) shall have any duty to make any inquiry respecting the Loan (including, without limitation, the Guaranty) performance by Greektown Holdings or any of the rights and remedies its Subsidiaries of Lender thereunder; (d) impair the right of Lender to obtain the appointment of a receiver; (e) impair the enforcement of the Assignment of Leases; its obligations hereunder or (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 Loan (including the security granted by the Mortgage) or under any other assets Loan Document. Any inquiry which may be made by any Agent shall not obligate such Agent to make any further inquiry or take any action. Each Agent shall be entitled to rely upon advice of Borrower counsel concerning legal matters and upon any notice, consent, certificate, statement or writing which such Agent believes to commence any other appropriate action or proceeding in order for Lender be genuine and to exercise its remedies against such security (including the Property or any other assets of Borrower).
(a) Nothing contained in this Section 11.22 shall limit the rights of Lender to proceed against Borrower for any of the following (or against Guarantor under the Guaranty, on the additional terms and conditions thereof and subject to any limitations set forth herein or therein):
(i) to enforce any Leases entered into by Borrower or its Affiliates as Tenant;
(ii) to recover damages for fraud, material misrepresentation, material breach of warranty or intentional physical waste;
(iii) to recover any Condemnation Proceeds or Insurance Proceeds or other similar funds which have been misappropriated presented by Borrower or which, under the terms of the Loan Documents, should have been paid to Lender;
(iv) to recover (A) any Tenant security deposits, Tenant letters of credit or other deposits or fees paid to Borrower or (B) prepaid rents for a period of more than thirty (30) days in advance of its due date which have not been delivered to Lender;
(v) to recover Business Income received by Borrower during an Event of Default which have not been applied to the Loan or in accordance with the Loan Documents to operating and maintenance expenses of the Property;
(vi) to recover damages, costs and expenses arising from, or in connection with the provisions of the Mortgage pertaining to Hazardous Materials or the Environmental Indemnity;
(vii) to recover any amount expended by Lender in connection with the foreclosure of the Mortgage, but only in the event that any Borrower or any Guarantor takes action to impede such foreclosure or otherwise contests the foreclosure in bad faith;
(viii) to recover damages, costs and expenses arising from, or in connection with, the failure by Borrower to pay Taxes and Insurance Premiums when due to the extent that Borrower was not required to deposit such amounts with Lender pursuant to Section 6 hereof, but only to the extent there was available revenue from the Property for the period in question sufficient to pay such Taxes and Insurance Premiums, and provided further that Lender does not prevent such proceeds from being so applied;
(ix) to recover damages, costs and expenses arising from the failure of the representations set forth in Section 3.1.8 to be true or Borrower’s failure to comply with the provisions of Sections 4.2.11 of this Agreement; and
(x) to recover damages, costs and expenses arising from, or in connection with, any Lien arising from a written instrument executed by any Borrower or any Affiliate thereof expressly creating such Lien, to the extent such Lien is prohibited under this Agreementproper Person.
(b) Notwithstanding the foregoing, the agreement of Lender not to limit recourse liability as set forth in Section 11.22(a) above SHALL BECOME NULL AND VOID and shall be of no further force and effect and the Debt shall be fully recourse to Borrower (and to Guarantor under the Guaranty, on the additional terms and conditions thereof and subject to any limitations set forth herein or therein) in the event that:
(i) any Borrower commences a voluntary bankruptcy or insolvency proceeding;
(ii) an involuntary bankruptcy or insolvency proceeding is commenced against any Borrower and is not dismissed within 90 days of filing; or
(iii) voluntary Transfer of the Property occurs by written instrument executed by any Borrower or any Affiliate thereof, which instrument expressly effects such Transfer, or a Secondary Financing is voluntarily incurred in violation of the Loan Documents, except as otherwise consented to by Lender in writing (which consent may be withheld in Lender’s sole discretion).
(c) Notwithstanding the provisions of clauses (i) and (ii) of Section 11.22(b) no Guarantor shall be liable for any amount related to a Qualified Involuntary Bankruptcy.
(d) In addition, this agreement shall not waive any rights which Lender would have under any provisions of Title 11 of the Bankruptcy Code to file a claim for the full amount of the Debt or to require that the Property shall continue to secure all of the Debt.
Appears in 1 contract
Sources: Senior Secured Debtor in Possession Credit Agreement (Greektown Superholdings, Inc.)
Exculpation. Subject (a) Notwithstanding anything in the Loan Documents to the contrary, but subject to the qualifications below, ▇▇▇▇▇▇ and Borrower agree that:
(i) Borrower shall be liable upon the Debt and for the other obligations arising under the Loan Documents to the full extent (but only to the extent) of the security therefor; provided, however, that in the event (A) of a breach or default under Section 4.3, 4.4, 4.5, 4.6 or 8.2 of the Security Instrument, (B) the Borrower intentionally interferes with ▇▇▇▇▇▇’s pursuit of any of its remedies hereunder or under the other Loan Documents (C) the Property or any part thereof becomes an asset in a voluntary bankruptcy or insolvency proceeding or (D) (x) Borrower or any Affiliate, officer, director, or representative which controls, directly or indirectly, Borrower shall file, or join in the filing of, an involuntary petition against Borrower under any Creditors Rights Laws, or solicit or cause to be solicited petitioning creditors for any involuntary petition against Borrower from any Person; (y) Borrower shall file an answer consenting to or otherwise acquiescing in or joining in any involuntary petition filed against it, by any other Person under any Creditors Rights Laws, or solicit or cause to be solicited petitioning creditors for any involuntary petition from any Person; or (z) any Affiliate, officer, director, or representative 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; the limitation on recourse set forth in this Subsection 10(a) will be null and void and completely inapplicable, and this Note shall be with full recourse to Borrower.
(ii) If a default occurs in the timely and proper payment of all or any part of the Debt, Lender shall not enforce the liability and obligation of Borrower to perform and observe the obligations contained in the Note, this Agreement, the Mortgage Note or the other Loan Documents Security Instrument by any action or proceeding wherein a money judgment shall be sought against the Borrower or any direct or indirect members, partners or shareholders of Borrower or the employees, agents, directors or officers of Borrower or its AffiliatesBorrower, except that Lender may bring an action against Borrower, including a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender to enforce and realize upon its interest under the Note, this AgreementSecurity Instrument, the Mortgage Other Loan Documents and the other Loan Documents, or interest in the Property, the Business Income, or Rents and any other collateral given to Lender pursuant to created by the Security Instrument and the Other Loan Documents or any other assets of BorrowerDocuments; 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 Property, in the Business Income Rents and in any other collateral given to Lender or any other assets of Borrower, and Lender. ▇▇▇▇▇▇, by accepting the Note, this Agreement, the Mortgage Note and the other Loan DocumentsSecurity Instrument, agrees that it shall not ▇▇▇ not, except as otherwise herein provided, sue for, seek or demand any deficiency judgment or any other monetary payment against Borrower or the direct or indirect members, partners or shareholders of Borrower or the employees, agents, directors or officers of Borrower or its Affiliates in any such action or proceeding proceeding, under or by reason of or under or in connection with the this Note, this Agreement, the Mortgage Other Loan Documents or the other Loan Documents. Security Instrument.
(iii) The provisions of this Section Subsection 10(a) shall not, however: not (aA) constitute a waiver, release or impairment of any obligation evidenced or secured by any of this Note, the Other Loan DocumentsDocuments or the Security Instrument; (bB) impair the right of Lender to name Borrower as a party defendant in any action or suit for judicial foreclosure and sale under the MortgageSecurity Instrument; (cC) affect the validity or enforceability of any guaranty indemnity, guaranty, including without limitation any guaranty, master lease or indemnity similar instrument made in connection with the Loan (including, without limitationthis Note, the Guaranty) Security Instrument, or any of the rights and remedies of Lender thereunderOther Loan Documents; (dD) impair the right of Lender to obtain the appointment of a receiver; (eE) impair the enforcement of the Assignment executed in connection herewith; (F) impair the right of LeasesLender to enforce the provisions of Article 11 of the Security Instrument; or (fG) constitute a prohibition against impair the right of Lender to seek obtain a deficiency judgment or judgment on this Note against Borrower in order if necessary to fully realize on obtain any security given insurance proceeds or condemnation awards to which ▇▇▇▇▇▇ would otherwise be entitled under the Security Instrument; provided, however, Lender shall only enforce such judgment against the insurance proceeds and/or condemnation awards.
(iv) Notwithstanding the provisions of this Article to the contrary, Borrower shall be personally liable to Lender for the Losses it incurs due to: (A) of fraud, willful misconduct or material misrepresentation by Borrower Borrower, its general partners, if any, its members, if any, its principals, its affiliates, its agents or its employees or by any Guarantor in connection with the Loan loan evidenced by this Note, (including B) the misapplication or misappropriation of Rents; (C) the misapplication or misappropriation of insurance proceeds or condemnation awards; (D) any tenant security granted deposits or other refundable deposits paid to or held by the Mortgage) Borrower or any other assets person or entity in connection with leases of all or any portion of the Property which are not applied in accordance with the terms of the applicable lease or other agreement, (E) waste committed on the Property, damage to the Property as a result of the intentional misconduct or gross negligence of Borrower or to commence any other appropriate action of its principals, officers, general partners or proceeding in order for Lender to exercise its remedies against members, any guarantor, any indemnitor, or any agent or employee of any such security (including person, or any removal of all or any portion of the Property or any other assets in violation of Borrower).
(a) Nothing contained in this Section 11.22 shall limit the rights of Lender to proceed against Borrower for any of the following (or against Guarantor under the Guaranty, on the additional terms and conditions thereof and subject to any limitations set forth herein or therein):
(i) to enforce any Leases entered into by Borrower or its Affiliates as Tenant;
(ii) to recover damages for fraud, material misrepresentation, material breach of warranty or intentional physical waste;
(iii) to recover any Condemnation Proceeds or Insurance Proceeds or other similar funds which have been misappropriated by Borrower or which, under the terms of the Loan Documents, should have been paid to Lender;
(iv) to recover (A) any Tenant security deposits, Tenant letters of credit or other deposits or fees paid to Borrower or (B) prepaid rents for a period of more than thirty (30) days in advance of its due date which have not been delivered to Lender;
(v) to recover Business Income received by Borrower during an Event of Default which have not been applied to the Loan or in accordance with the Loan Documents to operating and maintenance expenses full extent of the Property;
(vi) to recover damages, costs and expenses arising from, losses or in connection with the provisions of the Mortgage pertaining to Hazardous Materials or the Environmental Indemnity;
(vii) to recover any amount expended damages incurred by Lender in connection with the foreclosure on account of the Mortgage, but only in the event that any Borrower or any Guarantor takes action to impede such foreclosure or otherwise contests the foreclosure in bad faith;
occurrence; (viiiF) to recover damages, costs and expenses arising from, or in connection with, the failure by Borrower to pay Taxes and Insurance Premiums when due to the extent that Borrower was not required to deposit such amounts with Lender pursuant to Section 6 hereof, but only to the extent there was available revenue from the Property for the period in question sufficient to pay such Taxes and Insurance Premiums, and provided further that Lender does not prevent such proceeds from being so applied;
(ix) to recover damages, costs and expenses arising from the failure of the representations set forth in Section 3.1.8 to be true or Borrower’s failure to comply with the provisions of Sections 4.2.11 Section 11 of this Agreementthe Security Instrument; and
or (xG) to recover damages, costs and expenses arising from, or in connection with, any Lien arising from a written instrument executed by any Borrower or any Affiliate thereof expressly creating such Lien, to breach of the extent such Lien is prohibited under this AgreementEnvironmental Indemnity.
(b) Notwithstanding the foregoing, the agreement of Lender not to limit recourse liability as set forth in Section 11.22(a) above SHALL BECOME NULL AND VOID and Nothing herein shall be deemed to be a waiver of no further force and effect and the Debt shall be fully recourse to Borrower (and to Guarantor any right which Lender may have under the GuarantySections 506(a), on the additional terms and conditions thereof and subject to any limitations set forth herein or therein506(b), 1111(b) in the event that:
(i) any Borrower commences a voluntary bankruptcy or insolvency proceeding;
(ii) an involuntary bankruptcy or insolvency proceeding is commenced against any Borrower and is not dismissed within 90 days of filing; or
(iii) voluntary Transfer of the Property occurs by written instrument executed by any Borrower or any Affiliate thereof, which instrument expressly effects such Transfer, or a Secondary Financing is voluntarily incurred in violation of the Loan Documents, except as otherwise consented to by Lender in writing (which consent may be withheld in Lender’s sole discretion).
(c) Notwithstanding the other provisions of clauses (i) and (ii) of Section 11.22(b) no Guarantor shall be liable for any amount related to a Qualified Involuntary Bankruptcy.
(d) In addition, this agreement shall not waive any rights which Lender would have under any provisions of Title 11 of the Bankruptcy Code to file a claim for the full amount of the Debt or to require that the Property all collateral shall continue to secure all of the Debt, owing to Lender in accordance with this Note, the Security Instrument and the Other Loan Documents.
Appears in 1 contract
Exculpation. Subject to the qualifications below, Lender shall not enforce the liability and obligation of Borrower to perform and observe the obligations contained (a) Except as otherwise provided in the NoteAct, by applicable law, or expressly in this Agreement, the Mortgage or the other Loan Documents by no Manager will be obligated personally for any action or proceeding wherein a money judgment shall be sought against the Borrower or any direct or indirect membersdebt, partners or shareholders of Borrower or the employees, agents, directors or officers of Borrower or its Affiliates, except that Lender may bring an action against Borrower, including a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender to enforce and realize upon its interest under the Note, this Agreement, the Mortgage and the other Loan Documentsobligation, or liability of the Company, whether arising in the Propertycontract, the Business Incometort, or any other collateral given to Lender pursuant to the Loan Documents or any other assets of Borrower; providedotherwise, 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 Business Income in any other collateral given to Lender or any other assets of Borrower, and Lender, by accepting the Note, this Agreement, the Mortgage and the other Loan Documents, shall not ▇▇▇ for, seek or demand any deficiency judgment or any other monetary payment against Borrower or the direct or indirect members, partners or shareholders of Borrower or the employees, agents, directors or officers of Borrower or its Affiliates in any such action or proceeding under or solely by reason of or under or in connection with the Note, this Agreement, the Mortgage or the other Loan Documents. The provisions of this Section shall not, however: (a) constitute being 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 Mortgage; (c) affect the validity or enforceability of any guaranty or indemnity made in connection with the Loan (including, without limitation, the Guaranty) or any of the rights and remedies of Lender thereunder; (d) impair the right of Lender to obtain the appointment of a receiver; (e) impair the enforcement of the Assignment of Leases; or (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 Loan (including the security granted by the Mortgage) or any other assets of Borrower or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against such security (including the Property or any other assets of Borrower).
(a) Nothing contained in this Section 11.22 shall limit the rights of Lender to proceed against Borrower for any of the following (or against Guarantor under the Guaranty, on the additional terms and conditions thereof and subject to any limitations set forth herein or therein):
(i) to enforce any Leases entered into by Borrower or its Affiliates as Tenant;
(ii) to recover damages for fraud, material misrepresentation, material breach of warranty or intentional physical waste;
(iii) to recover any Condemnation Proceeds or Insurance Proceeds or other similar funds which have been misappropriated by Borrower or which, under the terms of the Loan Documents, should have been paid to Lender;
(iv) to recover (A) any Tenant security deposits, Tenant letters of credit or other deposits or fees paid to Borrower or (B) prepaid rents for a period of more than thirty (30) days in advance of its due date which have not been delivered to Lender;
(v) to recover Business Income received by Borrower during an Event of Default which have not been applied to the Loan or in accordance with the Loan Documents to operating and maintenance expenses of the Property;
(vi) to recover damages, costs and expenses arising from, or in connection with the provisions of the Mortgage pertaining to Hazardous Materials or the Environmental Indemnity;
(vii) to recover any amount expended by Lender in connection with the foreclosure of the Mortgage, but only in the event that any Borrower or any Guarantor takes action to impede such foreclosure or otherwise contests the foreclosure in bad faith;
(viii) to recover damages, costs and expenses arising from, or in connection with, the failure by Borrower to pay Taxes and Insurance Premiums when due to the extent that Borrower was not required to deposit such amounts with Lender pursuant to Section 6 hereof, but only to the extent there was available revenue from the Property for the period in question sufficient to pay such Taxes and Insurance Premiums, and provided further that Lender does not prevent such proceeds from being so applied;
(ix) to recover damages, costs and expenses arising from the failure of the representations set forth in Section 3.1.8 to be true or Borrower’s failure to comply with the provisions of Sections 4.2.11 of this Agreement; and
(x) to recover damages, costs and expenses arising from, or in connection with, any Lien arising from a written instrument executed by any Borrower or any Affiliate thereof expressly creating such Lien, to the extent such Lien is prohibited under this AgreementManager.
(b) Notwithstanding To the foregoingmaximum extent permitted by applicable law, no officer (in such person’s capacity as such) shall be liable to the agreement Company or to any Member for losses sustained or liabilities incurred as a result of Lender not any act or omission (in relation to limit recourse liability the Company, any transaction, any investment or any business decision or action, including for breach of duties including fiduciary duties) taken or omitted by such officer (in such person’s capacity as such), unless there has been a final and non-appealable judgment entered by a court of competent jurisdiction determining that, in respect of such act or omission, and taking into account the acknowledgments and agreements set forth in Section 11.22(athis Agreement, such officer (in such person’s capacity as such) above SHALL BECOME NULL AND VOID and shall be would have had such liability for such act or omission that an officer of no further force and effect and the Debt shall be fully recourse to Borrower (and to Guarantor Company would have if the Company were a corporation organized under the Guaranty, on the additional terms and conditions thereof and subject to any limitations set forth herein or therein) in the event that:
(i) any Borrower commences a voluntary bankruptcy or insolvency proceeding;
(ii) an involuntary bankruptcy or insolvency proceeding is commenced against any Borrower and is not dismissed within 90 days of filing; or
(iii) voluntary Transfer laws of the Property occurs by written instrument executed by any Borrower or any Affiliate thereof, which instrument expressly effects such Transfer, or a Secondary Financing is voluntarily incurred in violation State of the Loan Documents, except as otherwise consented to by Lender in writing (which consent may be withheld in Lender’s sole discretion)Delaware.
(c) Notwithstanding the provisions of clauses NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, TO THE FULLEST EXTENT PERMITTED BY LAW, NO MEMBER (iIN HIS, HER OR ITS CAPACITY AS A MEMBER) and OR MANAGER (iiIN HIS OR HER CAPACITY AS A MANAGER) of Section 11.22(bOR OFFICER OF THE COMPANY (IN HIS OR HER CAPACITY AS AN OFFICER) no Guarantor shall be liable for any amount related to a Qualified Involuntary BankruptcySHALL BE LIABLE TO THE COMPANY, TO ANY MEMBER OR TO ANY OTHER PERSON MAKING CLAIMS ON BEHALF OF THE FOREGOING FOR CONSEQUENTIAL, EXEMPLARY, PUNITIVE, INCIDENTAL, INDIRECT OR SPECIAL DAMAGES, INCLUDING DAMAGES FOR LOSS OF PROFITS, LOSS OF USE OR REVENUE OR LOSSES BY REASON OF COST OF CAPITAL, ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE BUSINESS OF THE COMPANY OR ANY OF ITS CONTROLLED AFFILIATES, REGARDLESS OF WHETHER SUCH CLAIMS ARE BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, VIOLATION OF ANY APPLICABLE DECEPTIVE TRADE PRACTICES ACT OR SIMILAR LAW OR ANY OTHER LEGAL OR EQUITABLE DUTY OR PRINCIPLE, AND THE COMPANY AND EACH MEMBER HEREBY RELEASE EACH OTHER MEMBER (IN HIS, HER OR ITS CAPACITY AS A MEMBER), MANAGER (IN HIS OR HER CAPACITY AS A MANAGER) AND OFFICER (IN HIS OR HER CAPACITY AS AN OFFICER) OF THE COMPANY FROM ANY SUCH DAMAGES.
(d) In additionNotwithstanding anything in this Agreement to the contrary, nothing in this agreement Section 11.4 shall not limit or waive any claims against, actions, rights which Lender would to sue, other remedies or other recourse the Company, any Member or any other Person may have under against any provisions of Title 11 Member, Manager or officer of the Bankruptcy Code Company for a breach of contract claim relating to file a claim for the full amount of the Debt or to require that the Property shall continue to secure all of the Debtany binding agreement, including this Agreement.
Appears in 1 contract
Sources: Limited Liability Company Agreement (Pitney Bowes Inc /De/)
Exculpation. Subject to Buyer agrees that it does not have and will not have any claims or causes of action against any disclosed or undisclosed officer, director, employee, trustee, property manager, shareholder, partner, principal, parent, subsidiary or other affiliate of Seller, including, without limitation, ▇▇▇▇▇, ▇▇▇▇▇ Real Estate Funds, Inc., or any officer, director, employee, trustee, shareholder, partner, or principal of any such parent, subsidiary or other affiliate (collectively, “Seller’s Affiliates”), arising out of or in connection with this Agreement or the qualifications belowtransactions contemplated hereby (including, Lender shall not enforce the liability and obligation of Borrower to perform and observe the obligations contained without limitation, under any documents executed pursuant hereto), except in the Note, event of fraud or any intentional misrepresentation of such party. Buyer agrees to look solely to Individual Sellers and their assets for the satisfaction of any liability or obligation arising under this Agreement, the Mortgage transactions contemplated hereby or the documents executed pursuant hereto, or for the performance of any of the covenants, warranties or other Loan Documents by any action agreements contained herein or proceeding wherein a money judgment shall be sought against therein, and, except in the Borrower event of fraud or any direct intentional misrepresentation of such party, further agrees not to ▇▇▇ or indirect members, partners or shareholders of Borrower or the employees, agents, directors or officers of Borrower or its Affiliates, except that Lender may bring an action against Borrower, including a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender otherwise seek to enforce and realize upon its interest under the Note, any personal obligation against any of Seller’s Affiliates with respect to any matters arising out of or in connection with this Agreement, the Mortgage transactions contemplated hereby or the documents executed pursuant hereto. Without limiting the generality of the foregoing provisions of this Section 13(o), Buyer hereby unconditionally and the other Loan Documentsirrevocably waives any and all claims and causes of action of any nature whatsoever it may now or hereafter have against Seller’s Affiliates (except for a claim or cause of action for fraud or intentional misrepresentation against such party), and hereby unconditionally and irrevocably releases and discharges Seller’s Affiliates from any and all liability whatsoever which may now or hereafter accrue in the Property, the Business Income, or any other collateral given to Lender pursuant to the Loan Documents or any other assets favor of Borrower; provided, however, that, Buyer against Seller’s Affiliates (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 Propertyrelating to fraud or any intentional misrepresentation by such party), in the Business Income in any other collateral given to Lender connection with or any other assets arising out of Borrower, and Lender, by accepting the Note, this Agreement, the Mortgage and the other Loan Documents, shall not ▇▇▇ for, seek or demand any deficiency judgment or any other monetary payment against Borrower transactions contemplated hereby or the direct or indirect members, partners or shareholders of Borrower or the employees, agents, directors or officers of Borrower or its Affiliates in any such action or proceeding under or by reason of or under or in connection with the Note, this Agreement, the Mortgage or the other Loan Documentsdocuments executed pursuant hereto. The provisions of this Section 13(o) shall not, however: (a) constitute a waiver, release or impairment of any obligation evidenced or secured by any of survive 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 Mortgage; (c) affect the validity or enforceability of any guaranty or indemnity made in connection with the Loan (including, without limitation, the Guaranty) or any of the rights and remedies of Lender thereunder; (d) impair the right of Lender to obtain the appointment of a receiver; (e) impair the enforcement of the Assignment of Leases; or (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 Loan (including the security granted by the Mortgage) or any other assets of Borrower or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against such security (including the Property or any other assets of Borrower).
(a) Nothing contained in this Section 11.22 shall limit the rights of Lender to proceed against Borrower for any of the following (or against Guarantor under the Guaranty, on the additional terms and conditions thereof and subject to any limitations set forth herein or therein):
(i) to enforce any Leases entered into by Borrower or its Affiliates as Tenant;
(ii) to recover damages for fraud, material misrepresentation, material breach of warranty or intentional physical waste;
(iii) to recover any Condemnation Proceeds or Insurance Proceeds or other similar funds which have been misappropriated by Borrower or which, under the terms of the Loan Documents, should have been paid to Lender;
(iv) to recover (A) any Tenant security deposits, Tenant letters of credit or other deposits or fees paid to Borrower or (B) prepaid rents for a period of more than thirty (30) days in advance of its due date which have not been delivered to Lender;
(v) to recover Business Income received by Borrower during an Event of Default which have not been applied to the Loan or in accordance with the Loan Documents to operating and maintenance expenses of the Property;
(vi) to recover damages, costs and expenses arising from, or in connection with the provisions of the Mortgage pertaining to Hazardous Materials or the Environmental Indemnity;
(vii) to recover any amount expended by Lender in connection with the foreclosure of the Mortgage, but only in the event that any Borrower or any Guarantor takes action to impede such foreclosure or otherwise contests the foreclosure in bad faith;
(viii) to recover damages, costs and expenses arising from, or in connection with, the failure by Borrower to pay Taxes and Insurance Premiums when due to the extent that Borrower was not required to deposit such amounts with Lender pursuant to Section 6 hereof, but only to the extent there was available revenue from the Property for the period in question sufficient to pay such Taxes and Insurance Premiums, and provided further that Lender does not prevent such proceeds from being so applied;
(ix) to recover damages, costs and expenses arising from the failure of the representations set forth in Section 3.1.8 to be true or Borrower’s failure to comply with the provisions of Sections 4.2.11 termination of this Agreement; and
(x) to recover damages, costs and expenses arising from, or in connection with, any Lien arising from a written instrument executed by any Borrower or any Affiliate thereof expressly creating such Lien, to the extent such Lien is prohibited under this Agreement.
(b) Notwithstanding the foregoing, the agreement of Lender not to limit recourse liability as set forth in Section 11.22(a) above SHALL BECOME NULL AND VOID and shall be of no further force and effect Agreement and the Debt shall be fully recourse to Borrower (and to Guarantor under the Guaranty, on the additional terms and conditions thereof and subject to any limitations set forth herein or therein) in the event that:
(i) any Borrower commences a voluntary bankruptcy or insolvency proceeding;
(ii) an involuntary bankruptcy or insolvency proceeding is commenced against any Borrower and is not dismissed within 90 days of filing; or
(iii) voluntary Transfer of the Property occurs by written instrument executed by any Borrower or any Affiliate thereof, which instrument expressly effects such Transfer, or a Secondary Financing is voluntarily incurred in violation of the Loan Documents, except as otherwise consented to by Lender in writing (which consent may be withheld in Lender’s sole discretion)Closing.
(c) Notwithstanding the provisions of clauses (i) and (ii) of Section 11.22(b) no Guarantor shall be liable for any amount related to a Qualified Involuntary Bankruptcy.
(d) In addition, this agreement shall not waive any rights which Lender would have under any provisions of Title 11 of the Bankruptcy Code to file a claim for the full amount of the Debt or to require that the Property shall continue to secure all of the Debt.
Appears in 1 contract
Sources: Real Estate Purchase and Sale Agreement (Cole Corporate Income Trust, Inc.)
Exculpation. Subject Notwithstanding anything contained herein to the qualifications belowcontrary, Lender the Exculpated Parties shall not enforce neither have, nor incur any liability to any Entity for any prepetition or postpetition act taken or omitted to be taken in connection with, or related to formulating, negotiating, soliciting, preparing, disseminating, confirming, or implementing the liability and obligation of Borrower to perform and observe Plan, or consummating the obligations contained in Plan, the Note, this Support Agreement, the Mortgage or Disclosure Statement, the other Loan Documents by Plan Supplement, the New Holdco Governance Documents, the Exit Facility Documents, the Transaction, the issuance, distribution, and/or sale of any action or proceeding wherein a money judgment shall be sought against the Borrower or any direct or indirect members, partners or shareholders shares of Borrower or the employees, agents, directors or officers of Borrower or its Affiliates, except that Lender may bring an action against Borrower, including a foreclosure action, an action for specific performance New Common Stock or any other appropriate action security offered, issued, or proceeding to enable Lender to enforce and realize upon its interest under distributed in connection with the Note, this AgreementPlan, the Mortgage and the other Loan Documents, or in the Property, the Business IncomeChapter 11 Cases, or any contract, instrument, release or other collateral given to Lender pursuant to agreement or document created or entered into in connection with the Loan Documents Plan or any other assets prepetition or postpetition act taken or omitted to be taken in connection with or in contemplation of Borrowerthe restructuring of the Debtors; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding that each Exculpated Party shall be enforceable against Borrower only entitled to rely upon the extent advice of Borrower’s interest in the Propertycounsel concerning his, in the Business Income in any other collateral given to Lender or any other assets of Borrowerher, and Lender, by accepting the Note, this Agreement, the Mortgage and the other Loan Documents, shall not ▇▇▇ for, seek or demand any deficiency judgment or any other monetary payment against Borrower or the direct or indirect members, partners or shareholders of Borrower or the employees, agents, directors or officers of Borrower or its Affiliates in any such action or proceeding under or by reason of or under or in connection with the Note, this Agreement, the 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 Mortgage; (c) affect the validity or enforceability of any guaranty or indemnity made in connection with the Loan (including, without limitation, the Guaranty) or any of the rights and remedies of Lender thereunder; (d) impair the right of Lender to obtain the appointment of a receiver; (e) impair the enforcement of the Assignment of Leases; or (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 Loan (including the security granted by the Mortgage) or any other assets of Borrower or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against such security (including the Property or any other assets of Borrower).
(a) Nothing contained in this Section 11.22 shall limit the rights of Lender to proceed against Borrower for any of the following (or against Guarantor under the Guaranty, on the additional terms and conditions thereof and subject to any limitations set forth herein or therein):
(i) to enforce any Leases entered into by Borrower or its Affiliates as Tenant;
(ii) to recover damages for fraud, material misrepresentation, material breach of warranty or intentional physical waste;
(iii) to recover any Condemnation Proceeds or Insurance Proceeds or other similar funds which have been misappropriated by Borrower or which, under the terms of the Loan Documents, should have been paid to Lender;
(iv) to recover (A) any Tenant security deposits, Tenant letters of credit or other deposits or fees paid to Borrower or (B) prepaid rents for a period of more than thirty (30) days in advance of its due date which have not been delivered to Lender;
(v) to recover Business Income received by Borrower during an Event of Default which have not been applied to the Loan or in accordance with the Loan Documents to operating and maintenance expenses of the Property;
(vi) to recover damages, costs and expenses arising from, or in connection with the provisions of the Mortgage pertaining to Hazardous Materials or the Environmental Indemnity;
(vii) to recover any amount expended by Lender in connection with the foreclosure of the Mortgage, but only in the event that any Borrower or any Guarantor takes action to impede such foreclosure or otherwise contests the foreclosure in bad faith;
(viii) to recover damages, costs and expenses arising fromduties pursuant to, or in connection with, the failure by Borrower to pay Taxes and Insurance Premiums when due Plan or any other related document, instrument, or agreement; provided, further, that the foregoing “Exculpation” shall have no effect on the liability of any Entity solely to the extent resulting from any such act or omission that Borrower was not required is determined in a final order to deposit such amounts with Lender pursuant to Section 6 hereofhave constituted gross negligence or willful misconduct; provided, but only to further, that the extent there was available revenue from the Property for the period in question sufficient to pay such Taxes and Insurance Premiums, and provided further that Lender does not prevent such proceeds from being so applied;
(ix) to recover damages, costs and expenses arising from the failure of the representations set forth in Section 3.1.8 to be true or Borrower’s failure to comply with the provisions of Sections 4.2.11 of this Agreement; and
(x) to recover damages, costs and expenses arising from, or in connection with, any Lien arising from a written instrument executed by any Borrower or any Affiliate thereof expressly creating such Lien, to the extent such Lien is prohibited under this Agreement.
(b) Notwithstanding the foregoing, the agreement of Lender not to limit recourse liability as set forth in Section 11.22(a) above SHALL BECOME NULL AND VOID and foregoing “Exculpation” shall be of have no further force and effect and the Debt shall be fully recourse to Borrower (and to Guarantor under the Guaranty, on the additional terms and conditions thereof and subject to liability of any limitations set forth herein Entity for acts or therein) in omissions occurring after the event that:
(i) any Borrower commences a voluntary bankruptcy or insolvency proceeding;
(ii) an involuntary bankruptcy or insolvency proceeding is commenced against any Borrower and is not dismissed within 90 days of filing; or
(iii) voluntary Transfer of the Property occurs by written instrument executed by any Borrower or any Affiliate thereof, which instrument expressly effects such Transfer, or a Secondary Financing is voluntarily incurred in violation of the Loan Documents, except as otherwise consented to by Lender in writing (which consent may be withheld in Lender’s sole discretion)Confirmation Date.
(c) Notwithstanding the provisions of clauses (i) and (ii) of Section 11.22(b) no Guarantor shall be liable for any amount related to a Qualified Involuntary Bankruptcy.
(d) In addition, this agreement shall not waive any rights which Lender would have under any provisions of Title 11 of the Bankruptcy Code to file a claim for the full amount of the Debt or to require that the Property shall continue to secure all of the Debt.
Appears in 1 contract
Sources: Restructuring Support Agreement (EveryWare Global, Inc.)
Exculpation. 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 Mortgage Pledge Agreement or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against the Borrower or any direct or indirect members, partners or shareholders of Borrower or the employees, agents, directors or officers of Borrower or its AffiliatesBorrower, except that Lender may bring an action against Borrower, including a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender to enforce and realize upon its interest under the Note, this Agreement, the Mortgage Pledge Agreement and the other Loan Documents, or in the Property, the Business Income, Collateral or any other collateral given to Lender pursuant to the Loan Documents or any other assets of BorrowerDocuments; 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 Business Income Collateral and in any other collateral given to Lender or any other assets of BorrowerLender, and Lender, by accepting the Note, this Agreement, the Mortgage 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 or any other monetary payment against Borrower or the direct or indirect members, partners or shareholders of Borrower or the employees, agents, directors or officers of Borrower or its Affiliates in any such action or proceeding under under, or by reason of or under of, or in connection with with, the Note, this Agreement, the Mortgage 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 MortgagePledge Agreement; (c) affect the validity or enforceability of any guaranty or indemnity made in connection with the Loan (including, without limitation, the Guaranty) or any of the rights and remedies of Lender thereunder; (d) impair the right of Lender to obtain the appointment of a receiver; (e) impair the enforcement of the Assignment of LeasesPledge Agreement; or (f) constitute a prohibition against Lender to seek seeking a deficiency judgment against Borrower in order to fully realize on any security given by Borrower in connection with the Loan (including the security granted by the Mortgage) Pledge Agreement or any other assets of Borrower or to commence commencing any other appropriate action or proceeding in order for Lender to exercise its remedies against such security the Collateral; or (g) constitute a waiver of the right of Lender to enforce the liability and obligation of Borrower 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:
(1) fraud or material misrepresentation or failure to disclose a material fact by Borrower or any of the Borrower Parties in connection with the Loan;
(2) the gross negligence or willful misconduct of Borrower or any of the Borrower Parties;
(3) the breach of any representation, warranty, covenant or indemnification provision in this Agreement or the Environmental Indemnity concerning environmental laws, hazardous substances and asbestos and any indemnification of Lender with respect thereto in any of such documents;
(4) 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 or any other assets of Borrower)entity that is required to be a Single-Purpose Entity fails to comply with the SPE Covenants or maintain its status as a Single-Purpose Entity; or
(8) if any Transfer occurs other than as permitted by this Agreement.
(a) Nothing contained in this Section 11.22 shall limit Borrower filing a voluntary petition under the rights Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (b) the filing of Lender to proceed an involuntary petition against Borrower for under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law by any other Person in which Borrower or any of the following Borrower Parties colludes with or otherwise assists such Person, or soliciting or causing to be solicited petitioning creditors for any involuntary petition against Borrower from any Person; (c) Borrower or any of the Borrower Parties filing an answer consenting to or otherwise acquiescing in or joining in any involuntary petition filed against Guarantor it, by any other Person under the Guaranty, on the additional terms and conditions thereof and subject to Bankruptcy Code or any limitations set forth herein other Federal or therein):
state bankruptcy or insolvency law; (id) to enforce any Leases entered into by Borrower or any 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 or all or any portion of the Property; (e) Borrower or any of the Borrower Parties making an assignment for the benefit of creditors, or admitting, in writing or in any legal proceeding, its Affiliates insolvency or inability to pay its debts as Tenant;
they become due; or (ii) to recover damages for fraud, material misrepresentation, material breach of warranty or intentional physical waste;
(iii) to recover any Condemnation Proceeds or Insurance Proceeds or other similar funds which have been misappropriated by if Borrower or whichany Borrower Party, under or any Affiliate of Borrower or Affiliate of any Borrower Party, in any judicial or quasi-judicial case, action or proceeding directly or indirectly contests the terms validity or enforceability of the Loan DocumentsDocuments or directly or indirectly contests or intentionally hinders, should have been paid to Lender;
delays or obstructs the pursuit of any rights or remedies by Lender (iv) to recover (A) any Tenant security deposits, Tenant letters including the commencement and/or prosecution of credit or other deposits or fees paid to Borrower or (B) prepaid rents for a period of more than thirty (30) days in advance of its due date which have not been delivered to Lender;
(v) to recover Business Income received by Borrower during foreclosure action after an Event of Default which have not been applied to Default. The provisions of this Article 10 shall survive the Loan or in accordance with expiration and termination of this Agreement and the Loan Documents to operating and maintenance expenses repayment of the Property;
(vi) to recover damages, costs and expenses arising from, or in connection with the provisions of the Mortgage pertaining to Hazardous Materials or the Environmental Indemnity;
(vii) to recover any amount expended by Lender in connection with the foreclosure of the Mortgage, but only in the event that any Borrower or any Guarantor takes action to impede such foreclosure or otherwise contests the foreclosure in bad faith;
(viii) to recover damages, costs and expenses arising from, or in connection with, the failure by Borrower to pay Taxes and Insurance Premiums when due to the extent that Borrower was not required to deposit such amounts with Lender pursuant to Section 6 hereof, but only to the extent there was available revenue from the Property for the period in question sufficient to pay such Taxes and Insurance Premiums, and provided further that Lender does not prevent such proceeds from being so applied;
(ix) to recover damages, costs and expenses arising from the failure of the representations set forth in Section 3.1.8 to be true or Borrower’s failure to comply with the provisions of Sections 4.2.11 of this Agreement; and
(x) to recover damages, costs and expenses arising from, or in connection with, any Lien arising from a written instrument executed by any Borrower or any Affiliate thereof expressly creating such Lien, to the extent such Lien is prohibited under this AgreementIndebtedness.
(b) Notwithstanding the foregoing, the agreement of Lender not to limit recourse liability as set forth in Section 11.22(a) above SHALL BECOME NULL AND VOID and shall be of no further force and effect and the Debt shall be fully recourse to Borrower (and to Guarantor under the Guaranty, on the additional terms and conditions thereof and subject to any limitations set forth herein or therein) in the event that:
(i) any Borrower commences a voluntary bankruptcy or insolvency proceeding;
(ii) an involuntary bankruptcy or insolvency proceeding is commenced against any Borrower and is not dismissed within 90 days of filing; or
(iii) voluntary Transfer of the Property occurs by written instrument executed by any Borrower or any Affiliate thereof, which instrument expressly effects such Transfer, or a Secondary Financing is voluntarily incurred in violation of the Loan Documents, except as otherwise consented to by Lender in writing (which consent may be withheld in Lender’s sole discretion).
(c) Notwithstanding the provisions of clauses (i) and (ii) of Section 11.22(b) no Guarantor shall be liable for any amount related to a Qualified Involuntary Bankruptcy.
(d) In addition, this agreement shall not waive any rights which Lender would have under any provisions of Title 11 of the Bankruptcy Code to file a claim for the full amount of the Debt or to require that the Property shall continue to secure all of the Debt.
Appears in 1 contract
Sources: Term 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 Mortgage 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 the Borrower or any direct principal, director, officer, employee, beneficiary, shareholder, partner, member, trustee, agent, or indirect members, partners or shareholders Affiliate of Borrower or any legal representatives, successors or assigns of any of the employeesforegoing (collectively, agents, directors or officers of Borrower or its Affiliatesthe “Exculpated Parties”), except that Lender may bring an action against Borrower, including a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender to enforce and realize upon its interest under the Note, this Agreement, the Mortgage Security Instrument and the other Loan Documents, or in the Property, the Business IncomeRents, or any other collateral given to Lender pursuant to the Loan Documents or any other assets of BorrowerDocuments; 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 Business Income Rents and in any other collateral given to Lender or any other assets of BorrowerLender, and Lender, by accepting the Note, this Agreement, the Mortgage Security Instrument and the other Loan Documents, shall not ▇▇▇ for, seek or demand any deficiency judgment or any other monetary payment against Borrower or any of the direct or indirect members, partners or shareholders of Borrower or the employees, agents, directors or officers of Borrower or its Affiliates Exculpated Parties in any such action or proceeding under or by reason of or under or in connection with the Note, this Agreement, the Mortgage 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 MortgageSecurity Instrument; (c3) affect the validity or enforceability of any indemnity, guaranty or indemnity 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 (including, without limitation, the Guaranty) 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) impair the enforcement of the Assignment of Leases; or (f7) 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 Loan (including the security granted by the Mortgage) or any other assets of Borrower Security Instrument or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against such security (including the Property (or any other assets portion thereof); or (8) constitute a waiver of Borrower).
(a) Nothing contained in this Section 11.22 shall limit the rights right of Lender to proceed against Borrower for enforce the liability and obligation of Borrower, by money judgment or otherwise, to the extent of any Loss incurred by Lender (including reasonable attorneys’ fees and costs reasonably incurred) arising out of or in connection with the following (or against Guarantor under the Guaranty, on the additional terms and conditions thereof and subject to any limitations set forth herein or therein):following:
(i) to enforce fraud or intentional misrepresentation by any Leases entered into by Borrower or its Affiliates as TenantParty in connection with the Loan;
(ii) to recover damages for fraud, material misrepresentation, material breach the willful misconduct of warranty or intentional physical wasteany Borrower Party;
(iii) to recover any Condemnation Proceeds or Insurance Proceeds litigation or other similar funds which have been misappropriated legal proceeding related to the Debt filed by any Borrower Party or whichany other action of any Borrower Party exercised in bad faith that delays, under opposes, impedes, obstructs, hinders, enjoins or otherwise interferes with or frustrates the terms efforts of Lender to exercise any rights and remedies available to Lender as provided herein and in the other Loan Documents, should have been paid to Lender;
(iv) waste to recover 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 Property by (Aor on behalf of) any Tenant security deposits, Tenant letters Borrower Party after an Event of credit or other deposits or fees paid to Borrower or (B) prepaid rents for a period of more than thirty (30) days in advance of its due date which have not been delivered to LenderDefault;
(v) the misapplication, misappropriation or conversion by any Borrower Party of (A) any insurance proceeds paid by reason of any loss, damage or destruction to recover Business Income the Property (or any portion thereof), (B) any Awards or other amounts received by Borrower during in connection with the Condemnation of all or a portion of the Property, (C) any Rents following an Event of Default which have not been applied to Default, (D) any Tenant security deposits or Rents collected in advance or (E) any other monetary collateral for the Loan (including, without limitation, any Reserve Funds and/or any portion thereof disbursed to (or in accordance with at the Loan Documents to operating and maintenance expenses of the Propertydirection of) Borrower);
(vi) failure to recover damagespay Taxes, costs and expenses arising from, charges for labor or materials or other charges that can create liens on any portion of the Property in connection 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 (A) sufficient sums had been reserved hereunder for the express purpose of paying the Mortgage pertaining Taxes in question and Lender failed to Hazardous Materials pay same, (B) Lender’s access to such sums was not restricted or the Environmental Indemnityconstrained in any manner and (C) no Event of Default was continuing);
(vii) failure to recover any amount expended by pay Insurance Premiums, to maintain the Policies in full force and effect and/or to provide Lender in connection with the foreclosure evidence of the Mortgagesame, but only in each case, as expressly provided herein (provided, however, that there shall be no personal liability under this subsection (vii) for the event that 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 Borrower or any Guarantor takes action to impede such foreclosure or otherwise contests the foreclosure in bad faithmanner and (III) no Event of Default was continuing);
(viii) any security deposits, advance deposits or any other deposits collected with respect to recover damagesthe Property which are not delivered to Lender upon a foreclosure of the Property or action in lieu thereof, costs and expenses arising from, or in connection with, the failure by Borrower to pay Taxes and Insurance Premiums when due except to the extent that Borrower was not required to deposit any such amounts security deposits were applied in accordance with Lender pursuant to Section 6 hereof, but only the terms and conditions of any of the Leases prior to the extent there was available revenue from occurrence of the Property for the period Event of Default that gave rise to such foreclosure or action in question sufficient to pay such Taxes and Insurance Premiums, and provided further that Lender does not prevent such proceeds from being so appliedlieu thereof;
(ix) any tax on the making and/or recording of the Security Instrument, the Note or any of the other 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 seizure or forfeiture of the Property, or any portion thereof, or Borrower’s interest therein, resulting from criminal wrongdoing by any Borrower Party;
(xi) the failure to recover damagesmake any REMIC Payment and/or any True Up Payment, costs 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 expenses arising from when required herein;
(xii) any violation or breach of the Property Document Provisions and/or any Property Document Event;
(xiii) [intentionally omitted];
(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 representations set forth request of Lender and/or the failure of Borrower to comply with any limitations on instructing the Manager, each as required by and in Section 3.1.8 accordance with, as applicable, the terms and provisions of, this Agreement, the Assignment of Management Agreement and the Security Instrument;
(xvi) any violation or breach of any representation, warranty or covenant contained in Article 5 hereof;
(xvii) [intentionally omitted];
(xviii) any failure to be true (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 certificate of occupancy or Borrower’s obtain any new certificate of occupancy at any time as required by Legal Requirements, and/or (c) to operate the 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 breach of the Cash Management Provisions; and/or
(xx) any claims to divest, subordinate or extinguish the lien of the Security Instrument (including, without limitation, any such claims resulting from any breach or other failure to comply with Section 22 of the provisions of Sections 4.2.11 of this Agreement; and
(x) to recover damages, costs and expenses arising from, or in connection with, any New York Lien arising from a written instrument executed by any Borrower or any Affiliate thereof expressly creating such Lien, to the extent such Lien is prohibited under this AgreementLaw).
(b) Notwithstanding anything to the foregoingcontrary in this Agreement, the agreement of Lender not to limit recourse liability as set forth in Section 11.22(a) above SHALL BECOME NULL AND VOID and shall be of no further force and effect and the Debt shall be fully recourse to Borrower (and to Guarantor under the Guaranty, on the additional terms and conditions thereof and subject to any limitations set forth herein or therein) in the event that:
(i) any Borrower commences a voluntary bankruptcy or insolvency proceeding;
(ii) an involuntary bankruptcy or insolvency proceeding is commenced against any Borrower and is not dismissed within 90 days of filing; or
(iii) voluntary Transfer of the Property occurs by written instrument executed by any Borrower Note or any Affiliate thereof, which instrument expressly effects such Transfer, or a Secondary Financing is voluntarily incurred in violation of the Loan Documents, except as otherwise consented to by (A) Lender in writing (which consent may be withheld in Lender’s sole discretion).
(c) Notwithstanding the provisions of clauses (i) and (ii) of Section 11.22(b) no Guarantor shall be liable for any amount related to a Qualified Involuntary Bankruptcy.
(d) In addition, this agreement shall not waive be deemed to have waived any rights right which Lender would may have under Section 506(a), 506(b), 1111(b) or any other provisions of Title 11 of the Bankruptcy Code to file a claim for the full amount of the Debt or to require that the Property all collateral shall continue to secure all of the DebtDebt owing to Lender in accordance with the Loan Documents, and (B) the Debt shall be fully recourse to Borrower 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.
(c) Borrower hereby personally guarantees (without the benefit of the exculpation provisions provided in Section 13.1 hereof) payment of each of the following obligations of Borrower: (x) the obligation to make a Gap Rent True-Up Deposit as set forth in Section 8.8(a) hereof and (y) the obligation to make a Guaranteed Reserve Deposit as set forth in Section 4.24(c) hereof. 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 1 contract
Sources: 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 Mortgage 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 the Borrower or any direct principal, director, officer, employee, beneficiary, shareholder, partner, member, trustee, agent, or indirect members, partners or shareholders Affiliate of Borrower or any legal representatives, successors or assigns of any of the employeesforegoing (collectively, agents, directors or officers of Borrower or its Affiliatesthe “Exculpated Parties”), except that Lender may bring an action against Borrower, including a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender to enforce and realize upon its interest under the Note, this Agreement, the Mortgage Security Instrument and the other Loan Documents, or in the Property, the Business IncomeRents, or any other collateral given to Lender pursuant to the Loan Documents or any other assets of BorrowerDocuments; 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 Business Income Rents and in any other collateral given to Lender or any other assets of BorrowerLender, and Lender, by accepting the Note, this Agreement, the Mortgage Security Instrument and the other Loan Documents, shall not ▇▇▇ sue for, seek or demand any deficiency judgment or any other monetary payment against Borrower or any of the direct or indirect members, partners or shareholders of Borrower or the employees, agents, directors or officers of Borrower or its Affiliates Exculpated Parties in any such action or proceeding under or by reason of or under or in connection with the Note, this Agreement, the Mortgage 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 MortgageSecurity Instrument; (c3) affect the validity or enforceability of any indemnity, guaranty or indemnity 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 (including, without limitation, the Guaranty) or any of the rights and remedies of Lender thereunderthereunder (including, without limitation, ▇▇▇▇▇▇’s right to enforce said rights and remedies against ▇▇▇▇▇▇▇▇ 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) impair the enforcement of the Assignment of Leases; or (f7) 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 Loan (including the security granted by the Mortgage) or any other assets of Borrower Security Instrument or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against such security (including the Property (or any other assets portion thereof); or (8) constitute a waiver of Borrower).
(a) Nothing contained in this Section 11.22 shall limit the rights right of Lender to proceed against Borrower for enforce the liability and obligation of Borrower, by money judgment or otherwise, to the extent of any Loss incurred by Lender (including reasonable attorneys’ fees and costs reasonably incurred) arising out of or in connection with the following (or against Guarantor under the Guaranty, on the additional terms and conditions thereof and subject to any limitations set forth herein or therein):following:
(i) to enforce fraud or intentional misrepresentation by any Leases entered into by Borrower or its Affiliates as TenantParty in connection with the Loan;
(ii) to recover damages for fraud, material misrepresentation, material breach the willful misconduct of warranty or intentional physical wasteany Borrower Party;
(iii) to recover any Condemnation Proceeds or Insurance Proceeds litigation or other similar funds which have been misappropriated legal proceeding related to the Debt filed by any Borrower Party or whichany other action of any Borrower Party exercised in bad faith that delays, under opposes, impedes, obstructs, hinders, enjoins or otherwise interferes with or frustrates the terms efforts of Lender to exercise any rights and remedies available to Lender as provided herein and in the other Loan Documents, should have been paid to Lender;
(iv) waste to recover 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 Property by (Aor on behalf of) any Tenant security deposits, Tenant letters Borrower Party after an Event of credit or other deposits or fees paid to Borrower or (B) prepaid rents for a period of more than thirty (30) days in advance of its due date which have not been delivered to LenderDefault;
(v) the misapplication, misappropriation or conversion by any Borrower Party of (A) any insurance proceeds paid by reason of any loss, damage or destruction to recover Business Income the Property (or any portion thereof), (B) any Awards or other amounts received by Borrower during in connection with the Condemnation of all or a portion of the Property, (C) any Rents following an Event of Default which have not been applied to Default, (D) any Security Deposits or Rents collected in advance or (E) any other monetary collateral for the Loan (including, without limitation, any Reserve Funds and/or any portion thereof disbursed to (or in accordance with at the Loan Documents to operating and maintenance expenses of the Propertydirection of) Borrower);
(vi) failure to recover damagespay Taxes, costs and expenses arising from, charges for labor or materials or other charges that can create liens on any portion of the Property in connection 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 (A) sufficient sums had been reserved hereunder for the express purpose of paying the Mortgage pertaining Taxes in question and Lender failed to Hazardous Materials pay same, (B) ▇▇▇▇▇▇’s access to such sums was not restricted or the Environmental Indemnityconstrained in any manner and (C) no Event of Default was continuing);
(vii) failure to recover any amount expended by pay Insurance Premiums, to maintain the Policies in full force and effect and/or to provide Lender in connection with the foreclosure evidence of the Mortgagesame, but only in each case, as expressly provided herein (provided, however, that there shall be no personal liability under this subsection (vii) for the event that 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 Borrower or any Guarantor takes action to impede such foreclosure or otherwise contests the foreclosure in bad faithmanner and (III) no Event of Default was continuing);
(viii) any Security Deposits which are not delivered to recover damagesLender upon a foreclosure of the Property or action in lieu thereof, costs and expenses arising from, or in connection with, the failure by Borrower to pay Taxes and Insurance Premiums when due except to the extent that Borrower was not required to deposit any such amounts Security Deposits were applied in accordance with Lender pursuant to Section 6 hereof, but only the terms and conditions of any of the Leases prior to the extent there was available revenue from occurrence of the Property for the period Event of Default that gave rise to such foreclosure or action in question sufficient to pay such Taxes and Insurance Premiums, and provided further that Lender does not prevent such proceeds from being so appliedlieu thereof;
(ix) any tax on the making and/or recording of the Security Instrument, the Note or any of the other Loan Documents or any transfer 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 similar taxes;
(x) the seizure or forfeiture of the Property, or any portion thereof, or Borrower’s interest therein, resulting from criminal wrongdoing by any Borrower Party;
(xi) the failure to recover damages(A) make any True Up Payment and/or (B) provide the Required Financial Items, costs in each case, as and expenses arising when required herein; provided, however, that there shall be no personal liability under this subsection (xi) solely for the failure to make any True Up Payment to the extent that there existed insufficient cash flow from the Property to make such True Up Payment;
(xii) (A) any violation or breach of the Violations Provisions, the Property Document Provisions, (B) any Property Document Event, (C) any violation or breach of any Regulatory Document and/or the Regulatory Document Provisions, and/or (D) any termination and/or cancellation of any Regulatory Document;
(xiii) the Violations;
(xiv) the breach by Borrower of its obligations under the IH Regulatory Agreement which results in the City of New York having an exercisable right to terminate (and/or actually terminating) the IH Regulatory Agreement;
(xv) any Regulatory Damages;
(xvi) any indemnity obligations of Lender to Bank under the Restricted Account Agreement;
(xvii) the failure of Borrower to appoint a New Manager upon the representations set forth request of ▇▇▇▇▇▇ and/or the failure of Borrower to comply with any limitations on instructing the Manager, each as required by and in Section 3.1.8 accordance with, as applicable, the terms and provisions of this Agreement, the Assignment of Management Agreement and the Security Instrument;
(xviii) any representation, warranty or covenant contained in Article 5 is breached or violated;
(xix) any representation, warranty or covenant contained in Article 6 hereof is violated or breached (including, without limitation, in connection with and/or as a result of the occurrence of an Immaterial Prohibited Transfer);
(xx) any violation or breach of the Cash Management Provisions;
(xxi) any claims to be true divest, subordinate or Borrower’s extinguish the lien of the Security Instrument (including, without limitation, any such claims resulting from any breach or other failure to comply with Section 22 of the provisions of Sections 4.2.11 of this AgreementNew York Lien Law); andand/or
(xxxii) to recover damages(A) an actual violation or breach by Borrower, costs and expenses arising from, or in connection with, any Lien arising from a written instrument executed by any Borrower Guarantor or any Affiliate thereof expressly creating such Lienthereof, of any Rent Regulations, or any representation or covenant related to Rent Regulations (including, without limitation, any rent overcharges, rent rollbacks or the incorrect representation or covenant by Borrower that the Property or any residential unit at the Property is or will be exempt from any Rent Regulations, and damages of any kind awarded in connection with the same) whether the same occurred prior to or after the Closing Date with respect to the extent such Lien is prohibited Property or the residential units at the Property or (B) diminution in value to the Loan or the Property as a result of any rent reductions or rollbacks, judgment or determination of rent overcharge, imposition of treble damages or other penalties imposed by the applicable Governmental Authority due to the violation or breach described in clause (A) if Borrower fails to maintain the tax exemption or other benefits for the Property under this Agreementthe Regulatory Programs.
(b) Notwithstanding anything to the foregoingcontrary in this Agreement, the agreement of Lender not to limit recourse liability as set forth in Section 11.22(a) above SHALL BECOME NULL AND VOID and shall be of no further force and effect and the Debt shall be fully recourse to Borrower (and to Guarantor under the Guaranty, on the additional terms and conditions thereof and subject to any limitations set forth herein or therein) in the event that:
(i) any Borrower commences a voluntary bankruptcy or insolvency proceeding;
(ii) an involuntary bankruptcy or insolvency proceeding is commenced against any Borrower and is not dismissed within 90 days of filing; or
(iii) voluntary Transfer of the Property occurs by written instrument executed by any Borrower Note or any Affiliate thereof, which instrument expressly effects such Transfer, or a Secondary Financing is voluntarily incurred in violation of the Loan Documents, except as otherwise consented to by (A) Lender in writing (which consent may be withheld in Lender’s sole discretion).
(c) Notwithstanding the provisions of clauses (i) and (ii) of Section 11.22(b) no Guarantor shall be liable for any amount related to a Qualified Involuntary Bankruptcy.
(d) In addition, this agreement shall not waive be deemed to have waived any rights right which Lender would may have under Section 506(a), 506(b), 1111(b) or any other provisions of Title 11 of the Bankruptcy Code to file a claim for the full amount of the Debt or to require that the Property all collateral shall continue to secure all of the DebtDebt owing to Lender in accordance with the Loan Documents and (B) the Debt shall be fully recourse to Borrower in the event that: (i) any representation, warranty or covenant contained in Article 5 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), (ii) a Prohibited Transfer occurs in violation of Article 6 hereof (other than an Immaterial Prohibited Transfer), or (iii) a Bankruptcy Event occurs. 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 1 contract
Sources: Loan Agreement (Clipper Realty Inc.)
Exculpation. Subject to the qualifications below, Lender shall not enforce the liability and obligation of Borrower Borrower, to perform and observe the obligations contained in this Security Instrument, the Note, this Agreement, the Mortgage or the other Loan Other Security Documents by any action or proceeding wherein a money judgment shall be sought against the Borrower or any direct partner, member or indirect members, partners or shareholders equivalent person of Borrower or the employees, agents, directors or officers of Borrower or its AffiliatesBorrower, except that Lender may bring an action against Borrower, including a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender to enforce and realize upon its interest under this Security Instrument, the Note, this Agreementthe Other Security Documents, the Mortgage and the other Loan Documents, or interests in the Property, the Business Income, or ; and any other collateral given to Lender pursuant to this Security Instrument and the Loan Documents or any other assets of BorrowerOther Security Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower or any partner, member or equivalent person of Borrower only to the extent of Borrower’s 's or such partner's, members or equivalent person's interest in the Property, in the Business Income Property and in any other collateral given to Lender or any other assets of BorrowerLender, and Lender, by accepting the Note, this AgreementSecurity Instrument, the Mortgage Note and the other Loan Other Security Documents, agrees that it shall not ▇▇▇ for, seek or demand any deficiency judgment or any other monetary payment against Borrower or the direct any partner, member or indirect membersequivalent person of Borrower, partners or shareholders of Borrower or the employees, agents, directors or officers of Borrower or its Affiliates in any such action or proceeding proceeding, under or by reason of or under or in connection with this Security Instrument, the Note, this Agreement, the Mortgage or the other Loan Other Security 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 this Security Instrument or the Loan Other Security 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 Mortgage; this Security Instrument, (ciii) affect the validity or enforceability of any guaranty or indemnity made in connection with this Security Instrument or the Loan Other Security Documents, (including, without limitation, the Guaranty) or any of the rights and remedies of Lender thereunder; (div) impair the right of Lender to obtain the appointment of a receiver; , (ev) impair the enforcement of the Assignment of Leases; or any assignment, or, (fvi) constitute a prohibition against waiver of the right of Lender to seek a deficiency judgment against Borrower in order to fully realize on any security given by Borrower in connection with enforce the Loan (including the security granted by the Mortgage) or any other assets liability and obligation of Borrower or any partner, member or equivalent person of Borrower, by money judgment or otherwise, to commence the extent of any loss, damage, cost, expense, liability, claim or other appropriate action or proceeding in order for obligation incurred by Lender to exercise its remedies against such security (including the Property or any other assets attorneys' fees and costs reasonably incurred) arising out of Borrower).
(a) Nothing contained in this Section 11.22 shall limit the rights of Lender to proceed against Borrower for any of the following (or against Guarantor under the Guaranty, on the additional terms and conditions thereof and subject to any limitations set forth herein or therein):
(i) to enforce any Leases entered into by Borrower or its Affiliates as Tenant;
(ii) to recover damages for fraud, material misrepresentation, material breach of warranty or intentional physical waste;
(iii) to recover any Condemnation Proceeds or Insurance Proceeds or other similar funds which have been misappropriated by Borrower or which, under the terms of the Loan Documents, should have been paid to Lender;
(iv) to recover (A) any Tenant security deposits, Tenant letters of credit or other deposits or fees paid to Borrower or (B) prepaid rents for a period of more than thirty (30) days in advance of its due date which have not been delivered to Lender;
(v) to recover Business Income received by Borrower during an Event of Default which have not been applied to the Loan or in accordance with the Loan Documents to operating and maintenance expenses of the Property;
(vi) to recover damages, costs and expenses arising from, or in connection with the provisions following: (a) fraud or misrepresentation by Borrower or any partner, member or equivalent person in connection with this Security Instrument, the Note or the Other Security Documents; (b) the gross negligence or willful misconduct of Borrower or any partner, member or equivalent person of Borrower; (c) material physical waste of the Mortgage pertaining to Hazardous Materials Property; (d) the breach of provisions in this Security Instrument or the Other Security Documents concerning Environmental Indemnity;
Laws and Hazardous Substances and any indemnification of Lender with respect thereto in any document; (viie) the removal or disposal of any portion of the Property after an Event of Default under this Security Instrument, the Note or the Other Security Documents; (f) the misapplication or conversion by Borrower or any partner, member or equivalent person of Borrower of (i) any insurance proceeds paid by reason of any loss, damage or destruction to recover the Property, (ii) any amount expended by Lender awards or other amounts received in connection with the condemnation of all or a portion of the Property, or (iii) any Rents following an Event of Default under this Security Instrument, the Note or the Other Security Documents; (g) failure to pay Taxes (provided that the liability of Borrower shall be only for amounts in excess of the amount held by Lender in escrow for the payment of Taxes), assessments, charges for labor or materials or other charges that can create liens on any portion of the Property which are prior to the lien of this Security Instrument; and (h) any security deposits collected with respect to the Property which are not delivered o Lender upon a foreclosure of the MortgageProperty or action in lieu thereof, but only except to the extent any such security deposits were applied in accordance with the event terms and conditions of any of the Leases prior to the occurrence of the Event of Default that any Borrower or any Guarantor takes action gave rise to impede such foreclosure or otherwise contests the foreclosure action in bad faith;
(viii) to recover damages, costs and expenses arising from, or in connection with, the failure by Borrower to pay Taxes and Insurance Premiums when due to the extent that Borrower was not required to deposit such amounts with Lender pursuant to Section 6 hereof, but only to the extent there was available revenue from the Property for the period in question sufficient to pay such Taxes and Insurance Premiums, and provided further that Lender does not prevent such proceeds from being so applied;
(ix) to recover damages, costs and expenses arising from the failure of the representations set forth in Section 3.1.8 to be true or Borrower’s failure to comply with the provisions of Sections 4.2.11 of this Agreement; and
(x) to recover damages, costs and expenses arising from, or in connection with, any Lien arising from a written instrument executed by any Borrower or any Affiliate thereof expressly creating such Lien, to the extent such Lien is prohibited under this Agreementlieu thereof.
(bi) Notwithstanding the foregoing, the agreement of Lender not to limit recourse liability as set forth in Section 11.22(a) above SHALL BECOME NULL AND VOID and shall be of no further force and effect and the Debt shall be fully recourse to Borrower (and to Guarantor under the Guaranty, on the additional terms and conditions thereof and subject to any limitations set forth herein or therein) in the event that:
(i) any Borrower commences a voluntary bankruptcy or insolvency proceeding;
(ii) an involuntary bankruptcy or insolvency proceeding is commenced against any Borrower and is not dismissed within 90 days of filingBorrower; or
(iii) voluntary Transfer of the Property occurs by written instrument executed by any Borrower or any Affiliate thereof, which instrument expressly effects such Transfer, or a Secondary Financing is voluntarily incurred in violation of the Loan Documents, except as otherwise consented to by Lender in writing (which consent may be withheld in Lender’s sole discretion).
(c) Notwithstanding the provisions of clauses (i) and (ii) of Section 11.22(b) no Guarantor shall be liable for any amount related to a Qualified Involuntary Bankruptcy.
(d) In addition, this agreement Lender shall not waive be deemed to have waived any rights right which Lender would may have under Section 506(a), 506(b), 1111(b) or any other provisions of Title 11 of the U.S. Bankruptcy Code to file a claim for the full amount of the Debt or to require that the Property all collateral shall continue to secure all of the Debt.Debt owing to Lender in accordance with this Security Instrument, the Note or the Other Security Documents, in the event that: (A) the first full monthly payment of principal and interest under the Note is not paid when due; (B) Borrower fails to permit on-site inspections of the Property, fails to provide financial information, or fails to maintain its status as a single purpose entity, as required by this Security Instrument;
Appears in 1 contract
Sources: Consolidation, Modification, Spreader and Extension Agreement (Unitel Video Inc/De)
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 Mortgage 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 the Borrower or any direct principal, director, officer, employee, beneficiary, shareholder, partner, member, trustee, agent, or indirect members, partners or shareholders Affiliate of Borrower (but specifically excluding Guarantor) or any legal representatives, successors or assigns of any of the employeesforegoing (collectively, agents, directors or officers of Borrower or its Affiliatesthe “Exculpated Parties”), except that Lender may bring an action against Borrower, including a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender to enforce and realize upon its interest under the Note, this Agreement, the Mortgage Security Instrument and the other Loan Documents, or in the Property, the Business IncomeRents, or any other collateral given to Lender pursuant to the Loan Documents or any other assets of BorrowerDocuments; 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 Business Income Rents and in any other collateral given to Lender or any other assets of BorrowerLender, and Lender, by accepting the Note, this Agreement, the Mortgage Security Instrument and the other Loan Documents, shall not ▇▇▇ for, seek or demand any deficiency judgment or any other monetary payment against Borrower or any of the direct or indirect members, partners or shareholders of Borrower or the employees, agents, directors or officers of Borrower or its Affiliates Exculpated Parties in any such action or proceeding under or by reason of or under or in connection with the Note, this Agreement, the Mortgage 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 MortgageSecurity Instrument; (c3) affect the validity or enforceability of any indemnity, guaranty or indemnity made in connection with the Loan similar instrument (including, without limitation, the Guarantyindemnities set forth in Article 12 hereof, in the Guaranty and in 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 of Lender to obtain the appointment of a receiver; (e5) impair the enforcement of the Assignment assignment of Leasesleases and rents contained in the Security Instrument; or (f6) impair the right of Lender to enforce Section 4.12(e) of this Agreement; (7) constitute a prohibition against Lender to seek a deficiency judgment against Borrower (but not Guarantor) in order to fully realize on any security given by Borrower in connection with the Loan (including the security granted by the Mortgage) or any other assets of Borrower Security Instrument or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against such security the Property; or (including 8) constitute a waiver of the Property or any other assets of Borrower).
(a) Nothing contained in this Section 11.22 shall limit the rights right of Lender to proceed against Borrower for enforce the liability and obligation of Borrower, by money judgment or otherwise, to the extent of any Losses incurred by Lender (including attorneys’ fees and costs reasonably incurred) arising out of or in connection with any of the following (or against Guarantor under the Guaranty, on the additional terms and conditions thereof and subject to any limitations set forth herein or therein):following:
(i) to enforce fraud or intentional misrepresentation by Borrower, any Leases entered into by SPE Component Entity, Guarantor, or any Borrower or its Affiliates as TenantParty in connection with the Loan;
(ii) to recover damages for fraudthe gross negligence or willful misconduct of Borrower, material misrepresentationany SPE Component Entity, material breach Guarantor, or any Borrower Party or the commission of warranty a criminal act by Borrower, any SPE Component Entity, Guarantor, or intentional physical wasteany Borrower Party which results in any seizure or forfeiture of the Property, or any portion thereof, or Borrower’s interest therein;
(iii) material physical waste to recover the Property caused by the intentional acts or intentional omissions of Borrower, any Condemnation Proceeds SPE Component Entity, Guarantor, or Insurance Proceeds any Borrower Party (including, without limitation, any arson or abandonment of the Property) and/or the removal or disposal of any portion of the Property after an Event of Default by Borrower, any SPE Component Entity, Guarantor, or any Borrower Party;
(iv) the misapplication, misappropriation or conversion by Borrower of (A) any insurance proceeds paid by reason of any loss, damage or destruction to the Property which are not applied by Borrower in accordance with the Loan Documents, (B) any Awards or other similar funds amounts received in connection with the Condemnation of all or a portion of the Property which have been misappropriated are not applied by Borrower in accordance with the Loan Documents, (C) any Rents following an Event of Default, or which(D) any Tenant security deposits or Rents collected in advance;
(v) failure to pay any Taxes or Other Charges, under charges for labor or materials or any other charges that can create liens on any portion of the Property to the extent that the revenue from the Property is sufficient to pay such amounts (other than (x) amounts deposited with Lender as Tax Reserve Funds for Taxes or Other Charges where Lender elects not to apply such funds toward payment of such Taxes or Other Charges owed or (y) Taxes or Other Charges owed that are contested strictly in accordance with the terms of the Loan Documents), should have been paid to Lender;
provided, that, if (ivi) to recover (A) any Tenant security deposits, Tenant letters of credit or other deposits or fees paid to Borrower or (B) prepaid rents for a period of more than thirty (30) days in advance of its due date which have not been delivered to Lender;
(v) to recover Business Income received by Borrower during an Event of Default which have not been applied such lien is fully bonded to the Loan or in accordance with satisfaction of Lender (which bond shall create no obligations on the Loan Documents part of Borrower), and (ii) such lien is discharged of record, Borrower shall not have any liability to operating and maintenance expenses of the PropertyLender for such lien under this Section 13.1(a)(v);
(vi) failure to recover damages, costs and expenses arising from, or in connection maintain insurance as required by this Agreement to the extent that the revenue from the Property is sufficient to pay the Insurance Premiums relating thereto (other than the failure to pay amounts deposited with the provisions Lender as Insurance Reserve Funds for Insurance Premiums to be paid to maintain such insurance where Lender elects not to apply such funds toward payment of the Mortgage pertaining to Hazardous Materials or the Environmental Indemnitysuch Insurance Premiums);
(vii) to recover the breach of any amount expended by Lender in connection with the foreclosure of the Mortgagerepresentation, but only warranty, covenant or indemnification provision in the event that any Borrower Environmental Indemnity, this Agreement or any Guarantor takes action to impede such foreclosure or otherwise contests in the foreclosure in bad faithSecurity Instrument concerning Environmental Laws and Hazardous Substances;
(viii) any fees or commissions paid by Borrower after the occurrence of any Event of Default to recover damagesGuarantor, costs and expenses arising fromand/or any Affiliate of Borrower, or and/or Guarantor in connection withviolation of the terms of the Note, this Agreement, the failure by Borrower to pay Taxes and Insurance Premiums when due to Security Instrument or the extent that Borrower was not required to deposit such amounts with Lender pursuant to Section 6 hereof, but only to the extent there was available revenue from the Property for the period in question sufficient to pay such Taxes and Insurance Premiums, and provided further that Lender does not prevent such proceeds from being so appliedother Loan Documents;
(ix) to recover damages, costs and expenses arising from the failure of the representations set forth in Section 3.1.8 to be true or Borrower’s breach of, or failure to comply with with, the representations, warranties and covenants contained in Article 15 of this Agreement and/or the provisions of Sections 4.2.11 of this Agreement; and12.2 and 12.3 hereof;
(x) to recover damagesany representation, costs and expenses arising from, warranty or covenant contained in connection with, any Lien arising from a written instrument executed by any Borrower Article 5 hereof is violated or any Affiliate thereof expressly creating such Lien, to the extent such Lien is prohibited under this Agreement.
(b) Notwithstanding the foregoing, the agreement of Lender not to limit recourse liability as set forth in Section 11.22(a) above SHALL BECOME NULL AND VOID and shall be of no further force and effect and the Debt shall be fully recourse to Borrower (and to Guarantor under the Guaranty, on the additional terms and conditions thereof and subject to any limitations set forth herein or therein) in the event that:
(i) any Borrower commences a voluntary bankruptcy or insolvency proceedingbreached;
(iixi) an involuntary bankruptcy Borrower 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, the Assignment of Management Agreement and the other Loan Documents or insolvency Borrower appoints a new property manager or replaces the property manager other than in accordance with the terms of this Agreement, the Assignment of Management Agreement and the other Loan Documents;
(xii) any litigation or other legal proceeding is commenced against related to the Debt filed by Borrower, any SPE Component Entity, Guarantor, or any Borrower Party that delays, opposes, impedes, obstructs, hinders, enjoins or otherwise interferes with or frustrates the efforts of Lender to exercise any rights and is not dismissed within 90 days of filing; or
(iii) voluntary Transfer of remedies available to Lender as provided herein and in the Property occurs by written instrument executed by any Borrower or any Affiliate thereof, which instrument expressly effects such Transfer, or a Secondary Financing is voluntarily incurred in violation of the other Loan Documents, except as otherwise consented to by Lender in writing (which consent may be withheld in Lender’s sole discretion).
(c) Notwithstanding the provisions of clauses (i) and (ii) of Section 11.22(b) no Guarantor shall be liable for any amount related to a Qualified Involuntary Bankruptcy.
(d) In addition, this agreement shall not waive any rights which Lender would have under any provisions of Title 11 of the Bankruptcy Code to file a claim for the full amount of the Debt or to require that the Property shall continue to secure all of the Debt.;
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 Mortgage 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 the Borrower, any other Borrower Party or any direct principal, director, officer, employee, beneficiary, shareholder, partner, member, trustee, agent, or indirect membersAffiliate of Borrower, partners any other Borrower Party or shareholders any legal representatives, successors or assigns of Borrower or any of the employeesforegoing (collectively, agents, directors or officers of Borrower or its Affiliatesthe “Exculpated Parties”), except that Lender may bring an action against Borrower, including a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender to enforce and realize upon its interest under the Note, this Agreement, the Mortgage Security Instrument, the Pledge Agreement and the other Loan Documents, or in the PropertyProperty (or any portion thereof), the Business IncomeCollateral, the Rents, or any other collateral given to Lender pursuant to the Loan Documents or any other assets of BorrowerDocuments; 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 Property, in the Business Income Collateral, in the Rents and in any other collateral given to Lender or any other assets of BorrowerLender, and Lender, by accepting the Note, this Agreement, the Mortgage Security Instrument, the Pledge Agreement and the other Loan Documents, shall not ▇▇▇ for, seek or demand any deficiency judgment against Borrower, any other Borrower Party or any other monetary payment against Borrower or of the direct or indirect members, partners or shareholders of Borrower or the employees, agents, directors or officers of Borrower or its Affiliates Exculpated Parties in any such action or proceeding under or by reason of or under or in connection with the Note, this Agreement, the Mortgage 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 MortgageSecurity Instrument or the Pledge Agreement; (c3) affect the validity or enforceability of any indemnity, guaranty or indemnity 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 (including, without limitation, the Guaranty) 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) impair the enforcement of the Assignment of Leases; or (f7) constitute a prohibition against Lender to seek a deficiency judgment against Borrower or any other Borrower Party in order to fully realize on any security given by Borrower in connection with the Loan (including the security granted by the Mortgage) Security Instrument or any other assets of Borrower the Pledge Agreement or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against such security (including the Collateral or the Property (or any other assets portion thereof); or (8) constitute a waiver of Borrower).
(a) Nothing contained in this Section 11.22 shall limit the rights right of Lender to proceed against Borrower for enforce the liability and obligation of Borrower, by money judgment or otherwise, to the extent of any Loss incurred by Lender (including attorneys’ fees and costs reasonably incurred) arising out of or in connection with the following (or against Guarantor under the Guaranty, on the additional terms and conditions thereof and subject to any limitations set forth herein or therein):following:
(i) to enforce fraud or intentional material misrepresentation by any Leases entered into by Borrower Party or its any of their respective Affiliates as Tenantin connection with the Loan;
(ii) to recover damages for fraud, material misrepresentation, material breach willful misconduct any Borrower Party or any of warranty their respective Affiliates in connection with the Loan or intentional physical wasteany Individual Property;
(iii) to recover any Condemnation Proceeds or Insurance Proceeds litigation or other legal proceeding related to the Debt in which any Borrower Party or their respective Affiliates files or raises a defense or asserts any right of redemption (or similar funds which have been misappropriated right) 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, in a final non-appealable decision, finds the applicable defenses were not raised in good faith by Borrower or which, under the terms of the Loan Documents, should have been paid to LenderBorrower;
(iv) intentional physical waste to recover any Individual Property caused by the intentional acts or intentional omissions by any Borrower Party or any of their respective Affiliates (A) provided that the foregoing is not the result of the insufficiency of cash flow from the Properties to prevent such intentional omissions, and if there is any Tenant security depositsinsufficiency of cash flow, Tenant letters such insufficiency is not a result of credit misappropriation of Rents by any Borrower Party and/or the removal or disposal of any portion of the property by any Borrower Party or any of their respective Affiliates after an event of default other deposits than in the ordinary course of owning and managing the Properties or fees paid to Borrower or (B) prepaid rents for a period otherwise in violation of more than thirty (30) days in advance of its due date which have not been delivered to Lenderthis Agreement and the other Loan Documents);
(v) to recover Business Income received misappropriation by any Borrower during an Event Party or any of Default which have not been applied their respective Affiliates of (A) any insurance proceeds (including BI Proceeds or Casualty Proceeds) with respect to the Loan Properties, (B) any Awards or other amounts received in accordance connection with any Condemnation of all or any portion of any Individual Property, or (C) any Rents (provided that, in each case there shall be no liability under this subsection to the Loan Documents to operating and maintenance expenses extent that the turnover of the Propertysuch funds is prohibited by any applicable law or court order);
(vi) Borrower’s failure to recover damagespay (or cause to be paid) real property taxes, costs and expenses arising from, 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 Mortgage pertaining other Loan Documents (other than if such failure is caused by the acts of a Tenant) to Hazardous Materials the extent that (i) any such liens are not bonded over or discharged in accordance with this Agreement and the Environmental Indemnityother 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, unless 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, however, that there shall be no personal liability under this subsection solely for the failure to pay real property taxes or 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 pay same, and (b) Lender’s access to such sums was not restricted or constrained by any action taken by or on behalf of any Borrower Party in any manner);
(vii) Borrower’s failure to recover pay Insurance Premiums or the amount of any amount expended by Lender deductible following a Casualty, Condemnation or other insurance claim, to maintain the Policies in connection with 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 foreclosure of aforementioned failures to the Mortgageextent that, but only in each case, (A) the Properties generated insufficient revenue in the event that 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 or Party in any Guarantor takes action to impede such foreclosure or otherwise contests the foreclosure in bad faithmanner);
(viii) any security deposits, advance deposits or any other deposits collected by any Borrower Party or any of their respective Affiliates in connection with the Properties which are not delivered to recover damagesLender 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, costs and expenses arising from, the existing leases or in connection withaccordance with a court order (provided that, the failure by Borrower to pay Taxes and Insurance Premiums when due in each case there shall be no liability under this subsection to the extent that Borrower was not required the failure to deposit turn over such amounts with Lender pursuant to Section 6 hereof, but only to the extent there was available revenue from the Property for the period in question sufficient to pay such Taxes and Insurance Premiums, and provided further that Lender does not prevent such proceeds from being so appliedfunds is prohibited by any applicable law or court order);
(ix) to recover damages, costs and expenses arising the seizure or forfeiture of any Individual Property resulting from the failure 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 representations set forth in Section 3.1.8 material terms of Sections 11.1, 11.2, 11.6, 11.8 and/or 11.9 of the Loan Agreement;
(xi) any liability or obligation pursuant to be true any purchase and sale agreement entered into by a Borrower for the sale by Borrower of a Previously-Owned Property or Borrower’s any other liability or obligation otherwise related to a Previously-Owned Property;
(xii) failure to comply with the terms and provisions of Sections 4.2.11 Article 15 hereof;
(xiii) any amendment or modification of the Ground Lease in violation of the terms hereof or any cancellation, expiration or termination (for any reason whatsoever) of the 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 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 provisions of this Agreement); andand/or
(xxv) to recover damages, costs and expenses arising from, or in connection withwithout limiting Section 13.1(b)(B)(i) below, any Lien arising from a written instrument executed breach of violation by Borrower, Pledgor, Additional Obligor and/or any Borrower or any Affiliate thereof expressly creating such LienSPE Component Entity of Article 5 hereof, to the extent such Lien is prohibited under this Agreementother than immaterial breaches which are promptly cured by Borrower.
(b) Notwithstanding anything to the foregoingcontrary in this Agreement, the agreement of Lender not to limit recourse liability as set forth in Section 11.22(a) above SHALL BECOME NULL AND VOID and shall be of no further force and effect and the Debt shall be fully recourse to Borrower (and to Guarantor under the Guaranty, on the additional terms and conditions thereof and subject to any limitations set forth herein or therein) in the event that:
(i) any Borrower commences a voluntary bankruptcy or insolvency proceeding;
(ii) an involuntary bankruptcy or insolvency proceeding is commenced against any Borrower and is not dismissed within 90 days of filing; or
(iii) voluntary Transfer of the Property occurs by written instrument executed by any Borrower Note or any Affiliate thereof, which instrument expressly effects such Transfer, or a Secondary Financing is voluntarily incurred in violation of the Loan Documents, except as otherwise consented to by (A) Lender in writing (which consent may be withheld in Lender’s sole discretion).
(c) Notwithstanding the provisions of clauses (i) and (ii) of Section 11.22(b) no Guarantor shall be liable for any amount related to a Qualified Involuntary Bankruptcy.
(d) In addition, this agreement shall not waive be deemed to have waived any rights right which Lender would may have under Section 506(a), 506(b), 1111(b) or any other provisions of Title 11 of the Bankruptcy Code to file a claim for the full amount of the Debt or to require that the Property all collateral shall continue to secure all of the DebtDebt 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 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 1 contract
Sources: Loan Agreement (Retail Value Inc.)
Exculpation. Subject Notwithstanding anything in this Shareholder Pledge Agreement to the qualifications belowcontrary, Lender the Pledgor shall have no personal liability to the Agent or the Lenders under this Shareholder Pledge Agreement for the Secured Obligations or any of the Pledgor's respective covenants, obligations or other liabilities under this Shareholder Pledge Agreement beyond the rights, titles and interests of the Pledgor in the Collateral covered by this Shareholder Pledge Agreement and the Agent and the Lenders shall not enforce sue ▇▇ otherwise proceed against the Pledgor to collect any deficiency which may remain owing on the Secured Obligations or any of such other covenants, obligations or liabilities after the exercise by the Agent of its rights and remedies hereunder with respect to the Collateral. The foregoing provisions concern only the personal liability of the Pledgor under this Shareholder Pledge Agreement and obligation do not in any manner, and shall not be interpreted or construed to, diminish, affect, impede, impair or otherwise modify in any manner whatsoever the rights, titles and interests of Borrower the Agent or any Lender in and to perform the Collateral under this Shareholder Pledge Agreement, or the pursuit or exercise by the Agent or any Lender of its rights and observe remedies with respect to the obligations contained in the Note, Collateral under this Shareholder Pledge Agreement, the Mortgage or priority and enforceability of the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against Agent's rights, titles and interests in and to the Borrower or any direct or indirect members, partners or shareholders of Borrower or the employees, agents, directors or officers of Borrower or its Affiliates, except that Lender may bring an action against Borrower, including a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender to enforce and realize upon its interest Collateral under the Note, this Agreement, the Mortgage and the other Loan Documents, or in the Property, the Business Income, or any other collateral given to rights or remedies which the Agent or any Lender pursuant to may have against the Loan Documents Company or any other assets of 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 Property, in the Business Income in any other collateral given to Lender Credit Party or any other assets of Borrowerobligor, and Lender, by accepting the Note, this Agreement, the Mortgage and the other Loan Documents, shall not ▇▇▇ for, seek or demand any deficiency judgment or any other monetary payment against Borrower rights or remedies the the Agent or the direct Lenders may have against the Company or indirect members, partners or shareholders of Borrower or any other Credit Party under the employees, agents, directors or officers of Borrower or its Affiliates in any such action or proceeding under or by reason of or under or in connection with the Note, this Agreement, the Mortgage Credit Agreement or the other Loan Financing 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 Mortgage; (c) affect the validity or enforceability of any guaranty or indemnity made in connection with the Loan (including, without limitation, the Guaranty) or any of the rights and remedies of Lender thereunder; (d) impair the right of Lender to obtain the appointment of a receiver; (e) impair the enforcement of the Assignment of Leases; or (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 Loan (including the security granted by the Mortgage) or any other assets of Borrower or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against such security (including the Property or any other assets of Borrower).
(a) Nothing contained in this Section 11.22 shall limit the rights of Lender to proceed against Borrower for any of the following (or against Guarantor under the Guaranty, on the additional terms and conditions thereof and subject to any limitations set forth herein or therein):
(i) to enforce any Leases entered into by Borrower or its Affiliates as Tenant;
(ii) to recover damages for fraud, material misrepresentation, material breach of warranty or intentional physical waste;
(iii) to recover any Condemnation Proceeds or Insurance Proceeds or other similar funds which have been misappropriated by Borrower or which, under the terms of the Loan Documents, should have been paid to Lender;
(iv) to recover (A) any Tenant security deposits, Tenant letters of credit or other deposits or fees paid to Borrower or (B) prepaid rents for a period of more than thirty (30) days in advance of its due date which have not been delivered to Lender;
(v) to recover Business Income received by Borrower during an Event of Default which have not been applied to the Loan or in accordance with the Loan Documents to operating and maintenance expenses of the Property;
(vi) to recover damages, costs and expenses arising from, or in connection with the provisions of the Mortgage pertaining to Hazardous Materials or the Environmental Indemnity;
(vii) to recover any amount expended by Lender in connection with the foreclosure of the Mortgage, but only in the event that any Borrower or any Guarantor takes action to impede such foreclosure or otherwise contests the foreclosure in bad faith;
(viii) to recover damages, costs and expenses arising from, or in connection with, the failure by Borrower to pay Taxes and Insurance Premiums when due to the extent that Borrower was not required to deposit such amounts with Lender pursuant to Section 6 hereof, but only to the extent there was available revenue from the Property for the period in question sufficient to pay such Taxes and Insurance Premiums, and provided further that Lender does not prevent such proceeds from being so applied;
(ix) to recover damages, costs and expenses arising from the failure of the representations set forth in Section 3.1.8 to be true or Borrower’s failure to comply with the provisions of Sections 4.2.11 of this Agreement; and
(x) to recover damages, costs and expenses arising from, or in connection with, any Lien arising from a written instrument executed by any Borrower or any Affiliate thereof expressly creating such Lien, to the extent such Lien is prohibited under this Agreement.
(b) Notwithstanding the foregoing, the agreement of Lender not to limit recourse liability as set forth in Section 11.22(a) above SHALL BECOME NULL AND VOID and shall be of no further force and effect and the Debt shall be fully recourse to Borrower (and to Guarantor under the Guaranty, on the additional terms and conditions thereof and subject to any limitations set forth herein or therein) in the event that:
(i) any Borrower commences a voluntary bankruptcy or insolvency proceeding;
(ii) an involuntary bankruptcy or insolvency proceeding is commenced against any Borrower and is not dismissed within 90 days of filing; or
(iii) voluntary Transfer of the Property occurs by written instrument executed by any Borrower or any Affiliate thereof, which instrument expressly effects such Transfer, or a Secondary Financing is voluntarily incurred in violation of the Loan Documents, except as otherwise consented to by Lender in writing (which consent may be withheld in Lender’s sole discretion).
(c) Notwithstanding the provisions of clauses (i) and (ii) of Section 11.22(b) no Guarantor shall be liable for any amount related to a Qualified Involuntary Bankruptcy.
(d) In addition, this agreement shall not waive any rights which Lender would have under any provisions of Title 11 of the Bankruptcy Code to file a claim for the full amount of the Debt or to require that the Property shall continue to secure all of the Debt.
Appears in 1 contract
Exculpation. Subject Notwithstanding anything contained in this Agreement, the Note, the Mortgage or the other Loan Documents to the contrary, 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 Mortgage or the other Loan Documents or in any other instruments, certificates, documents or agreements executed in connection with the Loan, by any action or proceeding wherein a money judgment shall be sought against Borrower and no recourse under or upon or with respect to any obligation, covenant, agreement, representation, warranty, promise or other matter whatsoever shall be had against Borrower, or the constituent partners of Borrower, or its successors and assigns (said constituent partner and its successors and assigns referred to, individually and collectively, as the “Borrower Partners”) and Lender expressly waives and releases on behalf of itself and its successors and assigns, all right to assert any liability whatsoever under or with respect to the Loan Documents or such other documents against, or to satisfy any claim or obligation arising thereunder against, Borrower, Borrower Partners or out of any assets of the Borrower or any direct or indirect membersPartners. Notwithstanding the foregoing, partners or shareholders of Borrower or the employees, agents, directors or officers of Borrower or its Affiliates, except that Lender may bring an action against Borrower, including a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender to enforce and realize upon its interest under the Note, this Agreement, the Mortgage and the other Loan Documents, Documents or in the Property, the Business IncomeRents, or any other collateral given to Lender pursuant to the Loan Documents or any other assets of BorrowerDocuments; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower only with respect to the extent of Borrower’s interest in the Property, in the Business Income Rents and in any other collateral given to Lender or any other assets of BorrowerLender, and Lender, by accepting the Note, this Agreement, the Mortgage and the other Loan Documents, agrees that it shall not ▇▇▇ for, seek or demand any deficiency judgment or any other monetary payment personal recourse against Borrower or the direct or indirect members, partners or shareholders of Borrower or the employees, agents, directors or officers of Borrower or its Affiliates in any such action or proceeding under or by reason of or under or in connection with the Note, this Agreement, the Mortgage or the other Loan Documents. The In addition, 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 Mortgage; (c) affect the validity or enforceability of any guaranty the Indemnity Agreement or indemnity made in connection with the Loan (including, without limitation, the Guaranty) Environmental Indemnity or impair any of the rights and remedies of Lender against any Person liable thereunder; (d) impair the right of Lender to obtain the appointment of a receiver; (e) impair the enforcement of the Assignment of Leases; or (f) constitute a prohibition against waiver of the right of Lender to seek a deficiency enforce the liability and obligation of Borrower, by money judgment against Borrower in order or otherwise, to fully realize on the extent of any security given loss, damage, cost, expense, liability, claim or other obligation incurred by Borrower Lender (including attorneys’ fees and costs reasonably incurred) arising out of or in connection with the Loan (including the security granted by the Mortgage) or any other assets of Borrower or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against such security (including the Property or any other assets of Borrower).
(a) Nothing contained in this Section 11.22 shall limit the rights of Lender to proceed against Borrower for any of the following (or against Guarantor under the Guaranty, on the additional terms and conditions thereof and subject to any limitations set forth herein or therein):following:
(i) to enforce any Leases entered into fraud or intentional misrepresentation by Borrower or its Affiliates as TenantIndemnitor in connection with the Loan;
(ii) the misapplication or conversion by Borrower of (A) any Insurance Proceeds paid by reason of any Casualty which are not applied in accordance with the terms of this Agreement and the other Loan Documents, (B) any Awards or other amounts received in connection with a Condemnation of all or a portion of the Property which are not applied in accordance with the terms of this Agreement and the other Loan Documents, or (C) any Rents following and during an Event of Default that were not applied by Borrower to recover damages the Monthly Debt Service Payment Amount, operating expenses and/or Reserve Funds; provided, however, if such Event of Default did not require Lender to provide written notice to Borrower, Borrower’s liability to Lender for fraud, material misrepresentation, material breach of warranty such misapplication or intentional physical wasteconversion shall not accrue until Lender has given five (5) days written notice;
(iii) any security deposits, advance deposits or any other deposits collected with respect to recover the Property which are not delivered to Lender upon a foreclosure of the Property or action in lieu thereof, except to the extent any Condemnation Proceeds or Insurance Proceeds or other similar funds which have been misappropriated by Borrower or which, under 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;
(iv) Borrower’s failure to obtain Lender’s prior written consent to any subordinate mortgage financing encumbering the Property; and
(v) the breach of any of the representations and warranties contained in Section 4.1.38 hereof. Notwithstanding anything to the contrary in this Agreement, the Note or any of the Loan Documents, should have been paid to Lender;
(iv) to recover (A) Lender shall not be deemed to have waived any Tenant security depositsright which Lender may have under Section 506(a), Tenant letters of credit 506(b), 1111(b) or any other deposits or fees paid to Borrower or (B) prepaid rents for a period of more than thirty (30) days in advance of its due date which have not been delivered to Lender;
(v) to recover Business Income received by Borrower during an Event of Default which have not been applied to the Loan or in accordance with the Loan Documents to operating and maintenance expenses of the Property;
(vi) to recover damages, costs and expenses arising from, or in connection with the provisions of the Mortgage pertaining to Hazardous Materials or the Environmental Indemnity;
(vii) to recover any amount expended by Lender in connection with the foreclosure of the Mortgage, but only in the event that any Borrower or any Guarantor takes action to impede such foreclosure or otherwise contests the foreclosure in bad faith;
(viii) to recover damages, costs and expenses arising from, or in connection with, the failure by Borrower to pay Taxes and Insurance Premiums when due to the extent that Borrower was not required to deposit such amounts with Lender pursuant to Section 6 hereof, but only to the extent there was available revenue from the Property for the period in question sufficient to pay such Taxes and Insurance Premiums, and provided further that Lender does not prevent such proceeds from being so applied;
(ix) to recover damages, costs and expenses arising from the failure of the representations set forth in Section 3.1.8 to be true or Borrower’s failure to comply with the provisions of Sections 4.2.11 of this Agreement; and
(x) to recover damages, costs and expenses arising from, or in connection with, any Lien arising from a written instrument executed by any Borrower or any Affiliate thereof expressly creating such Lien, to the extent such Lien is prohibited under this Agreement.
(b) Notwithstanding the foregoing, the agreement of Lender not to limit recourse liability as set forth in Section 11.22(a) above SHALL BECOME NULL AND VOID and shall be of no further force and effect and the Debt shall be fully recourse to Borrower (and to Guarantor under the Guaranty, on the additional terms and conditions thereof and subject to any limitations set forth herein or therein) in the event that:
(i) any Borrower commences a voluntary bankruptcy or insolvency proceeding;
(ii) an involuntary bankruptcy or insolvency proceeding is commenced against any Borrower and is not dismissed within 90 days of filing; or
(iii) voluntary Transfer of the Property occurs by written instrument executed by any Borrower or any Affiliate thereof, which instrument expressly effects such Transfer, or a Secondary Financing is voluntarily incurred in violation of the Loan Documents, except as otherwise consented to by Lender in writing (which consent may be withheld in Lender’s sole discretion).
(c) Notwithstanding the provisions of clauses (i) and (ii) of Section 11.22(b) no Guarantor shall be liable for any amount related to a Qualified Involuntary Bankruptcy.
(d) In addition, this agreement shall not waive any rights which Lender would have under any provisions of Title 11 of the U.S. Bankruptcy Code to file a claim for the full amount of the Debt secured by the Mortgage or to require that the Property all collateral shall continue to secure all of the DebtDebt owing to Lender in accordance with the Loan Documents and (B) the constituent partners of TRG and its and their successors and assigns shall not be liable in any event or in any respect for any obligation, liability or other matters whatsoever under any of the Loan Documents. Nothing herein shall affect the validity of any documents executed by TRG in its individual capacity and delivered to Lender in connection with the Loan.
Appears in 1 contract
Sources: Loan Agreement (Taubman Centers Inc)
Exculpation. (a) Subject to the qualifications below, Lender shall not enforce the liability and obligation of Borrower Borrowers to perform and observe the obligations contained in the Note, this Agreement, the Mortgage 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 the Borrower Borrowers or any direct principal, director, officer, employee, beneficiary, shareholder, partner, member, trustee, agent, or indirect membersAffiliate of Borrowers (but specifically excluding Guarantor) or any legal representatives, partners successors or shareholders assigns of Borrower or any of the employeesforegoing (collectively, agents, directors or officers of Borrower or its Affiliatesthe “Exculpated Parties”), except that Lender may bring an action against Borrower, including a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender to enforce and realize upon its interest under the Note, this Agreement, the Mortgage Security Instruments and the other Loan Documents, or in the PropertyProperties, the Business IncomeRents, or any other collateral given to Lender pursuant to the Loan Documents or any other assets of BorrowerDocuments; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower Borrowers only to the extent of Borrower’s Borrowers’ interest in the PropertyProperties, in the Business Income Rents and in any other collateral given to Lender or any other assets of BorrowerLender, and Lender, by accepting the Note, this Agreement, the Mortgage Security Instruments and the other Loan Documents, shall not ▇▇▇ for, seek or demand any deficiency judgment against Borrowers or any other monetary payment against Borrower or of the direct or indirect members, partners or shareholders of Borrower or the employees, agents, directors or officers of Borrower or its Affiliates Exculpated Parties in any such action or proceeding under or by reason of or under or in connection with the Note, this Agreement, the Mortgage 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 Borrowers as a party defendant in any action or suit for foreclosure and sale under the MortgageSecurity Instruments; (c3) affect the validity or enforceability of any indemnity, guaranty or indemnity made in connection with the Loan similar instrument (including, without limitation, the Guarantyindemnities set forth in Article 12 hereof, Section 11.2 hereof, in the Guaranty and in 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 Borrowers and/or Guarantor (as applicable) personally and without the effect of the exculpatory provisions of this Article 13); (d4) impair the right of Lender to obtain the appointment of a receiver; (e5) impair the enforcement of the Assignment assignment of Leasesleases and rents contained in the Security Instruments; or (f6) impair the right of Lender to enforce Section 4.12(e) of this Agreement; (7) constitute a prohibition against Lender to seek a deficiency judgment against Borrower Borrowers in order to fully realize on any security given by Borrower in connection with the Loan (including the security granted by the Mortgage) or any other assets of Borrower Security Instruments or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against such security the Properties; or (including 8) constitute a waiver of the Property or any other assets of Borrower).
(a) Nothing contained in this Section 11.22 shall limit the rights right of Lender to proceed against Borrower for enforce the liability and obligation of Borrowers, by money judgment or otherwise, to the extent of any Losses incurred by Lender (including attorneys’ fees and costs reasonably incurred) arising out of or in connection with any of the following (or against Guarantor under the Guaranty, on the additional terms and conditions thereof and subject to any limitations set forth herein or therein):following:
(i) fraud or intentional misrepresentation or any failure to enforce disclose a material fact by any Leases entered into by Borrower, any SPE Component Entity, Guarantor, or any Borrower or its Affiliates as TenantParty in connection with the Loan;
(ii) to recover damages for fraudthe gross negligence or willful misconduct of any Borrower, material misrepresentationany SPE Component Entity, material breach Guarantor, or any Borrower Party or the commission of warranty a criminal act by any Borrower, any SPE Component Entity, Guarantor, or intentional physical wasteany Borrower Party which results in any seizure or forfeiture of any Property or any portion thereof or any Borrower’s interest therein;
(iii) material physical waste to recover any Condemnation Proceeds Property caused by the intentional acts or Insurance Proceeds intentional omissions of any Borrower, any SPE Component Entity, Guarantor, or any Borrower Party (including, without limitation, any arson or abandonment of any Property) and/or the removal or disposal of any portion of any Property after an Event of Default by any Borrower, any SPE Component Entity, Guarantor, or any Borrower Party;
(iv) the misapplication, misappropriation or conversion by any Borrower of (A) any insurance proceeds paid to any Borrower Party by reason of any loss, damage or destruction to any Property, (B) any Awards or other similar amounts received by any Borrower Party in connection with the Condemnation of all or a portion of any Property, (C) any Rents following an Event of Default or (D) any Tenant security deposits or Rents collected in advance;
(v) failure to pay any Taxes or Other Charges, charges for labor or materials or any other charges that can create liens on any portion of any Property to the extent that the revenue from the Properties is sufficient to pay such amounts (provided that Borrower shall have no liability for (x) amounts deposited with Lender as Tax Reserve Funds for Taxes or Other Charges where Lender elects not to apply such funds which have been misappropriated by Borrower toward payment of such Taxes or which, under Other Charges owed or (y) Taxes or Other Charges owed that are contested strictly in accordance with the terms of the Loan Documents, should have been paid to Lender;
(iv) to recover (A) any Tenant security deposits, Tenant letters of credit or other deposits or fees paid to Borrower or (B) prepaid rents for a period of more than thirty (30) days in advance of its due date which have not been delivered to Lender;
(v) to recover Business Income received by Borrower during an Event of Default which have not been applied to the Loan or in accordance with the Loan Documents to operating and maintenance expenses of the Property);
(vi) failure to recover damages, costs and expenses arising from, or in connection maintain insurance as required by this Agreement to the extent that the revenue from the Properties is sufficient to pay the Insurance Premiums relating thereto (provided that Borrower shall have no liability for pay amounts deposited with the provisions Lender as Insurance Reserve Funds for Insurance Premiums to be paid to maintain such insurance where Lender elects not to apply such funds toward payment of the Mortgage pertaining to Hazardous Materials or the Environmental Indemnitysuch Insurance Premiums);
(vii) to recover the breach of any amount expended by Lender in connection with the foreclosure of the Mortgagerepresentation, but only warranty, covenant or indemnification provision in the event that Environmental Indemnity, this Agreement or in any Borrower or any Guarantor takes action to impede such foreclosure or otherwise contests the foreclosure in bad faithSecurity Instrument concerning Environmental Laws and Hazardous Substances;
(viii) any fees or commissions paid by any Borrower after the occurrence of any Event of Default to recover damagesGuarantor, costs and expenses arising fromand/or any Affiliate of any Borrower and/or Guarantor in violation of the terms of the Note, or in connection withthis Agreement, the failure by Borrower to pay Taxes and Insurance Premiums when due to Security Instruments or the extent that Borrower was not required to deposit such amounts with Lender pursuant to Section 6 hereof, but only to the extent there was available revenue from the Property for the period in question sufficient to pay such Taxes and Insurance Premiums, and provided further that Lender does not prevent such proceeds from being so appliedother Loan Documents;
(ix) any Borrower’s breach of, or failure to recover damagescomply with, costs the representations, warranties and expenses arising from the failure of the representations set forth covenants contained in Section 3.1.8 to be true or 15.1 of this Agreement and/or the provisions of Sections 11.2 and 12.3 hereof;
(x) any Borrower’s breach or failure to comply with the provisions of Sections 4.2.11 of this Agreement; andcovenants, conditions and/or restrictions contained in the documents described on Schedule VII hereto and relating to the Properties known as Johnstown Industrial Park in Johnstown, New York and Crossroads Industrial Park in Gloversville, New York;
(xxi) any litigation or other legal proceeding related to recover damagesthe Debt filed by any Borrower, costs and expenses arising fromany SPE Component Entity, Guarantor, or in connection with, any Lien arising from a written instrument executed by any Borrower Party that delays, opposes, impedes, obstructs, hinders, enjoins or otherwise interferes with or frustrates the efforts of Lender to exercise any Affiliate thereof expressly creating rights and remedies available to Lender as provided herein and in the other Loan Documents, which the court in any such Lienlitigation or proceeding determines is frivolous, to the extent such Lien is prohibited under this Agreementbrought in bad faith or wholly without basis in fact or law; and/or
(xii) any violation or breach of a representation, warranty or covenant contained in Section 5.1 hereof.
(b) Notwithstanding anything to the foregoingcontrary in this Agreement, the agreement of Lender not to limit recourse liability as set forth in Section 11.22(a) above SHALL BECOME NULL AND VOID and shall be of no further force and effect and the Debt shall be fully recourse to Borrower (and to Guarantor under the Guaranty, on the additional terms and conditions thereof and subject to any limitations set forth herein or therein) in the event that:
(i) any Borrower commences a voluntary bankruptcy or insolvency proceeding;
(ii) an involuntary bankruptcy or insolvency proceeding is commenced against any Borrower and is not dismissed within 90 days of filing; or
(iii) voluntary Transfer of the Property occurs by written instrument executed by any Borrower Note or any Affiliate thereof, which instrument expressly effects such Transfer, or a Secondary Financing is voluntarily incurred in violation of the Loan Documents, except as otherwise consented to by (A) Lender in writing (which consent may be withheld in Lender’s sole discretion).
(c) Notwithstanding the provisions of clauses (i) and (ii) of Section 11.22(b) no Guarantor shall be liable for any amount related to a Qualified Involuntary Bankruptcy.
(d) In addition, this agreement shall not waive be deemed to have waived any rights right which Lender would may have under Section 506(a), 506(b), 1111(b) or any other provisions of Title 11 of the Bankruptcy Code to file a claim for the full amount of the Debt or to require that the Property all collateral shall continue to secure all of the DebtDebt owing to Lender in accordance with the Loan Documents, and (B) the Debt shall be fully recourse to Borrowers in the event that: (i) any violation of breach of any representation, warranty or covenant contained in Article 5 which results in the substantive consolidation of the assets and liabilities of Borrower with any other Person (other than the other Borrowers) as a result of such breach; (ii) if any Sale or Pledge occurs that is not a Permitted Transfer (iii) any Borrower or any SPE Component Entity files a voluntary petition under the Bankruptcy Code or any other Creditors Rights Laws; (iv) an Affiliate, officer, director, or representative which Controls, directly or indirectly, any Borrower or any SPE Component Entity files, or joins in the filing of, an involuntary petition against any Borrower or any SPE Component Entity under the Bankruptcy Code or any other Creditors Rights Laws, or solicits or causes to be solicited petitioning creditors for any involuntary petition against any Borrower or any SPE Component Entity from any Person; (v) any Borrower or any SPE Component Entity 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 Creditors Rights Laws, or solicits or causes to be solicited petitioning creditors for any involuntary petition from any Person; (vi) any Affiliate, officer, director, or representative which Controls any Borrower or any SPE Component Entity consents to or acquiesces in or joins in an application by a party other than Lender for the appointment of a custodian, receiver, trustee, or examiner for any Borrower, any SPE Component Entity or any portion of any Property; (vii) any Borrower or any SPE Component Entity makes an assignment for the benefit of creditors or admits in any legal proceeding, its insolvency or inability to generally pay its debts as they become due unless in each of the foregoing cases to do otherwise would require a false statement in any such legal proceeding or violate Rule 9011 of the Federal Rules of Bankruptcy Procedure or other applicable rules requiring a sufficient legal and factual basis for filing papers in a proceeding under Federal or state insolvency law or in connection with any other legal proceeding; (viii) there is substantive consolidation of any Borrower or any SPE Component Entity (or any Restricted Party) with any other Person (other than other Borrowers) in connection with any federal or state bankruptcy proceeding involving the Guarantor or any of its Affiliates; (ix) any Borrower or any SPE Component Entity (or any Affiliate of Borrower or any SPE Component Entity contests or opposes any motion made by Lender to obtain relief from the automatic stay or seeks to reinstate the automatic stay in the event of any federal or state bankruptcy or insolvency proceeding involving the Guarantor or its Affiliates.
Appears in 1 contract
Exculpation. Subject to the qualifications below, Lender shall not enforce the liability and obligation of Borrower or its constituent members, partners, shareholders, directors, employees or agents or the direct or indirect constituent members, partners, shareholders, directors, employees or agents thereof (collectively, the "Borrower Parties") or any other Person, to perform and observe the obligations contained in the Note, this Agreement, the Mortgage Note or any of the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against any of the Borrower Parties or any direct or indirect members, partners or shareholders of Borrower or the employees, agents, directors or officers of Borrower or its Affiliatesother Person, except that Lender may bring an action against Borrower, including a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender to enforce and realize upon its interest under the Note, this Agreement, the Mortgage and the other Loan Documents, or in the Property, the Business Income, Rents or any other collateral given to Lender pursuant to this Agreement and the other Loan Documents or any other assets of BorrowerDocuments; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against the Borrower Parties only to the extent of Borrower’s their interest in the Property, in the Business Income Rents and in any other collateral given to Lender or any other assets of BorrowerLender, and Lender, by accepting the Note, this Agreement, the Mortgage Note and the other Loan Documents, agrees that it shall not ▇▇▇ for, seek or demand any deficiency judgment against any of the Borrower Parties or any other monetary payment against Borrower or the direct or indirect members, partners or shareholders of Borrower or the employees, agents, directors or officers of Borrower or its Affiliates Person in any such action or proceeding under or by reason of or under or in connection with the Note, this Agreement, the Mortgage Note or any of 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 this Agreement, the Note or any of the other Loan Documents; (bii) impair the right of Lender to name any of the Borrower Parties, as a party defendant in any action or suit for foreclosure and sale under the Mortgage; (ciii) affect the validity or enforceability of any guaranty or indemnity made in connection with the Loan (including, without limitation, the Guaranty) or any of the rights and remedies of Lender thereunder; (div) impair the right of Lender to obtain the appointment of a receiver; (ev) impair the enforcement of the Assignment of LeasesLeases and Rents executed in connection herewith; or (fvi) constitute a prohibition against waiver of the right of Lender to seek a deficiency judgment enforce the liability and obligation of Borrower (but not against any members of Borrower (other than Guarantor to the extent provided in order to fully realize on any security given by Borrower in connection with the Loan (including the security granted by the MortgageNon-Recourse Guaranty) or their direct or indirect constituent members or partners or any other assets Person), by money judgment or otherwise, to the extent of Borrower any loss, damage, cost, expense, liability, claim or to commence any other appropriate action or proceeding in order for obligation incurred by Lender to exercise its remedies against such security (including the Property or any other assets attorneys' fees and costs reasonably incurred) arising out of Borrower).
(a) Nothing contained in this Section 11.22 shall limit the rights of Lender to proceed against Borrower for any of the following (or against Guarantor under the Guaranty, on the additional terms and conditions thereof and subject to any limitations set forth herein or therein):
(i) to enforce any Leases entered into by Borrower or its Affiliates as Tenant;
(ii) to recover damages for fraud, material misrepresentation, material breach of warranty or intentional physical waste;
(iii) to recover any Condemnation Proceeds or Insurance Proceeds or other similar funds which have been misappropriated by Borrower or which, under the terms of the Loan Documents, should have been paid to Lender;
(iv) to recover (A) any Tenant security deposits, Tenant letters of credit or other deposits or fees paid to Borrower or (B) prepaid rents for a period of more than thirty (30) days in advance of its due date which have not been delivered to Lender;
(v) to recover Business Income received by Borrower during an Event of Default which have not been applied to the Loan or in accordance with the Loan Documents to operating and maintenance expenses of the Property;
(vi) to recover damages, costs and expenses arising from, or in connection with the provisions of the Mortgage pertaining to Hazardous Materials or the Environmental Indemnity;following:
(viia) to recover fraud or intentional misrepresentation by Borrower or any amount expended by Lender Guarantor in connection with the foreclosure of the Mortgage, but only in the event that any Borrower or any Guarantor takes action to impede such foreclosure or otherwise contests the foreclosure in bad faithLoan;
(viii) to recover damages, costs and expenses arising from, or in connection with, the failure by Borrower to pay Taxes and Insurance Premiums when due to the extent that Borrower was not required to deposit such amounts with Lender pursuant to Section 6 hereof, but only to the extent there was available revenue from the Property for the period in question sufficient to pay such Taxes and Insurance Premiums, and provided further that Lender does not prevent such proceeds from being so applied;
(ix) to recover damages, costs and expenses arising from the failure of the representations set forth in Section 3.1.8 to be true or Borrower’s failure to comply with the provisions of Sections 4.2.11 of this Agreement; and
(x) to recover damages, costs and expenses arising from, or in connection with, any Lien arising from a written instrument executed by any Borrower or any Affiliate thereof expressly creating such Lien, to the extent such Lien is prohibited under this Agreement.
(b) Notwithstanding intentional physical waste of the foregoingProperty (including, but not limited to, waste due to gross negligence) by Borrower or any affiliate thereof; provided, however, such physical waste shall exclude wear and tear to the agreement of Lender not to limit recourse liability as set forth in Section 11.22(a) above SHALL BECOME NULL AND VOID and shall be of no further force and effect and the Debt shall be fully recourse to Borrower (and to Guarantor under the Guaranty, on the additional terms and conditions thereof and subject to any limitations set forth herein or therein) Property that occurs in the event that:ordinary course of business of the Property by Borrower or any affiliate thereof;
(c) the material breach of any representation, warranty, covenant or indemnification provision in that certain Environmental and Hazardous Substance Indemnification Agreement of even date herewith given by Borrower to Lender or in this Agreement concerning Environmental Laws, Hazardous Substances and Asbestos;
(d) the removal or disposal by Borrower or any affiliate thereof of any portion of the Property after an Event of Default has occurred and while it is continuing, unless such portion of the Property is replaced by an item of equal or greater value as determined by Lender in its reasonable discretion;
(e) the misapplication or conversion by Borrower or any affiliate thereof of
(i) any Borrower commences a voluntary bankruptcy insurance proceeds paid by reason of any loss, damage or insolvency proceeding;destruction to the Property,
(ii) an involuntary bankruptcy any awards or insolvency proceeding is commenced against any Borrower and is not dismissed within 90 days other amounts received in connection with the condemnation of filing; or
all or a portion of the Property, (iii) voluntary Transfer any Rents following an Event of Default or (iv) any Rents paid more than one month in advance;
(f) failure to pay charges for labor or materials or taxes or other charges that can create liens superior to the lien of the Mortgage on any portion of the Property occurs unless such taxes or other charges are being contested in accordance herewith or such taxes or charges have been delivered to Lender in accordance with Section 3.3 or Borrower has complied with Section 5.2; and
(g) any security deposits collected by written instrument executed by any Borrower or any Affiliate affiliate thereof with respect to the Property which are not delivered to Lender upon a foreclosure of the Property or action in lieu thereof, which instrument expressly effects except to the extent any such Transfer, 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 a Secondary Financing is voluntarily incurred action in violation lieu thereof. Notwithstanding anything to the contrary in any of the Loan Documents, except as otherwise consented to by Lender in writing (which consent may be withheld in Lender’s sole discretion).
(c) Notwithstanding the provisions of clauses (i) and (ii) of Section 11.22(b) no Guarantor shall be liable for any amount related to a Qualified Involuntary Bankruptcy.
(d) In addition, this agreement Lender shall not waive be deemed to have waived any rights right which Lender would may have under Section 506(a), 506(b), 1111(b) or any other provisions of Title 11 of the U.S. Bankruptcy Code to file a claim for the full amount of the Debt or to require that the Property all collateral shall continue to secure all of the DebtDebt owing to Lender in accordance with the Loan Documents, and (ii) the Debt shall become fully recourse to Borrower (but not its members (other than Guarantor solely to the extent provided in the Non-Recourse Guaranty) or other direct or indirect constituent members or partners or any other Person) in the event that: (A) the first full Monthly Payment Amount (as defined in the Note) under the Note is not paid when due; (B) other than in connection with a default under subsection (x) of the definition of Special Purpose Bankruptcy Remote Entity set forth in Schedule 5 hereof, Borrower fails to maintain its status as a Special Purpose Bankruptcy Remote Entity in accordance with the provisions of this Agreement and such failure results in the substantive consolidation of Borrower with another Person; (C) except as otherwise permitted pursuant to the Loan Documents, Borrower fails to obtain Lender's prior written consent to any subordinate financing or other voluntary lien encumbering the Property; (D) except as otherwise permitted pursuant to the Loan Documents, Borrower fails to obtain Lender's prior written consent to any assignment, transfer, or conveyance of the Property or any interest therein as and to the extent required by this Agreement or the Mortgage; or (E)
(1) a receiver (other than a receiver appointed by Lender), liquidator or trustee of Borrower or Guarantor shall be appointed which is not dismissed within ninety (90) days, or (2) if any petition for bankruptcy, reorganization or arrangement pursuant to federal bankruptcy law, or any similar federal or state law, shall be filed by Borrower or Guarantor, or (3) if Borrower or Guarantor files an answer consenting to, or otherwise joining in, any involuntary petition for bankruptcy, reorganization or arrangement pursuant to federal bankruptcy law, or any similar federal or state law filed against it by any other Person, or is found pursuant to a final, unappealable order of a court of competent jurisdiction to have solicited or caused to be solicited creditors to file any involuntary petition for bankruptcy, reorganization or arrangement pursuant to federal bankruptcy law, or any similar federal or state law against Borrower or Guarantor, or (4) if Borrower or Guarantor are found, pursuant to a final unappealable order of a court of competent jurisdiction, to have been in collusion with creditors that initiate a bankruptcy action or proceeding against Borrower or Guarantor.
Appears in 1 contract
Exculpation. Subject to the qualifications below, Lender shall not enforce the liability and obligation of Borrower or its constituent members, partners, shareholders, directors, employees or agents or the direct or indirect constituent members, partners, shareholders, directors, employees or agents thereof (collectively, the "Borrower Parties") or any other Person, to perform and observe the obligations contained in the Note, this Agreement, the Mortgage Note or any of the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against any of the Borrower Parties or any direct or indirect members, partners or shareholders of Borrower or the employees, agents, directors or officers of Borrower or its Affiliatesother Person, except that Lender may bring an action against Borrower, including a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender to enforce and realize upon its interest under the Note, this Agreement, the Mortgage and the other Loan Documents, or in the Property, the Business Income, Rents or any other collateral given to Lender pursuant to this Agreement and the other Loan Documents or any other assets of BorrowerDocuments; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against the Borrower Parties only to the extent of Borrower’s their interest in the Property, in the Business Income Rents and in any other collateral given to Lender or any other assets of BorrowerLender, and Lender, by accepting the Note, this Agreement, the Mortgage Note and the other Loan Documents, agrees that it shall not ▇▇▇ for, seek or demand any deficiency judgment against any of the Borrower Parties or any other monetary payment against Borrower or the direct or indirect members, partners or shareholders of Borrower or the employees, agents, directors or officers of Borrower or its Affiliates Person in any such action or proceeding under or by reason of or under or in connection with the Note, this Agreement, the Mortgage Note or any of 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 this Agreement, the Note or any of the other Loan Documents; (bii) impair the right of Lender to name any of the Borrower Parties, as a party defendant in any action or suit for foreclosure and sale under the Mortgage; (ciii) affect the validity or enforceability of any guaranty or indemnity made in connection with the Loan (including, without limitation, the Guaranty) or any of the rights and remedies of Lender thereunder; (div) impair the right of Lender to obtain the appointment of a receiver; (ev) impair the enforcement of the Assignment of LeasesLeases and Rents executed in connection herewith; or (fvi) constitute a prohibition against waiver of the right of Lender to seek a deficiency judgment enforce the liability and obligation of Borrower (but not against any members of Borrower (other than Guarantor to the extent provided in order to fully realize on any security given by Borrower in connection with the Loan (including the security granted by the MortgageNon-Recourse Guaranty) or their direct or indirect constituent members or partners or any other assets Person), by money judgment or otherwise, to the extent of Borrower any loss, damage, cost, expense, liability, claim or to commence any other appropriate action or proceeding in order for obligation incurred by Lender to exercise its remedies against such security (including the Property or any other assets attorneys' fees and costs reasonably incurred) arising out of Borrower).
(a) Nothing contained in this Section 11.22 shall limit the rights of Lender to proceed against Borrower for any of the following (or against Guarantor under the Guaranty, on the additional terms and conditions thereof and subject to any limitations set forth herein or therein):
(i) to enforce any Leases entered into by Borrower or its Affiliates as Tenant;
(ii) to recover damages for fraud, material misrepresentation, material breach of warranty or intentional physical waste;
(iii) to recover any Condemnation Proceeds or Insurance Proceeds or other similar funds which have been misappropriated by Borrower or which, under the terms of the Loan Documents, should have been paid to Lender;
(iv) to recover (A) any Tenant security deposits, Tenant letters of credit or other deposits or fees paid to Borrower or (B) prepaid rents for a period of more than thirty (30) days in advance of its due date which have not been delivered to Lender;
(v) to recover Business Income received by Borrower during an Event of Default which have not been applied to the Loan or in accordance with the Loan Documents to operating and maintenance expenses of the Property;
(vi) to recover damages, costs and expenses arising from, or in connection with the provisions of the Mortgage pertaining to Hazardous Materials or the Environmental Indemnity;following:
(viia) to recover fraud or intentional misrepresentation by Borrower or any amount expended by Lender Guarantor in connection with the foreclosure of the Mortgage, but only in the event that any Borrower or any Guarantor takes action to impede such foreclosure or otherwise contests the foreclosure in bad faithLoan;
(viii) to recover damages, costs and expenses arising from, or in connection with, the failure by Borrower to pay Taxes and Insurance Premiums when due to the extent that Borrower was not required to deposit such amounts with Lender pursuant to Section 6 hereof, but only to the extent there was available revenue from the Property for the period in question sufficient to pay such Taxes and Insurance Premiums, and provided further that Lender does not prevent such proceeds from being so applied;
(ix) to recover damages, costs and expenses arising from the failure of the representations set forth in Section 3.1.8 to be true or Borrower’s failure to comply with the provisions of Sections 4.2.11 of this Agreement; and
(x) to recover damages, costs and expenses arising from, or in connection with, any Lien arising from a written instrument executed by any Borrower or any Affiliate thereof expressly creating such Lien, to the extent such Lien is prohibited under this Agreement.
(b) Notwithstanding intentional physical waste of the foregoingProperty (including, but not limited to, waste due to gross negligence) by Borrower or any affiliate thereof; provided, however, such physical waste shall exclude wear and tear to the agreement of Lender not to limit recourse liability as set forth in Section 11.22(a) above SHALL BECOME NULL AND VOID and shall be of no further force and effect and the Debt shall be fully recourse to Borrower (and to Guarantor under the Guaranty, on the additional terms and conditions thereof and subject to any limitations set forth herein or therein) Property that occurs in the event that:ordinary course of business of the Property by Borrower or any affiliate thereof;
(c) the material breach of any representation, warranty, covenant or indemnification provision in that certain Environmental and Hazardous Substance Indemnification Agreement of even date herewith given by Borrower to Lender or in this Agreement concerning Environmental Laws, Hazardous Substances and Asbestos;
(d) the removal or disposal by Borrower or any affiliate thereof of any portion of the Property after an Event of Default has occurred and while it is continuing, unless such portion of the Property is replaced by an item of equal or greater value as determined by Lender in its reasonable discretion;
(e) the misapplication or conversion by Borrower or any affiliate thereof of
(i) any Borrower commences a voluntary bankruptcy insurance proceeds paid by reason of any loss, damage or insolvency proceeding;destruction to the Property,
(ii) an involuntary bankruptcy any awards or insolvency proceeding is commenced against any Borrower and is not dismissed within 90 days other amounts received in connection with the condemnation of filing; or
all or a portion of the Property, (iii) voluntary Transfer any Rents following an Event of the Property occurs by written instrument executed by Default or (iv) any Borrower or any Affiliate thereof, which instrument expressly effects such Transfer, or a Secondary Financing is voluntarily incurred Rents paid more than one month in violation of the Loan Documents, except as otherwise consented to by Lender in writing (which consent may be withheld in Lender’s sole discretion).
(c) Notwithstanding the provisions of clauses (i) and (ii) of Section 11.22(b) no Guarantor shall be liable for any amount related to a Qualified Involuntary Bankruptcy.
(d) In addition, this agreement shall not waive any rights which Lender would have under any provisions of Title 11 of the Bankruptcy Code to file a claim for the full amount of the Debt or to require that the Property shall continue to secure all of the Debt.advance;
Appears in 1 contract
Exculpation. Subject to the qualifications below, Lender shall not enforce the The liability and obligation of Borrower to perform and observe the obligations contained in the Note, this Agreement, the Mortgage Landlord or the other Loan Documents Landlord Parties to Tenant for any default by any action Landlord under this Lease or proceeding wherein a money judgment shall be sought against the Borrower arising in connection herewith or any direct or indirect memberswith Landlord’s operation, partners or shareholders of Borrower or the employeesmanagement, agentsleasing, directors or officers of Borrower or its Affiliatesrepair, except that Lender may bring an action against Borrowerrenovation, including a foreclosure action, an action for specific performance alteration or any other appropriate action matter relating to the Project or proceeding the Premises shall be limited solely and exclusively to enable Lender an amount which is equal to enforce and realize upon its the lesser of (a) the interest under the Note, this Agreement, the Mortgage and the other Loan Documents, or of Landlord in the Property, Buildings or (b) the Business Income, or any other collateral given to Lender pursuant to the Loan Documents or any other assets of 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 equity interest Landlord would have in the PropertyBuildings if the Buildings were encumbered by third-party debt in an amount equal to eighty percent (80%) of the value of the Buildings (as such value is determined by Landlord), provided that in the Business Income in no event shall such liability extend to any other collateral given to Lender sales or any other assets of Borrower, and Lender, insurance proceeds received by accepting the Note, this Agreement, the Mortgage and the other Loan Documents, shall not ▇▇▇ for, seek or demand any deficiency judgment or any other monetary payment against Borrower Landlord or the direct or indirect members, partners or shareholders of Borrower or the employees, agents, directors or officers of Borrower or its Affiliates in any such action or proceeding under or by reason of or under or Landlord Parties in connection with the NoteProject, this AgreementBuildings or Premises. Neither Landlord, the 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 nor any of the Loan Documents; (b) impair the right Landlord Parties shall have any personal liability therefor, and Tenant hereby expressly waives and releases such personal liability on behalf of Lender to name Borrower as a party defendant in any action itself and all persons claiming by, through or suit for foreclosure and sale under the Mortgage; (c) affect the validity or enforceability Tenant. The limitations of any guaranty or indemnity made in connection with the Loan (including, without limitation, the Guaranty) or any of the rights and remedies of Lender thereunder; (d) impair the right of Lender to obtain the appointment of a receiver; (e) impair the enforcement of the Assignment of Leases; or (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 Loan (including the security granted by the Mortgage) or any other assets of Borrower or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against such security (including the Property or any other assets of Borrower).
(a) Nothing liability contained in this Section 11.22 29.13 shall limit the rights of Lender to proceed against Borrower for any of the following (or against Guarantor under the Guaranty, on the additional terms and conditions thereof and subject to any limitations set forth herein or therein):
(i) to enforce any Leases entered into by Borrower or its Affiliates as Tenant;
(ii) to recover damages for fraud, material misrepresentation, material breach of warranty or intentional physical waste;
(iii) to recover any Condemnation Proceeds or Insurance Proceeds or other similar funds which have been misappropriated by Borrower or which, under the terms of the Loan Documents, should have been paid to Lender;
(iv) to recover (A) any Tenant security deposits, Tenant letters of credit or other deposits or fees paid to Borrower or (B) prepaid rents for a period of more than thirty (30) days in advance of its due date which have not been delivered to Lender;
(v) to recover Business Income received by Borrower during an Event of Default which have not been applied inure to the Loan benefit of Landlord’s and the Landlord Parties’ present and future partners, beneficiaries, officers, directors, trustees, shareholders, agents and employees, and their respective partners, heirs, successors and assigns. Under no circumstances shall any present or in accordance with the Loan Documents to operating and maintenance expenses future partner of the Property;
Landlord (vi) to recover damages, costs and expenses arising fromif Landlord is a partnership), or in connection with the provisions of the Mortgage pertaining to Hazardous Materials trustee or the Environmental Indemnity;
beneficiary (vii) to recover any amount expended by Lender in connection with the foreclosure of the Mortgage, but only in the event that any Borrower if Landlord or any Guarantor takes action to impede such foreclosure or otherwise contests the foreclosure in bad faith;
(viii) to recover damagespartner of Landlord is a trust), costs and expenses arising from, or in connection with, the failure by Borrower to pay Taxes and Insurance Premiums when due to the extent that Borrower was not required to deposit such amounts with Lender pursuant to Section 6 hereof, but only to the extent there was available revenue from the Property have any liability for the period in question sufficient to pay such Taxes and Insurance Premiums, and provided further that Lender does not prevent such proceeds from being so applied;
(ix) to recover damages, costs and expenses arising from the failure performance of the representations set forth in Section 3.1.8 to be true or BorrowerLandlord’s failure to comply with the provisions of Sections 4.2.11 of this Agreement; and
(x) to recover damages, costs and expenses arising from, or in connection with, any Lien arising from a written instrument executed by any Borrower or any Affiliate thereof expressly creating such Lien, to the extent such Lien is prohibited obligations under this Agreement.
(b) Lease. Notwithstanding any contrary provision herein, neither Landlord nor the foregoing, the agreement of Lender not to limit recourse liability as set forth in Section 11.22(a) above SHALL BECOME NULL AND VOID and shall be of no further force and effect and the Debt shall be fully recourse to Borrower (and to Guarantor under the Guaranty, on the additional terms and conditions thereof and subject to any limitations set forth herein or therein) in the event that:
(i) any Borrower commences a voluntary bankruptcy or insolvency proceeding;
(ii) an involuntary bankruptcy or insolvency proceeding is commenced against any Borrower and is not dismissed within 90 days of filing; or
(iii) voluntary Transfer of the Property occurs by written instrument executed by any Borrower or any Affiliate thereof, which instrument expressly effects such Transfer, or a Secondary Financing is voluntarily incurred in violation of the Loan Documents, except as otherwise consented to by Lender in writing (which consent may be withheld in Lender’s sole discretion).
(c) Notwithstanding the provisions of clauses (i) and (ii) of Section 11.22(b) no Guarantor Landlord Parties shall be liable for any amount related to a Qualified Involuntary Bankruptcy.
(d) In addition, this agreement shall not waive any rights which Lender would have under any provisions circumstances for injury or damage to, or interference with, Tenant’s business, including but not limited to, loss of Title 11 profits, loss of the Bankruptcy Code to file a claim for the full amount rents or other revenues, loss of the Debt business opportunity, loss of goodwill or to require that the Property shall continue to secure all loss of the Debtuse, in each case, however occurring.
Appears in 1 contract
Sources: Office Lease (Ixia)
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 Mortgage 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 the Borrower or any direct or indirect membersprincipal, partners director, officer, employee, beneficiary, shareholder, partner, member, trustee, agent, or shareholders Affiliate of Borrower (but specifically excluding Guarantor) or any legal representatives, successors or assigns of any of the employeesforegoing (collectively, agents, directors or officers of Borrower or its Affiliatesthe “Exculpated Parties”), except that Lender may bring an action against Borrower, including a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender to enforce and realize upon its interest under the Note, this Agreement, the Mortgage Security Instrument and the other Loan Documents, or in the PropertyProperties, the Business IncomeRents, or any other collateral given to Lender pursuant to the Loan Documents or any other assets of BorrowerDocuments; 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 PropertyProperties, in the Business Income Rents and in any other collateral given to Lender or any other assets of BorrowerLender, and Lender, by accepting the Note, this Agreement, the Mortgage Security Instrument and the other Loan Documents, shall not ▇s▇▇ for, seek or demand any deficiency judgment or any other monetary payment against Borrower or any of the direct or indirect members, partners or shareholders of Borrower or the employees, agents, directors or officers of Borrower or its Affiliates Exculpated Parties in any such action or proceeding under or by reason of or under or in connection with the Note, this Agreement, the Mortgage 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 Mortgageany Security Instrument; (c3) affect the validity or enforceability of any indemnity, guaranty or indemnity made in connection with the Loan similar instrument (including, without limitation, the Guarantyindemnities set forth in Article 12 hereof, Section 11.2 hereof, in the Guaranty and in 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 of Lender to obtain the appointment of a receiver; (e5) impair the enforcement of the Assignment assignment of Leasesleases and rents contained in each Security Instrument; or (f6) [intentionally omitted]; (7) 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 Loan (including the security granted by the Mortgage) or any other assets of Borrower Security Instruments or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against such security the Properties; or (including 8) constitute a waiver of the Property or any other assets of Borrower).
(a) Nothing contained in this Section 11.22 shall limit the rights right of Lender to proceed against Borrower for enforce the liability and obligation of Borrower, by money judgment or otherwise, to the extent of any Losses incurred by Lender (including attorneys’ fees and costs reasonably incurred) arising out of or in connection with any of the following (or against Guarantor under the Guaranty, on the additional terms and conditions thereof and subject to any limitations set forth herein or therein):following:
(i) to enforce fraud or intentional material misrepresentation by Borrower, any Leases entered into by SPE Component Entity, Guarantor or any Borrower or its Affiliates as TenantParty in connection with the Loan;
(ii) to recover damages for fraudthe willful misconduct of Borrower, material misrepresentationany SPE Component Entity, material breach Guarantor or any Borrower Party or the commission of warranty a criminal act by Borrower, any SPE Component Entity, Guarantor or intentional physical wasteany Borrower Party which results in any seizure or forfeiture of the Property, or any portion thereof, or Borrower’s interest therein;
(iii) any intentional material physical waste at any Individual Property committed by Borrower, any SPE Component Entity, Guarantor or any Borrower Party (including, without limitation, any arson of the Property) and/or the removal or disposal of any portion of the Property after an Event of Default by Borrower, any SPE Component Entity, Guarantor or any Borrower Party (except for personal property that is worn out or obsolete or that is replaced with personal property that is of equal or greater value and utility); provided, however, there shall be no liability under this clause (iii) for failure to recover maintain the Properties (collectively) unless there is sufficient revenue from the Property to pay the cost of such maintenance prior to the payment of any Condemnation Proceeds other costs or Insurance Proceeds or expenses other similar funds which have been misappropriated by Borrower or whichthan Taxes, Other Charges, amounts payable under the terms of Ground Lease, Insurance Premiums and amounts that can create liens on the Loan Documents, should have been paid to LenderProperty(ies);
(iv) to recover the misappropriation, conversion or intentional misapplication by Borrower of (A) any Tenant security depositsinsurance proceeds paid by reason of any loss, Tenant letters of credit damage or other deposits or fees paid destruction to Borrower or any Individual Property, (B) prepaid rents for any Awards or other amounts received in connection with the Condemnation of all or a period portion of any Individual Property, (C) any Rents or (D) any Tenant security deposits or Rents collected more than thirty (30) days in advance of its due date which have not been delivered to Lenderadvance;
(v) failure to recover Business Income received by Borrower during an Event pay any Taxes or Other Charges, charges for labor or materials or any other charges that create liens on any portion of Default which have not been applied the Property to the Loan extent that the revenue from the Properties (collectively) is sufficient to pay such amounts prior to the payment of any other costs or expenses other than amounts payable under the Ground Lease (other than (x) amounts deposited with Lender as Tax Reserve Funds for Taxes or Other Charges where Lender elects not to apply such funds toward payment of such Taxes or Other Charges owed and Lender’s access to such sums is not restricted or constrained in any manner or (y) Taxes or Other Charges owed that are contested strictly in accordance with the Loan Documents to operating and maintenance expenses terms of the PropertyLoan Documents);
(vi) failure to recover damages, maintain insurance as required by this Agreement to the extent that the revenue from the Properties (collectively) is sufficient to pay the Insurance Premiums relating thereto prior to the payment of any other costs or expenses other than Taxes and expenses arising from, Other Charges and amounts payable under the Ground Lease (other than the failure to pay amounts deposited with Lender as Insurance Reserve Funds for Insurance Premiums to be paid to maintain such insurance where Lender elects not to apply such funds toward payment of such Insurance Premiums and Lender’s access to such sums is not restricted or constrained in connection with the provisions of the Mortgage pertaining to Hazardous Materials or the Environmental Indemnityany manner);
(vii) to recover any amount expended by Lender in connection with the foreclosure of the Mortgage, but only in the event that any Borrower or any Guarantor takes action to impede such foreclosure or otherwise contests the foreclosure in bad faith[intentionally omitted];
(viii) to recover damages, costs and expenses arising from, or in connection with, the failure by Borrower to pay Taxes and Insurance Premiums when due to the extent that Borrower was not required to deposit such amounts with Lender pursuant to Section 6 hereof, but only to the extent there was available revenue from the Property for the period in question sufficient to pay such Taxes and Insurance Premiums, and provided further that Lender does not prevent such proceeds from being so applied[intentionally omitted];
(ix) the breach of any representation, warranty or covenant contained in Article 5 hereof (except there shall be no liability under this clause (ix) due to recover damages, costs and expenses arising from the failure of the representations set forth in Section 3.1.8 to be true or Borrower’s failure to comply pay trade payables within the timeframes as required thereunder solely to the extent that such failure is due to (1) the Properties (collectively) not generating revenue sufficient to pay such amounts prior to the payment of any other costs or expenses other than Taxes and Other Charges, amounts payable under the Ground Leases, insurance premiums and amounts that could result in a lien being filed against any of the Properties or (2) amounts deposited with Lender for the provisions payment of Sections 4.2.11 such trade payables where Lender elects not to apply such funds toward payment of this Agreementsuch trade payables owed and Lender’s access to such sums is not restricted or constrained in any manner); andprovided that the foregoing shall not be deemed to limit Borrower’s liability under clause (B)(i) below;
(x) a Prohibited Transfer, provided that the foregoing shall not be deemed to recover damageslimit Borrower’s liability under clause (B)(ii) of this Section 13.1; and provided, costs and expenses arising fromfurther, there shall be no liability under this subsection (x) solely as a result of the failure of Borrower to provide a required notice to Lender of a transfer provided that the related transfer would otherwise have been a Permitted Transfer had such notice been given as required by this Agreement;
(xi) any Zoning, Use or in connection withOccupancy Nonconformance;
(xii) any litigation or other legal proceeding related to the Debt filed by Borrower, any Lien arising from a written instrument executed by SPE Component Entity, Guarantor or any Borrower Party with the intent to (and which actually does) delay, impede, obstruct, hinder, enjoin or otherwise interfere with or frustrates the efforts of Lender to exercise any rights and remedies available to Lender as provided herein and in the other Loan Documents, except for any defenses raised in good faith by the Borrower, any SPE Component Entity, Guarantor or any Affiliate thereof expressly creating such LienBorrower Party;
(xiii) failure to pay rent, additional rent or any other amounts due and payable under any Ground Lease to the extent that the revenue from the Properties (collectively) is sufficient to pay such Lien is prohibited under this Agreement.
amounts in the priority required by Section 4.27(a)(i) (b) Notwithstanding the foregoing, the agreement of Lender not to limit recourse liability as set forth in Section 11.22(a) above SHALL BECOME NULL AND VOID and shall be of no further force and effect and the Debt shall be fully recourse to Borrower (and to Guarantor under the Guaranty, on the additional terms and conditions thereof and subject to any limitations set forth herein or therein) except in the event that:
(i) that amounts sufficient to pay Ground Rent are deposited with Lender as Ground Rent Reserve Funds and Lender elects not to apply such funds toward payment of such Ground Rent and Lender’s access to such sums is not restricted or constrained in any Borrower commences a voluntary bankruptcy or insolvency proceedingmanner);
(iixiv) an involuntary bankruptcy failure to pay any amounts due under the Bond Documents to the extent that the revenue from the Properties (collectively) is sufficient to pay such amounts prior to the payment of any other costs or insolvency proceeding is commenced against any Borrower expenses other than amounts payable under the Ground Lease and is not dismissed within 90 days of filingTaxes and Insurance Premiums; orand/or
(iiixv) voluntary Transfer any amendment, modification or supplement of any Ground Lease or any of the Property occurs by Bond Documents without the prior written instrument executed by any Borrower consent of Lender. Notwithstanding anything to the contrary in this Agreement, the Note or any Affiliate thereof, which instrument expressly effects such Transfer, or a Secondary Financing is voluntarily incurred in violation of the Loan Documents, except as otherwise consented to by (A) Lender in writing (which consent may be withheld in Lender’s sole discretion).
(c) Notwithstanding the provisions of clauses (i) and (ii) of Section 11.22(b) no Guarantor shall be liable for any amount related to a Qualified Involuntary Bankruptcy.
(d) In addition, this agreement shall not waive be deemed to have waived any rights right which Lender would may have under Section 506(a), 506(b), 1111(b) or any other provisions of Title 11 of the Bankruptcy Code to file a claim for the full amount of the Debt or to require that the Property all collateral shall continue to secure all of the Debt.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 maintain its status as a Single Purpose Entity or comply with any representation, warranty or covenant set forth in Article 5 hereof and such failure is cited as a factor in a substantive consolidation of the Borrower or any SPE Component Entity with any other Person in any case, proceeding or other action under the Bankruptcy Code or any other Creditors Rights Laws; (ii) a Prohibited Transfer resulting in a transfer of any Borrower’s fee or leasehold interest, as applicable, in any Individual Property, or a change in Control of Borrower or the day-to-day operations of any Individual Property, or results in the Guarantor no longer being a publicly traded entity with its shares traded on the New York Stock Exchange or another nationally recognized stock exchange; (iii) Borrower or any SPE Component Entity files a voluntary petition under the Bankruptcy Code or any other Creditors Rights Laws; (iv) an Affiliate, officer, director, or representative which Controls, directly or indirectly, Borrower or any SPE Component Entity files, or joins in the filing of, an involuntary petition against Borrower or any SPE Component Entity under the Bankruptcy Code or any other Creditors Rights Laws, or solicits or causes to be solicited petitioning creditors for any involuntary petition against Borrower or any SPE Component Entity from any Person; (v) Borrower or any SPE Component Entity files an answer consenting to or joining in or failing to oppose (unless there is no good faith basis to oppose such petition) any involuntary petition filed against it, by any other Person under the Bankruptcy Code or any other Creditors Rights Laws, or solicits or causes to be solicited petitioning creditors for any involuntary petition from any Person; (vi) any Affiliate, officer, director, or representative which Controls Borrower or any SPE Component Entity consents to or joins in or fails to oppose an application for the appointment of a custodian, receiver, trustee, or examiner for Borrower, any SPE Component Entity or any portion of the Property, except if any of the foregoing are appointed at Lender’s request; (vii) Borrower or any SPE Component Entity makes an assignment for the benefit of creditors or admits in any legal proceeding its insolvency or inability to pay its debts as they become due; (viii) Borrower or any SPE Component Entity (or any Restricted Party) contests or opposes any motion made by Lender to obtain relief from the automatic stay or seeks to reinstate the automatic stay in the event of any federal or state bankruptcy or insolvency proceeding involving the Guarantor or its Affiliates; (ix) the Ground Lease is terminated, cancelled, rejected in bankruptcy or otherwise ceases to exist for any reason; provided, that, (A) there shall be no liability under this clause (ix) unless there is sufficient revenue from the Properties (collectively) to pay amounts necessary to prevent termination or cancellation prior to the payment of any other Operating Expenses or if during an Cash Trap Event Period Lender has collected sufficient funds for the payment of such amount, Lender elects not to apply such funds toward payment of such Ground Rent and Lender’s access to such sums is not restricted or constrained in any manner, and (B) Borrower’s liability pursuant to this clause (ix) shall not exceed Allocated Loan Amount for the applicable Individual Property; or (x) a Bond Lease is terminated, cancelled, or rejected in bankruptcy or otherwise ceases to exist for any reason, including, without limitation, Borrower’s failure to timely exercise its purchase option (and complete the purchase thereof) for the fee interest of the Home Depot Property or the sub-sub-leasehold interest in the Express Scripts Property, as applicable; provided, that (A) there shall be no liability under this clause (x) unless there is sufficient revenue from the Properties (collectively) to pay amounts necessary to prevent such termination or cancellation or to exercise such purchase option or if during an Cash Trap Event Period Lender has collected sufficient funds for the purpose of payment of such amounts, Lender elects not to apply such funds toward payment of such amounts and Lender’s access to such sums is not restricted or constrained in any manner, and (B), Borrower’s liability pursuant to this clause (x) shall not exceed the Allocated Loan Amount for the applicable Individual Property;
Appears in 1 contract
Exculpation. Subject to the qualifications below, Lender Agent shall not enforce the liability and obligation of Borrower or Security Guarantor to perform and observe the obligations contained in the Note, this Agreement, the Mortgage Debenture, the 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 the any Borrower Party, any Affiliate of any Borrower Party, Sponsor, or any direct principal, director, officer, employee, beneficiary, shareholder, partner, member, trustee, agent, or indirect membersAffiliate of any of the foregoing (but specifically excluding Guarantor to the extent Guarantor becomes liable for the same under the Recourse Guaranty) or any legal representatives, partners successors or shareholders assigns of Borrower or any of the employeesforegoing (collectively, agents, directors or officers of Borrower or its Affiliatesthe “Exculpated Parties”), except that Lender Agent may bring an action against Borrower, including a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender Agent to enforce and realize upon its interest under the Note, this Agreement, the Mortgage Security Instrument, the Debenture, and the other Loan Documents, or in the Property, the Business IncomeRents, or any other collateral given to Lender Agent pursuant to the Loan Documents or any other assets of BorrowerDocuments; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower or Security Guarantor only to the extent of Borrower’s or Security Guarantor’s interest in the Property, in the Business Income Rents and in any other collateral given to Lender or any other assets of BorrowerAgent, and Agent (on behalf of Lender), by accepting the Note, this Agreement, the Mortgage Security Instrument, the Debenture, and the other Loan Documents, shall not ▇▇▇ for, seek or demand any deficiency judgment against Borrower, Security Guarantor, or any other monetary payment against Borrower or of the direct or indirect membersExculpated Parties, partners or shareholders of Borrower or the employees, agents, directors or officers of Borrower or its Affiliates in any such action or proceeding under or by reason of or under or in connection with the Note, this Agreement, the Mortgage Security Instrument, the Debenture, 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 Agent or Lender to name Borrower and/or Security Guarantor as a party defendant in any action or suit for foreclosure and sale under the MortgageSecurity Instrument or the Debenture; (c) affect the validity or enforceability of any guaranty indemnity, guaranty, or indemnity similar instrument made in connection with the Loan (including, without limitation, the Guaranty) or any of the rights and remedies of Agent or Lender thereunder; (d) impair the right of Agent or Lender to obtain the appointment of a receiver; (e) impair the enforcement of the Assignment assignment of Leasesleases and rents contained in the Loan Documents; or (f) impair the right of Agent or Lender to enforce the provisions of the Environmental Indemnity or of Section 4.1.6(h) hereof; (g) constitute a prohibition against Agent or Lender to seek a deficiency judgment against Borrower and/or Security Guarantor in order to fully realize on any security given by Borrower and/or Security Guarantor in connection with the Loan (including the security granted by the Mortgage) or any other assets of Borrower or to commence any other appropriate action or proceeding in order for Agent or Lender to exercise its remedies against such security security; or (h) constitute a waiver of the right of Agent or Lender to enforce the liability and obligation of Borrower and/or Security Guarantor, by money judgment or otherwise, to the extent of any Losses incurred by Agent or Lender (including the Property reasonable third-party attorneys’ fees and costs reasonably incurred) arising out of or any other assets of Borrower).
(a) Nothing contained in this Section 11.22 shall limit the rights of Lender to proceed against Borrower for connection with any of the following (or against Guarantor under the Guaranty, on the additional terms and conditions thereof and subject to any limitations set forth herein or therein):following:
(i) to enforce fraud or willful misrepresentation by any Leases entered into by Borrower Party or its Affiliates as TenantSponsor in connection with the Loan or the Property;
(ii) to recover damages for fraud, material misrepresentation, material breach the gross negligence or willful misconduct of warranty any Borrower Party or intentional physical wasteSponsor in connection with the Loan or the Property;
(iii) the breach of any indemnification obligations of Borrower, Security Guarantor and Guarantor in the Environmental Indemnity or in any other Loan Document;
(iv) waste to recover the Property (or any Condemnation Proceeds portion thereof) caused by intentional acts or Insurance Proceeds intentional omissions of any Borrower Party or Sponsor, or the removal or disposal of any portion of the Property after an Event of Default;
(v) the misapplication, misappropriation or conversion by any Borrower Party or Sponsor of any of the following, to the extent actually received by any Borrower Party or Sponsor: (A) any insurance proceeds paid by reason of any loss, damage or destruction to the Property, (B) any Awards or other similar funds which have been misappropriated 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 (D) any Tenant security deposits or Rents collected in advance;
(vi) any Personal Property taken from the Property by or at the direction of any Borrower Party or Sponsor and not replaced with Personal Property of the same utility and of the same of greater value, unless (A) such taken Personal Property is obsolete or otherwise has no material benefit to the use, operation, or value of the Property or (B) such actions were expressly permitted by the Loan Documents;
(vii) any act of arson by any Borrower Party or Sponsor;
(viii) any fees or commissions paid by Borrower or which, under Security Guarantor or on behalf of Borrower or Security Guarantor after the occurrence of an Event of Default to any Exculpated Party in violation of the terms of the Note, this Agreement, the Security Instrument, the Debenture, or the other Loan Documents;
(ix) failure to (A) pay any charges for labor or materials relating to the Outstanding Work Costs in accordance with the terms and provisions thereof, that can create Liens on any portion of the Property, or (B) pay Taxes, charges for labor or materials, or other charges that can create Liens on any portion of the Property and/or the failure to pay Insurance Premiums or to maintain the Policies in accordance with the terms hereof; unless, with respect to any Taxes or charges referred to in clause (B) hereof, (1) funds to pay such Taxes or charges were, at the time in question, available in the applicable Reserve Funds and Agent was obligated, but failed, to pay (or make such funds available to pay) such charges or (2) the Operating Income received during the period in question are insufficient to pay all of Borrower’s current and/or past due liabilities (including such charges) with respect to the Property and such charges and liabilities were incurred by Borrower as permitted pursuant to the Loan Documents;
(x) any security deposits, advance deposits or any other deposits collected with respect to any Individual Property which are not delivered to Agent upon a foreclosure of 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;
(xi) any failure by Borrower and/or Security Guarantor to permit on-site inspections of any Individual Property as required by this Agreement and/or the other Loan Documents;
(xii) any failure of Borrower or Security Guarantor terminates any Franchise Agreement or Management Agreement and fails to appoint a replacement Manager or Franchisor in accordance with the terms of this Agreement; except to the extent Borrower or Security Guarantor proposes a Qualified Manager or Qualified Franchisor, as applicable, and Agent or Lender does not consent or unreasonably delays its consent to such Qualified Manager or Qualified Franchisor;
(xiii) if Borrower of Security Guarantor shall fail to indemnify any Lender Indemnitee from and against any and all Losses imposed upon or incurred by or asserted against any Lender Indemnitee and directly or indirectly arising out of or in any way relating to any tax, fee, or charge on the recording, and/or registering of any Security Instrument or any other Loan Document that is required to be filed, registered or recorded in accordance with the Loan Documents;
(xiv) the occurrence of any event due to political action and/or instability with respect to any Individual Property, to the extent any Losses arising out of such political action and/or instability would typically be covered by a political risk insurance policy, if the same were commercially available, which policy provides for typical coverage over (1) expropriatory acts of any Governmental Authority, (2) currency inconvertibility and non-transfer, (3) political violence, and (4) war and civil war;
(xv) the seizure or forfeiture of any Individual Property, or any portion thereof, or Borrower’s or Security Guarantor’s interest therein, resulting from criminal wrongdoing by any Borrower Party or Sponsor;
(xvi) Borrower or Security Guarantor fails to comply with the terms of Section 4.1.24 hereof following the occurrence and during the continuance of an Event of Default;
(xvii) Other than as set forth in clause (iii) of the paragraph below, Borrower or Security Guarantor fails to comply with any provision of Section 3.1.24 hereof or Pledgor or Pledgee fails to comply with any provision of Section 5(h) of the Pledge Agreement;
(xviii) Borrower or Security Guarantor terminates or otherwise cancels the Franchise Agreement in violation of this Agreement; and/or
(xix) Borrower’s or Security Guarantor’s use of the proceeds of the Loan other than in the manner and for the purposes set forth in Section 2.1.4 hereof. Notwithstanding anything to the contrary in this Agreement, the Note or any of the Loan Documents, should have been paid to Lender;
(iv) to recover (A) Agent and Lender shall not be deemed to have waived any Tenant security depositsright which Lender may have under Section 506(a), Tenant letters of credit or other deposits or fees paid to Borrower or (B506(b), 1111(b) prepaid rents for a period of more than thirty (30) days in advance of its due date which have not been delivered to Lender;
(v) to recover Business Income received by Borrower during an Event of Default which have not been applied to the Loan or in accordance with the Loan Documents to operating and maintenance expenses of the Property;
(vi) to recover damages, costs and expenses arising from, or in connection with the provisions of the Mortgage pertaining to Hazardous Materials or the Environmental Indemnity;
(vii) to recover any amount expended by Lender in connection with the foreclosure of the Mortgage, but only in the event that any Borrower or any Guarantor takes action to impede such foreclosure or otherwise contests the foreclosure in bad faith;
(viii) to recover damages, costs and expenses arising from, or in connection with, the failure by Borrower to pay Taxes and Insurance Premiums when due to the extent that Borrower was not required to deposit such amounts with Lender pursuant to Section 6 hereof, but only to the extent there was available revenue from the Property for the period in question sufficient to pay such Taxes and Insurance Premiums, and provided further that Lender does not prevent such proceeds from being so applied;
(ix) to recover damages, costs and expenses arising from the failure of the representations set forth in Section 3.1.8 to be true or Borrower’s failure to comply with the other provisions of Sections 4.2.11 of this Agreement; and
(x) to recover damages, costs and expenses arising from, or in connection with, any Lien arising from a written instrument executed by any Borrower or any Affiliate thereof expressly creating such Lien, to the extent such Lien is prohibited under this Agreement.
(b) Notwithstanding the foregoing, the agreement of Lender not to limit recourse liability as set forth in Section 11.22(a) above SHALL BECOME NULL AND VOID and shall be of no further force and effect and the Debt shall be fully recourse to Borrower (and to Guarantor under the Guaranty, on the additional terms and conditions thereof and subject to any limitations set forth herein or therein) in the event that:
(i) any Borrower commences a voluntary bankruptcy or insolvency proceeding;
(ii) an involuntary bankruptcy or insolvency proceeding is commenced against any Borrower and is not dismissed within 90 days of filing; or
(iii) voluntary Transfer of the Property occurs by written instrument executed by any Borrower or any Affiliate thereof, which instrument expressly effects such Transfer, or a Secondary Financing is voluntarily incurred in violation of the Loan Documents, except as otherwise consented to by Lender in writing (which consent may be withheld in Lender’s sole discretion).
(c) Notwithstanding the provisions of clauses (i) and (ii) of Section 11.22(b) no Guarantor shall be liable for any amount related to a Qualified Involuntary Bankruptcy.
(d) In addition, this agreement shall not waive any rights which Lender would have under any provisions of Title 11 of the Bankruptcy Code to file a claim for the full amount of the Debt or to require that the Property all collateral shall continue to secure all of the DebtDebt owing to Lender in accordance with the Loan Documents, and (B) the Debt shall be fully recourse to Borrower and Security Guarantor in the event that: (i) intentionally omitted; (ii) Subject to the terms and provisions set forth in Section 8.2 hereof, Borrower or Security Guarantor fails to comply with the provisions of Section 4.2.1 hereof and Article 8 hereof; (iii) Borrower or Security Guarantor fails to comply with any provision of Section 3.1.24 hereof or Pledgor or Pledgee fails to comply with any provision of Section 5(h) of the Pledge Agreement, in any case that results in a substantive consolidation of any Restricted Party with any other Person; (iv) intentionally omitted; (v) Borrower, Security Guarantor, or any SPC Party files a voluntary petition under the Bankruptcy code or any other Federal or state bankruptcy or insolvency law; (vi) an Affiliate, officer, director, or representative which Controls, directly or indirectly, Borrower, Security Guarantor, or any SPC Party, files, or joins in the filing of, an involuntary petition against Borrower, Security Guarantor, or any SPC 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 Borrower, Security Guarantor, or any SPC Party from any Person; (vii) Borrower, Security Guarantor, or any SPC Party files an answer consenting to or otherwise affirmatively acquiescing in or joining in any involuntary petition filed against it, by any other Person (other than Lender, Agent, or any Lender Indemnitees) 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; (viii) any Affiliate, officer, director, or representative which Controls Borrower, Security Guarantor, or any SPC Party consents to or affirmatively acquiesces in or joins in an application for the appointment of a custodian, receiver, trustee, or examiner for Borrower, Security Guarantor, or any SPC Party or any portion of the Property; (ix) Borrower, Security Guarantor, or any SPC Party 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; (x) [intentionally omitted], (xi) in the event of any federal or state bankruptcy or insolvency proceeding involving the Guarantor or its Affiliates, if Borrower, Security Guarantor, or any Restricted Party contests or opposes any motion made by Agent or any Lender to obtain relief from the automatic stay or seeks to reinstate the automatic stay, if any, imposed in connection with such bankruptcy or insolvency proceeding; (xii) Borrower, Security Guarantor, or any Restricted Party accepts from any Guarantor or Guarantor solicits or provides any debtor-in-possession financing to Borrower in the event Borrower, Security Guarantor, or any Restricted Party is the subject of a bankruptcy or insolvency proceeding; (xiii) intentionally omitted; (xiv) Borrower, Security Guarantor, Guarantor, or any Borrower Party is finally judicially determined to have improperly and in bad faith to have taken any action of any kind or nature whatsoever, directly or indirectly, to delay, oppose, impede, obstruct, hinder, enjoin, otherwise interfere with the exercise by Agent of any and all of its and Lender’s rights and remedies against Borrower, Security Guarantor, Guarantor, any Borrower Party, and/or the Property, or any other rights or remedies of Agent or Lender with respect to the Loan, the Loan Documents or this Agreement. The obligations and liabilities of Borrower and Security Guarantor under this Section 11.22 shall fully survive indefinitely notwithstanding any termination, satisfaction, assignment, entry of a judgment of foreclosure, exercise of any power of sale, or delivery of a deed in lieu of foreclosure of the Security Instrument.
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 Mortgage 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 the Borrower or any direct principal, director, officer, employee, beneficiary, shareholder, partner, member, trustee, agent, or indirect members, partners or shareholders Affiliate of Borrower (but specifically excluding Guarantor) or any legal representatives, successors or assigns of any of the employeesforegoing (collectively, agents, directors or officers of Borrower or its Affiliatesthe “Exculpated Parties”), except that Lender may bring an action against Borrower, including a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender to enforce and realize upon its interest under the Note, this Agreement, the Mortgage Security Instrument and the other Loan Documents, or in the Property, the Business IncomeRents, or any other collateral given to Lender pursuant to the Loan Documents or any other assets of BorrowerDocuments; 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 Business Income Rents and in any other collateral given to Lender or any other assets of BorrowerLender, and Lender, by accepting the Note, this Agreement, the Mortgage Security Instrument and the other Loan Documents, shall not ▇▇▇ for, seek or demand any deficiency judgment or any other monetary payment against Borrower or any of the direct or indirect members, partners or shareholders of Borrower or the employees, agents, directors or officers of Borrower or its Affiliates Exculpated Parties in any such action or proceeding under or by reason of or under or in connection with the Note, this Agreement, the Mortgage 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 MortgageSecurity Instrument; (c3) affect the validity or enforceability of any indemnity, guaranty or indemnity made in connection with the Loan similar instrument (including, without limitation, the Guarantyindemnities set forth in Article 12 hereof, in the Guaranty and in 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 of Lender to obtain the appointment of a receiver; (e5) impair the enforcement of the Assignment assignment of Leasesleases and rents contained in the Security Instrument; or (f6) impair the right of Lender to enforce Section 4.12(e) of this Agreement; (7) 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 Loan (including the security granted by the Mortgage) or any other assets of Borrower Security Instrument or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against such security (including the Property or any other assets Individual Property; or (8) constitute a waiver of Borrower).
(a) Nothing contained in this Section 11.22 shall limit the rights right of Lender to proceed against Borrower for enforce the liability and obligation of Borrower, by money judgment or otherwise, to the extent of any Losses incurred by Lender (including attorneys’ fees and costs reasonably incurred) arising out of or in connection with any of the following (or against Guarantor under the Guaranty, on the additional terms and conditions thereof and subject to any limitations set forth herein or therein):following:
(i) fraud or intentional misrepresentation or any failure to enforce disclose a material fact by Borrower, Guarantor, Sponsor, or any Leases entered into by Borrower or its Affiliates as TenantParty in connection with the Loan;
(ii) to recover damages for fraudthe gross negligence or willful misconduct of Borrower, material misrepresentationany SPE Component Entity, material breach Guarantor, Sponsor, or any Borrower Party or the commission of warranty a criminal act by Borrower, any SPE Component Entity, Guarantor, Sponsor or intentional physical wasteany Borrower Party which results in a forfeiture of the Property;
(iii) material physical waste to recover the Property caused by the intentional acts or intentional omissions of Borrower, any Condemnation Proceeds SPE Component Entity, Guarantor, Sponsor, or Insurance Proceeds any Borrower Party (including, without limitation, any arson or abandonment of the Property) and/or the removal or disposal of any portion of the Property after an Event of Default by Borrower, any SPE Component Entity, Guarantor, Sponsor or any Borrower Party;
(iv) the misapplication, misappropriation 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 similar amounts received in connection with the Condemnation of all or a portion of the Property, (C) any Rents following an Event of Default or (D) any Tenant security deposits or Rents collected in advance;
(v) failure to pay (or cause to be paid) any Taxes or Other Charges, charges for labor or materials or any other charges that can create liens on any portion of the Property to the extent that the revenue from the Property is sufficient to pay such amounts (other than (x) amounts deposited with Lender as Tax and Insurance Reserve Funds for Taxes or Other Charges where Lender elects not to apply such funds which have been misappropriated by Borrower toward payment of such Taxes or which, under Other Charges owed or (y) Taxes or Other Charges owed that are contested strictly in accordance with the terms of the Loan Documents, should have been paid to Lender;
(iv) to recover (A) any Tenant security deposits, Tenant letters of credit or other deposits or fees paid to Borrower or (B) prepaid rents for a period of more than thirty (30) days in advance of its due date which have not been delivered to Lender;
(v) to recover Business Income received by Borrower during an Event of Default which have not been applied to the Loan or in accordance with the Loan Documents to operating and maintenance expenses of the Property);
(vi) to recover damagesthe breach of any material representation, costs and expenses arising fromwarranty, covenant or indemnification provision in connection with the provisions of the Mortgage pertaining to Hazardous Materials or the Environmental Indemnity, this Agreement or in the Security Instrument concerning Environmental Laws and Hazardous Substances and any indemnification of Lender with respect thereto in either document;
(vii) any fees or commissions paid by Borrower after the occurrence of an Event of Default to recover Guarantor, Sponsor and/or any amount expended by Lender Borrower Party in connection with the foreclosure violation of the Mortgageterms of the Note, but only in this Agreement, the event that any Borrower Security Instrument or any Guarantor takes action to impede such foreclosure or otherwise contests the foreclosure in bad faithother Loan Documents;
(viii) to recover damages, costs and expenses arising fromBorrower’s breach of, or in connection failure to comply with, the failure by Borrower to pay Taxes representations, warranties and Insurance Premiums when due to covenants contained in Article 15 of this Agreement and/or the extent that Borrower was not required to deposit such amounts with Lender pursuant to Section 6 provisions of Sections 12.2 and 12.3 hereof, but only to the extent there was available revenue from the Property for the period in question sufficient to pay such Taxes and Insurance Premiums, and provided further that Lender does not prevent such proceeds from being so applied;
(ix) failure to recover damages, costs and expenses arising maintain insurance as required by this Agreement to the extent that the revenue from the Property is sufficient to pay the Insurance Premiums relating thereto (other than the failure of the representations set forth in Section 3.1.8 to pay amounts deposited with Lender as Tax and Insurance Funds for Insurance Premiums to be true or Borrower’s failure paid to comply with the provisions maintain such insurance where Lender elects not to apply such funds toward payment of Sections 4.2.11 of this Agreement; andsuch Insurance Premiums);
(x) Borrower fails to recover damagespermit on-site inspections of the Property, costs fails to provide the Required Financial Items or fails to appoint a new property manager upon the request of Lender, each as required by, and expenses arising fromin accordance with the terms and provisions of, this Agreement, the Assignment of Management Agreement and the other Loan Documents or Borrower appoints a new property manager or replaces the property manager other than in accordance with the terms of this Agreement, the Assignment of Management Agreement and the other Loan Documents;
(xi) any litigation or other legal proceeding related to the Debt filed in bad faith by Borrower, any SPE Component Entity, Guarantor, Sponsor or any Borrower Party that delays, opposes, impedes, obstructs, hinders, enjoins or otherwise interferes with or frustrates the efforts of Lender to exercise any rights and remedies available to Lender as provided herein and in the other Loan Documents;
(xii) the seizure or forfeiture of the Property, or in connection withany portion thereof, any Lien arising or Borrower’s interest therein, resulting from a written instrument executed criminal wrongdoing by Borrower, Guarantor, Sponsor, or any Borrower Party;
(xiii) failure to pay (or cause the payment of) rent, additional rent or any Affiliate thereof expressly creating such Lienother amounts due and payable under the Ground Lease, including, without limitation, the SAF Contribution (as defined in the Ground Lease);
(xiv) failure to pay (or cause the payment of) all outstanding SAF Contributions, the outstanding amounts payable under the Bonds, and any compensation payable to Trustee or the County (each as defined in the Ground Lease) upon termination or earlier expiration of the Ground Lease (including, without limitation, prior to a foreclosure or delivery of deed-in-lieu of foreclosure);
(xv) failure to pay (or cause the payment of) an amount equal to the extent difference between (A) the Allocated Loan Amount for the New Hampshire Property and (B) the sum of (i) the building insurance proceeds estimated to be received from the insurance carrier for the New Hampshire Property and (ii) the proceeds from the sale of the land for the New Hampshire Property (such Lien is prohibited under this Agreement.
(b) Notwithstanding amount being referred to herein as the foregoing“Gap Amount”), the agreement of Lender not to limit recourse liability as set forth in Section 11.22(a) above SHALL BECOME NULL AND VOID and shall be of no further force and effect and the Debt shall be fully recourse to Borrower (and to Guarantor under the Guaranty, on the additional terms and conditions thereof and subject to any limitations set forth herein or therein) in the event that:that there is a Casualty at the New Hampshire Property; and/or
(ixvi) any Borrower commences a voluntary bankruptcy or insolvency proceeding;
(ii) an involuntary bankruptcy or insolvency proceeding is commenced against any Borrower and is Additional Interest not dismissed within 90 days of filing; or
(iii) voluntary Transfer of being paid. Notwithstanding anything to the Property occurs by written instrument executed by any Borrower contrary in this Agreement, the Note or any Affiliate thereof, which instrument expressly effects such Transfer, or a Secondary Financing is voluntarily incurred in violation of the Loan Documents, except as otherwise consented to by (A) Lender in writing (which consent may be withheld in Lender’s sole discretion).
(c) Notwithstanding the provisions of clauses (i) and (ii) of Section 11.22(b) no Guarantor shall be liable for any amount related to a Qualified Involuntary Bankruptcy.
(d) In addition, this agreement shall not waive be deemed to have waived any rights right which Lender would may have under Section 506(a), 506(b), 1111(b) or any other provisions of Title 11 of the Bankruptcy Code to file a claim for the full amount of the Debt or to require that the Property all collateral shall continue to secure all of the DebtDebt owing to Lender in accordance with the Loan Documents, and (B) the Debt shall be fully recourse to Borrower in the event that: (i) any representation, warranty or covenant contained in Article 5 or Article 6 or Section 4.14 hereof is violated or breached, provided, however, that any such breach or violation with respect to Article 5 shall not result in recourse liability hereunder unless such breach was material and, within fifteen (15) days of notice from Lender, Borrower fails to cure such breach and fails to deliver to Lender a New Non-Consolidation Opinion to the effect that such failure does not negate/impair the opinion previously delivered to Lender; (ii) Borrower or any SPE Component Entity files a voluntary petition under the Bankruptcy Code or any other Creditors’ Rights Laws; (iii) an Affiliate, officer, director, or representative which Controls, directly or indirectly, Borrower or any SPE Component Entity files, or joins in the filing of, an involuntary petition against Borrower or any SPE Component Entity under the Bankruptcy Code or any other Creditors’ Rights Laws, or solicits or causes to be solicited petitioning creditors for any involuntary petition against Borrower or any SPE Component Entity from any Person; (iv) Borrower or any SPE Component Entity 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 Creditors’ Rights Laws, or solicits or causes to be solicited petitioning creditors for any involuntary petition from any Person; (v) any Affiliate, officer, director, or representative which Controls Borrower or any SPE Component Entity consents to or acquiesces in or joins in an application for the appointment of a custodian, receiver, trustee, or examiner for Borrower, any SPE Component Entity or any portion of the Property; (vi) Borrower or any SPE Component Entity 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; (vii) there is substantive consolidation of Borrower or any SPE Component Entity (or any Restricted Party) with any other Person in connection with any federal or state bankruptcy proceeding involving the Guarantor or any of its Affiliates; (viii) Borrower or any SPE Component Entity (or any Restricted Party) contests or opposes any motion made by Lender to obtain relief from the automatic stay or seeks to reinstate the automatic stay in the event of any federal or state bankruptcy or insolvency proceeding involving the Guarantor or its Affiliates; (ix) Borrower’s failure to deposit any springing Reserve Funds deposits pursuant to the terms of this Agreement; and/or (x) the Ground Lease is terminated, cancelled or otherwise ceases to exist and MO Borrower has not exercised its purchase option pursuant to the terms of the Ground Lease.
Appears in 1 contract
Sources: Loan Agreement (American Realty Capital Trust III, Inc.)
Exculpation. Subject Notwithstanding any provision herein or in any of the other Loan Documents to the qualifications belowcontrary, except as set forth in this Section 9.4, Lender shall not enforce the liability and obligation of any Borrower to perform and observe the obligations contained in the Note, this Agreement, the Mortgage Note, the Mortgages or the other Loan Documents by any an action or proceeding wherein a money judgment shall be sought against the any Borrower or any direct judgment shall be sought against any director, officer, employee, partner, member or indirect membersstockholder of any Borrower, partners or shareholders of Borrower or the employees, agents, directors or officers of Borrower or its Affiliatesgeneral partners (all of the foregoing, except collectively, "Principals"). Lender hereby agrees that Lender may bring an action against Borrower, including a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender to enforce and realize upon its interest under the Note, this Agreement, the Mortgage and the other Loan Documents, or in the Property, the Business Income, or any other collateral given to Lender pursuant to the Loan Documents or any other assets of 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 Property, in the Business Income in any other collateral given to Lender or any other assets of Borrower, and Lender, by accepting the Note, this Agreement, the Mortgage and the other Loan Documents, it shall not ▇▇▇ sue for, seek or demand any deficiency judgment against any Borrow▇▇ or any other monetary payment judgment, including a judgment for specific performance, against Borrower its Principals or the direct any one or indirect members, partners or shareholders more of Borrower or the employees, agents, directors or officers of Borrower or its Affiliates them in any such action or proceeding proceeding, under or by reason of or under or in connection with the Note, this Agreement, the Mortgage Note, the Mortgages or the other Loan Documents except to the extent necessary or appropriate to proceed against or execute or foreclose on any or all of the collateral granted to Lender under the Loan Documents. The provisions of this Section 9.4 shall not, however: , (a) constitute a waiver, release impair the validity of the indebtedness evidenced by the Note or impairment in any way affect or impair the lien of any obligation evidenced the Mortgages or secured by any of the other Loan Documents, or the right of Lender to foreclose the Mortgages or otherwise realize upon any collateral securing the Note following an Event of Default; (b) impair the right of Lender to name any Borrower or any other Person as a party defendant in any action or suit for judicial foreclosure and sale or otherwise under the MortgageMortgages to the extent necessary to realize upon any collateral securing the Note; (c) affect the validity or enforceability of any guaranty or indemnity made in connection with the Loan (including, without limitation, the Guaranty) or any of the rights and remedies of Lender thereunder; (d) impair the right of Lender to obtain the appointment of a receiver; (ed) impair the enforcement of the Assignment of Leases; or (fe) 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 impair the Loan (including the security granted by the Mortgage) or any other assets of Borrower or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against such security (including the Property or any other assets of Borrower).
(a) Nothing contained in this Section 11.22 shall limit the rights right of Lender to proceed against Borrower for bring suit with respect to, or any of the following (or against Guarantor under the GuarantyBorrower's personal liability for, on the additional terms and conditions thereof and subject to any limitations set forth herein or therein):
(i) to enforce any Leases entered into by Borrower or its Affiliates as Tenant;
(ii) to recover damages for fraud, material misrepresentation, material breach of warranty fraud or intentional physical waste;
(iii) to recover any Condemnation Proceeds or Insurance Proceeds or other similar funds which have been misappropriated by Borrower or which, under the terms of the Loan Documents, should have been paid to Lender;
(iv) to recover (A) any Tenant security deposits, Tenant letters of credit or other deposits or fees paid to Borrower or (B) prepaid rents for a period of more than thirty (30) days in advance of its due date which have not been delivered to Lender;
(v) to recover Business Income received by Borrower during an Event of Default which have not been applied to the Loan or in accordance with the Loan Documents to operating and maintenance expenses of the Property;
(vi) to recover damages, costs and expenses arising from, or in connection with the provisions of the Mortgage pertaining to Hazardous Materials or the Environmental Indemnity;
(vii) to recover any amount expended by Lender in connection with the foreclosure of the Mortgage, but only in the event that any Borrower or any Guarantor takes action to impede such foreclosure or otherwise contests the foreclosure in bad faith;
(viii) to recover damages, costs and expenses arising from, or in connection with, the failure by Borrower to pay Taxes and Insurance Premiums when due to the extent that Borrower was not required to deposit such amounts with Lender pursuant to Section 6 hereof, but only to the extent there was available revenue from the Property for the period in question sufficient to pay such Taxes and Insurance Premiums, and provided further that Lender does not prevent such proceeds from being so applied;
(ix) to recover damages, costs and expenses arising from the failure of the representations set forth in Section 3.1.8 to be true or Borrower’s failure to comply with the provisions of Sections 4.2.11 of this Agreement; and
(x) to recover damages, costs and expenses arising from, or in connection with, any Lien arising from a written instrument executed misrepresentation by any Borrower or any Affiliate thereof expressly creating such Lien, to the extent such Lien is prohibited under other Person in connection with this Agreement.
(b) Notwithstanding the foregoing, the agreement Note, the Mortgages or any other Loan Document; (f) impair the right of Lender not to limit recourse bring suit with respect to, or any Borrower's personal liability as set forth in Section 11.22(afor, any Borrower's misappropriation of tenant security deposits or Rents; (g) above SHALL BECOME NULL AND VOID and shall be impair the right of no further force and effect and the Debt shall be fully recourse Lender to Borrower (and obtain, or any Borrower's personal liability for any Borrower's misapplication or misappropriation of insurance proceeds or condemnation awards due to Guarantor Lender under the GuarantyMortgages or the other Loan Documents; (h) impair the right of Lender to enforce, on or any Borrower's personal liability for, the additional terms breach of any provision in that certain Environmental and conditions thereof Hazardous Substance Indemnification Agreement of even date herewith given by Borrowers to Lender concerning environmental laws, hazardous substances and subject to asbestos and any limitations set forth herein indemnification of Lender with respect thereto in such document, whether before or therein) after payment in full of the event that:
principal amount of the Note; (i) prevent or in any way hinder Lender from exercising, or constitute a defense, or counterclaim or other basis for relief in respect of the exercise of, any other remedy against the collateral securing the Note as provided in the Loan Documents or as prescribed by law or in equity in case of Default; (j) prevent or in any way hinder Lender from exercising, or constitute a defense, a counterclaim, or other basis for relief in respect of the exercise of its remedies in respect of any judgments or other sums due from any Borrower commences a voluntary bankruptcy to Lender other than under the Loan Documents; (k) impair the right of Lender to bring suit with respect to, or insolvency proceeding;
any Borrower's personal liability for, any Borrower's misappropriation, during the continuance of an Event of Default, from any Property of any items of personalty or any fixtures or any other misappropriation with respect to any Property during the continuance of an Event of Default; (iil) an involuntary bankruptcy impair the right of Lender to bring suit with respect to, or insolvency proceeding is commenced against any Borrower's personal liability for, losses, damages or liabilities suffered by Lender arising from any acts or omissions by any Borrower and is that resulted in waste, provided, however, that waste shall not dismissed within 90 days be deemed to include the non-payment of filing; or
Taxes, Other Charges, mechanic's liens, materialmen's liens or any other liens arising from work performed on, or materials delivered to, the Properties, or (iiim) voluntary Transfer impair the right of the Property occurs by written instrument executed by Lender to bring suit with respect to, or any personal liability of any Borrower or any Affiliate thereofother Person for, which instrument expressly effects such Transfer, any obligation of any Borrower or a Secondary Financing is voluntarily incurred other Person under the Securitization Indemnification Agreement described in violation of the Loan Documents, except as otherwise consented to by Lender in writing (which consent may be withheld in Lender’s sole discretion)Section 9.2.
(c) Notwithstanding the provisions of clauses (i) and (ii) of Section 11.22(b) no Guarantor shall be liable for any amount related to a Qualified Involuntary Bankruptcy.
(d) In addition, this agreement shall not waive any rights which Lender would have under any provisions of Title 11 of the Bankruptcy Code to file a claim for the full amount of the Debt or to require that the Property shall continue to secure all of the Debt.
Appears in 1 contract
Sources: Loan Agreement (Prime Retail Lp)
Exculpation. Subject to the qualifications below, Lender shall not enforce the liability and obligation of Borrower Borrowers to perform and observe the obligations contained in the NoteNotes, this Agreement, the Mortgage or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against the Borrower or any direct or indirect members, partners or shareholders of Borrower or the employees, agents, directors or officers of Borrower or its AffiliatesBorrower, except that Lender may bring an action against Borrower, including a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender to enforce and realize upon its interest under the NoteNotes, this Agreement, the Mortgage and the other Loan Documents, or in the any Property, the Business IncomeRents, the IP or any other collateral given to Lender pursuant to the Loan Documents or any other assets of BorrowerDocuments; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against any Borrower only to the extent of such Borrower’s interest in the its Property, in its Rents, in the Business Income IP and in any other collateral given by it to Lender or any other assets of BorrowerLender, and Lender, by accepting the NoteNotes, this Agreement, the Mortgage and the other Loan Documents, agrees that it shall not ▇▇▇ for, seek or demand any deficiency judgment or against any other monetary payment against Borrower or the direct or indirect members, partners or shareholders of Borrower or the employees, agents, directors or officers of Borrower or its Affiliates in any such action or proceeding under under, or by reason of or under of, or in connection with with, the NoteNotes, this Agreement, the Mortgage or the other Loan Documents. The provisions of this Section 9.4 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 any Borrower as a party defendant in any action or suit for foreclosure and sale under the Mortgage; (c) affect the validity or enforceability of or any guaranty or indemnity made in connection with the Loan (Loan, including, without limitation, the Non-Recourse Guaranty) , the Closing Completion Guaranty, the Construction Completion Guaranty and the HRHI Guaranty, or any of the rights and remedies of Lender thereunder; (d) impair the right of Lender to obtain the appointment of a receiver; (e) impair the enforcement of the Assignment of Leases; or (f) constitute a prohibition against Lender to seek seeking a deficiency judgment against any Borrower in order to fully realize on any security given by Borrower in connection with the Loan (including the security granted by the Mortgage) Mortgage or any other assets of Borrower or to commence commencing any other appropriate action or proceeding in order for Lender to exercise its remedies against such security (including the any Property or any other assets the IP; or (g) constitute a waiver of Borrower).
(a) Nothing contained in this Section 11.22 shall limit the rights right of Lender to proceed against Borrower for enforce the liability and obligation of any Borrower, by money judgment or otherwise, to the extent of any actual loss, damage (excluding any lost revenue, diminution of value and other consequential damages), reasonable cost, reasonable 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 (or against Guarantor under the Guaranty, on the additional terms and conditions thereof and subject to any limitations set forth herein or therein):following:
(i) to enforce fraud or intentional misrepresentation by any Leases entered into by Borrower Borrower, HRHI, any Guarantor or its Affiliates as Tenantany of their respective principals, officers, agents or employees in connection with the Loan;
(ii) physical waste to recover damages for fraudany Property arising from the intentional misconduct or gross negligence of any Borrower, material misrepresentationHRHI, material breach any Guarantor or any of warranty their respective principals, officers, agents or intentional physical wasteemployees and/or any removal of any asset forming a part of any Property in violation of this Agreement or the other Loan Documents;
(iii) to recover any Condemnation Proceeds or Insurance Proceeds or other similar funds which have been misappropriated by Borrower or which, under the terms of the Loan Documents, should have been paid to LenderIntentionally Deleted;
(iv) to recover the misappropriation or conversion by any Borrower, by any Person Controlled by any Borrower, including, without limitation, any Affiliated Manager, a Liquor Manager who is an Affiliate of any Borrower or a Gaming Operator who is an Affiliate of any Borrower, by any agent of any Borrower, or by any other Person with whom any Borrower shall collude or cooperate, of (A) any Tenant Insurance Proceeds paid by reason of any Casualty, to the extent so misappropriated or converted; (B) any Awards received in connection with a Condemnation, to the extent so misappropriated or converted; (C) any Rents or other Gross Income from Operations not delivered to Lender following and during the continuance of an Event of Default and not otherwise used to pay actual, customary Operating Expenses, including, without limitation, (I) any income, proceeds or other amounts received by any Borrower under the Casino Component Lease, and/or (II) without duplication of the foregoing clause (I), any income, proceeds or revenue generated from gaming activities at any Property, in each of the foregoing instances, to the extent so misappropriated or converted; (D) any Rents paid more than one (1) month in advance in violation of this Agreement or the other Loan Documents, to the extent so misappropriated or converted; and/or (E) any security deposits, Tenant letters of credit to the extent so misappropriated or other deposits or fees paid to Borrower or (B) prepaid rents for a period of more than thirty (30) days in advance of its due date which have not been delivered to Lenderconverted;
(v) the failure to recover Business Income received by Borrower during an Event pay (or to deposit into the Reserve Funds amounts sufficient to pay) all Taxes and all other costs giving rise to any Lien on any portion of Default which have not been applied any Property or the IP with priority over or equal to the Loan or in accordance with Lien of the Loan Documents in violation of this Agreement or the other Loan Documents, to operating and maintenance expenses of the Propertyextent that there is sufficient Gross Income from Operations to make such payments (or deposits, as applicable);
(vi) if any Borrower fails to recover damages, costs and expenses arising from, or in connection with maintain its status as a Special Purpose Entity as required pursuant to the provisions of the Mortgage pertaining to Hazardous Materials or the Environmental Indemnityterms hereof;
(vii) if Borrowers fail to recover obtain Lender’s consent to any amount expended by Lender in connection with subordinate financing, mortgage or other voluntary Lien encumbering any Property or the foreclosure of the Mortgage, but only in the event that any Borrower or any Guarantor takes action to impede such foreclosure or otherwise contests the foreclosure in bad faithIP other than Permitted Encumbrances and Permitted IP Encumbrances;
(viii) to recover damages, costs and expenses arising from, or in connection with, the failure by Borrower to pay Taxes and Insurance Premiums when due maintain insurance coverage under blanket insurance policies to the extent that Borrower was not required to deposit such amounts with Lender pursuant to Section 6 hereof, but only to the extent there was available revenue from the Property for the period in question sufficient to pay such Taxes and Insurance Premiums, and provided further that Lender does not prevent such proceeds from being so appliedpermitted under this Agreement;
(ix) to recover damages, costs and expenses arising from the failure if any of the representations events set forth in clauses (a), (b) or (c) of Section 5.2.11 hereof shall occur without the prior approval of Lender;
(x) if any of the restrictions to Transfer set forth in Section 3.1.8 5.2.10 hereof or in any of the other Loan Documents are violated (provided that a Transfer to be true Lender or Borrower’s failure any Mezzanine Lender in connection with a foreclosure, deed in lieu of foreclosure, or other consensual Transfer to comply with Lender or any Mezzanine Lender shall in no event give rise to any liability under this clause 9.4(x) and provided further, that any such Transfer to Lender or any Mezzanine Lender shall not limit or waive any other liability of the Borrowers or any Guarantor under the other provisions of Sections 4.2.11 of this Agreement; andSection 9.4 or the Non-Recourse Guaranty, as applicable);
(xxi) Intentionally Deleted;
(xii) Intentionally Deleted;
(xiii) if HRHI shall fail to recover damagesprovide Assigned Employees for the operation of gaming activities at the Hotel/Casino Property as and to the extent required pursuant to Paragraph 5 of the Second HRHI Modification Agreement;
(xiv) if Gaming Borrower shall fail to provide gaming operation services for the Hotel/Casino Property following an Event of Default, costs a foreclosure of the Mortgage or a deed in lieu of foreclosure, as and expenses arising fromto the extent required pursuant to Section 12.1(e) hereof;
(xv) in the event that HRHI, or in connection withGaming Borrower, any Lien arising from a written instrument executed by any other Borrower or any Affiliate thereof expressly creating shall be the Liquor Manager, if HRHI, Gaming Borrower, such Lienother Borrower or such Affiliate thereof shall fail to provide liquor management services for the Hotel/Casino Property following an Event of Default, a foreclosure of the Mortgage or a deed in lieu of foreclosure, as and to the extent such Lien is prohibited under this Agreement.
required (bA) Notwithstanding the foregoingas to HRHI, the agreement of Lender not pursuant to limit recourse liability as set forth in Section 11.22(aSections 5(a) above SHALL BECOME NULL AND VOID and shall be of no further force and effect and the Debt shall be fully recourse to Borrower (and to Guarantor under the Guaranty, on the additional terms and conditions thereof and subject to any limitations set forth herein or therein5(b) in the event that:
(i) any Borrower commences a voluntary bankruptcy or insolvency proceeding;
(ii) an involuntary bankruptcy or insolvency proceeding is commenced against any Borrower and is not dismissed within 90 days of filing; or
(iii) voluntary Transfer of the Property occurs by written instrument executed by Assignment of Liquor Management Agreement, as applicable, and (B) as to Gaming Borrower, any other Borrower or any Affiliate thereof, which instrument expressly effects such Transferpursuant to Section 5.1.23(c) hereof;
(xvi) in connection with the $250,000.00 lease termination fee pursuant to Section 3.2(B) of that certain Lease by and between PM Realty, or LLC and HRHI, as landlord, and ▇▇. ▇▇▇▇ of Las Vegas, LLC, as tenant, dated December 24, 2004;
(xvii) as a Secondary Financing is voluntarily incurred in violation result of the imposition of any tax provided in NRS §§375.020 and 375.023 with respect to the merger transaction contemplated under the Merger Agreement and/or the subsequent conveyance of the Hotel/Casino Property (i) to HRHH Gaming Junior Mezz, LLC, and then (ii) to HRHH Gaming Senior Mezz, LLC, and then (iii) to Hotel/Casino Borrower, provided, however, that any liability under this clause (xvii) shall terminate upon the payment in full of the Debt;
(xviii) as a result of Adjacent Borrower selling or attempting to sell any Partial Release Parcel (including, without limitation, the sale of approximately 11.1 acres that occurred on August 1, 2008, regardless of whether such property meets the definition of a “Partial Release Parcel” under this Agreement) in accordance with the procedures set forth in Section 2.5.1(f) hereof, as applicable, rather than pursuant to a customary direct deed transfer, including, without limitation, (A) the imposition of any tax (including interest and penalties) provided in NRS §§375.020 and 375.023, (B) in connection with any Bankruptcy Action filed by or against any Subsidiary Transferee prior to or following the consummation of such sale, and/or (C) in connection with any delay in accomplishing any of the steps identified in said Section 2.5.1(f) hereof, as applicable;
(xix) the occurrence of an Event of Default under Section 8.1(a)(xvii)(A) hereof. Notwithstanding anything to the contrary in this Agreement, the Notes or any of the other Loan Documents, except as otherwise consented to by (A) Lender in writing (which consent may be withheld in Lender’s sole discretion).
(c) Notwithstanding the provisions of clauses (i) and (ii) of Section 11.22(b) no Guarantor shall be liable for any amount related to a Qualified Involuntary Bankruptcy.
(d) In addition, this agreement shall not waive be deemed to have waived any rights right which Lender would may have under Section 506(a), 506(b), 1111(b) or any other provisions of Title 11 of the Bankruptcy Code to file a claim for the full amount of the Debt secured by the Mortgage or to require that the Property all collateral shall continue to secure all of the DebtDebt owing to Lender in accordance with the Loan Documents, and (B) the Debt shall be fully recourse to Borrowers in the event of: (i) any Borrower, HRHI or both Guarantors filing a voluntary petition under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (ii) the filing of an involuntary petition against any Borrower, HRHI or both Guarantors under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law by or on behalf of any Person other than Lender and/or the Administrative Agent, and such petition is not dismissed within ninety (90) days after filing, or any Borrower, or any Affiliate of any of them who Controls any Borrower, or HRHI or both Guarantors, solicit or cause to be solicited petitioning creditors for any involuntary petition against any Borrower, HRHI or both Guarantors from any Person (other than if requested to do so by or on behalf of Lender and/or the Administrative Agent); (iii) any Borrower, HRHI or both Guarantors filing an answer consenting to, or any Borrower, HRHI or both Guarantors, or any Affiliate of any of them who Controls any Borrower, otherwise consenting to or acquiescing or joining in, any involuntary petition filed against any Borrower, HRHI or both Guarantors, by any other Person (other than if filed by or on behalf of Lender and/or the Administrative Agent) under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (iv) any Borrower, HRHI or both Guarantors, or any Affiliate of any of them who Controls any Borrower, consenting to or acquiescing or joining in an application for the appointment of a custodian, receiver, trustee or examiner for any Borrower or any portion of any Property or any portion of the IP (other than any such appointment at the request or petition of Lender and/or the Administrative Agent); or (v) any Borrower, HRHI or both Guarantors voluntarily making an assignment for the benefit of creditors (other than Lender and/or the Administrative Agent), or admitting, in writing or in any legal proceeding, its insolvency or inability to pay its debts as they become due; unless, in the case of any of the foregoing clauses (i), (ii), (iii), (iv) or (v) as it relates to or affects both Guarantors, one or more guarantors acceptable to Lender in its sole discretion remains or becomes a guarantor of the Loan. Notwithstanding anything to the contrary in this Agreement or any other Loan Document, and except for (1) Guarantors’ obligations under the Non-Recourse Guaranty, the Closing Completion Guaranty and the Construction Completion Guaranty, (2) HRHI’s obligations under the HRHI Guaranty, and (3) with respect to the DLJ Guarantor, DLJ Merchant Banking Partners IV, L.P., MBP IV Plan Investors, L.P., DLJMB HRH Co-Investments, L.P., DLJ Offshore Partners IV, L.P., and DLJ Merchant Banking Partners IV (Pacific), L.P. (such limited partnerships, collectively, the “DLJMB Parties”) as provided in that certain commitment letter of the DLJMB Parties dated as of November 6, 2007 addressed to the DLJ Guarantor, no present or future Constituent Member in any Borrower, nor any present or future shareholder, officer, director, employee, trustee, beneficiary, advisor, member, partner, principal, participant or agent of or in any Borrower or of or in any Person that is or becomes a Constituent Member in any Borrower, shall have any personal liability, directly or indirectly, under or in connection with this Agreement or any of the Loan Documents, or any amendment or amendments to any of the foregoing made at any time or times, heretofore or hereafter, and Lender on behalf of itself and its successors and assigns, hereby waives any and all such personal liability. In addition, Lender, for itself and its successors and assigns, acknowledges and agrees that neither Borrowers, nor any Constituent Member, nor any other party, is assuming any personal liability, directly or indirectly, under or in connection with any agreement, lease, instrument, claim or right constituting a part of any Property or the IP or to which any Property or the IP is now or hereafter subject, except as may be expressly set forth therein. For purposes of this Agreement and each of the other Loan Documents, neither the negative capital account of any Constituent Member in any Borrower nor any obligation of any Constituent Member in any Borrower to restore a negative capital account or to contribute or loan capital to any Borrower or to any other Constituent Member in any Borrower shall at any time be deemed to be the property or an asset of such Borrower (or any such other Constituent Member) and neither Lender nor any of its successors or assigns shall have any right to collect, enforce or proceed against any Constituent Member with respect to any such negative capital account or obligation to restore, contribute or loan.
Appears in 1 contract
Exculpation. Subject to the qualifications below, Lender (a) The Administrative Agent shall not enforce the liability have any duties or obligations except those expressly set forth herein and obligation of Borrower to perform and observe the obligations contained in the Note, this Agreement, the Mortgage or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against the Borrower or any direct or indirect members, partners or shareholders of Borrower or the employees, agents, directors or officers of Borrower or its Affiliates, except that Lender may bring an action against Borrower, including a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender to enforce and realize upon its interest under the Note, this Agreement, the Mortgage and the other Loan Documents, and its duties hereunder shall be administrative in nature. Without limiting the generality of the foregoing, the Administrative Agent:
(i) shall not be subject to any fiduciary or other implied duties, regardless of whether an Event of Default or Prepayment Event has occurred and is continuing;
(ii) shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby or by the other Loan Documents that the Administrative Agent is required to exercise as directed in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be expressly provided for herein or in the Propertyother Loan Documents); provided that the Administrative Agent shall not be required to take any action that, in its opinion or the Business Incomeopinion of its counsel, may expose the Administrative Agent to liability or that is contrary to any other collateral given to Loan Document or applicable law, including for the avoidance of doubt any action that may be in violation of the automatic stay under any debtor relief law or that may effect a forfeiture, modification or termination of property of a Defaulting Lender pursuant to the Loan Documents or in violation of any other assets of Borrowerdebtor relief law; provided, however, thatand
(iii) shall not, except as specifically provided herein, any judgment expressly set forth herein and in any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower’s interest in the Property, in the Business Income in any other collateral given to Lender or any other assets of Borrower, and Lender, by accepting the Note, this Agreement, the Mortgage and the other Loan Documents, have any duty to disclose, and shall not ▇▇▇ forbe liable for the failure to disclose, seek or demand 5160 WEIL:\98779117\5\64945.0060WEIL:\98789202\5\64945.0060
2216363.01 NYCSR03A - MSW any deficiency judgment information relating to the Borrower or any other monetary payment against Borrower of its Affiliates that is communicated to or obtained by the direct Person serving as the Administrative Agent or indirect members, partners or shareholders any of Borrower or the employees, agents, directors or officers of Borrower or its Affiliates in any such action or proceeding under or by reason of or under or in connection with the Note, this Agreement, the 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 Mortgage; (c) affect the validity or enforceability of any guaranty or indemnity made in connection with the Loan (including, without limitation, the Guaranty) or any of the rights and remedies of Lender thereunder; (d) impair the right of Lender to obtain the appointment of a receiver; (e) impair the enforcement of the Assignment of Leases; or (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 Loan (including the security granted by the Mortgage) or any other assets of Borrower or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against such security (including the Property or any other assets of Borrower).
(a) Nothing contained in this Section 11.22 shall limit the rights of Lender to proceed against Borrower for any of the following (or against Guarantor under the Guaranty, on the additional terms and conditions thereof and subject to any limitations set forth herein or therein):
(i) to enforce any Leases entered into by Borrower or its Affiliates as Tenant;
(ii) to recover damages for fraud, material misrepresentation, material breach of warranty or intentional physical waste;
(iii) to recover any Condemnation Proceeds or Insurance Proceeds or other similar funds which have been misappropriated by Borrower or which, under the terms of the Loan Documents, should have been paid to Lender;
(iv) to recover (A) any Tenant security deposits, Tenant letters of credit or other deposits or fees paid to Borrower or (B) prepaid rents for a period of more than thirty (30) days in advance of its due date which have not been delivered to Lender;
(v) to recover Business Income received by Borrower during an Event of Default which have not been applied to the Loan or in accordance with the Loan Documents to operating and maintenance expenses of the Property;
(vi) to recover damages, costs and expenses arising from, or in connection with the provisions of the Mortgage pertaining to Hazardous Materials or the Environmental Indemnity;
(vii) to recover any amount expended by Lender in connection with the foreclosure of the Mortgage, but only in the event that any Borrower or any Guarantor takes action to impede such foreclosure or otherwise contests the foreclosure in bad faith;
(viii) to recover damages, costs and expenses arising from, or in connection with, the failure by Borrower to pay Taxes and Insurance Premiums when due to the extent that Borrower was not required to deposit such amounts with Lender pursuant to Section 6 hereof, but only to the extent there was available revenue from the Property for the period in question sufficient to pay such Taxes and Insurance Premiums, and provided further that Lender does not prevent such proceeds from being so applied;
(ix) to recover damages, costs and expenses arising from the failure of the representations set forth in Section 3.1.8 to be true or Borrower’s failure to comply with the provisions of Sections 4.2.11 of this Agreement; and
(x) to recover damages, costs and expenses arising from, or in connection with, any Lien arising from a written instrument executed by any Borrower or any Affiliate thereof expressly creating such Lien, to the extent such Lien is prohibited under this Agreementcapacity.
(b) Notwithstanding The Administrative Agent shall not be liable for any action taken or not taken by it (i) with the foregoing, consent or at the agreement request of Lender not to limit recourse liability the Required Lenders (or such other number or percentage of the Lenders as set forth in Section 11.22(a) above SHALL BECOME NULL AND VOID and shall be of no further force and effect and necessary, or as the Debt Administrative Agent shall believe in good faith shall be fully recourse to Borrower (and to Guarantor necessary, under the Guarantycircumstances as provided in Sections 11.1 and 7.3), on the additional terms and conditions thereof and subject to any limitations set forth herein or therein(ii) in the event that:
(i) absence of its own gross negligence or willful misconduct as determined by a court of competent jurisdiction by final and nonappealable judgment. The Administrative Agent shall be deemed not to have knowledge of any Borrower commences a voluntary bankruptcy Event of Default or insolvency proceeding;
(ii) an involuntary bankruptcy Prepayment Event unless and until notice describing such Event of Default or insolvency proceeding Prepayment Event is commenced against any Borrower and is not dismissed within 90 days of filing; or
(iii) voluntary Transfer of given to the Property occurs Administrative Agent in writing by written instrument executed by any the Borrower or any Affiliate thereof, which instrument expressly effects such Transfer, or a Secondary Financing is voluntarily incurred in violation of the Loan Documents, except as otherwise consented to by Lender in writing (which consent may be withheld in Lender’s sole discretion).
(c) Notwithstanding the provisions of clauses The Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) and any statement, warranty or representation made in or in connection with this Agreement or any other Loan Document, (ii) the contents of Section 11.22(bany certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) no Guarantor shall be liable for the performance or observance of any amount related to a Qualified Involuntary Bankruptcy.
(d) In addition, this agreement shall not waive any rights which Lender would have under any provisions of Title 11 of the Bankruptcy Code covenants, agreements or other terms or conditions set forth herein or therein or the occurrence of any Default, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement, any other Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere herein, other than to file a claim for confirm receipt of items expressly required to be delivered to the full amount of the Debt or to require that the Property shall continue to secure all of the DebtAdministrative Agent.
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 Mortgage 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 the Borrower or any direct principal, director, officer, employee, beneficiary, shareholder, partner, member, trustee, agent, or indirect members, partners or shareholders Affiliate of Borrower (but specifically excluding Guarantor) or any legal representatives, successors or assigns of any of the employeesforegoing (collectively, agents, directors or officers of Borrower or its Affiliatesthe “Exculpated Parties”), except that Lender may bring an action against Borrower, including a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender to enforce and realize upon its interest under the Note, this Agreement, the Mortgage Security Instrument and the other Loan Documents, or in the Property, the Business IncomeRents, or any other collateral given to Lender pursuant to the Loan Documents or any other assets of BorrowerDocuments; 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 Business Income Rents and in any other collateral given to Lender or any other assets of BorrowerLender, and Lender, by accepting the Note, this Agreement, the Mortgage Security Instrument and the other Loan Documents, shall not ▇▇▇ for, seek or demand any deficiency judgment or any other monetary payment against Borrower or any of the direct or indirect members, partners or shareholders of Borrower or the employees, agents, directors or officers of Borrower or its Affiliates Exculpated Parties in any such action or proceeding under or by reason of or under or in connection with the Note, this Agreement, the Mortgage 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 MortgageSecurity Instrument; (c3) affect the validity or enforceability of any indemnity, guaranty or indemnity made in connection with the Loan similar instrument (including, without limitation, the Guarantyindemnities set forth in Article 12 hereof, in the Guaranty and in 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 of Lender to obtain the appointment of a receiver; (e5) impair the enforcement of the Assignment assignment of Leasesleases and rents contained in the Security Instrument; or (f6) impair the right of Lender to enforce Section 4.12(e) of this Agreement; (7) 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 Loan (including the security granted by the Mortgage) or any other assets of Borrower Security Instrument or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against such security the Property; or (including 8) constitute a waiver of the Property or any other assets of Borrower).
(a) Nothing contained in this Section 11.22 shall limit the rights right of Lender to proceed against Borrower for enforce the liability and obligation of Borrower, by money judgment or otherwise, to the extent of any Losses incurred by Lender (including attorneys’ fees and costs reasonably incurred) arising out of or in connection with any of the following (or against Guarantor under the Guaranty, on the additional terms and conditions thereof and subject to any limitations set forth herein or therein):following:
(i) fraud or intentional misrepresentation or any failure to enforce disclose a material fact by Borrower, Guarantor, Sponsor, or any Leases entered into by Borrower or its Affiliates as TenantParty in connection with the Loan;
(ii) to recover damages for fraudthe gross negligence or willful misconduct of Borrower, material misrepresentationany SPE Component Entity, material breach Guarantor, Sponsor, or any Borrower Party or the commission of warranty a criminal act by Borrower, any SPE Component Entity, Guarantor, Sponsor or intentional physical wasteany Borrower Party which results in a forfeiture of the Property;
(iii) material physical waste to recover the Property caused by the intentional acts or intentional omissions of Borrower, any Condemnation Proceeds SPE Component Entity, Guarantor, Sponsor, or Insurance Proceeds any Borrower Party (including, without limitation, any arson or abandonment of the Property) and/or the removal or disposal of any portion of the Property after an Event of Default by Borrower, any SPE Component Entity, Guarantor, Sponsor or any Borrower Party;
(iv) the misapplication, misappropriation 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 similar amounts received in connection with the Condemnation of all or a portion of the Property, (C) any Rents following an Event of Default or (D) any Tenant security deposits or Rents collected in advance;
(v) failure to pay (or cause to be paid) any Taxes or Other Charges, charges for labor or materials or any other charges that can create liens on any portion of the Property to the extent that the revenue from the Property is sufficient to pay such amounts (other than (x) amounts deposited with Lender as Tax and Insurance Reserve Funds for Taxes or Other Charges where Lender elects not to apply such funds which have been misappropriated by Borrower toward payment of such Taxes or which, under Other Charges owed or (y) Taxes or Other Charges owed that are contested strictly in accordance with the terms of the Loan Documents, should have been paid to Lender;
(iv) to recover (A) any Tenant security deposits, Tenant letters of credit or other deposits or fees paid to Borrower or (B) prepaid rents for a period of more than thirty (30) days in advance of its due date which have not been delivered to Lender;
(v) to recover Business Income received by Borrower during an Event of Default which have not been applied to the Loan or in accordance with the Loan Documents to operating and maintenance expenses of the Property);
(vi) to recover damagesthe breach of any material representation, costs and expenses arising fromwarranty, covenant or indemnification provision in connection with the provisions of the Mortgage pertaining to Hazardous Materials or the Environmental Indemnity, this Agreement or in the Security Instrument concerning Environmental Laws and Hazardous Substances and any indemnification of Lender with respect thereto in either document;
(vii) any fees or commissions paid by Borrower after the occurrence of an Event of Default to recover Guarantor, Sponsor and/or any amount expended by Lender Borrower Party in connection with the foreclosure violation of the Mortgageterms of the Note, but only in this Agreement, the event that any Borrower Security Instrument or any Guarantor takes action to impede such foreclosure or otherwise contests the foreclosure in bad faithother Loan Documents;
(viii) to recover damages, costs and expenses arising fromBorrower’s breach of, or in connection failure to comply with, the representations, warranties and covenants contained in Article 15 of this Agreement and/or the provisions of Sections 4.23, 12.2 and 12.3 hereof;
(ix) failure to maintain insurance as required by Borrower to pay Taxes and Insurance Premiums when due this Agreement to the extent that Borrower was not required the revenue from the Property is sufficient to deposit such pay the Insurance Premiums relating thereto (other than the failure to pay amounts deposited with Lender pursuant as Tax and Insurance Funds for Insurance Premiums to Section 6 hereofbe paid to maintain such insurance where Lender elects not to apply such funds toward payment of such Insurance Premiums);
(x) Borrower fails to permit on-site inspections of the Property, fails to provide the Required Financial Items 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, the Assignment of Management Agreement and the other Loan Documents or Borrower appoints a new property manager or replaces the property manager other than in accordance with the terms of this Agreement, the Assignment of Management Agreement and the other Loan Documents;
(xi) any litigation or other legal proceeding related to the Debt filed in bad faith by Borrower, any SPE Component Entity, Guarantor, Sponsor or any Borrower Party that delays, opposes, impedes, obstructs, hinders, enjoins or otherwise interferes with or frustrates the efforts of Lender to exercise any rights and remedies available to Lender as provided herein and in the other Loan Documents;
(xii) the seizure or forfeiture of the Property, or any portion thereof, or Borrower’s interest therein, resulting from criminal wrongdoing by Borrower, Guarantor, Sponsor, or any Borrower Party;
(xiii) Additional Interest not being paid;
(xiv) any deficiency in Net Proceeds in the event of a Casualty at the Property equal to the positive difference, if any, between (x) the outstanding amount of the Debt and (y) the Net Proceeds, but only to the extent there was available revenue from such deficiency is caused by the amount of Net Proceeds delivered to the Borrower pursuant to the Condominium Documents; and/or
(xv) failure to obtain a PCO and/or maintain a TCO for the Property (including, without limitation, for the period Starbucks Space) in question sufficient to pay such Taxes and Insurance Premiums, and provided further that Lender does not prevent such proceeds from being so applied;
(ix) to recover damages, costs and expenses arising from the failure of the representations set forth in Section 3.1.8 to be true or Borrower’s failure to comply accordance with the provisions of Sections 4.2.11 of this Agreement; and
(x) . Notwithstanding anything to recover damagesthe contrary in this Agreement, costs and expenses arising from, or in connection with, any Lien arising from a written instrument executed by any Borrower the Note or any Affiliate thereof expressly creating such Lien, to the extent such Lien is prohibited under this Agreement.
(b) Notwithstanding the foregoing, the agreement of Lender not to limit recourse liability as set forth in Section 11.22(a) above SHALL BECOME NULL AND VOID and shall be of no further force and effect and the Debt shall be fully recourse to Borrower (and to Guarantor under the Guaranty, on the additional terms and conditions thereof and subject to any limitations set forth herein or therein) in the event that:
(i) any Borrower commences a voluntary bankruptcy or insolvency proceeding;
(ii) an involuntary bankruptcy or insolvency proceeding is commenced against any Borrower and is not dismissed within 90 days of filing; or
(iii) voluntary Transfer of the Property occurs by written instrument executed by any Borrower or any Affiliate thereof, which instrument expressly effects such Transfer, or a Secondary Financing is voluntarily incurred in violation of the Loan Documents, except as otherwise consented to by (A) Lender in writing (which consent may be withheld in Lender’s sole discretion).
(c) Notwithstanding the provisions of clauses (i) and (ii) of Section 11.22(b) no Guarantor shall be liable for any amount related to a Qualified Involuntary Bankruptcy.
(d) In addition, this agreement shall not waive be deemed to have waived any rights right which Lender would may have under Section 506(a), 506(b), 1111(b) or any other provisions of Title 11 of the Bankruptcy Code to file a claim for the full amount of the Debt or to require that the Property all collateral shall continue to secure all of the DebtDebt owing to Lender in accordance with the Loan Documents, and (B) the Debt shall be fully recourse to Borrower in the event that: (i) any representation, warranty or covenant contained in Article 5 or Article 6 or Section 4.14 hereof is violated or breached, provided, however, that any such breach or violation with respect to Article 5 shall not result in recourse liability hereunder unless such breach was material and, within fifteen (15) days of notice from Lender, Borrower fails to cure such breach; (ii) Borrower or any SPE Component Entity files a voluntary petition under the Bankruptcy Code or any other Creditors’ Rights Laws; (iii) an Affiliate, officer, director, or representative which Controls, directly or indirectly, Borrower or any SPE Component Entity files, or joins in the filing of, an involuntary petition against Borrower or any SPE Component Entity under the Bankruptcy Code or any other Creditors’ Rights Laws, or solicits or causes to be solicited petitioning creditors for any involuntary petition against Borrower or any SPE Component Entity from any Person; (iv) Borrower or any SPE Component Entity 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 Creditors’ Rights Laws, or solicits or causes to be solicited petitioning creditors for any involuntary petition from any Person; (v) any Affiliate, officer, director, or representative which Controls Borrower or any SPE Component Entity consents to or acquiesces in or joins in an application for the appointment of a custodian, receiver, trustee, or examiner for Borrower, any SPE Component Entity or any portion of the Property; (vi) Borrower or any SPE Component Entity 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; (vii) there is substantive consolidation of Borrower or any SPE Component Entity (or any Restricted Party) with any other Person in connection with any federal or state bankruptcy proceeding involving the Guarantor or any of its Affiliates; (viii) Borrower or any SPE Component Entity (or any Restricted Party) contests or opposes any motion made by Lender to obtain relief from the automatic stay or seeks to reinstate the automatic stay in the event of any federal or state bankruptcy or insolvency proceeding involving the Guarantor or its Affiliates; (ix) Borrower’s failure to deposit any springing Reserve Funds deposits pursuant to the terms of this Agreement; or (x) in the event Borrower fails to satisfy the obligations set forth in Section 3.38(c) hereof.
Appears in 1 contract
Sources: Loan Agreement (American Realty Capital New York Recovery Reit Inc)
Exculpation. Subject to Except as otherwise provided herein or in the qualifications belowother Loan Documents, 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 Mortgage or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against (1) Borrower (except as set forth in this Section 15.1 and the Environmental Indemnity), (2) Guarantor (except as set forth in the Guaranty, the PIP Guaranty and the Environmental Indemnity), (3) any Affiliate of Borrower, Mortgage Borrower, Mezzanine B Borrower, Mezzanine C Borrower or Mezzanine A Borrower, (4) any Person owning, directly or indirectly, any legal or beneficial interest in Borrower or any Affiliate of Borrower or (5) any direct or indirect memberslimited partner, partners member, principal, officer, beneficiary, trustee, advisor, employee, agent, shareholder, Affiliate or shareholders director of Borrower or any Persons described in clauses (1) through (5) above (collectively, subject to the employeesexceptions in clauses (i) and (ii) below, agents, directors or officers of Borrower or its Affiliatesthe “Exculpated Parties”), except that Lender may bring an action against Borrower, including a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender to enforce and realize upon its interest under the Note, this Agreement, the Mortgage Note, the Pledge Agreement and the other Loan Documents, or and the interest in the Property, the Business Income, 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 or any other assets of BorrowerDocuments; provided, however, that, except as specifically provided herein, that any judgment in any such action or proceeding shall be enforceable against Borrower Borrower, only to the extent of Borrower’s interest in the Property, in the Business Income Collateral and in any other collateral given to Lender or any other assets of Borrower, and Lender. Lender, by accepting the Note, this Agreement, the Mortgage Note, 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 or against any other monetary payment against Borrower or the direct or indirect members, partners or shareholders of Borrower or the employees, agents, directors or officers of Borrower or its Affiliates Exculpated Party in any such action or proceeding proceeding, under or by reason of or under or in connection with the Note, this Agreement, the Mortgage Note, 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 or Additional Pledgor as a party defendant in any action or suit for foreclosure and sale under this Agreement and the MortgagePledge Agreement; (ciii) affect the validity or enforceability of any guaranty or indemnity made in connection with the Loan (including, without limitation, those contained in Article 14 of this Agreement and the Guaranty) Environmental Indemnity), guaranty, master ▇▇▇▇▇▇▇▇.▇.▇▇▇▇▇▇▇▇ lease or any of similar instrument made in connection with this Agreement, the rights Note, the Pledge Agreement and remedies of Lender thereunderthe other Loan Documents; (div) impair the right of Lender to obtain the appointment of a receiver; (ev) impair the enforcement of the Assignment of Leasesprovisions contained in the Pledge Agreement; or (fvi) constitute a prohibition against impair the right of Lender to seek obtain a deficiency judgment or other judgment on the Note against Borrower in order if necessary to fully realize on obtain any security given by Borrower in connection with the Loan (including the security granted by the Mortgage) or any other assets of Borrower or Net Liquidation Proceeds After Debt Service to commence any other appropriate action or proceeding in order for which Lender to exercise its remedies against would otherwise be entitled under this Agreement; provided, however, Lender shall only enforce such security (including the Property or any other assets of Borrower).
(a) Nothing contained in this Section 11.22 shall limit the rights of Lender to proceed against Borrower for any of the following (or against Guarantor under the Guaranty, on the additional terms and conditions thereof and subject to any limitations set forth herein or therein):
(i) to enforce any Leases entered into by Borrower or its Affiliates as Tenant;
(ii) to recover damages for fraud, material misrepresentation, material breach of warranty or intentional physical waste;
(iii) to recover any Condemnation Proceeds or Insurance Proceeds or other similar funds which have been misappropriated by Borrower or which, under the terms of the Loan Documents, should have been paid to Lender;
(iv) to recover (A) any Tenant security deposits, Tenant letters of credit or other deposits or fees paid to Borrower or (B) prepaid rents for a period of more than thirty (30) days in advance of its due date which have not been delivered to Lender;
(v) to recover Business Income received by Borrower during an Event of Default which have not been applied to the Loan or in accordance with the Loan Documents to operating and maintenance expenses of the Property;
(vi) to recover damages, costs and expenses arising from, or in connection with the provisions of the Mortgage pertaining to Hazardous Materials or the Environmental Indemnity;
(vii) to recover any amount expended by Lender in connection with the foreclosure of the Mortgage, but only in the event that any Borrower or any Guarantor takes action to impede such foreclosure or otherwise contests the foreclosure in bad faith;
(viii) to recover damages, costs and expenses arising from, or in connection with, the failure by Borrower to pay Taxes and Insurance Premiums when due judgment to the extent that Borrower was not required to deposit such amounts with Lender pursuant to Section 6 hereof, but only to the extent there was available revenue from the Property for the period in question sufficient to pay such Taxes and Insurance Premiums, and provided further that Lender does not prevent such proceeds from being so applied;
(ix) to recover damages, costs and expenses arising from the failure of the representations set forth in Section 3.1.8 to be true or Borrower’s failure to comply with the provisions of Sections 4.2.11 of this Agreement; and
(x) to recover damages, costs and expenses arising from, or in connection with, any Lien arising from a written instrument executed by any Borrower or any Affiliate thereof expressly creating such Lien, to the extent such Lien is prohibited under this AgreementInsurance Proceeds and/or Awards.
(b) Notwithstanding the foregoing, the agreement of Lender not to limit recourse liability as set forth in Section 11.22(a) above SHALL BECOME NULL AND VOID and shall be of no further force and effect and the Debt shall be fully recourse to Borrower (and to Guarantor under the Guaranty, on the additional terms and conditions thereof and subject to any limitations set forth herein or therein) in the event that:
(i) any Borrower commences a voluntary bankruptcy or insolvency proceeding;
(ii) an involuntary bankruptcy or insolvency proceeding is commenced against any Borrower and is not dismissed within 90 days of filing; or
(iii) voluntary Transfer of the Property occurs by written instrument executed by any Borrower or any Affiliate thereof, which instrument expressly effects such Transfer, or a Secondary Financing is voluntarily incurred in violation of the Loan Documents, except as otherwise consented to by Lender in writing (which consent may be withheld in Lender’s sole discretion).
(c) Notwithstanding the provisions of clauses (i) and (ii) of Section 11.22(b) no Guarantor shall be liable for any amount related to a Qualified Involuntary Bankruptcy.
(d) In addition, this agreement shall not waive any rights which Lender would have under any provisions of Title 11 of the Bankruptcy Code to file a claim for the full amount of the Debt or to require that the Property shall continue to secure all of the Debt.
Appears in 1 contract
Sources: Mezzanine Loan Agreement (Ashford Hospitality Trust Inc)
Exculpation. Subject to the qualifications belowThis Lease is executed by LaSalle Bank and Trust Company of Chicago (“LB”), Lender shall not enforce the liability and obligation of Borrower to perform and observe the obligations contained in the Note, this Agreement, the Mortgage or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against the Borrower or any direct or indirect members, partners or shareholders of Borrower or the employees, agents, directors or officers of Borrower or its Affiliates, except that Lender may bring an action against Borrower, including a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender to enforce and realize upon its interest under the Note, this Agreement, the Mortgage and the other Loan Documents, or in the Property, the Business Income, or any other collateral given to Lender pursuant to the Loan Documents or any other assets of Borrower; provided, however, that, except personally but 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 PropertyTrustee as aforesaid, in the Business Income exercise of the power of authority conferred upon it as such Trustee and under the express direction of the beneficiaries of that certain Trust Agreement dated June 26, 1997 and known as Trust Number 123103-06. It is expressly understood and agreed that nothing herein contained shall be construed as creating any liability whatsoever against said Trustee or beneficiaries personally, or against any successor or assign of the foregoing, and in particular without limiting the generality of the foregoing, there shall be no personal liability to pay any other collateral given indebtedness accruing hereunder or to Lender perform any covenant, either express or implied, herein contained, or to keep, preserve or sequester any property of said Trust, and that all personal liability of said Trustee or beneficiaries of every sort, if any, is hereby expressly waived by said Tenant, and by every person now or hereafter claiming any right or security hereunder; and that so far as the said Trustee or beneficiaries or any other assets successor or assign of Borrowerthe foregoing are concerned the owner of any indebtedness or liability accruing hereunder shall look solely to the Premises hereby leased, as the same is from time to time encumbered, for the payment thereof. It is further understood and agreed that the said Trustee merely holds naked legal title to the property herein described; that said Trustee has no control over, and Lenderunder this Lease, by accepting the Note, this Agreement, the Mortgage and the other Loan Documents, shall not ▇▇▇ assumes no responsibility for, seek (1) the management or demand any deficiency judgment control of such property, (2) the upkeep, inspection, maintenance or any other monetary payment against Borrower repair of such property, (3) the collection of rents or the direct rental of such property, or indirect members, partners or shareholders (4) the conduct of Borrower or any business which is carried on upon such premises. It is further agreed by the employees, agents, directors or officers of Borrower or its Affiliates in any such action or proceeding under or by reason of or under or in connection with parties hereto that whenever and wherever the Note, this Agreement, the Mortgage or the other Loan Documents. The provisions of this Section shall not, however: (a) constitute a waiver, release or impairment of Lease contain any obligation evidenced or secured by any of the Loan Documents; (b) impair reference to the right of Lender the Tenant to name Borrower as a party defendant in be indemnified, saved harmless, or reimbursed by Landlord, for any action costs, claims, loss, fines, penalties, damages or suit for foreclosure and sale under the Mortgage; (c) affect the validity or enforceability expenses of any guaranty or indemnity made in connection with the Loan (includingnature, including without limitation, the Guaranty) or attorneys’ fees, arising in any way out of the rights and remedies execution of Lender thereunder; (d) impair this instrument or the right relationship of Lender to obtain the appointment of a receiver; (e) impair the enforcement of the Assignment of Leases; or (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 Loan (including the security granted by the Mortgage) or any other assets of Borrower or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against Tenant/Landlord under this instrument, then such security (including the Property or any other assets of Borrower).
(a) Nothing contained in this Section 11.22 shall limit the rights of Lender to proceed against Borrower for any of the following (or against Guarantor under the Guarantyobligation, if any, on the additional terms and conditions thereof and subject to any limitations set forth herein or therein):
(i) to enforce any Leases entered into by Borrower or its Affiliates as Tenant;
(ii) to recover damages for fraud, material misrepresentation, material breach of warranty or intentional physical waste;
(iii) to recover any Condemnation Proceeds or Insurance Proceeds or other similar funds which have been misappropriated by Borrower or which, under the terms part of the Loan Documents, should have been paid Landlord shall be construed to Lender;
(iv) to recover (A) any be only a right of reimbursement in favor of Tenant security deposits, Tenant letters of credit or other deposits or fees paid to Borrower or (B) prepaid rents for a period of more than thirty (30) days in advance of its due date which have not been delivered to Lender;
(v) to recover Business Income received by Borrower during an Event of Default which have not been applied to the Loan or in accordance with the Loan Documents to operating and maintenance expenses out of the Property;
(vi) trust estate held under Trust No. 123103-06, from time to recover damagestime, costs so far as the same may reach; and expenses arising fromin no case shall any claim of liability or right of reimbursement be asserted against LB individually, or in connection with the provisions of the Mortgage pertaining to Hazardous Materials or the Environmental Indemnity;
(vii) to recover any amount expended by Lender in connection with the foreclosure of the Mortgagesaid beneficiaries individually, but only in the event that any Borrower or any Guarantor takes action to impede all such foreclosure or otherwise contests the foreclosure in bad faith;
(viii) to recover damagespersonal liability, costs if any, being hereby expressly waived; and expenses arising from, or in connection with, the failure by Borrower to pay Taxes and Insurance Premiums when due to the extent that Borrower was not required to deposit such amounts with Lender pursuant to Section 6 hereof, but only to the extent there was available revenue from the Property for the period in question sufficient to pay such Taxes and Insurance Premiums, and provided further that Lender does not prevent such proceeds from being so applied;
(ix) to recover damages, costs and expenses arising from the failure of the representations set forth in Section 3.1.8 to be true or Borrower’s failure to comply with the provisions of Sections 4.2.11 of this Agreement; and
(x) to recover damages, costs and expenses arising from, or in connection with, any Lien arising from a written instrument executed by any Borrower or any Affiliate thereof expressly creating such Lien, to the extent such Lien is prohibited under this Agreement.
(b) Notwithstanding the foregoing, the agreement of Lender not to limit recourse liability as set forth in Section 11.22(a) above SHALL BECOME NULL AND VOID and shall be of no further force and effect and the Debt shall be fully recourse to Borrower (and to Guarantor under the Guaranty, on the additional terms and conditions thereof and subject to any limitations set forth herein or therein) in the event that:
(i) any Borrower commences a voluntary bankruptcy or insolvency proceeding;
(ii) an involuntary bankruptcy or insolvency proceeding is commenced against any Borrower and is not dismissed within 90 days of filing; or
(iii) voluntary Transfer of the Property occurs by written instrument executed by any Borrower or any Affiliate thereof, which instrument expressly effects such Transfer, or a Secondary Financing is voluntarily incurred in violation of the Loan Documents, except as otherwise consented to by Lender in writing (which consent may be withheld in Lender’s sole discretion).
(c) Notwithstanding the provisions of clauses (i) and (ii) of Section 11.22(b) no Guarantor shall be liable for any amount related to a Qualified Involuntary Bankruptcy.
(d) In addition, this agreement shall not waive any rights which Lender would have under any provisions of Title 11 extend to and inure for the benefit of the Bankruptcy Code to file a claim for parties hereto, their respective successors and assigns, and all parties claiming by, through and under them. In event of any question of apparent or claimed liability or obligation resting upon the full amount of the Debt said trustee or to require that the Property said beneficiaries, these exculpatory provisions shall continue to secure all of the Debtbe controlling.
Appears in 1 contract
Exculpation. Subject to Except as expressly provided in this Section 9.2, the qualifications below, Lender Administrative Agent shall not enforce the liability and obligation of Borrower Borrowers to perform and observe the obligations contained in the NoteNotes, this Agreement, the Mortgage Mortgages or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against the Borrower or any direct or indirect members, partners or shareholders of Borrower or the employees, agents, directors or officers of Borrower or its AffiliatesBorrowers, except that Lender the Administrative Agent may bring an action against Borrower, including a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender the Administrative Agent to enforce and realize upon its interest (on behalf of the Secured Parties) under the NoteNotes, this Agreement, the Mortgage Mortgages and the other Loan Documents, or in the PropertyProperties, the Business IncomeRents, or any other collateral given to Lender the Administrative Agent or the Collateral Agent (not in its individual capacity but solely in its capacity as Collateral Agent on behalf of the Administrative Agent for the benefit of the Secured Parties) pursuant to the Loan Documents or any other assets of BorrowerDocuments; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower Borrowers only to the extent of each Borrower’s interest in the its Property, in the Business Income Rents and in any other collateral given to Lender the Administrative Agent or any other assets the Collateral Agent (not in its individual capacity but solely in its capacity as Collateral Agent on behalf of Borrowerthe Administrative Agent for the benefit of the Secured Parties), and each Lender, by accepting the NoteNotes, this Agreement, the Mortgage and the other Loan Documents, agrees that the Administrative Agent shall not ▇▇▇ sue for, seek or demand any deficiency judgment or any other monetary payment money judgment against Borrower or the any direct or indirect membersmember, partners manager, shareholder, partner, beneficiary or shareholders other owner of Borrower beneficial ownership interests in Borrowers, or any director, officer, employee, trustee or agent or any of the employeesforegoing (each, agentsan “Exculpated Party” and, directors or officers of Borrower or its Affiliates collectively, the “Exculpated Parties”), in any such action or proceeding under or by reason of or under or in connection with the NoteNotes, this Agreement, the Mortgage 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 the Administrative Agent to name any Borrower as a party defendant in any action or suit for foreclosure and sale under the such Borrower’s related Mortgage; (c) affect the validity or enforceability of or any guaranty or indemnity made in connection with the Loan (including, without limitation, the Guaranty) or any of the rights and remedies of Lender the Administrative Agent or the Lenders thereunder; (d) impair the right of Lender the Administrative Agent to obtain the appointment of a receiver; (e) impair the enforcement of any of the Assignment Assignments of Leases; or (f) constitute a prohibition against Lender the Administrative Agent (on behalf of the Secured Parties) to seek a deficiency judgment against any Borrower in order to fully realize on any security given by Borrower in connection with the Loan (including the security granted by the Mortgage) or any other assets of Borrower it under its applicable Mortgage or to commence any other appropriate action or proceeding in order for Lender the Administrative Agent or Collateral Agent (not in its individual capacity but solely in its capacity as Collateral Agent on behalf of the Administrative Agent for the benefit of the Secured Parties) to exercise its their remedies against such security all of the Properties; or (g) constitute a waiver of the right of Lenders to enforce the liability and obligation of Borrowers, by money judgment or otherwise, to the extent of any loss, damage, cost, expense, liability, claim or other obligation incurred by ▇▇▇▇▇▇▇ (including attorneys’ fees and costs reasonably incurred) arising out of or in connection with the Property or any other assets of Borrower).
(a) Nothing contained in this Section 11.22 shall limit the rights of Lender to proceed against Borrower for any of the following (or against Guarantor under the Guaranty, on the additional terms and conditions thereof and subject to any limitations set forth herein or therein):following:
(i) to enforce fraud or intentional misrepresentation by the Limited Guarantor, any Leases entered into by Borrower Loan Party or its Affiliates as Tenantany subsidiary or Affiliate of the Limited Guarantor or any Loan Party in connection with the Loan, the Collateral or any Loan Document;
(ii) to recover damages for fraudthe willful misconduct, material misrepresentationbad faith or gross negligence of the Limited Guarantor, material breach any Loan Party or any subsidiary or Affiliate of warranty the Limited Guarantor or intentional physical wasteany Loan Party in connection with the Loan, the Collateral or any Loan Document;
(iii) the breach by any Loan Party of any representation, warranty, covenant or indemnification provision in any Loan Document concerning Environmental Laws, Hazardous Substances or asbestos and any indemnification of the Administrative Agent, any Lender or Collateral Agent with respect thereto in any such Loan Document;
(iv) the misapplication, misappropriation or conversion by any Loan Party or any Affiliate of any Loan Party of any collections or proceeds with respect to recover any Condemnation Proceeds Collateral, including the proceeds of any related insurance payable to any Borrower or Insurance Proceeds funds received by any Borrower for payment of taxes or any other amounts, in each case to the extent required to be deposited into the Collection Account or any other account established and maintained pursuant to the Loan Documents;
(v) any intentional material waste of any Financed Property;
(vi) the sale, conveyance or other similar funds disposition of any Financed Property or conveyance or release of any Financed Property in breach of any Loan Document;
(vii) any Loan Party fails to obtain Administrative Agent’s prior written consent to any incurrence of any debt not permitted under the Loan Documents;
(viii) the imposition of any consensual Lien or other encumbrance on any Financed Property or other Collateral other than that which have been misappropriated by Borrower or which, is expressly permitted under the terms of the Loan Documents, should have been paid to Lender;; or
(iv) to recover (Aix) any Tenant security deposits, Tenant letters of credit litigation or other deposits legal proceeding related to the Collateral or fees paid the other obligations of the Loan Parties or the Limited Guarantor pursuant to Borrower the Loan Documents filed by a Loan Party, the Company or any subsidiary or Affiliate of any Loan Party or the Company that delays, opposes, impedes, obstructs, hinders, enjoins or otherwise interferes with or frustrates the efforts of the Administrative Agent to exercise any rights and remedies available to the Administrative Agent as provided in the Loan Documents, in each case if filed in bad faith (B) prepaid rents for a period and expressly excluding any good faith assertion of more than thirty (30) days in advance of its due date which have not been delivered to Lender;rights, defense or counterclaims).
(va) the Loan Parties cease to recover Business Income received be controlled by Borrower during the Limited Guarantor, in each case to the extent constituting a violation of the Loan Documents that constitutes an Event of Default which have not been applied (other than a violation of any required notice or other administrative requirements); (b) any Loan Party files a voluntary petition under the Bankruptcy Code or any other Federal or state bankruptcy law; (c) any Loan Party or any Affiliate of any Loan Party, files, or joins in the filing of, an involuntary petition against any Loan Party under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law, or solicits or causes to be solicited (or if any Loan Party otherwise colludes with) petitioning creditors for any involuntary petition against any Loan Party from any person other than a petition filed by the Administrative Agent or any Lender; (d) any Loan Party files an answer consenting to or joining in any involuntary petition filed against any Loan Party 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 against any Loan Party from any Person other than a petition filed or joined by the Administrative Agent or any Lender; (e) any Loan Party or any Affiliate of any Loan Party consents to or joins in an application for the appointment of a custodian, receiver, trustee, or examiner for any Loan Party or any portion of the Collateral other than if required by the Administrative Agent or a Lender; or (f) any Loan Party 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 principal and interest on the Loan is not paid when due (subject to any applicable cure period); (iii) if any Loan Party fails to permit on-site inspections of its Property, fails to provide financial information, fails to maintain its status as a “special purpose entity” or fails to appoint a new property manager upon the request of Lenders as and if permitted under this Agreement, each as required by, and in accordance with, the terms and provisions (including any applicable notice and cure provisions) of this Agreement or the Mortgages; (iv) if any Loan Party fails to obtain Lenders’ prior written consent to any Indebtedness or voluntary Lien encumbering its Property as and if required by, and in accordance with the Loan Documents to operating terms and maintenance expenses of the Property;
provisions (viincluding any applicable notice and cure provisions) to recover damages, costs and expenses arising from, or in connection with the provisions of the Mortgage pertaining to Hazardous Materials or the Environmental Indemnity;
(vii) to recover any amount expended by Lender in connection with the foreclosure of the Mortgage, but only in the event that any Borrower or any Guarantor takes action to impede such foreclosure or otherwise contests the foreclosure in bad faith;
(viii) to recover damages, costs and expenses arising from, or in connection with, the failure by Borrower to pay Taxes and Insurance Premiums when due to the extent that Borrower was not required to deposit such amounts with Lender pursuant to Section 6 hereof, but only to the extent there was available revenue from the Property for the period in question sufficient to pay such Taxes and Insurance Premiums, and provided further that Lender does not prevent such proceeds from being so applied;
(ix) to recover damages, costs and expenses arising from the failure of the representations set forth in Section 3.1.8 to be true or Borrower’s failure to comply with the provisions of Sections 4.2.11 of this Agreement; and
or (xv) if any Loan Party fails to recover damages, costs and expenses arising from, or in connection with, any Lien arising from a obtain ▇▇▇▇▇▇▇’ prior written instrument executed by any Borrower or any Affiliate thereof expressly creating such Lien, to the extent such Lien is prohibited under this Agreement.
(b) Notwithstanding the foregoing, the agreement of Lender not to limit recourse liability as set forth in Section 11.22(a) above SHALL BECOME NULL AND VOID and shall be of no further force and effect and the Debt shall be fully recourse to Borrower (and to Guarantor under the Guaranty, on the additional terms and conditions thereof and subject consent to any limitations set forth herein transfer as and if required by this Agreement or therein) in the event that:
(i) any Borrower commences a voluntary bankruptcy or insolvency proceeding;
(ii) an involuntary bankruptcy or insolvency proceeding is commenced against any Borrower and is not dismissed within 90 days of filing; or
(iii) voluntary Transfer of the Property occurs by written instrument executed by any Borrower or any Affiliate thereof, which instrument expressly effects such Transfer, or a Secondary Financing is voluntarily incurred in violation of the Loan Documents, except as otherwise consented to by Lender in writing (which consent may be withheld in Lender’s sole discretion)Mortgages.
(c) Notwithstanding the provisions of clauses (i) and (ii) of Section 11.22(b) no Guarantor shall be liable for any amount related to a Qualified Involuntary Bankruptcy.
(d) In addition, this agreement shall not waive any rights which Lender would have under any provisions of Title 11 of the Bankruptcy Code to file a claim for the full amount of the Debt or to require that the Property shall continue to secure all of the Debt.
Appears in 1 contract
Exculpation. Subject to the qualifications below, Lender shall not enforce the liability and obligation Notwithstanding any other terms of Borrower to perform and observe the obligations contained in the Note, this Agreement, whether express or implied, or obligation at law or in equity, neither the Mortgage General Partner, any Tax Representative, nor the Management Company nor their respective members, former members, assignees, employees, agents or Affiliates, nor Advisory Board members in their capacities as Advisory Board members, nor Limited Partners that designated a representative to serve on the Advisory Board in their capacities as designating Limited Partners (individually, an “Exculpated Party” and collectively, the “Exculpated Parties”) shall be liable to a Limited Partner or the other Loan Documents by any Partnership for honest mistakes of judgment, or for action or proceeding wherein inaction, taken reasonably and in good faith for a money judgment shall purpose that was reasonably believed to be sought against in the Borrower best interests of the Partnership, or any direct or indirect membersfor losses due to such mistakes, partners or shareholders of Borrower or the employees, agents, directors or officers of Borrower or its Affiliates, except that Lender may bring an action against Borrower, including a foreclosure action, an action for specific performance or any other appropriate action or proceeding inaction, or to enable Lender the negligence, dishonesty, or bad faith of any employee, broker, or other agent of the Partnership, provided that such employee, broker, or agent was selected, engaged or retained and supervised with reasonable care. Notwithstanding any of the foregoing to enforce and realize upon its interest under the Note, this Agreementcontrary, the Mortgage and the other Loan Documents, or in the Property, the Business Income, or any other collateral given to Lender pursuant to the Loan Documents or any other assets of 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 Property, in the Business Income in any other collateral given to Lender or any other assets of Borrower, and Lender, by accepting the Note, this Agreement, the Mortgage and the other Loan Documents, shall not ▇▇▇ for, seek or demand any deficiency judgment or any other monetary payment against Borrower or the direct or indirect members, partners or shareholders of Borrower or the employees, agents, directors or officers of Borrower or its Affiliates in any such action or proceeding under or by reason of or under or in connection with the Note, this Agreement, the Mortgage or the other Loan Documents. The provisions of this Section 10.12 shall not, however: not be construed so as to relieve (aor attempt to relieve) constitute a waiver, release or impairment any Exculpated Party of any obligation evidenced liability by reason of criminal conduct, recklessness, fraud, intentional wrongdoing or secured by any gross negligence (except that such exclusion for gross negligence shall not apply to liability arising out of or relating to the Loan Documents; (b) impair the right service of Lender to name Borrower an Exculpated Party as a party defendant director, manager, officer, member or the equivalent of a person any securities of which the Partnership owns or has owned) or to the extent (but only to the extent) that such liability may not be waived, modified or limited under applicable law, but shall be construed so as to effectuate the provisions of this Section 10.12 and of Section 10.13 to the fullest extent permitted by law. The General Partner may consult with counsel and accountants in respect of Partnership affairs and be fully protected and justified in any action or suit for foreclosure and sale under the Mortgage; (c) affect the validity or enforceability of any guaranty or indemnity made in connection with the Loan (including, without limitation, the Guaranty) or any of the rights and remedies of Lender thereunder; (d) impair the right of Lender to obtain the appointment of a receiver; (e) impair the enforcement of the Assignment of Leases; or (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 Loan (including the security granted by the Mortgage) or any other assets of Borrower or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against such security (including the Property or any other assets of Borrower).
(a) Nothing contained in this Section 11.22 shall limit the rights of Lender to proceed against Borrower for any of the following (or against Guarantor under the Guaranty, on the additional terms and conditions thereof and subject to any limitations set forth herein or therein):
(i) to enforce any Leases entered into by Borrower or its Affiliates as Tenant;
(ii) to recover damages for fraud, material misrepresentation, material breach of warranty or intentional physical waste;
(iii) to recover any Condemnation Proceeds or Insurance Proceeds or other similar funds which have been misappropriated by Borrower or which, under the terms of the Loan Documents, should have been paid to Lender;
(iv) to recover (A) any Tenant security deposits, Tenant letters of credit or other deposits or fees paid to Borrower or (B) prepaid rents for a period of more than thirty (30) days in advance of its due date which have not been delivered to Lender;
(v) to recover Business Income received by Borrower during an Event of Default which have not been applied to the Loan or inaction that is taken in accordance with the Loan Documents to operating and maintenance expenses advice or opinion of the Property;
(vi) to recover damagessuch counsel or accountants, costs and expenses arising from, or in connection provided that such counsel and/or accountants shall have been selected with the provisions of the Mortgage pertaining to Hazardous Materials or the Environmental Indemnity;
(vii) to recover any amount expended by Lender in connection with the foreclosure of the Mortgage, but only in the event that any Borrower or any Guarantor takes action to impede such foreclosure or otherwise contests the foreclosure in bad faith;
(viii) to recover damages, costs and expenses arising from, or in connection with, the failure by Borrower to pay Taxes and Insurance Premiums when due to the extent that Borrower was not required to deposit such amounts with Lender pursuant to Section 6 hereof, but only to the extent there was available revenue from the Property for the period in question sufficient to pay such Taxes and Insurance Premiums, and provided further that Lender does not prevent such proceeds from being so applied;
(ix) to recover damages, costs and expenses arising from the failure of the representations set forth in Section 3.1.8 to be true or Borrower’s failure to comply with the provisions of Sections 4.2.11 of this Agreement; and
(x) to recover damages, costs and expenses arising from, or in connection with, any Lien arising from a written instrument executed by any Borrower or any Affiliate thereof expressly creating such Lien, to the extent such Lien is prohibited under this Agreementreasonable care.
(b) Notwithstanding the foregoing, the agreement of Lender not to limit recourse liability as set forth in Section 11.22(a) above SHALL BECOME NULL AND VOID and shall be of no further force and effect and the Debt shall be fully recourse to Borrower (and to Guarantor under the Guaranty, on the additional terms and conditions thereof and subject to any limitations set forth herein or therein) in the event that:
(i) any Borrower commences a voluntary bankruptcy or insolvency proceeding;
(ii) an involuntary bankruptcy or insolvency proceeding is commenced against any Borrower and is not dismissed within 90 days of filing; or
(iii) voluntary Transfer of the Property occurs by written instrument executed by any Borrower or any Affiliate thereof, which instrument expressly effects such Transfer, or a Secondary Financing is voluntarily incurred in violation of the Loan Documents, except as otherwise consented to by Lender in writing (which consent may be withheld in Lender’s sole discretion).
(c) Notwithstanding the provisions of clauses (i) and (ii) of Section 11.22(b) no Guarantor shall be liable for any amount related to a Qualified Involuntary Bankruptcy.
(d) In addition, this agreement shall not waive any rights which Lender would have under any provisions of Title 11 of the Bankruptcy Code to file a claim for the full amount of the Debt or to require that the Property shall continue to secure all of the Debt.
Appears in 1 contract
Sources: Limited Partnership Agreement
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 Mortgage 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 the Borrower or any direct principal, director, officer, employee, beneficiary, shareholder, partner, member, trustee, agent, or indirect members, partners or shareholders Affiliate of Borrower or any legal representatives, successors or assigns of any of the employeesforegoing (collectively, agents, directors or officers of Borrower or its Affiliatesthe “Exculpated Parties”), except that Lender may bring an action against Borrower, including a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender to enforce and realize upon its interest under the Note, this Agreement, the Mortgage Security Instrument and the other Loan Documents, or in the PropertyProperty (or any portion thereof), the Business IncomeRents, or any other collateral given to Lender pursuant to the Loan Documents or any other assets of BorrowerDocuments; 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 Business Income Rents and in any other collateral given to Lender or any other assets of BorrowerLender, and Lender, by accepting the Note, this Agreement, the Mortgage Security Instrument and the other Loan Documents, shall not ▇▇▇ sue for, seek or demand any deficiency judgment or any other monetary payment against Borrower or any of the direct or indirect members, partners or shareholders of Borrower or the employees, agents, directors or officers of Borrower or its Affiliates Exculpated Parties in any such action or proceeding under or by reason of or under or in connection with the Note, this Agreement, the Mortgage 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 MortgageSecurity Instrument; (c3) affect the validity or enforceability of any indemnity, guaranty or indemnity 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 (including, without limitation, the Guaranty) or any of the rights and remedies of Lender thereunderthereunder (including, without limitation, ▇▇▇▇▇▇’s right to enforce said rights and remedies against ▇▇▇▇▇▇▇▇ 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) impair the enforcement of the Assignment of Leases; or (f7) 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 Loan (including the security granted by the Mortgage) or any other assets of Borrower Security Instrument or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against such security (including the Property (or any other assets portion thereof); or (8) constitute a waiver of Borrower).
(a) Nothing contained in this Section 11.22 shall limit the rights right of Lender to proceed against Borrower for enforce the liability and obligation of Borrower, by money judgment or otherwise, to the extent of any Loss actually incurred by ▇▇▇▇▇▇ (including reasonable attorneys’ fees and costs reasonably incurred) arising out of or in connection with the following (or against Guarantor under the Guaranty, on the additional terms and conditions thereof and subject to any limitations set forth herein or therein):following:
(i) to enforce fraud or intentional material misrepresentation by Borrower, any Leases entered into by Borrower Mezzanine Borrower, any SPE Component Entity, any Mezzanine SPE Component Entity, Sponsor, any Affiliated Manager, Guarantor or its Affiliates as Tenantany director, officer, beneficiary, shareholder, partner, member, employee or agent acting on behalf of any of the foregoing (each, a “Recourse Party”) in connection with the Loan;
(ii) to recover damages for fraud, material misrepresentation, material breach willful misconduct of warranty or intentional physical wasteany Recourse Party in connection with the Loan;
(iii) to recover the breach of any Condemnation Proceeds or Insurance Proceeds or other similar funds which have been misappropriated by Borrower or which, under the terms of indemnification provision in the Loan DocumentsDocuments concerning environmental laws, should have been paid to Lenderhazardous substances and asbestos and any indemnification of Lender with respect thereto;
(iv) material physical waste to recover (A) any Tenant security deposits, Tenant letters Property caused by the intentional acts of credit or other deposits or fees paid to Borrower or (B) prepaid rents for a period of more than thirty (30) days in advance of its due date which have not been delivered to Lender;
(v) to recover Business Income received by Borrower during an Event of Default which have not been applied to the Loan or in accordance with the Loan Documents to operating and maintenance expenses of the Property;
(vi) to recover damages, costs and expenses arising from, or in connection with the provisions of the Mortgage pertaining to Hazardous Materials or the Environmental Indemnity;
(vii) to recover any amount expended by Lender in connection with the foreclosure of the Mortgage, but only in the event that any Borrower or any Guarantor takes action to impede such foreclosure or otherwise contests the foreclosure in bad faith;
(viii) to recover damages, costs and expenses arising from, or in connection with, the failure by Borrower to pay Taxes and Insurance Premiums when due to the extent that Borrower was not required to deposit such amounts with Lender pursuant to Section 6 hereofRecourse Party, but only to the extent there was available revenue is sufficient cash flow from the Property Properties to prevent such physical waste and such cash flow is made available by Lender for the period purpose of preventing such physical waste;
(v) the removal of any property in question sufficient contravention of the Loan Documents during the continuance of an Event of Default other than in the ordinary course of business;
(vi) the misappropriation or conversion of any of the following by a Recourse Party in contravention of the Loan Documents: (A) any insurance proceeds received by Borrower by reason of any Casualty, (B) any Awards or other amounts received by Borrower from a governmental authority in connection with a Condemnation of all or a portion of the Property, or (C) any revenues generated by the Properties;
(vii) any Security Deposits, advance deposits or any other deposits collected with respect to pay any Property which are not delivered to Lender upon a foreclosure of such Taxes Property or action in lieu thereof, except to the extent any such Security Deposits were applied in accordance with the terms and Insurance Premiumsconditions of any of the applicable Lease;
(viii) any litigation or other legal proceeding related to the Loan filed by a Recourse Party with the effect of delaying, opposing, impeding, obstructing, hindering, enjoining or otherwise interfering with the efforts of ▇▇▇▇▇▇ to exercise any rights and remedies available to Lender during the continuance of an Event of Default; provided, however, that there shall be no liability hereunder on account of, and provided further that the foregoing shall not restrict, ▇▇▇▇▇▇▇▇’s or Guarantor’s right to, dispute, in good faith, whether the relevant Event of Default shall have occurred or whether an action taken by Lender pursuant to the Loan Documents is permitted thereby, nor shall Borrower be restricted from, or have liability hereunder for, bringing a good faith counterclaim which if not raised in the foreclosure proceeding would be barred, and which does not prevent such proceeds from being so appliedseek to enjoin the enforcement action by ▇▇▇▇▇▇;
(ix) Borrower fails to recover damages, costs obtain ▇▇▇▇▇▇’s prior written consent to any additional indebtedness or voluntary lien encumbering any Property and expenses arising not permitted by the Loan Documents;
(x) a material breach by Borrower of Section 5.5;
(xi) intentionally omitted;
(xii) (A) any voluntary termination of any PILOT Lease and/or PILOT Document or transfer or surrender of any PILOT Lease and/or PILOT Document (including any PILOT Bond) by Borrower without ▇▇▇▇▇▇’s prior written consent other than in connection with Borrower acquiring the fee estate from the failure applicable PILOT Lessor or as otherwise expressly permitted under this Agreement, (B) any termination of any PILOT Lease and/or PILOT Document as a result of a foreclosure of the representations set forth applicable Security Instrument or deed in Section 3.1.8 to be true lieu thereof or (C) Borrower’s or the applicable Tenant’s failure to comply with or Borrower’s or the provisions applicable Tenant’s breach of Sections 4.2.11 of this Agreement; and
any PILOT Lease and/or PILOT Document that results in (x) to recover damagesa reduction of any tax abatement and/or mandatory repayment of any past or current tax abatement under such PILOT Lease and/or PILOT Document, costs as applicable, (y) termination of such PILOT Lease and/or PILOT Document, as applicable, and expenses arising from, or the benefits thereunder in connection with, any Lien arising from a written instrument executed by any favor of Borrower or Tenant or (z) a default by such Borrower under the applicable Lease for such PILOT Property (and, in any Affiliate thereof expressly creating such Liencase, Losses shall include lost rental income); provided, that, in each case, the liability with respect to this Section 13.1(a)(xii) shall not exceed the Allocated Loan Amount of the applicable PILOT Property;
(xiii) other than as set forth in Section 13.1(b)(v), a breach by Borrower of any covenant of Article 5 of this Agreement documents (excluding any provision requiring each Borrower to remain solvent, maintain adequate capital or pay its debts as they come due); and/or
(xiv) any liability or obligation of Borrower relating to the extent such Lien is prohibited under this AgreementPreviously-Owned Property.
(b) Notwithstanding anything to the foregoingcontrary in this Agreement, the agreement of Lender not to limit recourse liability as set forth in Section 11.22(a) above SHALL BECOME NULL AND VOID and shall be of no further force and effect and the Debt shall be fully recourse to Borrower (and to Guarantor under the Guaranty, on the additional terms and conditions thereof and subject to any limitations set forth herein or therein) in the event that:
(i) any Borrower commences a voluntary bankruptcy or insolvency proceeding;
(ii) an involuntary bankruptcy or insolvency proceeding is commenced against any Borrower and is not dismissed within 90 days of filing; or
(iii) voluntary Transfer of the Property occurs by written instrument executed by any Borrower Note or any Affiliate thereof, which instrument expressly effects such Transfer, or a Secondary Financing is voluntarily incurred in violation of the Loan Documents, except as otherwise consented to by (A) Lender in writing (which consent may be withheld in Lender’s sole discretion).
(c) Notwithstanding the provisions of clauses (i) and (ii) of Section 11.22(b) no Guarantor shall be liable for any amount related to a Qualified Involuntary Bankruptcy.
(d) In addition, this agreement shall not waive be deemed to have waived any rights right which Lender would may have under Section 506(a), 506(b), 1111(b) or any other provisions of Title 11 of the Bankruptcy Code to file a claim for the full amount of the Debt or to require that the Property all collateral shall continue to secure all of the DebtDebt 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 or any SPE Component Entity or any Affiliate thereof files, or joins in the filing of, a petition against Borrower under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law, or solicits or causes to be solicited (or otherwise colludes with) petitioning creditors for any involuntary petition against Borrower, (ii) Borrower or any SPE Component Entity or any Affiliate thereof files an answer consenting to an involuntary petition filed against Borrower (other than any answer which is required to be made by applicable law), by any other person under the Bankruptcy Code or any other federal or state bankruptcy or insolvency law, (iii) Borrower or any SPE Component Entity consents to or joins in an application for the appointment of a custodian, receiver, trustee, or examiner for Borrower (other than with the prior written consent of Lender), (iv) Borrower makes an assignment for the benefit of creditors (other than to Lender in connection with the Loan or with the prior written consent of Lender); (v) there is a breach of any provision of Article 5 (Single Purpose Entity Covenants) hereof or the separateness covenants contained in the Borrower’s or SPE Component Entity’s organizational documents (excluding, in each case, any provision requiring each Borrower to remain solvent, maintain adequate capital or pay its debts as they come due) and such breach is cited by a court of competent jurisdiction in a final order in a proceeding under the Bankruptcy Code as a material factor in ordering the substantive consolidation of Borrower with any other Person other than a co-Borrower under the Loan; provided that the motion or pleading seeking substantive consolidation was not brought or supported by Lender and, as a result thereof, Borrower is subsequently substantively consolidated in a case under the Bankruptcy Code with any Person other than a co-Borrower under the Loan, or (vi) Borrower fails to obtain ▇▇▇▇▇▇’s prior consent to (a) the transfer or conveyance of all or any portion of any Property, or (b) the transfer of direct or indirect equity interests in Borrower or any Mezzanine Borrower, in each case in violation of the Loan Documents.
Appears in 1 contract
Sources: Loan Agreement (Industrial Logistics Properties Trust)
Exculpation. Subject Effective as of the Effective Date, the Exculpated Parties shall neither have nor incur any liability to any Person or Entity for any claims or Causes of Action or for any act taken or omitted to be taken on or after the Petition Date and prior to or on the Effective Date in connection with, or related to, the administration of the Chapter 11 Cases, commencement of the Chapter 11 Cases, pursuit of Confirmation and consummation of this Plan, making Distributions, the Disclosure Statement, the Sale Process, the 363 Sale Order, or the solicitation of votes for, or Confirmation of, this Plan; the occurrence of the Effective Date; the administration of this Plan or the property to be distributed under this Plan; the issuance of securities under or in connection with this Plan; the purchase, sale, or rescission of the purchase or sale of any asset or security of the Debtors; or the transactions or documentation in furtherance of any of the foregoing, including but not limited 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 Mortgage or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against the Borrower or any direct or indirect members, partners or shareholders of Borrower or the employees, agents, directors or officers of Borrower or its Affiliates, except that Lender may bring an action against Borrower, including a foreclosure action, an action for specific performance RSA; or any other appropriate action postpetition act taken or proceeding omitted to enable Lender to enforce and realize upon its interest under be taken in connection with or in contemplation of the Note, this Agreementrestructuring of the Debtors, the Mortgage and approval of the other Loan Documents, Disclosure Statement or in the Property, the Business Income, Confirmation or any other collateral given to Lender pursuant to the Loan Documents or any other assets consummation of Borrowerthis Plan; provided, however, thatthat the foregoing provisions of this exculpation shall not operate to waive or release: (i) any Causes of Action arising from willful misconduct, except actual fraud, or gross negligence of such applicable Exculpated Party as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower only to determined by Final Order of the extent of Borrower’s interest in the Property, in the Business Income in any other collateral given to Lender Bankruptcy Court or any other assets court of Borrowercompetent jurisdiction; and/or (ii) the rights of any Person or Entity to enforce this Plan and the contracts, instruments, releases, indentures, and Lender, by accepting the Note, this Agreement, the Mortgage other agreements and the other Loan Documents, shall not ▇▇▇ for, seek or demand any deficiency judgment or any other monetary payment against Borrower or the direct or indirect members, partners or shareholders of Borrower or the employees, agents, directors or officers of Borrower or its Affiliates in any such action or proceeding under or by reason of or documents delivered under or in connection with the Note, this Agreement, the Mortgage Plan or the other Loan Documents. The provisions of assumed pursuant to this Section shall not, however: (a) constitute a waiver, release Plan or impairment of any obligation evidenced or secured by any Final Order of the Loan DocumentsBankruptcy Court; (b) impair provided, further, that each Exculpated Party shall be entitled to rely upon the right advice of Lender to name Borrower as a party defendant in any action or suit for foreclosure and sale under the Mortgage; (c) affect the validity or enforceability of any guaranty or indemnity made in connection with the Loan (including, without limitation, the Guaranty) or any of the rights and remedies of Lender thereunder; (d) impair the right of Lender to obtain the appointment of a receiver; (e) impair the enforcement of the Assignment of Leases; or (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 Loan (including the security granted by the Mortgage) or any other assets of Borrower or to commence any other appropriate action or proceeding in order for Lender to exercise counsel concerning its remedies against such security (including the Property or any other assets of Borrower).
(a) Nothing contained in this Section 11.22 shall limit the rights of Lender to proceed against Borrower for any of the following (or against Guarantor under the Guaranty, on the additional terms and conditions thereof and subject to any limitations set forth herein or therein):
(i) to enforce any Leases entered into by Borrower or its Affiliates as Tenant;
(ii) to recover damages for fraud, material misrepresentation, material breach of warranty or intentional physical waste;
(iii) to recover any Condemnation Proceeds or Insurance Proceeds or other similar funds which have been misappropriated by Borrower or which, under the terms of the Loan Documents, should have been paid to Lender;
(iv) to recover (A) any Tenant security deposits, Tenant letters of credit or other deposits or fees paid to Borrower or (B) prepaid rents for a period of more than thirty (30) days in advance of its due date which have not been delivered to Lender;
(v) to recover Business Income received by Borrower during an Event of Default which have not been applied to the Loan or in accordance with the Loan Documents to operating and maintenance expenses of the Property;
(vi) to recover damages, costs and expenses arising from, or in connection with the provisions of the Mortgage pertaining to Hazardous Materials or the Environmental Indemnity;
(vii) to recover any amount expended by Lender in connection with the foreclosure of the Mortgage, but only in the event that any Borrower or any Guarantor takes action to impede such foreclosure or otherwise contests the foreclosure in bad faith;
(viii) to recover damages, costs and expenses arising fromrespective duties pursuant to, or in connection with, the failure by Borrower to pay Taxes and Insurance Premiums when due to the extent that Borrower was not required to deposit such amounts with Lender pursuant to Section 6 hereofabove referenced documents, but only to the extent there was available revenue from the Property for the period in question sufficient to pay such Taxes and Insurance Premiums, and provided further that Lender does not prevent such proceeds from being so applied;
(ix) to recover damages, costs and expenses arising from the failure actions or inactions. The foregoing exculpation shall be effective as of the representations set forth in Section 3.1.8 Effective Date without further notice to be true or Borrower’s failure to comply with order of the provisions of Sections 4.2.11 of this Agreement; and
(x) to recover damagesBankruptcy Court, costs and expenses arising fromact or action under applicable law, regulation, order, or in connection withrule or the vote, consent, authorization or approval of any Lien arising from a written instrument executed by any Borrower or any Affiliate thereof expressly creating such Lien, to the extent such Lien is prohibited under this Agreement.
(b) Person. Notwithstanding the foregoing, the agreement of Lender not to limit recourse liability as set forth nothing in Section 11.22(a) above SHALL BECOME NULL AND VOID and this Article IX.D shall or shall be deemed to prohibit the Debtors or the Reorganized Debtors from asserting and enforcing any claims, obligations, suits, judgments, demands, debts, rights, Causes of no further force and effect and the Debt shall be fully recourse to Borrower (and to Guarantor under the Guaranty, on the additional terms and conditions thereof and subject to any limitations set forth herein Action or therein) in the event that:
(i) any Borrower commences a voluntary bankruptcy or insolvency proceeding;
(ii) an involuntary bankruptcy or insolvency proceeding is commenced liabilities they may have against any Borrower Person that is based upon an alleged breach of a confidentiality or non-compete obligation owed to the Debtors or the Reorganized Debtors, in each case unless otherwise expressly provided for in this Plan. The Exculpation will be in addition to, and is not dismissed within 90 days of filing; or
(iii) voluntary Transfer of the Property occurs by written instrument executed by in limitation of, all other releases, indemnities, exculpations, and any Borrower other applicable law or any Affiliate thereof, which instrument expressly effects rules protecting such Transfer, or a Secondary Financing is voluntarily incurred in violation of the Loan Documents, except as otherwise consented to by Lender in writing (which consent may be withheld in Lender’s sole discretion)Exculpated Parties from liability.
(c) Notwithstanding the provisions of clauses (i) and (ii) of Section 11.22(b) no Guarantor shall be liable for any amount related to a Qualified Involuntary Bankruptcy.
(d) In addition, this agreement shall not waive any rights which Lender would have under any provisions of Title 11 of the Bankruptcy Code to file a claim for the full amount of the Debt or to require that the Property shall continue to secure all of the Debt.
Appears in 1 contract
Sources: Restructuring Support Agreement (Starry Group Holdings, Inc.)
Exculpation. 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 Mortgage or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against the Borrower or any direct principal, director, officer, employee, beneficiary, shareholder, partner, member, trustee, agent, or indirect members, partners or shareholders affiliate of Borrower (but specifically excluding Guarantor to the extent of Guarantor’s liability pursuant to the Guaranty) or any legal representatives, successors or assigns of any of the employeesforegoing (collectively, agents, directors or officers of Borrower or its Affiliatesthe “Exculpated Parties”), except that Lender may bring an action against Borrower, including a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender to enforce and realize upon its interest under the Note, this Agreement, the Mortgage and the other Loan Documents, or in the Property, the Business Income, Gross Revenues or any other collateral given to Lender pursuant to the Loan Documents or any other assets of BorrowerDocuments; 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 Business Income Gross Revenues and in any other collateral given to Lender or any other assets of BorrowerLender, and Lender, by accepting the Note, this Agreement, the Mortgage and the other Loan Documents, shall not ▇▇▇ for, seek or demand any deficiency judgment or any other monetary payment against Borrower or any of the direct or indirect membersExculpated Parties, partners or shareholders of Borrower or the employees, agents, directors or officers of Borrower or its Affiliates in any such action or proceeding under or by reason of or under or in connection with the Note, this Agreement, the 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 Mortgage; (c) affect the validity or enforceability of any of the Loan Documents or any guaranty or indemnity made in connection with the Loan (including, without limitation, the Guaranty) or any of the rights and remedies of Lender thereunder; (d) impair the right of Lender to obtain the appointment of a receiver; (e) impair the enforcement of the Assignment of Leases; or (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 Loan (including the security granted by the Mortgage) or any other assets of Borrower Mortgage or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against such security the Property; (including f) impair the Property or enforcement of the assignment of leases and rents contained in the Mortgage and in any other assets Loan Documents; or (g) constitute a waiver of Borrower).
(a) Nothing contained in this Section 11.22 shall limit the rights right of Lender to proceed against enforce the liability and obligation of Borrower, by money judgment or otherwise, to the extent of any Losses incurred by Lender (including attorneys’ fees and costs reasonably incurred) arising out of or in connection with the following (all such liability and obligation of Borrower for any or all of the following (or against Guarantor under the Guaranty, on the additional terms and conditions thereof and subject being referred to any limitations set forth herein or thereinas “Borrower’s Recourse Liabilities”):
(i) to enforce any Leases entered into fraud or intentional misrepresentation by Borrower or its Affiliates as Tenantany Borrower Party in connection with the Loan;
(ii) to recover damages for fraud, material misrepresentation, material breach the gross negligence or willful misconduct of warranty Borrower or intentional physical wasteany Borrower Party in connection with the Loan;
(iii) to recover any Condemnation Proceeds or Insurance Proceeds litigation or other similar funds which have been misappropriated legal proceeding related to the Debt filed by any Borrower or whichParty that intentionally interferes with Lender exercising any rights and remedies available to Lender as provided herein and in the other Loan Documents only to the extent a court of competent jurisdiction, under in a final non-appealable decision, finds the terms of the Loan Documents, should have been paid to Lenderapplicable defenses were not raised in good faith by such Borrower Party;
(iv) physical waste to recover the Property (Aor any portion thereof) caused by intentional acts or intentional omissions of Borrower, or any Borrower Party, or the removal or disposal of any portion of the Property (including, without limitation, any personal Property) after an Event of Default (except to the extent (i) the same was replaced with Property of the same utility and of the same or greater value or (ii) such portion of the Property was obsolete and no longer required or beneficial for the operation of the Property, in which case no replacement shall be required); provided, however, “waste” shall not include (a) any Tenant security depositswaste at the Property caused by a lack of sufficient cash flow at the Property or (b) Lender’s refusal to permit such cash flow to be applied (provided, Tenant letters of credit however, the foregoing clause (b) shall not apply if Lender cannot release cash flow because such cash flow is being held by Lender and Lender’s access to such amounts is restricted or constrained in any manner by applicable Legal Requirements, injunction or other deposits court order, or fees paid to as a result of any action, inaction or omission by Borrower, Guarantor or any other Borrower or (B) prepaid rents for a period of more than thirty (30) days in advance of its due date which have not been delivered to LenderParty);
(v) to recover Business Income received the misappropriation or conversion by Borrower during an Event or any Borrower Party of Default which have not been applied (A) any Insurance Proceeds paid by reason of any loss, damage or destruction to the Loan Property, (B) any Awards or other amounts received in accordance connection with the Loan Documents to operating and maintenance expenses Condemnation of all or a portion of the Property, (C) any Gross Revenues (including Rents, Insurance Proceeds and security deposits, advance deposits or any other deposits), in each case, in violation of express conditions of the Loan Documents;
(vi) any security deposits, advance deposits or any other deposits collected with respect to recover damagesany Individual Property which are not delivered to Lender upon a foreclosure of such Individual Property or action in lieu thereof, costs and expenses arising from, or except to the extent any such security deposits were applied in connection accordance with the provisions terms and conditions of any of the Mortgage pertaining Leases prior to Hazardous Materials the occurrence of the Event of Default that gave rise to such foreclosure or the Environmental Indemnityaction in lieu thereof;
(vii) to recover the seizure or forfeiture of any amount expended Individual Property, or any portion thereof, or Borrower’s interest therein, resulting from criminal wrongdoing by Lender in connection with the foreclosure of the Mortgage, but only in the event that any Borrower or any Guarantor takes action to impede such foreclosure or otherwise contests the foreclosure in bad faithBorrower Parties;
(viii) to recover damagesthe breach of any representation, costs and expenses arising fromwarranty, covenant or indemnification provision in the Mortgage or in connection withany other Loan Document concerning environmental laws, hazardous substances and/or asbestos and any indemnification of Lender with respect thereto in either document;
(ix) Borrower fails to obtain Lender’s prior consent to any subordinate financing secured by the Property (other than Permitted Indebtedness) or other voluntary Lien encumbering the Property (it being acknowledged that the foregoing shall not apply to Liens arising from Taxes, labor, materials or other charges that result in Liens on any portion of any of the Properties); and/or
(x) if the Ground Lease is terminated, failure by Borrower to pay Taxes and Insurance Premiums when due and/or charges for labor or materials, or other charges that can create Liens on any portion of the Property (other than Permitted Encumbrances or any Lien being contested in good faith in accordance with the terms hereof); provided, however, Borrower shall not be liable to the extent that Borrower was not required to deposit such amounts with Lender pursuant to Section 6 hereof, but only to the extent there was available revenue (A) cash flow from the Property is insufficient to pay such Taxes or charges for labor or materials or other charges that can create Liens on any portion of the period in question Property or (B) sums sufficient to pay such Taxes have been deposited with Lender in accordance with the terms of this Agreement and Insurance PremiumsLender’s access to such sums is not restricted or constrained in any manner by applicable Legal Requirements, and provided further that Lender does not prevent such proceeds from being so applied;
(ix) injunction or other court order, or as a result of any action, inaction or omission by Borrower, Guarantor or any other Borrower Party. Notwithstanding anything to recover damages, costs and expenses arising from the failure contrary in this Agreement or any of the representations set forth in Section 3.1.8 to be true or Borrower’s failure to comply with the provisions of Sections 4.2.11 of this Agreement; and
(x) to recover damages, costs and expenses arising from, or in connection with, any Lien arising from a written instrument executed by any Borrower or any Affiliate thereof expressly creating such Lien, to the extent such Lien is prohibited under this Agreement.
(b) Notwithstanding the foregoing, the agreement of Lender not to limit recourse liability as set forth in Section 11.22(a) above SHALL BECOME NULL AND VOID and shall be of no further force and effect and the Debt shall be fully recourse to Borrower (and to Guarantor under the Guaranty, on the additional terms and conditions thereof and subject to any limitations set forth herein or therein) in the event that:
(i) any Borrower commences a voluntary bankruptcy or insolvency proceeding;
(ii) an involuntary bankruptcy or insolvency proceeding is commenced against any Borrower and is not dismissed within 90 days of filing; or
(iii) voluntary Transfer of the Property occurs by written instrument executed by any Borrower or any Affiliate thereof, which instrument expressly effects such Transfer, or a Secondary Financing is voluntarily incurred in violation of the other Loan Documents, except as otherwise consented to by (A) Lender in writing (which consent may be withheld in Lender’s sole discretion).
(c) Notwithstanding the provisions of clauses (i) and (ii) of Section 11.22(b) no Guarantor shall be liable for any amount related to a Qualified Involuntary Bankruptcy.
(d) In addition, this agreement shall not waive be deemed to have waived any rights right which Lender would may have under Section 506(a), 506(b), 1111(b) or any other provisions of Title 11 of the Bankruptcy Code to file a claim for the full amount of the Debt Obligations or to require that the Property all collateral shall continue to secure all of the DebtObligations 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”):
(i) Borrower files a voluntary petition under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law;
(ii) Borrower or Guarantor expressly consents to a substantive consolidation with any other Person; unless such consolidation is discharged, stayed or dismissed within thirty (30) days following the occurrence of such consolidation;
(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 colludes with or otherwise assists such Person, and/or Borrower solicits or causes to be solicited petitioning creditors for any involuntary petition against Borrower by any Person;
(iv) 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;
(v) Borrower or any Affiliate, officer, director or representative which controls Borrower consents in writing 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;
(vi) 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;
(vii) 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; provided, however, that there shall be no liability under this clause (vii) for a Transfer that would be a Permitted Transfer but for Borrower’s failure to provide (A) notice or copies of the documentation related to such Transfer to Lender or (B) Lender the opportunity to review any documentation in connection with such Transfer; or
(viii) Borrower fails to comply with any provision of Section 4.4 hereof and such failure causes a substantive consolidation of Borrower with any other Person in connection with any federal or state bankruptcy proceeding 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.
Appears in 1 contract
Exculpation. 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 Mortgage Pledge Agreement or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against the Borrower or any direct or indirect members, partners or shareholders of Borrower or the employees, agents, directors or officers of Borrower or its AffiliatesBorrower, except that Lender may bring an action against Borrower, including a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender to enforce and realize upon its interest under the Note, this Agreement, the Mortgage Pledge Agreement and the other Loan Documents, or in the Property, the Business Income, Collateral or any other collateral given to Lender pursuant to the Loan Documents or any other assets of BorrowerDocuments; 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 Business Income Collateral and in any other collateral given to Lender or any other assets of BorrowerLender, and Lender, by accepting the Note, this Agreement, the Mortgage 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 or any other monetary payment against Borrower or the direct or indirect members, partners or shareholders of Borrower or the employees, agents, directors or officers of Borrower or its Affiliates in any such action or proceeding under under, or by reason of or under of, or in connection with with, the Note, this Agreement, the Mortgage 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 MortgagePledge Agreement; (c) affect the validity or enforceability of any guaranty or indemnity made in connection with the Loan (including, without limitation, the Guaranty) or any of the rights and remedies of Lender thereunder; (d) impair the right of Lender to obtain the appointment of a receiver; (e) impair the enforcement of the Assignment of LeasesPledge Agreement; or (f) constitute a prohibition against Lender to seek seeking a deficiency judgment against Borrower in order to fully realize on any security given by Borrower in connection with the Loan (including the security granted by the Mortgage) Pledge Agreement or any other assets of Borrower or to commence commencing any other appropriate action or proceeding in order for Lender to exercise its remedies against such security the Collateral; or (g) constitute a waiver of the right of Lender to enforce the liability and obligation of Borrower 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:
(1) fraud or material misrepresentation or failure to disclose a material fact by Borrower or any of the Borrower Parties in connection with the Loan;
(2) the gross negligence or willful misconduct of Borrower or any of the Borrower Parties;
(3) the breach of any representation, warranty, covenant or indemnification provision in this Agreement or the Environmental Indemnity concerning environmental laws, hazardous substances and asbestos and any indemnification of Lender with respect thereto in any of such documents;
(4) 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 or any other assets of Borrower)entity that is required to be a Single-Purpose Entity fails to comply with the SPE Covenants or maintain its status as a Single-Purpose Entity; or
(8) if any Transfer occurs other than as permitted by this Agreement.
(a) Nothing contained in this Section 11.22 shall limit Borrower filing a voluntary petition under the rights Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (b) the filing of Lender to proceed an involuntary petition against Borrower for under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law by any other Person in which Borrower or any of the following (Borrower Parties colludes with or against Guarantor under the Guaranty, on the additional terms and conditions thereof and subject to any limitations set forth herein or therein):
(i) to enforce any Leases entered into by Borrower or its Affiliates as Tenant;
(ii) to recover damages for fraud, material misrepresentation, material breach of warranty or intentional physical waste;
(iii) to recover any Condemnation Proceeds or Insurance Proceeds or other similar funds which have been misappropriated by Borrower or which, under the terms of the Loan Documents, should have been paid to Lender;
(iv) to recover (A) any Tenant security deposits, Tenant letters of credit or other deposits or fees paid to Borrower or (B) prepaid rents for a period of more than thirty (30) days in advance of its due date which have not been delivered to Lender;
(v) to recover Business Income received by Borrower during an Event of Default which have not been applied to the Loan or in accordance with the Loan Documents to operating and maintenance expenses of the Property;
(vi) to recover damages, costs and expenses arising fromotherwise assists such Person, or in connection with the provisions of the Mortgage pertaining soliciting or causing to Hazardous Materials or the Environmental Indemnity;
be solicited petitioning creditors for any involuntary petition against Borrower from any Person; (viic) to recover any amount expended by Lender in connection with the foreclosure of the Mortgage, but only in the event that any Borrower or any Guarantor takes action to impede such foreclosure or otherwise contests the foreclosure in bad faith;
(viii) to recover damages, costs and expenses arising from, or in connection with, the failure by Borrower to pay Taxes and Insurance Premiums when due to the extent that Borrower was not required to deposit such amounts with Lender pursuant to Section 6 hereof, but only to the extent there was available revenue from the Property for the period in question sufficient to pay such Taxes and Insurance Premiums, and provided further that Lender does not prevent such proceeds from being so applied;
(ix) to recover damages, costs and expenses arising from the failure of the representations set forth in Section 3.1.8 to be true or Borrower’s failure to comply with the provisions of Sections 4.2.11 of this Agreement; and
(x) to recover damages, costs and expenses arising from, or in connection with, any Lien arising from a written instrument executed by any Borrower or any Affiliate thereof expressly creating such Lien, to the extent such Lien is prohibited under this Agreement.
(b) Notwithstanding the foregoing, the agreement of Lender not to limit recourse liability as set forth in Section 11.22(a) above SHALL BECOME NULL AND VOID and shall be of no further force and effect and the Debt shall be fully recourse to Borrower (and to Guarantor under the Guaranty, on the additional terms and conditions thereof and subject to any limitations set forth herein or therein) in the event that:
(i) any Borrower commences a voluntary bankruptcy or insolvency proceeding;
(ii) Parties filing an involuntary bankruptcy or insolvency proceeding is commenced against any Borrower and is not dismissed within 90 days of filing; or
(iii) voluntary Transfer of the Property occurs by written instrument executed by any Borrower or any Affiliate thereof, which instrument expressly effects such Transfer, or a Secondary Financing is voluntarily incurred in violation of the Loan Documents, except as otherwise consented to by Lender in writing (which consent may be withheld in Lender’s sole discretion).
(c) Notwithstanding the provisions of clauses (i) and (ii) of Section 11.22(b) no Guarantor shall be liable for any amount related to a Qualified Involuntary Bankruptcy.
(d) In addition, this agreement shall not waive any rights which Lender would have under any provisions of Title 11 of the Bankruptcy Code to file a claim for the full amount of the Debt or to require that the Property shall continue to secure all of the Debt.answer
Appears in 1 contract
Sources: 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 Mortgage 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 the Borrower or any direct principal, director, officer, employee, beneficiary, shareholder, partner, member, trustee, agent, or indirect members, partners or shareholders Affiliate of Borrower or any legal representatives, successors or assigns of any of the employeesforegoing (collectively, agents, directors or officers of Borrower or its Affiliatesthe “Exculpated Parties”), except that Lender may bring an action against Borrower, including a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender to enforce and realize upon its interest under the Note, this Agreement, the Mortgage Security Instrument and the other Loan Documents, or in the PropertyProperty (or any portion thereof), the Business IncomeRents, or any other collateral given to Lender pursuant to the Loan Documents or any other assets of BorrowerDocuments; 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 Business Income Rents and in any other collateral given to Lender or any other assets of BorrowerLender, and Lender, by accepting the Note, this Agreement, the Mortgage Security Instrument and the other Loan Documents, shall not ▇▇▇ sue for, seek or demand any deficiency judgment or any other monetary payment against Borrower or any of the direct or indirect members, partners or shareholders of Borrower or the employees, agents, directors or officers of Borrower or its Affiliates Exculpated Parties in any such action or proceeding under or by reason of or under or in connection with the Note, this Agreement, the Mortgage 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 MortgageSecurity Instrument; (c3) affect the validity or enforceability of any indemnity, guaranty or indemnity 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 (including, without limitation, the Guaranty) or any of the rights and remedies of Lender thereunderthereunder (including, without limitation, L▇▇▇▇▇’s right to enforce said rights and remedies against B▇▇▇▇▇▇▇ 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) impair the enforcement of the Assignment of Leases; or (f7) 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 Loan (including the security granted by the Mortgage) or any other assets of Borrower Security Instrument or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against such security (including the Property (or any other assets portion thereof); or (8) constitute a waiver of Borrower).
(a) Nothing contained in this Section 11.22 shall limit the rights right of Lender to proceed against Borrower for enforce the liability and obligation of Borrower, by money judgment or otherwise, to the extent of any Loss actually incurred by L▇▇▇▇▇ (including reasonable attorneys’ fees and costs reasonably incurred) arising out of or in connection with the following (or against Guarantor under the Guaranty, on the additional terms and conditions thereof and subject to any limitations set forth herein or therein):following:
(i) to enforce fraud or intentional material misrepresentation by B▇▇▇▇▇▇▇, any Leases entered into by Borrower SPE Component Entity, Sponsor, any Affiliated Manager, Guarantor or its Affiliates as Tenantany director, officer, beneficiary, shareholder, partner, member, employee or agent acting on behalf of any of the foregoing (each, a “Recourse Party”) in connection with the Loan;
(ii) to recover damages for fraud, material misrepresentation, material breach willful misconduct of warranty or intentional physical wasteany Recourse Party in connection with the Loan;
(iii) to recover the breach of any Condemnation Proceeds or Insurance Proceeds or other similar funds which have been misappropriated by Borrower or which, under the terms of indemnification provision in the Loan DocumentsDocuments concerning environmental laws, should have been paid to Lenderhazardous substances and asbestos and any indemnification of Lender with respect thereto;
(iv) material physical waste to recover (A) any Tenant security deposits, Tenant letters Property caused by the intentional acts of credit or other deposits or fees paid to Borrower or (B) prepaid rents for a period of more than thirty (30) days in advance of its due date which have not been delivered to Lender;
(v) to recover Business Income received by Borrower during an Event of Default which have not been applied to the Loan or in accordance with the Loan Documents to operating and maintenance expenses of the Property;
(vi) to recover damages, costs and expenses arising from, or in connection with the provisions of the Mortgage pertaining to Hazardous Materials or the Environmental Indemnity;
(vii) to recover any amount expended by Lender in connection with the foreclosure of the Mortgage, but only in the event that any Borrower or any Guarantor takes action to impede such foreclosure or otherwise contests the foreclosure in bad faith;
(viii) to recover damages, costs and expenses arising from, or in connection with, the failure by Borrower to pay Taxes and Insurance Premiums when due to the extent that Borrower was not required to deposit such amounts with Lender pursuant to Section 6 hereofRecourse Party, but only to the extent there was available revenue is sufficient cash flow from the Property Properties to prevent such physical waste and such cash flow is made available by Lender for the period purpose of preventing such physical waste;
(v) the removal of any property in question sufficient contravention of the Loan Documents during the continuance of an Event of Default other than in the ordinary course of business;
(vi) the misappropriation or conversion of any of the following by a Recourse Party in contravention of the Loan Documents: (A) any insurance proceeds received by Borrower by reason of any Casualty, (B) any Awards or other amounts received by Borrower from a governmental authority in connection with a Condemnation of all or a portion of the Property, or (C) any revenues generated by the Properties;
(vii) any Security Deposits, advance deposits or any other deposits collected with respect to pay any Property which are not delivered to Lender upon a foreclosure of such Taxes Property or action in lieu thereof, except to the extent any such Security Deposits were applied in accordance with the terms and Insurance Premiumsconditions of any of the applicable Lease;
(viii) any litigation or other legal proceeding related to the Loan filed by a Recourse Party with the effect of delaying, opposing, impeding, obstructing, hindering, enjoining or otherwise interfering with the efforts of L▇▇▇▇▇ to exercise any rights and remedies available to Lender during the continuance of an Event of Default; provided, however, that there shall be no liability hereunder on account of, and provided further that the foregoing shall not restrict, B▇▇▇▇▇▇▇’s or Guarantor’s right to, dispute, in good faith, whether the relevant Event of Default shall have occurred or whether an action taken by Lender pursuant to the Loan Documents is permitted thereby, nor shall Borrower be restricted from, or have liability hereunder for, bringing a good faith counterclaim which if not raised in the foreclosure proceeding would be barred, and which does not prevent such proceeds from being so appliedseek to enjoin the enforcement action by L▇▇▇▇▇;
(ix) Borrower fails to recover damagesobtain L▇▇▇▇▇’s prior written consent to any additional indebtedness or voluntary lien encumbering any Property and not permitted by the Loan Documents;
(x) a material breach by Borrower of Section 5.5;
(xi) any voluntary termination, costs and expenses arising or any voluntary, material modification of any Ground Lease by Borrower without L▇▇▇▇▇’s prior written consent other than as expressly permitted under this Agreement; provided, that the liability with respect to this Section 13.1(a)(xi) shall not exceed the Allocated Loan Amount of the applicable Ground Leased Property;
(xii) (A) any voluntary termination of any PILOT Lease and/or PILOT Document or transfer or surrender of any PILOT Lease and/or PILOT Document (including any PILOT Bond) by Borrower without L▇▇▇▇▇’s prior written consent other than in connection with Borrower acquiring the fee estate from the failure applicable PILOT Lessor or as otherwise expressly permitted under this Agreement, (B) any termination of any PILOT Lease and/or PILOT Document as a result of a foreclosure of the representations set forth applicable Security Instrument or deed in Section 3.1.8 to be true lieu thereof or (C) Borrower’s or the applicable Tenant’s failure to comply with or Borrower’s or the provisions applicable Tenant’s breach of Sections 4.2.11 of this Agreement; and
any PILOT Lease and/or PILOT Document that results in (x) to recover damagesa reduction of any tax abatement and/or mandatory repayment of any past or current tax abatement under such PILOT Lease and/or PILOT Document, costs as applicable, (y) termination of such PILOT Lease and/or PILOT Document, as applicable, and expenses arising from, or the benefits thereunder in connection with, any Lien arising from a written instrument executed by any favor of Borrower or Tenant or (z) a default by such Borrower under the applicable Lease for such PILOT Property (and, in any Affiliate thereof expressly creating such Liencase, Losses shall include lost rental income); provided, that, in each case, the liability with respect to this Section 13.1(a)(xii) shall not exceed the extent such Lien is prohibited under Allocated Loan Amount of the applicable PILOT Property; and/or
(xiii) other than as set forth in Section 13.1(b)(v), a breach by Borrower of any covenant of Article 5 of this AgreementAgreement documents (excluding any provision requiring each Borrower to remain solvent, maintain adequate capital or pay its debts as they come due).
(b) Notwithstanding anything to the foregoingcontrary in this Agreement, the agreement of Lender not to limit recourse liability as set forth in Section 11.22(a) above SHALL BECOME NULL AND VOID and shall be of no further force and effect and the Debt shall be fully recourse to Borrower (and to Guarantor under the Guaranty, on the additional terms and conditions thereof and subject to any limitations set forth herein or therein) in the event that:
(i) any Borrower commences a voluntary bankruptcy or insolvency proceeding;
(ii) an involuntary bankruptcy or insolvency proceeding is commenced against any Borrower and is not dismissed within 90 days of filing; or
(iii) voluntary Transfer of the Property occurs by written instrument executed by any Borrower Note or any Affiliate thereof, which instrument expressly effects such Transfer, or a Secondary Financing is voluntarily incurred in violation of the Loan Documents, except as otherwise consented to by (A) Lender in writing (which consent may be withheld in Lender’s sole discretion).
(c) Notwithstanding the provisions of clauses (i) and (ii) of Section 11.22(b) no Guarantor shall be liable for any amount related to a Qualified Involuntary Bankruptcy.
(d) In addition, this agreement shall not waive be deemed to have waived any rights right which Lender would may have under Section 506(a), 506(b), 1111(b) or any other provisions of Title 11 of the Bankruptcy Code to file a claim for the full amount of the Debt or to require that the Property all collateral shall continue to secure all of the DebtDebt 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 or any SPE Component Entity or any Affiliate thereof files, or joins in the filing of, a petition against Borrower under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law, or solicits or causes to be solicited (or otherwise colludes with) petitioning creditors for any involuntary petition against Borrower, (ii) Borrower or any SPE Component Entity or any Affiliate thereof files an answer consenting to an involuntary petition filed against Borrower (other than any answer which is required to be made by applicable law), by any other person under the Bankruptcy Code or any other federal or state bankruptcy or insolvency law, (iii) Borrower or any SPE Component Entity consents to or joins in an application for the appointment of a custodian, receiver, trustee, or examiner for Borrower (other than with the prior written consent of Lender), (iv) Borrower makes an assignment for the benefit of creditors (other than to Lender in connection with the Loan or with the prior written consent of Lender); (v) there is a breach of any provision of Article 5 (Single Purpose Entity Covenants) hereof or the separateness covenants contained in the Borrower’s or SPE Component Entity’s organizational documents (excluding, in each case, any provision requiring each Borrower to remain solvent, maintain adequate capital or pay its debts as they come due) and such breach is cited by a court of competent jurisdiction in a final order in a proceeding under the Bankruptcy Code as a material factor in ordering the substantive consolidation of Borrower with any other Person other than a co-Borrower under the Loan; provided that the motion or pleading seeking substantive consolidation was not brought or supported by Lender and, as a result thereof, Borrower is subsequently substantively consolidated in a case under the Bankruptcy Code with any Person other than a co-Borrower under the Loan, or (vi) Borrower fails to obtain L▇▇▇▇▇’s prior consent to (a) the transfer or conveyance of all or any portion of any Property, or (b) the transfer of direct or indirect equity interests in Borrower, in each case in violation of the Loan Documents.
Appears in 1 contract
Sources: Loan Agreement (Industrial Logistics Properties Trust)
Exculpation. 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 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 memberspartner, partners shareholder, member, manager, owner, officer, director, trustee or shareholders employee in or of Borrower (collectively, the "Exculpated Parties") or the employees, agents, directors or officers of Borrower or its AffiliatesBorrower, except that Lender may may
bring an action against Borrower, including a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender to enforce and realize upon its interest under the Note, this Agreement, the Mortgage and the other Loan Documents, or in the Property, the Business IncomeRents, or any other collateral given to Lender pursuant to the Loan Documents or any other assets of Borrower; providedDocuments, 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 Property, in the Business Income Rents and in any other collateral given to Lender or any other assets of BorrowerLender, and Lender, by accepting the Note, this Agreement, the Mortgage and the other Loan Documents, agrees that it shall not ▇▇▇ for, seek or demand any deficiency judgment or any other monetary payment against Borrower or the direct or indirect members, partners or shareholders of Borrower or the employees, agents, directors or officers of Borrower or its Affiliates any Exculpated Parties in any such action or proceeding under or by reason of or under or in connection with the Note, this Agreement, the 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 Mortgage; (c) affect the validity or enforceability of or any guaranty or indemnity 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) impair the enforcement of the Assignment of Leases; or (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 Loan (including the security granted by the Mortgage) or any other assets of Borrower Mortgage or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against such security the Property; or (including g) constitute a waiver of the Property or any other assets of Borrower).
(a) Nothing contained in this Section 11.22 shall limit the rights right of Lender to proceed against Borrower for enforce the liability and obligation of Borrower, by money judgment or otherwise, to the extent of any 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 (or against Guarantor under the Guaranty, on the additional terms and conditions thereof and subject to any limitations set forth herein or therein):following:
(i) to enforce any Leases entered into fraud or intentional misrepresentation by Borrower or its Affiliates as Tenantany guarantor in connection with the Loan;
(ii) to recover damages for fraud, material misrepresentation, material breach the gross negligence or willful misconduct of warranty or intentional physical wasteBorrower;
(iii) to recover the breach of any Condemnation Proceeds representation, warranty, covenant or Insurance Proceeds indemnification provision in the Environmental Indemnity or other similar funds which have been misappropriated by Borrower or whichin the Mortgage concerning environmental laws, under the terms hazardous substances and asbestos and any indemnification of the Loan Documents, should have been paid to LenderLender with respect thereto in either document;
(iv) to recover (A) the removal or disposal of any Tenant security deposits, Tenant letters portion of credit the Property after an Event of Default without replacing the same with an item or other deposits or fees paid to Borrower or (B) prepaid rents for a period items of more than thirty (30) days in advance of its due date which have not been delivered to Lendercomparable value;
(v) to recover Business Income received the misapplication or conversion by Borrower during 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 which have not been applied Default;
(vi) failure to the Loan pay charges for labor or in accordance with the Loan Documents to operating and maintenance expenses materials or other charges that can create liens on any portion of the Property;
(vi) to recover damages, costs and expenses arising from, or in connection with the provisions of the Mortgage pertaining to Hazardous Materials or the Environmental Indemnity;
(vii) any security deposits, advance deposits or any other deposits collected with respect to recover any amount expended by the Property which are not delivered to Lender in connection with the upon a foreclosure of the MortgageProperty or action in lieu thereof, but only except to the extent any such security deposits were applied in accordance with the event terms and conditions of any of the Leases prior to the occurrence of the Event of Default that any Borrower or any Guarantor takes action gave rise to impede such foreclosure or otherwise contests the foreclosure action in bad faithlieu thereof;
(viii) to recover damages, costs and expenses arising from, or Borrower's indemnification of Lender set forth in connection with, the failure by Borrower to pay Taxes and Insurance Premiums when due to the extent that Borrower was not required to deposit such amounts with Lender pursuant to Section 6 9.2 hereof, but only to the extent there was available revenue from the Property for the period in question sufficient to pay such Taxes and Insurance Premiums, and provided further that Lender does not prevent such proceeds from being so applied;
(ix) to recover damages, costs and expenses arising from the failure of the representations set forth in Section 3.1.8 to be true or Borrower’s failure to comply with the provisions of Sections 4.2.11 of this Agreementmaintain Borrower's status as a single purpose entity; and
(x) failure to recover damagespermit on-site inspections of the Property, costs failure to provide financial information or failure to appoint a new property manager upon the request of Lender after an Event of Default, each as required by, and expenses arising from, or in connection accordance with, any Lien arising from a written instrument executed by any Borrower or any Affiliate thereof expressly creating such Lienthe terms and provisions of, to the extent such Lien is prohibited under this Agreement.
(b) Notwithstanding the foregoing, the agreement of Lender not to limit recourse liability as set forth in Section 11.22(a) above SHALL BECOME NULL AND VOID and shall be of no further force and effect Agreement and the Debt Mortgage, if such condition shall be fully recourse to Borrower continue for five (and to Guarantor under the Guaranty, on the additional terms and conditions thereof and subject to any limitations set forth herein or therein5) in the event that:Business Days after notice thereof.
(i) Borrower fails to obtain Lender's prior written consent to any Borrower commences a subordinate financing or other voluntary bankruptcy or insolvency proceeding;lien encumbering the Property; or
(ii) an involuntary bankruptcy Borrower fails to obtain Lender's prior written consent to any assignment, transfer, or insolvency proceeding is commenced against any Borrower and is not dismissed within 90 days of filing; or
(iii) voluntary Transfer conveyance of the Property occurs by written instrument executed by any Borrower or any Affiliate thereof, which instrument expressly effects such Transfer, interest therein as required by the Mortgage or a Secondary Financing is voluntarily incurred in violation of the Loan Documents, except as otherwise consented to by Lender in writing (which consent may be withheld in Lender’s sole discretion)this Agreement.
(c) Notwithstanding the provisions of clauses (i) and (ii) of Section 11.22(b) no Guarantor shall be liable for any amount related to a Qualified Involuntary Bankruptcy.
(d) In addition, this agreement shall not waive any rights which Lender would have under any provisions of Title 11 of the Bankruptcy Code to file a claim for the full amount of the Debt or to require that the Property shall continue to secure all of the Debt.
Appears in 1 contract
Exculpation. Subject to the qualifications below, Lender shall not enforce the liability and obligation of Borrower or its constituent members, partners, shareholders, directors, employees or agents or the direct or indirect constituent members, partners, shareholders, directors, employees or agents thereof (collectively, the “Borrower Parties”) or any other Person, to perform and observe the obligations contained in the Note, this Agreement, the Mortgage Note or any of the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against any of the Borrower Parties or any direct or indirect members, partners or shareholders of Borrower or the employees, agents, directors or officers of Borrower or its Affiliatesother Person, except that Lender may bring an action against Borrower, including a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender to enforce and realize upon its interest under the Note, this Agreement, the Mortgage and the other Loan Documents, or in the Property, the Business Income, all or any other collateral given to Lender pursuant to portion of the Loan Documents or any other assets of BorrowerCollateral; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against the Borrower Parties only to the extent of Borrower’s their interest in the Property, in the Business Income in any other collateral given to Lender or any other assets of BorrowerCollateral, and Lender, by accepting the Note, this Agreement, the Mortgage Note and the other Loan Documents, agrees that it shall not ▇s▇▇ for, seek or demand any deficiency judgment against any of the Borrower Parties or any other monetary payment against Borrower or the direct or indirect members, partners or shareholders of Borrower or the employees, agents, directors or officers of Borrower or its Affiliates Person in any such action or proceeding under or by reason of or under or in connection with the Note, this Agreement, the Mortgage Note or any of 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 this Agreement, the Note or any of the other Loan Documents; (bii) impair the right of Lender to name any of the Borrower Parties, as a party defendant in any action or suit for foreclosure and sale in connection with exercising its remedies under the MortgageSecurity Documents and the Pledged Securities; (ciii) affect the validity or enforceability of any guaranty or indemnity made in connection with the Loan (including, without limitation, the Guaranty) or any of the rights and remedies of Lender thereunder; (div) impair the right of Lender to obtain the appointment of a receiver; (e) impair the enforcement of the Assignment of Leases; or (fv) constitute a prohibition against waiver of the right of Lender to seek a deficiency enforce the liability and obligation of Borrower (but not against any members of Borrower (other than Guarantor to the extent provided in the Non-Recourse Guaranty) or their direct or indirect constituent members or partners or any other Person), by money judgment against Borrower in order or otherwise, to fully realize on the extent of any security given loss, damage, cost, expense, liability, claim or other obligation (but excluding any punitive, consequential or speculative damages) incurred by Borrower Lender (including attorneys’ fees and costs reasonably incurred) arising out of or in connection with the Loan (including the security granted by the Mortgage) or any other assets of Borrower or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against such security (including the Property or any other assets of Borrower).following:
(a) Nothing contained fraud or intentional misrepresentation by Borrower, Owner or Guarantor in this Section 11.22 shall limit connection with the rights of Lender to proceed against Borrower for any of the following (or against Guarantor under the Guaranty, on the additional terms and conditions thereof and subject to any limitations set forth herein or therein):
(i) to enforce any Leases entered into by Borrower or its Affiliates as TenantLoan;
(iib) intentional physical waste of the Property (including, but not limited to, waste due to recover damages for fraudgross negligence) by Borrower, material misrepresentationOwner or any affiliate thereof; provided, however, such physical waste shall exclude wear and tear to the Property that occurs in the ordinary course of business of the Property by Borrower, Owner or any affiliate thereof;
(c) the material breach of warranty any representation, warranty, covenant or intentional physical wasteindemnification provision in the Environmental Indemnity or in this Agreement concerning Environmental Laws, Hazardous Substances or Asbestos;
(iiid) to recover the removal or disposal by Borrower, Owner or any Condemnation Proceeds or Insurance Proceeds or other similar funds which have been misappropriated by Borrower or which, under the terms affiliate thereof of any portion of the Loan Documents, should have been paid to Lender;
(iv) to recover (A) any Tenant security deposits, Tenant letters of credit or other deposits or fees paid to Borrower or (B) prepaid rents for a period of more than thirty (30) days in advance of its due date which have not been delivered to Lender;
(v) to recover Business Income received by Borrower during Property after an Event of Default which have not been applied has occurred and while it is continuing, unless such portion of the Property is replaced by an item of equal or greater value as determined by Lender in its reasonable discretion;
(e) the misapplication or conversion by Borrower, Owner or any affiliate thereof of (i) any insurance proceeds paid by reason of any loss, damage or destruction to the Property, (ii) any awards or other amounts received in connection with the condemnation of all or a portion of the Property, (iii) any Rents following an Event of Default or (iv) any Rents paid more than one (1) month in advance;
(f) failure to pay charges for labor or materials or taxes or other charges that can create liens superior to the lien of the Mortgage on any portion of the Property unless such taxes or other charges are being contested in accordance with the Senior Loan Documents or in accordance with the terms herewith or such taxes or charges have been delivered to Senior Lender in accordance with the terms of the Senior Loan Documents to operating and maintenance expenses of the Propertyor Borrower has complied with Section 5.2 hereof;
(vig) any security deposits collected by Borrower, Owner or any affiliate thereof with respect to recover damagesthe Property which are not delivered to Lender (subject to the rights of Senior Lender) upon a foreclosure of the Property or action in lieu thereof, costs and expenses arising from, or except to the extent any such security deposits were applied in connection accordance with the provisions terms and conditions of any of the Mortgage pertaining Leases prior to Hazardous Materials the occurrence of the Event of Default that gave rise to such foreclosure or the Environmental Indemnityaction in lieu thereof;
(viih) to recover any amount expended by Lender in connection with the foreclosure of the Mortgage, but only in the event that any Borrower or any Guarantor takes action to impede such foreclosure or otherwise contests the foreclosure in bad faith;
(viii) to recover damages, costs and expenses arising from, or in connection with, the failure by Borrower to pay Taxes and Insurance Premiums when due to the extent that Borrower was not required cause Owner to deposit such amounts with Senior Lender pursuant to Section 6 hereofall Rents, but only to the extent there was available revenue from the Property for the period in question sufficient to pay such Taxes and Insurance Premiums, and provided further that Lender does not prevent such proceeds from being so applied;
(ix) to recover damages, costs and expenses arising from the failure as required under Article 3 of the representations set forth in Section 3.1.8 to be true or Borrower’s failure to comply with the provisions of Sections 4.2.11 of this Senior Loan Agreement; and
(x) to recover damages, costs and expenses arising from, or in connection with, any Lien arising from a written instrument executed by any Borrower or any Affiliate thereof expressly creating such Lien, to the extent such Lien is prohibited under this Agreement.
(b) Notwithstanding the foregoing, the agreement of Lender not to limit recourse liability as set forth in Section 11.22(a) above SHALL BECOME NULL AND VOID and shall be of no further force and effect and the Debt shall be fully recourse to Borrower (and to Guarantor under the Guaranty, on the additional terms and conditions thereof and subject to any limitations set forth herein or therein) in the event that:or
(i) the failure by Borrower to cause Owner to use any Borrower commences a voluntary bankruptcy or insolvency proceeding;
(ii) an involuntary bankruptcy or insolvency proceeding is commenced against funds released by Senior Lender from any Borrower and is not dismissed within 90 days of filing; or
(iii) voluntary Transfer subaccount provided for in the Senior Loan Agreement for the intended use therefor in default of the Property occurs by written instrument executed by requirements of the Senior Loan Agreement. Notwithstanding anything to the contrary in any Borrower or any Affiliate thereof, which instrument expressly effects such Transfer, or a Secondary Financing is voluntarily incurred in violation of the Loan Documents, except as otherwise consented to by Lender in writing (which consent may be withheld in Lender’s sole discretion).
(c) Notwithstanding the provisions of clauses Documents (i) and (ii) of Section 11.22(b) no Guarantor shall be liable for any amount related to a Qualified Involuntary Bankruptcy.
(d) In addition, this agreement Lender shall not waive be deemed to have waived any rights right which Lender would may have under Section 506(a), 506(b), 1111(b) or any other provisions of Title 11 of the Bankruptcy Code to file a claim for the full amount of the Debt or to require that the Property all collateral shall continue to secure all of the Debt.Debt owing to Lender in accordance with the Loan Documents, and (ii) the Debt shall become fully recourse to Borrower (but not its members (other than Guarantor solely to the extent provided in the Non-Recourse Guaranty) or other direct or indirect constituent members or partners or any other Person) in the event that: (A) the first full Monthly Debt Service Payment Amount under the Note is not paid when due; (B) other than in connection with a default under subsection (x) of the definition of Special Purpose Bankruptcy Remote Entity set forth in Schedule 5 hereto, Borrower fails to maintain its status as a Special Purpose Bankruptcy Remote Entity in accordance with the provisions of this Agreement and such failure results in the substantive consolidation of Borrower with another Person; (C) except as otherwise permitted pursuant to the Loan Documents, Borrower fails to obtain Lender’s prior written consent to any subordinate financing or other voluntary lien encumbering the Property or any portion of the Collateral;
Appears in 1 contract
Sources: Senior Mezzanine Loan Agreement (Maguire Properties Inc)
Exculpation. 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 Mortgage Pledge or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against the Borrower or any direct or indirect members, partners or shareholders of Borrower or the employees, agents, directors or officers of Borrower or its AffiliatesBorrower, except that Lender may bring an action against Borrower, including a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender to enforce and realize upon its interest under the Note, this Agreement, the Mortgage Pledge and the other Loan Documents, or in the Property, the Business Income, Collateral or any other collateral given to Lender pursuant to the Loan Documents or any other assets of BorrowerDocuments; 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 Business Income in any other collateral given to Lender or any other assets of Borrower, Collateral and Lender, by accepting the Note, this Agreement, the Mortgage Pledge and the other Loan Documents, agrees that it shall not ▇▇▇ for, seek or demand any deficiency judgment or any other monetary payment against Borrower or the direct or indirect members, partners or shareholders of Borrower or the employees, agents, directors or officers of Borrower or its Affiliates in any such action or proceeding under under, or by reason of or under of, or in connection with with, the Note, this Agreement, the Mortgage Pledge 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 MortgagePledge; (c) affect the validity or enforceability of or any guaranty or indemnity Guaranty made in connection with the Loan (including, without limitation, the Guaranty) or any of the rights and remedies of Lender thereunder; (d) impair the right of Lender to obtain the appointment of a receiver; (e) impair the enforcement of the Assignment of Leases; or (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 Loan (including the security granted by the Mortgage) or any other assets of Borrower Pledge or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against such security the Collateral; or (including f) constitute a waiver of the Property or any other assets of Borrower).
(a) Nothing contained in this Section 11.22 shall limit the rights right of Lender to proceed against Borrower for enforce the liability and obligation of Borrower, by money judgment or otherwise, to the extent of any 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 (or against Guarantor under the Guaranty, on the additional terms and conditions thereof and subject to any limitations set forth herein or therein):following:
(i) to enforce fraud or intentional misrepresentation by Borrower, Owner, Guarantor or any Leases entered into by Borrower or its Affiliates as TenantAffiliate thereof in connection with the Loan;
(ii) waste by Borrower, Owner, Guarantor or any Affiliate thereof to recover damages for fraud, material misrepresentation, material breach one or more of warranty or intentional physical wastethe Individual Properties;
(iii) to recover the gross negligence or willful misconduct of Borrower, Owner, Guarantor or any Condemnation Proceeds Affiliate thereof;
(iv) the breach of any representation, warranty, covenant or Insurance Proceeds indemnification provision in the Environmental Indemnity concerning environmental laws, hazardous substances and asbestos and any indemnification of Lender with respect thereto;
(v) the removal or other similar funds which have been misappropriated disposal by Borrower, Owner, Guarantor or any Affiliate thereof of any portion of one or more of the Properties after the occurrence and during the continuance of an Event of Default;
(vi) the misappropriation or conversion by Borrower or whichOwner of (A) any Insurance Proceeds paid by reason of any Casualty, (B) any Awards received in connection with a Condemnation, (C) any Rents after the occurrence and during the continuance of an Event of Default, or (D) any Rents paid more than one (1) month in advance;
(vii) failure to pay charges for labor or materials or other charges that can create Liens on any portion of the Properties;
(viii) any security deposits, advance deposits or any other deposits collected or held by Borrower, Owner or any Affiliate thereof with respect to the Properties which are not delivered to Senior Lender upon a foreclosure of the Properties or acceptance of a deed in lieu thereof or a foreclosure of the Collateral, 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;
(ix) any amounts received by Borrower or any Affiliate thereof that are not deposited into the Lockbox Account to the extent required to be so deposited hereunder or under the Cash Management Agreement;
(x) if (1) Borrower or Owner fails to permit on-site inspections of any of the Properties, subject to terms of each respective Operating Lease, upon the request of Lender or (2) Borrower fails to provide financial information concerning Borrower, Owner, Principal or Guarantor in its possession (or financial information which could be obtained by Borrower through commercially reasonable efforts) or (3) Borrower fails to provide financial information in its possession or control (or financial information which could be obtained by Borrower through commercially reasonable efforts) concerning any Operator Tenant or collections under the Operating Leases, in each case, to the extent required by and in accordance with the terms and provisions of this Agreement; or
(xi) any breach of the representations and warranties set forth in Section 4.1.30(a) and (b) hereof (except for any representation or warrants that Borrower or Principal will remain solvent, maintain adequate capital or pay its debts or liabilities as the same may become due); and
(a) Borrower or Owner 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 or Owner under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law, which is assisted, supported, aided or abetted by Borrower, Owner and/or Guarantor or with respect to which Borrower, Owner and/or Guarantor fails to contest (where good grounds exist for such contest); (c) Borrower or Owner 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, or soliciting or causing to be solicited petitioning creditors for any involuntary petition from any Person; (d) Borrower or Owner consenting to or acquiescing in or joining in an application for the appointment of a custodian, receiver, trustee, or examiner for Borrower, Owner or any material portion of any Property or the Collateral; or (e) Borrower or Owner making a general 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 Borrower or Owner fails to maintain its status as a Single Purpose Entity, as required by, and in accordance with, the terms and provisions of the Loan Agreement or the other Loan Documents (except for any covenant to remain solvent, maintain adequate capital or pay its debts or liabilities as they become due or the additional covenant to comply with any assumption in the Insolvency Opinion in any Additional Insolvency Opinion); (iii) if Borrower fails to obtain Lender’s prior consent to any Indebtedness or voluntary Lien encumbering one or more of the Individual Properties or any material portion of one or more of the Individual Properties or all or any part of the Collateral the extent required by the Loan Agreement; or (iv) if Borrower fails to obtain Lender’s prior consent to any Transfer (other than a foreclosure or acceptance of a deed in lieu of foreclosure with respect to one or more of the Properties by Senior Lender or a foreclosure by Lender of or Lender’s acceptance of an assignment in lieu of foreclosure with respect to all or part of the Pledged Collateral) to the extent required by the Loan Agreement). Notwithstanding anything to the contrary in any of the Loan Documents, should including without limitation anything to the contrary in the immediately preceding paragraphs or elsewhere in this Agreement, Borrower shall not have been paid to Lender;
(iv) to recover (A) any Tenant security depositsobligations or liabilities hereunder for any loss, Tenant letters of credit damage, cost, expense, liability, claim or other deposits or obligation incurred by Lender (including reasonable attorneys’ fees paid to Borrower or (Band costs reasonably incurred) prepaid rents for a period arising out of more than thirty (30) days in advance of its due date which have not been delivered to Lender;
(v) to recover Business Income received by Borrower during an Event of Default which have not been applied to the Loan or in accordance with the Loan Documents to operating and maintenance expenses of the Property;
(vi) to recover damages, costs and expenses arising from, or in connection with the provisions (i) any action or inaction of the Mortgage pertaining to Hazardous Materials or the Environmental Indemnity;
(vii) to recover any amount expended by Lender in connection with the foreclosure of the Mortgage, but only in the event that any Borrower Pledged Company or any Guarantor takes action to impede such foreclosure Person owned or otherwise contests the foreclosure in bad faith;
(viii) to recover damages, costs and expenses arising from, or in connection with, the failure controlled by Borrower to pay Taxes and Insurance Premiums when due to the extent that Borrower was not required to deposit such amounts with Lender pursuant to Section 6 hereof, any Pledged Company but only to the extent there was available revenue such action or inaction results from the Property for the period in question sufficient to pay exercise of control over any Pledged Company or such Taxes and Insurance Premiums, and provided further that Lender does not prevent such proceeds from being so applied;
(ix) to recover damages, costs and expenses arising from the failure of the representations set forth in Section 3.1.8 to be true entity owned or Borrower’s failure to comply with the provisions of Sections 4.2.11 of this Agreement; and
(x) to recover damages, costs and expenses arising from, or in connection with, any Lien arising from a written instrument executed controlled by any Borrower or any Affiliate thereof expressly creating such LienPledged Company by Lender, to the extent such Lien is prohibited under this Agreement.
(b) Notwithstanding the foregoing, the agreement of Lender not to limit recourse liability as set forth in Section 11.22(a) above SHALL BECOME NULL AND VOID and shall be of no further force and effect and the Debt shall be fully recourse to Borrower (and to Guarantor under the Guaranty, on the additional terms and conditions thereof and subject to any limitations set forth herein or therein) in the event that:
(i) any Borrower commences a voluntary bankruptcy or insolvency proceeding;
(ii) any act or omission which occurs after the completion of a private or public sale of the Pledged Collateral or after acceptance of an involuntary bankruptcy assignment in lieu of foreclosure with respect to the Pledged Company Interests or insolvency proceeding is commenced against any Borrower and is not dismissed within 90 days of filing; or
(iii) voluntary Transfer any act or omission relating to any Individual Property which occurs after Lender completes a foreclosure with respect to such Individual Property or accepts a deed in lieu of the Property occurs by written instrument executed by any Borrower or any Affiliate thereof, which instrument expressly effects foreclosure with respect to such Transfer, or a Secondary Financing is voluntarily incurred in violation of the Loan Documents, except as otherwise consented to by Lender in writing (which consent may be withheld in Lender’s sole discretion)Individual Property.
(c) Notwithstanding the provisions of clauses (i) and (ii) of Section 11.22(b) no Guarantor shall be liable for any amount related to a Qualified Involuntary Bankruptcy.
(d) In addition, this agreement shall not waive any rights which Lender would have under any provisions of Title 11 of the Bankruptcy Code to file a claim for the full amount of the Debt or to require that the Property shall continue to secure all of the Debt.
Appears in 1 contract
Exculpation. Subject to the qualifications below, Lender shall not enforce the liability and obligation of Borrower Borrowers to perform and observe the obligations contained in the NoteNotes, this Agreement, the Mortgage or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against the Borrower or any direct or indirect members, partners or shareholders of Borrower or the employees, agents, directors or officers of Borrower or its AffiliatesBorrower, except that Lender may bring an action against Borrower, including a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender to enforce and realize upon its interest under the NoteNotes, this Agreement, the Mortgage and the other Loan Documents, or in the any Property, the Business IncomeRents, the IP or any other collateral given to Lender pursuant to the Loan Documents or any other assets of BorrowerDocuments; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against any Borrower only to the extent of such Borrower’s interest in the its Property, in its Rents, in the Business Income IP and in any other collateral given by it to Lender or any other assets of BorrowerLender, and Lender, by accepting the NoteNotes, this Agreement, the Mortgage and the other Loan Documents, agrees that it shall not ▇▇▇ for, seek or demand any deficiency judgment or against any other monetary payment against Borrower or the direct or indirect members, partners or shareholders of Borrower or the employees, agents, directors or officers of Borrower or its Affiliates in any such action or proceeding under under, or by reason of or under of, or in connection with with, the NoteNotes, this Agreement, the Mortgage or the other Loan Documents. The provisions of this Section 9.4 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 any Borrower as a party defendant in any action or suit for foreclosure and sale under the Mortgage; (c) affect the validity or enforceability of or any guaranty or indemnity made in connection with the Loan (Loan, including, without limitation, the Non-Recourse Guaranty) , or any of the rights and remedies of Lender thereunder; (d) impair the right of Lender to obtain the appointment of a receiver; (e) impair the enforcement of the Assignment of Leases; or (f) constitute a prohibition against Lender to seek seeking a deficiency judgment against any Borrower in order to fully realize on any security given by Borrower in connection with the Loan (including the security granted by the Mortgage) Mortgage or any other assets of Borrower or to commence commencing any other appropriate action or proceeding in order for Lender to exercise its remedies against such security (including the any Property or any other assets the IP; or (g) constitute a waiver of Borrower).
(a) Nothing contained in this Section 11.22 shall limit the rights right of Lender to proceed against Borrower for enforce the liability and obligation of any Borrower, by money judgment or otherwise, to the extent of any actual loss, damage (excluding any lost revenue, diminution of value and other consequential damages), reasonable cost, reasonable 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 acts (or against Guarantor under failures to act) which occur on or after the Guaranty, on the additional terms and conditions thereof and subject to any limitations set forth herein or therein):Closing Date:
(i) to enforce fraud or intentional misrepresentation by any Leases entered into by Borrower Borrower, BREF HR, Guarantor or its Affiliates as Tenantany of their respective principals, officers, agents or employees, including Resort Manager, Liquor Manager and Gaming Operator (collectively, “Manager Parties”), in connection with the Loan;
(ii) physical waste to recover damages for fraudany Property arising from the intentional misconduct or gross negligence of any Borrower, material misrepresentationBREF HR, material breach Guarantor or any of warranty their respective principals, officers, agents or intentional physical wasteemployees, including Manager Parties, and/or any removal of any asset forming a part of any Property in violation of this Agreement or the other Loan Documents;
(iii) any and all liabilities relating to recover any Condemnation Proceeds or Insurance Proceeds or other similar funds which have been misappropriated by the employees of Gaming Borrower, including, but not limited to, all obligations and liabilities of Gaming Borrower or which, under the terms Employee Lease, including any of the Loan Documents, should have been paid such liabilities as to Lenderwhich Gaming Borrower and LVHR are “co-employers” thereunder;
(iv) to recover the misappropriation or conversion by any Borrower, by any Person Controlled by any Borrower, including, without limitation, any Affiliated Manager, a Liquor Manager who is an Affiliate of any Borrower or a Gaming Operator who is an Affiliate of any Borrower, by any agent of any Borrower, or by any other Person with whom any Borrower shall collude or cooperate, or by any Manager Party, of (A) any Tenant security depositsInsurance Proceeds paid by reason of any Casualty, Tenant letters of credit to the extent so misappropriated or other deposits or fees paid to Borrower or converted; (B) prepaid rents for any Awards received in connection with a period of more than thirty Condemnation, to the extent so misappropriated or converted; (30C) days in advance of its due date which have any Rents or other Gross Income from Operations not been delivered to Lender;
(v) to recover Business Income received by Borrower Lender following and during the continuance of an Event of Default which have and not been applied to the Loan or in accordance with the Loan Documents to operating and maintenance expenses of the Property;
(vi) to recover damages, costs and expenses arising from, or in connection with the provisions of the Mortgage pertaining to Hazardous Materials or the Environmental Indemnity;
(vii) to recover any amount expended by Lender in connection with the foreclosure of the Mortgage, but only in the event that any Borrower or any Guarantor takes action to impede such foreclosure or otherwise contests the foreclosure in bad faith;
(viii) to recover damages, costs and expenses arising from, or in connection with, the failure by Borrower used to pay Taxes and Insurance Premiums when due to actual, customary Operating Expenses reflected on the extent that Borrower was not required to deposit such Approved Annual Budget then in effect, including, without limitation, (I) any income, proceeds or other amounts with Lender pursuant to Section 6 hereof, but only to the extent there was available revenue from the Property for the period in question sufficient to pay such Taxes and Insurance Premiums, and provided further that Lender does not prevent such proceeds from being so applied;
(ix) to recover damages, costs and expenses arising from the failure of the representations set forth in Section 3.1.8 to be true or Borrower’s failure to comply with the provisions of Sections 4.2.11 of this Agreement; and
(x) to recover damages, costs and expenses arising from, or in connection with, any Lien arising from a written instrument executed received by any Borrower or any Affiliate thereof expressly creating such Lienunder the Casino Component Lease or the Gaming Management Agreement, and/or (II) without duplication of the foregoing clause (I), any income, proceeds or revenue generated from gaming activities at any Property, in each of the foregoing instances, to the extent so misappropriated or converted; (D) any Rents paid more than one (1) month in advance in violation of this Agreement or the other Loan Documents, to the extent so misappropriated or converted; and/or (E) any security deposits, to the extent so misappropriated or converted;
(v) the failure to pay (or to deposit into the Reserve Funds amounts sufficient to pay) all Taxes and all other costs giving rise to any Lien on any portion of any Property or the IP with priority over or equal to the Lien of the Loan Documents in violation of this Agreement or the other Loan Documents, to the extent that there is sufficient Gross Income from Operations to make such payments (or deposits, as applicable);
(vi) if any Borrower fails to maintain its status as a Special Purpose Entity as required pursuant to the terms hereof;
(vii) if Borrowers fail to obtain Lender’s consent to any subordinate financing, mortgage or other voluntary Lien is prohibited encumbering any Property or the IP other than Permitted Encumbrances and Permitted IP Encumbrances;
(viii) the failure to maintain insurance coverage under blanket insurance policies (to the extent permitted under this Agreement.Agreement and elected by Borrowers);
(bix) Notwithstanding if any of the foregoing, the agreement of Lender not restrictions to limit recourse liability as Transfer set forth in Section 11.22(a5.2.10 hereof or in any of the other Loan Documents are violated (provided that a Transfer to Lender in connection with a foreclosure, deed in lieu of foreclosure, or other consensual Transfer to Lender shall in no event give rise to any liability under this clause 9.4(ix) above SHALL BECOME NULL AND VOID and provided further, that any such Transfer to Lender shall be not limit or waive any other liability of no further force and effect and the Debt shall be fully recourse to Borrower (and to Borrowers or Guarantor under the other provisions of this Section 9.4 or the Non-Recourse Guaranty, as applicable);
(x) if Lender or any Affiliate thereof shall succeed to the interest of Hotel/Casino Borrower under the Casino Component Lease following a foreclosure, deed in lieu of foreclosure or similar transfer, any actual loss, cost, damage or expense (including, without limitation, reasonable attorneys’ fees and expenses) suffered by Lender or such Affiliate as a result of: (A) any act, omission, neglect or default of Hotel/Casino Borrower under the Casino Component Lease, (B) any claim, defense, counterclaim or offset which the Gaming Operator may have under the Casino Component Lease, (C) any obligation to make any payment to the Gaming Operator under the Casino Component Lease which was required to be made by or on behalf of Hotel/Casino Borrower prior to the additional terms time Lender or such Affiliate succeeded to Hotel/Casino Borrower’s interest under the Casino Component Lease, (D) any monies deposited with Hotel/Casino Borrower under the Casino Component Lease, except to the extent such monies are actually received by Lender or such Affiliate, (E) any obligation to complete or permit the construction of any improvements under the Casino Component Lease arising while Hotel/Casino Borrower was the landlord under the Casino Component Lease, and/or (F) any default by Hotel/Casino Borrower under the Casino Component Lease beyond applicable notice and conditions cure periods;
(xi) if Hotel/Casino Borrower or any Affiliate thereof shall send a notice to Gaming Operator under Section 6(c) of the Gaming Subordination Agreement which conflicts with any notice theretofore sent by Lender to Gaming Operator under said Section 6(c) of the Gaming Subordination Agreement; provided, however, that the liability under this clause (xi) shall be limited to all fees and subject costs incurred by Gaming Operator in bringing and pursuing any interpleader action contemplated by said Section 6(c) and only to the extent that Gaming Operator seeks to recover and/or does recover such fees and expenses from Lender;
(xii) the hindrance, impediment, obstruction, delay or opposition, by any limitations set forth herein Borrower or thereinany principal, officer, agent, employee or Affiliate thereof, of Lender’s enforcement of its rights and remedies under the Loan Documents, arising in connection with any Default or Event of Default relating to Borrower’s failure to satisfy any obligations under Section 2.4.2(c) or (d) (any such Default or Event of Default, a “Debt Yield Failure”), provided however, in the event that:
(i) that any Borrower commences asserts defenses or claims that are compulsory in nature at the time of the enforcement of Lender’s rights and remedies with respect to a voluntary bankruptcy Debt Yield Failure, and such defenses or insolvency proceedingclaims (x) do not impede or otherwise have the effect of preventing Lender from exercising its rights and remedies under the Loan Documents (including, without limitation, Lender’s right to foreclose under the Security Instrument), and (y) are limited to seeking damages as relief, then Guarantor shall have no liability under this clause (xii);
(iixiii) an involuntary bankruptcy the hindrance, impediment, obstruction, delay or insolvency proceeding is commenced against opposition, by any Borrower or any principal, officer, agent, employee or Affiliate thereof, of Lender’s enforcement of its rights and is not dismissed within 90 days remedies under the Loan Documents due to the failure of filing; orBorrower to pay to Lender on the Maturity Date, the Outstanding Principal Balance including all accrued and unpaid interest thereon and all other amounts due under the Loan Agreement, the Notes, the Security Instrument and the other Loan Documents in accordance this Agreement;
(iiixiv) voluntary Transfer if Borrowers or any Affiliate thereof shall fail to provide Assigned Employees for the operation of gaming activities at the Hotel/Casino Property as and to the extent required pursuant to the Employee Lease;
(xv) if Gaming Borrower shall fail to provide gaming operation services for the Hotel/Casino Property following an Event of Default, a foreclosure of the Mortgage or a deed in lieu of foreclosure, as and to the extent required pursuant to Section 12.1(e) hereof;
(xvi) if Hotel/Casino Borrower, Gaming Borrower, such other Borrower or such Affiliate thereof shall fail to provide liquor management services for the Hotel/Casino Property occurs by written instrument executed by following an Event of Default, a foreclosure of the Mortgage or a deed in lieu of foreclosure, as and to the extent required (A) as to Hotel/Casino Borrower, pursuant to Sections 5(a) or 5(b) of the Assignment of Liquor Management Agreement, as applicable, and (B) as to Gaming Borrower, any other Borrower or any Affiliate thereof, which instrument expressly effects such Transfer, or pursuant to Section 5.1.23(c) hereof;
(xvii) intentionally omitted;
(xviii) as a Secondary Financing is voluntarily incurred in violation result of the imposition of any tax provided in NRS §§375.020 and 375.023 with respect to the transaction contemplated under the Settlement Agreement provided, however, that any liability under this clause (xix) shall terminate upon the payment in full of the Debt;
(xix) intentionally omitted; or
(xx) the occurrence of an Event of Default under Section 8.1(a)(xvii)(A) hereof. Notwithstanding anything to the contrary in this Agreement, the Notes or any of the other Loan Documents, except as otherwise consented to by (A) Lender in writing (which consent may be withheld in Lender’s sole discretion).
(c) Notwithstanding the provisions of clauses (i) and (ii) of Section 11.22(b) no Guarantor shall be liable for any amount related to a Qualified Involuntary Bankruptcy.
(d) In addition, this agreement shall not waive be deemed to have waived any rights right which Lender would may have under Section 506(a), 506(b), 1111(b) or any other provisions of Title 11 of the Bankruptcy Code to file a claim for the full amount of the Debt secured by the Mortgage or to require that the Property all collateral shall continue to secure all of the DebtDebt owing to Lender in accordance with the Loan Documents, and (B) the Debt shall be fully recourse to Borrowers in the event of: (i) any Borrower, BREF HR or Guarantor filing a voluntary petition under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (ii) the filing of an involuntary petition against any Borrower, BREF HR or Guarantor under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law by or on behalf of any Person other than Lender and/or the Servicer, and such petition is not dismissed within ninety (90) days after filing, or any Borrower, or any Affiliate of any of them who Controls any Borrower, or BREF HR or Guarantor, solicit or cause to be solicited petitioning creditors for any involuntary petition against any Borrower, BREF HR or Guarantor from any Person (other than if requested to do so by or on behalf of Lender and/or the Servicer); (iii) any Borrower, BREF HR or Guarantor filing an answer consenting to, or any Borrower, BREF HR or Guarantor, or any Affiliate of any of them who Controls any Borrower, otherwise consenting to or acquiescing or joining in, any involuntary petition filed against any Borrower, BREF HR or Guarantor, by any other Person (other than if filed by or on behalf of Lender and/or the Servicer) under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (iv) any Borrower, BREF HR or Guarantor, or any Affiliate of any of them who Controls any Borrower, consenting to or acquiescing or joining in an application for the appointment of a custodian, receiver, trustee or examiner for any Borrower or any portion of any Property or any portion of the IP (other than any such appointment at the request or petition of Lender and/or the Servicer); or (v) any Borrower, BREF HR or Guarantor voluntarily making an assignment for the benefit of creditors (other than Lender and/or the Servicer), or admitting, in writing or in any legal proceeding, its insolvency or inability to pay its debts as they become due. Notwithstanding the foregoing, no Borrower or Guarantor shall be liable under this paragraph, provided that (x) the entity that files any voluntary petition or takes any other action under clauses (i)-(v) is not Controlled by Guarantor or any Affiliate thereof and (y) Guarantor has not colluded, consented to, acquiesced or joined in or with the Person that files any such petition or takes any such action. For purposes of this Agreement and each of the other Loan Documents, neither the negative capital account of any Constituent Member in any Borrower nor any obligation of any Constituent Member in any Borrower to restore a negative capital account or to contribute or loan capital to any Borrower or to any other Constituent Member in any Borrower shall at any time be deemed to be the property or an asset of such Borrower (or any such other Constituent Member) and neither Lender nor any of its successors or assigns shall have any right to collect, enforce or proceed against any Constituent Member with respect to any such negative capital account or obligation to restore, contribute or loan.
Appears in 1 contract
Sources: Loan Agreement (Bref Hr, LLC)
Exculpation. Subject to the qualifications belowrights of the Banks against FTX and FCX under the FTX Guaranty and the FCX Guaranty, Lender each of the Banks agree for themselves and their heirs, successors and assigns that any claim against FM Properties which may arise for payment of the principal of and interest on the Notes and for fees, expenses and all other amounts payable by FM Properties hereunder shall not enforce be made only against and shall be limited to FM Properties and that no judgment, order or execution entered in any suit, action or proceeding, whether legal or equitable, with respect to payment of the liability and obligation Notes shall be obtained or enforced against any partner of Borrower to perform and observe the obligations contained in the Note, this Agreement, the Mortgage FM Properties or the other Loan Documents by assets of any action or proceeding wherein a money judgment shall be sought partner of FM Properties, any right to proceed against the Borrower partners of FM Properties as a result of their capacity as a partner of FM Properties, individually or any direct or indirect memberstheir respective assets in respect of payment of the Notes being hereby expressly waived, partners or shareholders renounced and remitted by each of Borrower or the employeesBanks for themselves and their heirs, agents, directors or officers of Borrower or its Affiliates, except that Lender may bring an action against Borrower, including a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender to enforce successors and realize upon its interest under the Note, assigns. Nothing in this Agreement, the Mortgage and the other Loan Documents, or in the Property, the Business Income, or any other collateral given to Lender pursuant to the Loan Documents or any other assets of Borrower; providedSubsection 3.4, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower only deemed to the extent of Borrower’s interest in the Property, in the Business Income in any other collateral given to Lender or any other assets of Borrower, and Lender, by accepting the Note, this Agreement, the Mortgage and the other Loan Documents, shall not ▇▇▇ for, seek or demand any deficiency judgment or any other monetary payment against Borrower or the direct or indirect members, partners or shareholders of Borrower or the employees, agents, directors or officers of Borrower or its Affiliates in any such action or proceeding under or by reason of or under or in connection with the Note, this Agreement, the Mortgage or the other Loan Documents. The provisions of this Section shall not, however: (a) constitute be a waiver, release or impairment of any obligation evidenced or secured waiver by any of the Loan Documents; (b) impair Banks or any other holders of the right of Lender to name Borrower as a party defendant in any action or suit for foreclosure and sale under the Mortgage; (c) affect the validity or enforceability Notes of any guaranty or indemnity made in connection with the Loan (including, without limitation, the Guaranty) or right to proceed against any of the rights and remedies partners of Lender thereunder; (d) impair the right FM Properties or their respective assets in respect of Lender to obtain the appointment of a receiver; (e) impair the enforcement claims other than for payment of the Assignment Notes, which such Banks or other holders may have against such partner or assets, and nothing in this Subsection 3.4 shall be construed so as to prevent any of Leases; or (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 Loan (including the security granted by the Mortgage) Banks or any other assets holders of Borrower or to commence the Notes from commencing any other appropriate action action, suit or proceeding in order with respect to, or causing legal papers to be served upon, any partner of FM Properties for Lender to exercise its remedies against such security (including the Property or any other assets purpose of Borrower).
(a) Nothing obtaining jurisdiction over FM Properties. Furthermore, nothing contained in this Section 11.22 Subsection 3.4 shall limit be deemed to diminish, waive or affect in any manner the rights of Lender the Agent, Banks, or Banks' assigns, against FTX, FCX or their assets under and pursuant to proceed against Borrower for the FTX Guaranty or the FCX Guaranty or any Liens or rights of the following (Agent or against Guarantor under the Guaranty, on the additional terms and conditions thereof and subject to any limitations set forth herein Banks as contemplated or therein):
(i) to enforce any Leases entered into by Borrower or its Affiliates as Tenant;
(ii) to recover damages provided for fraud, material misrepresentation, material breach of warranty or intentional physical waste;
(iii) to recover any Condemnation Proceeds or Insurance Proceeds or other similar funds which have been misappropriated by Borrower or which, under the terms of the Loan Documents, should have been paid to Lender;
(iv) to recover (A) any Tenant security deposits, Tenant letters of credit or other deposits or fees paid to Borrower or (B) prepaid rents for a period of more than thirty (30) days in advance of its due date which have not been delivered to Lender;
(v) to recover Business Income received by Borrower during an Event of Default which have not been applied to the Loan or in accordance with the Loan Documents to operating and maintenance expenses of the Property;
(vi) to recover damages, costs and expenses arising from, or in connection with the provisions of the Mortgage pertaining to Hazardous Materials or the Environmental Indemnity;
(vii) to recover any amount expended by Lender in connection with the foreclosure of the Mortgage, but only in the event that any Borrower or any Guarantor takes action to impede such foreclosure or otherwise contests the foreclosure in bad faith;
(viii) to recover damages, costs and expenses arising from, or in connection with, the failure by Borrower to pay Taxes and Insurance Premiums when due to the extent that Borrower was not required to deposit such amounts with Lender pursuant to Section 6 hereof, but only to the extent there was available revenue from the Property for the period in question sufficient to pay such Taxes and Insurance Premiums, and provided further that Lender does not prevent such proceeds from being so applied;
(ix) to recover damages, costs and expenses arising from the failure of the representations set forth in Section 3.1.8 to be true or Borrower’s failure to comply with the provisions of Sections 4.2.11 of this Agreement; and
(x) to recover damages, costs and expenses arising from, or in connection with, any Lien arising from a written instrument executed by any Borrower or any Affiliate thereof expressly creating such Lien, to the extent such Lien is prohibited under this AgreementIntercreditor Agreements.
(b) Notwithstanding the foregoing, the agreement of Lender not to limit recourse liability as set forth in Section 11.22(a) above SHALL BECOME NULL AND VOID and shall be of no further force and effect and the Debt shall be fully recourse to Borrower (and to Guarantor under the Guaranty, on the additional terms and conditions thereof and subject to any limitations set forth herein or therein) in the event that:
(i) any Borrower commences a voluntary bankruptcy or insolvency proceeding;
(ii) an involuntary bankruptcy or insolvency proceeding is commenced against any Borrower and is not dismissed within 90 days of filing; or
(iii) voluntary Transfer of the Property occurs by written instrument executed by any Borrower or any Affiliate thereof, which instrument expressly effects such Transfer, or a Secondary Financing is voluntarily incurred in violation of the Loan Documents, except as otherwise consented to by Lender in writing (which consent may be withheld in Lender’s sole discretion).
(c) Notwithstanding the provisions of clauses (i) and (ii) of Section 11.22(b) no Guarantor shall be liable for any amount related to a Qualified Involuntary Bankruptcy.
(d) In addition, this agreement shall not waive any rights which Lender would have under any provisions of Title 11 of the Bankruptcy Code to file a claim for the full amount of the Debt or to require that the Property shall continue to secure all of the Debt.
Appears in 1 contract
Exculpation. 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 Mortgage 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 the Borrower or any direct principal, director, officer, employee, beneficiary, shareholder, partner, member, trustee, agent, or indirect members, partners or shareholders affiliate of Borrower (but specifically excluding Guarantor) or any legal representatives, successors or assigns of any of the employeesforegoing (collectively, agents, directors or officers of Borrower or its Affiliatesthe “Exculpated Parties”), except that Lender may bring an action against Borrower, including a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender to enforce and realize upon its interest under the Note, this Agreement, the Mortgage and the other Loan Documents, or in the any Property, the Business IncomeRents, or any other collateral given to Lender pursuant to the Loan Documents or any other assets of BorrowerDocuments; 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 PropertyCollective Properties, in the Business Income Rents and in any other collateral given to Lender or any other assets of BorrowerLender, and Lender, by accepting the Note, this Agreement, the Mortgage and the other Loan Documents, shall not ▇s▇▇ for, seek or demand any deficiency judgment or any other monetary payment against Borrower or any of the direct or indirect membersExculpated Parties, partners or shareholders of Borrower or the employees, agents, directors or officers of Borrower or its Affiliates in any such action or proceeding under or by reason of or under or in connection with the Note, this Agreement, the 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 Mortgage; (c) affect the validity or enforceability of any guaranty indemnity, guaranty, or indemnity similar instrument made in connection with the Loan (including, without limitation, the Guaranty) or any of the rights and remedies of Lender thereunder; (d) impair the right of Lender to obtain the appointment of a receiver; (e) impair the enforcement of the Assignment of LeasesMortgage; or (f) impair the right of Lender to enforce the provisions of the Guaranty or the Environmental Indemnity; (g) 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 Loan (including the security granted by the Mortgage) or any other assets of Borrower or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against such security security; or (including h) constitute a waiver of the Property or any other assets of Borrower).
(a) Nothing contained in this Section 11.22 shall limit the rights right of Lender to proceed against Borrower for enforce the liability and obligation of Borrower, by money judgment or otherwise, to the extent of any actual Losses incurred by Lender (including out-of-pocket attorneys’ fees and costs reasonably incurred) arising out of or in connection with the following (or against Guarantor under the Guaranty, on the additional terms and conditions thereof and subject to any limitations set forth herein or therein):following:
(i) to enforce fraud or intentional material misrepresentation by Borrower, Guarantor or any Leases entered into by Borrower or its Affiliates as TenantParty in connection with the Loan;
(ii) to recover damages for fraudthe willful misconduct of Borrower, material misrepresentation, material breach of warranty Guarantor or intentional physical wasteany Borrower Party in connection with the Loan;
(iii) the breach of any representation, warranty, covenant or indemnification provision in the Environmental Indemnity or in any other Loan Document concerning environmental laws, hazardous substances and asbestos and any indemnification of Lender with respect thereto in any such document;
(iv) material physical waste to recover any Condemnation Proceeds Property caused by intentional acts or Insurance Proceeds intentional omissions of Borrower, Guarantor or any Borrower Party, other than waste (or alleged waste) to such Property resulting from (A) the insufficiency of cash flow from the Collective Properties as a whole to prevent such waste and such insufficiency is not a result of misappropriation of Rents by any Borrower Party or (B) Lender’s failure to make cash flow received by Lender available to Borrower in order to prevent such waste;
(v) Borrower fails to obtain Lender’s prior written consent to any subordinate financing or voluntary Lien encumbering a Property or to the incurrence of unsecured indebtedness or indemnification obligations by Borrower and, in each case, not otherwise expressly permitted by the Loan Documents;
(vi) the misappropriation or conversion by Borrower, or any Borrower Parties of (A) any insurance proceeds paid by reason of any loss, damage or destruction to the Property, (B) any Awards or other similar funds amounts received in connection with the Condemnation of all or a portion of a Property, (C) any Rents, or (D) any amounts disbursed from Reserve Funds;
(vii) any security deposits, advance deposits or any other deposits collected with respect to the Property which have been misappropriated by Borrower are not delivered to Lender upon a foreclosure of the Property or whichaction in lieu thereof, under except to the extent any such security deposits, advance deposits or other deposits were applied in accordance with the terms and conditions of any of the Leases;
(viii) the breach of any representation, warranty or covenant of Borrower with respect to itself, or any SPE Party, and such breach is cited as a material factor in the substantive consolidation of Borrower with any other Person (other than a co-borrower) in connection with any federal or state bankruptcy proceeding;
(ix) any litigation or other legal proceeding related to the Debt filed by Borrower, Guarantor, any Borrower Party or any Affiliate thereof in bad faith with the sole intention (as finally determined by a court of competent jurisdiction pursuant to a non-appealable order) of delaying, opposing, impeding, obstructing, hindering, enjoining or otherwise interfering with the efforts of Lender to exercise any rights and remedies available to Lender as provided herein and in the other Loan Documents upon an Event of Default;
(x) Borrower effects a Transfer in violation of the provisions of Section 4.2.1 or Article VIII hereof; and/or
(xi) the breach of any representation, warranty or covenant set forth in Section 3.1.44. Notwithstanding anything to the contrary in this Agreement, the Note or any of the Loan Documents, should have been paid to Lender;
(iv) to recover (A) Lender shall not be deemed to have waived any Tenant security depositsright which Lender may have under Section 506(a), Tenant letters of credit or other deposits or fees paid to Borrower or (B506(b), 1111(b) prepaid rents for a period of more than thirty (30) days in advance of its due date which have not been delivered to Lender;
(v) to recover Business Income received by Borrower during an Event of Default which have not been applied to the Loan or in accordance with the Loan Documents to operating and maintenance expenses of the Property;
(vi) to recover damages, costs and expenses arising from, or in connection with the provisions of the Mortgage pertaining to Hazardous Materials or the Environmental Indemnity;
(vii) to recover any amount expended by Lender in connection with the foreclosure of the Mortgage, but only in the event that any Borrower or any Guarantor takes action to impede such foreclosure or otherwise contests the foreclosure in bad faith;
(viii) to recover damages, costs and expenses arising from, or in connection with, the failure by Borrower to pay Taxes and Insurance Premiums when due to the extent that Borrower was not required to deposit such amounts with Lender pursuant to Section 6 hereof, but only to the extent there was available revenue from the Property for the period in question sufficient to pay such Taxes and Insurance Premiums, and provided further that Lender does not prevent such proceeds from being so applied;
(ix) to recover damages, costs and expenses arising from the failure of the representations set forth in Section 3.1.8 to be true or Borrower’s failure to comply with the other provisions of Sections 4.2.11 of this Agreement; and
(x) to recover damages, costs and expenses arising from, or in connection with, any Lien arising from a written instrument executed by any Borrower or any Affiliate thereof expressly creating such Lien, to the extent such Lien is prohibited under this Agreement.
(b) Notwithstanding the foregoing, the agreement of Lender not to limit recourse liability as set forth in Section 11.22(a) above SHALL BECOME NULL AND VOID and shall be of no further force and effect and the Debt shall be fully recourse to Borrower (and to Guarantor under the Guaranty, on the additional terms and conditions thereof and subject to any limitations set forth herein or therein) in the event that:
(i) any Borrower commences a voluntary bankruptcy or insolvency proceeding;
(ii) an involuntary bankruptcy or insolvency proceeding is commenced against any Borrower and is not dismissed within 90 days of filing; or
(iii) voluntary Transfer of the Property occurs by written instrument executed by any Borrower or any Affiliate thereof, which instrument expressly effects such Transfer, or a Secondary Financing is voluntarily incurred in violation of the Loan Documents, except as otherwise consented to by Lender in writing (which consent may be withheld in Lender’s sole discretion).
(c) Notwithstanding the provisions of clauses (i) and (ii) of Section 11.22(b) no Guarantor shall be liable for any amount related to a Qualified Involuntary Bankruptcy.
(d) In addition, this agreement shall not waive any rights which Lender would have under any provisions of Title 11 of the Bankruptcy Code to file a claim for the full amount of the Debt or to require that the Property all collateral shall continue to secure all of the DebtDebt owing to Lender in accordance with the Loan Documents, and (B) the Debt shall be fully recourse to Borrower in the event that: (1) intentionally omitted; (2) Borrower or any SPE Party or any Affiliate of any of them files, or joins in the filing of, a voluntary petition against Borrower under the Bankruptcy code or any other Federal or state bankruptcy or insolvency law; (3) any Borrower Party or any Affiliate, officer, director, or representative thereof files, or joins in the filing of, an involuntary petition against Borrower or any SPE Party under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law, or solicits or causes to be solicited, or otherwise colludes with, petitioning creditors for any involuntary petition against Borrower or any SPE Party from any Person; (4) Borrower or any SPE Party fails to oppose any involuntary petition filed against it, by any other Person under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law unless there is no good faith defense to such involuntary petition; (5) any Borrower Party or any Affiliate, officer, director, or representative thereof consents to or acquiesces in writing or joins in an application for the appointment of a custodian, receiver, trustee, or examiner for Borrower or any SPE Party or any portion of the Collective Properties (other than at the request of Lender); and/or (6) Borrower or any SPE Party makes an assignment for the benefit of creditors or admits, in writing in any legal proceeding, its insolvency or its inability to pay its debts as they become due (unless failure to make such admission would be a violation of law).
Appears in 1 contract
Sources: Loan Agreement (Industrial Logistics Properties Trust)
Exculpation. Subject Notwithstanding anything herein or in any other Loan Document to the qualifications belowcontrary, except as otherwise set forth in this Section 18.32 to the contrary, Lender shall not enforce the liability and obligation of Borrower or (a) if Borrower is a partnership, its constituent partners or any of their respective partners, (b) if Borrower is a trust, its beneficiaries or any of their respective Partners (as hereinafter defined), (c) if Borrower is a corporation, any of its shareholders, directors, principals, officers or employees, or (d) if Borrower is a limited liability company, any of its members, managers, officers or directors (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 Mortgage Security Instrument or any of the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against the Borrower or any direct or indirect members, partners or shareholders of Borrower or the employees, agents, directors or officers of Borrower or its AffiliatesPartners, except that Lender may bring an action against Borrower, including a foreclosure action, an action for specific performance performance, or any other appropriate action or proceeding (including, without limitation, an action to enable obtain a deficiency judgment) solely for the purpose of enabling Lender to enforce and realize upon its (i) Borrower’s interest under the Note, this Agreement, the Mortgage and the other Loan Documents, or in the Property, (ii) the Business Income, Rent to the extent received by Borrower (or received by its Partners) after the occurrence of an Event of Default and not either delivered to Lender (or Lender’s agent) or applied to ordinary and necessary expenses of owning and operating the Property (the “Recourse Distributions”) and (iii) any other collateral given to Lender pursuant to under the Loan Documents or any other assets of Borrower(the collateral described in the foregoing clauses (i) - (iii) is hereinafter referred to as 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 or the Partners, as the case may be, only to the extent of Borrower’s interest in the Property, in the Business Income in any other collateral given to Lender or any other assets of Borrower, and Lender, by accepting the Note, this Agreement, the Mortgage and the other Loan Documents, shall not ▇▇▇ for, seek or demand any deficiency judgment or any other monetary payment against Borrower or the direct or indirect members, partners or shareholders of Borrower or the employees, agents, directors or officers of Borrower or its Affiliates in any such action or proceeding under or by reason of or under or in connection with the Note, this Agreement, the Mortgage 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 Security Instrument or secured by any of the other Loan DocumentsDocuments or the right of Lender to foreclose this Security Instrument following the occurrence of an Event of Default; (b) impair the right of Lender to name Borrower as a party defendant in any action or suit for judicial foreclosure and sale under the Mortgagethis Security Instrument; (c) affect the validity or enforceability of any guaranty or indemnity made in connection with the Loan (includingNote, without limitationthis Security Instrument, the Guaranty) or any of the rights and remedies other Loan Documents, or impair the right of Lender thereunderto seek a personal judgment against the Guarantor; (d) impair the right of Lender to obtain the appointment of a receiver; (e) impair the enforcement of the Assignment of LeasesAssignment; or (f) impair the right of Lender to bring suit for a monetary judgment against Borrower with respect to any losses resulting from fraud, material misrepresentation, or failure to disclose a material fact, any untrue statement of a material fact or omission to state a material fact in the written materials and/or information provided to Lender or any of its affiliates by or on behalf of Borrower, Guarantor or any of their Affiliates in connection with this Security Instrument, the Note or the other Loan Documents, and the foregoing provisions shall not modify, diminish or discharge the liability of Borrower, Guarantor or any of their Affiliates with respect to same; (g) impair the right of Lender to bring suit for a monetary judgment against Borrower to obtain the Recourse Distributions received by Borrower including, without limitation, the right to bring suit for a monetary judgment to proceed against Guarantor to the extent of Guarantor’s liability under any guaranty delivered by Guarantor and the foregoing provisions shall not modify, diminish or discharge the liability of Borrower or Guarantor with respect to same; (h) impair the right of Lender to bring suit for a monetary judgment against Borrower with respect to any losses resulting from Borrower’s misappropriation of tenant security deposits or Rent (other than rent deemed “additional rent” under the Leases) collected more than one (1) month in advance, and the foregoing provisions shall not modify, diminish or discharge the liability of Borrower with respect to same; (i) impair the right of Lender to obtain Loss Proceeds due to Lender pursuant to this Security Instrument to the extent actually paid by the insurer; (j) impair the right of Lender to enforce the provisions of Sections 2.02(g), 16.01 or 16.02, inclusive of this Security Instrument, even after repayment in full by Borrower of the Debt or to bring suit for a monetary judgment against Borrower with respect to any losses resulting from any obligation set forth in said Sections; (k) prevent or in any way hinder Lender from exercising, or constitute a prohibition defense, or counterclaim, or other basis for relief in respect of the exercise of, any other remedy against any or all of the collateral securing the Note as provided in the Loan Documents; (l) impair the right of Lender to bring suit for a monetary judgment against Borrower with respect to any losses resulting from any misappropriation or conversion of Loss Proceeds, and the foregoing provisions shall not modify, diminish or discharge the liability of Borrower with respect to same; (m) impair the right of Lender to s▇▇ for, seek or demand a deficiency judgment against Borrower solely for the purpose of foreclosing the Property or any part thereof, or realizing upon the Default Collateral; provided, however, that any such deficiency judgment referred to in order this clause (m) shall be enforceable against Borrower and Guarantor only to fully realize on the extent of any security given by of the Default Collateral; (n) impair the ability of Lender to bring suit for a monetary judgment against Borrower with respect to any losses resulting from arson or physical waste to or of the Property or damage to the Property in each case resulting from the intentional acts or intentional omissions of Borrower, Guarantor or any of their Affiliates; (o) impair the right of Lender to bring a suit for a monetary judgment against Borrower in connection with the Loan event of the exercise of any right or remedy under any federal, state or local forfeiture laws resulting in the loss of the lien of this Security Instrument, or the priority thereof, against the Property; (including the security granted by the Mortgagep) be deemed a waiver of any right which Lender may have under Sections 506(a), 506(b), 1111(b) or any other assets of Borrower or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against such security (including the Property or any other assets of Borrower).
(a) Nothing contained in this Section 11.22 shall limit the rights of Lender to proceed against Borrower for any of the following (or against Guarantor under the Guaranty, on the additional terms and conditions thereof and subject to any limitations set forth herein or therein):
(i) to enforce any Leases entered into by Borrower or its Affiliates as Tenant;
(ii) to recover damages for fraud, material misrepresentation, material breach of warranty or intentional physical waste;
(iii) to recover any Condemnation Proceeds or Insurance Proceeds or other similar funds which have been misappropriated by Borrower or which, under the terms of the Loan Documents, should have been paid to Lender;
(iv) to recover (A) any Tenant security deposits, Tenant letters of credit or other deposits or fees paid to Borrower or (B) prepaid rents for a period of more than thirty (30) days in advance of its due date which have not been delivered to Lender;
(v) to recover Business Income received by Borrower during an Event of Default which have not been applied to the Loan or in accordance with the Loan Documents to operating and maintenance expenses of the Property;
(vi) to recover damages, costs and expenses arising from, or in connection with the provisions of the Mortgage pertaining to Hazardous Materials or the Environmental Indemnity;
(vii) to recover any amount expended by Lender in connection with the foreclosure of the Mortgage, but only in the event that any Borrower or any Guarantor takes action to impede such foreclosure or otherwise contests the foreclosure in bad faith;
(viii) to recover damages, costs and expenses arising from, or in connection with, the failure by Borrower to pay Taxes and Insurance Premiums when due to the extent that Borrower was not required to deposit such amounts with Lender pursuant to Section 6 hereof, but only to the extent there was available revenue from the Property for the period in question sufficient to pay such Taxes and Insurance Premiums, and provided further that Lender does not prevent such proceeds from being so applied;
(ix) to recover damages, costs and expenses arising from the failure of the representations set forth in Section 3.1.8 to be true or Borrower’s failure to comply with the provisions of Sections 4.2.11 of this Agreement; and
(x) to recover damages, costs and expenses arising from, or in connection with, any Lien arising from a written instrument executed by any Borrower or any Affiliate thereof expressly creating such Lien, to the extent such Lien is prohibited under this Agreement.
(b) Notwithstanding the foregoing, the agreement of Lender not to limit recourse liability as set forth in Section 11.22(a) above SHALL BECOME NULL AND VOID and shall be of no further force and effect and the Debt shall be fully recourse to Borrower (and to Guarantor under the Guaranty, on the additional terms and conditions thereof and subject to any limitations set forth herein or therein) in the event that:
(i) any Borrower commences a voluntary bankruptcy or insolvency proceeding;
(ii) an involuntary bankruptcy or insolvency proceeding is commenced against any Borrower and is not dismissed within 90 days of filing; or
(iii) voluntary Transfer of the Property occurs by written instrument executed by any Borrower or any Affiliate thereof, which instrument expressly effects such Transfer, or a Secondary Financing is voluntarily incurred in violation of the Loan Documents, except as otherwise consented to by Lender in writing (which consent may be withheld in Lender’s sole discretion).
(c) Notwithstanding the provisions of clauses (i) and (ii) of Section 11.22(b) no Guarantor shall be liable for any amount related to a Qualified Involuntary Bankruptcy.
(d) In addition, this agreement shall not waive any rights which Lender would have under any provisions of Title 11 provision of the Bankruptcy Code to file a claim for the full amount of the Debt or to require that the Property all collateral shall continue to secure all of the Debt; (q) impair the right of Lender to bring suit for monetary judgment against Borrower with respect to any losses resulting from any claims, actions or proceedings initiated by Borrower (or any Affiliate of Borrower) alleging that the relationship of Borrower and Lender is that of joint venturers, partners, tenants in common, joint tenants or any relationship other than that of debtor and creditor; (r) impair the right of Lender to bring suit for a monetary judgment with respect to any losses resulting from a Transfer in violation of the provisions of Article IX hereof; (s) impair the right of Lender to bring suit against Borrower for Borrower’s failure to pay any valid taxes, assessments, mechanic’s liens, materialmen’s liens or other liens which could create liens on any portion of the Property superior to the lien or security title of this Security Instrument or the other Loan Documents, except, (1) with respect to any such taxes or assessments, to the extent that funds have been deposited with Lender pursuant to the terms of this Security Instrument specifically for the applicable taxes or assessments and not applied by Lender to pay such taxes and assessments, and (2) to the extent that there is insufficient available cash flow at any time to enable Borrower to pay all operating expenses (including taxes and assessments) then due and payable, necessary property improvement expenditures and amounts due and payable under the Loan Documents (as demonstrated to the reasonable satisfaction of Lender) and Borrower applies all available cash flow to the payment of any one or more of the foregoing item or (t) impair the right of Lender to bring a suit for a monetary judgment against Borrower in that any recordation taxes are due in connection with the recording of this Security Instrument or any penalty payable in connection therewith. The provisions of this Section 18.32 shall be inapplicable to Borrower if (a) any proceeding, action, petition or filing under the Bankruptcy Code, or any similar state or federal law now or hereafter in effect relating to bankruptcy, reorganization or insolvency, or the arrangement or adjustment of debts, shall be filed by, consented to or acquiesced in by or with respect to Borrower, or if Borrower shall institute any proceeding for its dissolution or liquidation, or shall make an assignment for the benefit of creditors or (b) Borrower or any Affiliate contests or interferes with Lender’s enforcement of its rights and remedies hereunder or under the Loan Documents by asserting any defense (x) as to the validity of the obligations under the Loan Documents or in any way relating to the structure of the Borrower or the enforceability of Lender’s rights and remedies under the Loan Documents, or (y) for the purpose of delaying, hindering or impairing Lender’s rights and remedies under the Loan Documents (collectively, a “Contest”) (provided that if any such Person obtains a non-appealable order successfully asserting a Contest, Borrower shall have no liability under this clause (b)), in which event Lender shall have recourse against all of the assets of Borrower including, without limitation, any right, title and interest of Borrower in and to the Property. Section 18.33. Intentionally Deleted Section 18.34. Intentionally Deleted Section 18.35. Intentionally Deleted.
Appears in 1 contract
Exculpation. Subject to (i) The Collateral Agent shall have no duties or responsibilities except those expressly set forth in this Agreement, and the qualifications below, Lender Collateral Agent shall not enforce by reason of this Agreement or any of the liability Gestetner Notes (or otherwise) be a trustee for any Gestetner Purchaser or have any fiduciary obligation to any Gestetner Purchaser or any of their Affiliates. Neither the Collateral Agent nor any of its directors, partners, members, managers, officers, employees or agents (collectively, the “Related Parties”) shall be liable to any Gestetner Purchaser for any action taken or omitted to be taken by it under this Agreement and obligation the Gestetner Notes, or in any agreements delivered in connection therewith, or in connection herewith or therewith, except for its own willful misconduct or gross negligence, nor shall the Collateral Agent or any Related Parties be responsible for any recitals or representations or warranties herein or therein or in any other agreement delivered in connection therewith, or for the effectiveness, enforceability, validity or due execution of Borrower to perform and observe the obligations contained in the Note, any of this Agreement, the Mortgage Gestetner Agency Agreement, the Gestetner Notes or in any other agreement delivered in connection therewith, nor for the creation, perfection or priority of any Security Interests purported to be created under any of the Gestetner Notes or the validity, genuineness, enforceability, existence, value or sufficiency of any Collateral, nor shall the Collateral Agent or any Related Parties be obligated to make any inquiry respecting the performance by the Company of its obligations hereunder or thereunder or in any other Loan Documents agreement delivered in connection therewith. Any such inquiry by the Collateral Agent shall not obligate it to make any action further inquiry or proceeding wherein a money judgment to take any action. The Collateral Agent shall be sought against entitled to rely upon advice of counsel concerning legal matters and upon any notice, consent, certificate, statement, or writing which they believe to be genuine and to have been presented by a proper Person. The Collateral Agent shall not be responsible for the Borrower negligence or misconduct of any direct such agents or indirect membersattorneys-in-fact selected by it with reasonable care.
(ii) The Collateral Agent shall be entitled to rely upon any certification, partners notice or shareholders other communication (including any thereof by email, telex, telecopy, telegram or cable) reasonably believed by it to be genuine and correct and to have been signed or sent by or on behalf of Borrower the proper Person or Persons, and upon advice and statements of legal counsel (including counsel to Gestetner and counsel to the employeesCompany), agents, directors or officers of Borrower or its Affiliates, except that Lender may bring an action against Borrower, including a foreclosure action, an action independent accountants and other experts selected by the Collateral Agent with reasonable care. As to any matters not expressly provided for specific performance or any other appropriate action or proceeding to enable Lender to enforce and realize upon its interest under the Note, by this Agreement, the Mortgage and the other Loan DocumentsCollateral Agent shall in all cases be fully protected in acting, or in refraining from acting, hereunder in accordance with instructions signed by Gestetner, in its capacity as agent of the PropertyGestetner Purchasers, the Business Incomeand any action taken or failure to act pursuant thereto, or any other collateral given to Lender pursuant to the Loan Documents or any other assets of 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 Property, in the Business Income in any other collateral given to Lender or any other assets of Borrower, and Lender, by accepting the Note, this Agreement, the Mortgage and the other Loan Documents, shall not ▇▇▇ for, seek or demand any deficiency judgment or any other monetary payment against Borrower or the direct or indirect members, partners or shareholders of Borrower or the employees, agents, directors or officers of Borrower or its Affiliates in any such action or proceeding under or by reason of or under or in connection with the Note, this Agreement, the 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 binding on all 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 Mortgage; (c) affect the validity or enforceability of any guaranty or indemnity made in connection with the Loan (including, without limitation, the Guaranty) or any of the rights and remedies of Lender thereunder; (d) impair the right of Lender to obtain the appointment of a receiver; (e) impair the enforcement of the Assignment of Leases; or (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 Loan (including the security granted by the Mortgage) or any other assets of Borrower or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against such security (including the Property or any other assets of Borrower)Secured Parties.
(a) Nothing contained in this Section 11.22 shall limit the rights of Lender to proceed against Borrower for any of the following (or against Guarantor under the Guaranty, on the additional terms and conditions thereof and subject to any limitations set forth herein or therein):
(i) to enforce any Leases entered into by Borrower or its Affiliates as Tenant;
(ii) to recover damages for fraud, material misrepresentation, material breach of warranty or intentional physical waste;
(iii) The Collateral Agent shall not be required to recover take any Condemnation Proceeds action that is in its opinion contrary to law or Insurance Proceeds or other similar funds which have been misappropriated by Borrower or which, under to the terms of this Agreement and the Loan DocumentsGestetner Notes, should have been paid or which would in its opinion subject it or any of its Related Parties to Lender;liability. The Collateral Agent shall, in all cases, be fully justified in failing or refusing to act hereunder and under the Notes unless it shall be fully indemnified to its satisfaction against any and all liability and expense which may be incurred by it by reason of taking or continuing to take any such action.
(iv) to recover (A) The Collateral Agent may deem and treat the payee of any Tenant security deposits, Tenant letters of credit promissory note or other deposits or fees paid to Borrower or (B) prepaid rents for a period evidence of more than thirty (30) days in advance of its due date which have not been delivered to Lender;
(v) to recover Business Income received by Borrower during an Event of Default which have not been applied indebtedness relating to the Loan Gestetner Secured Obligations as the owner thereof for all purposes hereof unless and until a written notice of the assignment or transfer thereof, signed by such payee and in accordance form reasonably satisfactory to the Collateral Agent, shall have been filed with the Loan Documents to operating and maintenance expenses Collateral Agent. Any request, authority or consent of any Person who at the Property;
(vi) to recover damages, costs and expenses arising from, time of making such request or in connection with giving such authority or consent is the provisions holder of the Mortgage pertaining to Hazardous Materials any such note or the Environmental Indemnity;
(vii) to recover any amount expended by Lender in connection with the foreclosure other evidence of the Mortgage, but only in the event that any Borrower or any Guarantor takes action to impede such foreclosure or otherwise contests the foreclosure in bad faith;
(viii) to recover damages, costs and expenses arising from, or in connection with, the failure by Borrower to pay Taxes and Insurance Premiums when due to the extent that Borrower was not required to deposit such amounts with Lender pursuant to Section 6 hereof, but only to the extent there was available revenue from the Property for the period in question sufficient to pay such Taxes and Insurance Premiums, and provided further that Lender does not prevent such proceeds from being so applied;
(ix) to recover damages, costs and expenses arising from the failure of the representations set forth in Section 3.1.8 to be true or Borrower’s failure to comply with the provisions of Sections 4.2.11 of this Agreement; and
(x) to recover damages, costs and expenses arising from, or in connection with, any Lien arising from a written instrument executed by any Borrower or any Affiliate thereof expressly creating such Lien, to the extent such Lien is prohibited under this Agreement.
(b) Notwithstanding the foregoing, the agreement of Lender not to limit recourse liability as set forth in Section 11.22(a) above SHALL BECOME NULL AND VOID and indebtedness shall be conclusive and binding on any subsequent holder, transferee or assignee of no further force such note or other evidence of indebtedness and effect and the Debt shall be fully recourse to Borrower (and to Guarantor under the Guaranty, on the additional terms and conditions thereof and subject to of any limitations set forth herein note or therein) notes or other evidences of indebtedness issued in the event that:
(i) any Borrower commences a voluntary bankruptcy or insolvency proceeding;
(ii) an involuntary bankruptcy or insolvency proceeding is commenced against any Borrower and is not dismissed within 90 days of filing; or
(iii) voluntary Transfer of the Property occurs by written instrument executed by any Borrower or any Affiliate thereof, which instrument expressly effects such Transfer, or a Secondary Financing is voluntarily incurred in violation of the Loan Documents, except as otherwise consented to by Lender in writing (which consent may be withheld in Lender’s sole discretion)exchange therefor.
(c) Notwithstanding the provisions of clauses (i) and (ii) of Section 11.22(b) no Guarantor shall be liable for any amount related to a Qualified Involuntary Bankruptcy.
(d) In addition, this agreement shall not waive any rights which Lender would have under any provisions of Title 11 of the Bankruptcy Code to file a claim for the full amount of the Debt or to require that the Property shall continue to secure all of the Debt.
Appears in 1 contract
Sources: Intercreditor and Collateral Agency Agreement (Eroomsystem Technologies 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 Mortgage 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 the Borrower or any direct principal, director, officer, employee, beneficiary, shareholder, partner, member, trustee, agent, or indirect members, partners or shareholders Affiliate of Borrower (but specifically excluding Guarantor) or any legal representatives, successors or assigns of any of the employeesforegoing (collectively, agents, directors or officers of Borrower or its Affiliatesthe “Exculpated Parties”), except that Lender may bring an action against Borrower, including a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender to enforce and realize upon its interest under the Note, this Agreement, the Mortgage Security Instrument and the other Loan Documents, or in the Property, the Business IncomeRents, or any other collateral given to Lender pursuant to the Loan Documents or any other assets of BorrowerDocuments; 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 Business Income Rents and in any other collateral given to Lender or any other assets of BorrowerLender, and Lender, by accepting the Note, this Agreement, the Mortgage Security Instrument and the other Loan Documents, shall not ▇▇▇ for, seek or demand any deficiency judgment or any other monetary payment against Borrower or any of the direct or indirect members, partners or shareholders of Borrower or the employees, agents, directors or officers of Borrower or its Affiliates Exculpated Parties in any such action or proceeding under or by reason of or under or in connection with the Note, this Agreement, the Mortgage 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 MortgageSecurity Instrument; (c3) affect the validity or enforceability of any indemnity, guaranty or indemnity made in connection with the Loan similar instrument (including, without limitation, the Guarantyindemnities set forth in Article 12 hereof, Section 11.2 hereof, in the Guaranty and in 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 of Lender to obtain the appointment of a receiver; (e5) impair the enforcement of the Assignment assignment of Leasesleases and rents contained in the Security Instrument; or (f6) impair the right of Lender to enforce Section 4.12(e) of this Agreement; (7) 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 Loan (including the security granted by the Mortgage) or any other assets of Borrower Security Instrument or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against such security the Property; or (including 8) constitute a waiver of the Property or any other assets of Borrower).
(a) Nothing contained in this Section 11.22 shall limit the rights right of Lender to proceed against Borrower for enforce the liability and obligation of Borrower, by money judgment or otherwise, to the extent of any actual Losses incurred by Lender (including attorneys’ fees and costs reasonably incurred) arising out of or in connection with any of the following (or against Guarantor under the Guaranty, on the additional terms and conditions thereof and subject to any limitations set forth herein or therein):following:
(i) to enforce any Leases entered into fraud or material intentional misrepresentation by Borrower or its Affiliates as TenantGuarantor;
(ii) to recover damages for fraudthe gross negligence or willful misconduct of Borrower or Guarantor or the commission of a criminal act by Borrower or Guarantor, material misrepresentationwhich results in any seizure or forfeiture of the Property, material breach of warranty or intentional physical wasteany portion thereof, or Borrower’s interest therein;
(iii) to recover any Condemnation Proceeds or Insurance Proceeds or other similar funds which have been misappropriated the breach by Borrower or whichGuarantor of any representation, under the terms of the Loan Documentswarranty, should have been paid to Lender;
(iv) to recover (A) any Tenant security deposits, Tenant letters of credit covenant or other deposits or fees paid to Borrower or (B) prepaid rents for a period of more than thirty (30) days indemnification provision in advance of its due date which have not been delivered to Lender;
(v) to recover Business Income received by Borrower during an Event of Default which have not been applied to the Loan or in accordance with the Loan Documents to operating and maintenance expenses of the Property;
(vi) to recover damages, costs and expenses arising from, or in connection with the provisions of the Mortgage pertaining to Hazardous Materials or the Environmental Indemnity;
(viiiv) physical waste of the Property caused by the intentional acts or intentional omissions of Borrower or Guarantor; and/or the removal or disposal of any portion of the Property after an Event of Default by Borrower or Guarantor;
(v) the misapplication or conversion, in violation of the terms hereof and the terms of the other Loan Documents, by Borrower or Guarantor of (A) any insurance proceeds paid by reason of any loss, damage or destruction to recover the Property, or (B) any amount expended by Lender Awards or other amounts received in connection with the foreclosure Condemnation of all or a portion of the MortgageProperty, but in each case only to the extent Lender has not taken title to the Property either through a foreclosure or deed-in-lieu thereof;
(vi) all Rents received or collected by or on behalf of Borrower during the continuance of an Event of Default and not applied as required by terms hereof and the terms of the other Loan Documents (except to the extent that such application of such funds is prevented by bankruptcy, receivership, or similar judicial proceeding in which Borrower is legally prevented from directing the event that disbursement of such sums);
(vii) any Borrower Security Deposits, advance deposits or any Guarantor takes action other deposits collected by Borrower (or Manager on their behalf) or any Rents collected in advance with respect to impede such the Property which are not delivered to a receiver appointed by Lender or to Lender after a foreclosure or otherwise contests under the foreclosure in bad faithSecurity Instrument;
(viii) to recover damages, costs and expenses arising fromBorrower’s breach of, or in connection failure to comply with, the failure by Borrower to pay Taxes and Insurance Premiums when due to the extent that Borrower was not required to deposit such amounts with Lender pursuant to representations, warranties and/or covenants contained in Section 6 11.2 hereof, but only to the extent there was available revenue from the Property for the period in question sufficient to pay such Taxes and Insurance Premiums, and provided further that Lender does not prevent such proceeds from being so applied;
(ix) Borrower fails to recover damagesappoint a new property manager upon the request of Lender as required by, costs and expenses arising from in accordance with, the failure terms and provisions of, this Agreement, the Assignment of Management Agreement and the other Loan Documents or Borrower appoints a new property manager or replaces the property manager other than in accordance with the terms of this Agreement, the Assignment of Management Agreement and the other Loan Documents;
(x) any involuntary transfer or conveyance by Borrower of its interest in the Property, any voluntary transfer or conveyance of any direct and/or indirect, non-Controlling interest in Borrower or any involuntary transfer or conveyance of any Controlling or non-Controlling, direct and/or indirect interest in Borrower; in each case in violation of the representations covenants set forth in Section 3.1.8 Article 6 hereof;
(xi) arising out of, in connection with or resulting from (A) any Construction Impact Alterations and/or (B) any claims, suits, actions, proceedings or damages brought by any third party against Lender and/or any property damage to be true the Remaining Property arising out of, in connection with or resulting from the Construction (provided, however, such recourse obligation shall result in recourse liability hereunder only to the extent that Borrower’s failure or such other Person’s liability insurance policy does not cover such Loss(es) of Lender);
(xii) Borrower, Guarantor or any of their respective Affiliates or agents (or any other Person acting on their behalf or at the direction of any of the foregoing) leasing any space at the Released Expansion Parcel to comply with the provisions Prohibited Tenant, pursuant to a Lease under which such Tenant takes occupancy of Sections 4.2.11 any portion of this Agreementthe Released Expansion Parcel at any time after the completion of the Construction unless Lender has provided its prior written consent thereto; and
(xxiii) the granting by Borrower of any voluntary non-monetary Lien against Borrower’s interest in the Property in violation of the covenants contained in the Loan Documents. Notwithstanding anything to recover damagesthe contrary in this Agreement, costs and expenses arising from, or in connection with, any Lien arising from a written instrument executed by any Borrower the Note or any Affiliate thereof expressly creating such Lien, to the extent such Lien is prohibited under this Agreement.
(b) Notwithstanding the foregoing, the agreement of Lender not to limit recourse liability as set forth in Section 11.22(a) above SHALL BECOME NULL AND VOID and shall be of no further force and effect and the Debt shall be fully recourse to Borrower (and to Guarantor under the Guaranty, on the additional terms and conditions thereof and subject to any limitations set forth herein or therein) in the event that:
(i) any Borrower commences a voluntary bankruptcy or insolvency proceeding;
(ii) an involuntary bankruptcy or insolvency proceeding is commenced against any Borrower and is not dismissed within 90 days of filing; or
(iii) voluntary Transfer of the Property occurs by written instrument executed by any Borrower or any Affiliate thereof, which instrument expressly effects such Transfer, or a Secondary Financing is voluntarily incurred in violation of the Loan Documents, except as otherwise consented to by (A) Lender in writing (which consent may be withheld in Lender’s sole discretion).
(c) Notwithstanding the provisions of clauses (i) and (ii) of Section 11.22(b) no Guarantor shall be liable for any amount related to a Qualified Involuntary Bankruptcy.
(d) In addition, this agreement shall not waive be deemed to have waived any rights right which Lender would may have under Section 506(a), 506(b), 1111(b) or any other provisions of Title 11 of the Bankruptcy Code to file a claim for the full amount of the Debt or to require that the Property all collateral shall continue to secure all of the DebtDebt 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 or any SPE Component Entity files a voluntary petition under the Bankruptcy Code or any other Creditors Rights Laws; (ii) any Borrower, Guarantor, or any Affiliate, officer, director, or representative of Borrower or Guarantor, files, or joins in the filing of, an involuntary petition against Borrower under the Bankruptcy Code or any other Creditors Rights Laws, or Borrower, any SPE Component Entity or Guarantor solicits or causes to be solicited petitioning creditors for any involuntary petition against Borrower or any SPE Component Entity from any Person; (iii) Borrower or any SPE Component Entity 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 Creditors Rights Laws, or solicits or causes to be solicited petitioning creditors for any involuntary petition from any Person; (iv) Borrower, Guarantor, or any Affiliate, officer, director, or representative of Borrower, any SPE Component Entity or Guarantor consents to or acquiesces in or joins in an application for the appointment of a custodian, receiver, trustee, or examiner for Borrower, any SPE Component Entity or any portion of the Property (other than an application initiated by Lender); (v) Borrower or any SPE Component Entity makes an assignment for the benefit of creditors or admits in any legal proceeding its insolvency or inability to pay its debts as they become due, except to extent to prevent a claim of perjury or as required by court order; (vi) Borrower, any SPE Component Entity or Guarantor contests or opposes any motion made by Lender to obtain relief from the automatic stay or seeks to reinstate the automatic stay in the event of any federal or state bankruptcy or insolvency proceeding involving the Guarantor or its Affiliates; (vii) any voluntary transfer or conveyance by Borrower of its interest in the Property, any voluntary transfer or conveyance of any direct and/or indirect Controlling interest in Borrower or the granting by Borrower of a mortgage or other voluntary monetary Lien against Borrower’s interest in the Property, in each case, in violation of the covenants contained herein or in the other Loan Documents; or (viii) the breach of any representation, warranty or covenant contained in Article 5 hereof that results in the substantive consolidation of the assets of Borrower with the assets of another Person.
Appears in 1 contract
Sources: Loan Agreement (Brookfield DTLA Fund Office Trust Investor Inc.)
Exculpation. Subject (a) Notwithstanding anything to the contrary contained in this Agreement or any of the other Loan Documents, but subject to the qualifications expressly set forth below, Lender shall not enforce the liability and obligation of Borrower to perform and observe the obligations contained in the Note, this Agreement, the Mortgage 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 the Borrower or any direct principal, director, officer, employee, beneficiary, shareholder, partner, member, manager, trustee, agent, or indirect members, partners or shareholders Affiliate of Borrower or any legal representatives, successors or assigns of any of the employeesforegoing (collectively, agents, directors or officers of Borrower or its Affiliatesthe “Exculpated Parties”), except that Lender may bring an action against Borrower, including a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender to enforce and realize upon its interest under the Note, this Agreement, the Mortgage Security Instruments and the other Loan Documents, or in the PropertyProperties, the Business IncomeRents, or any other collateral given to Lender pursuant to the Loan Documents or any other assets of BorrowerDocuments; 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 PropertyProperties, in the Business Income Rents and in any other collateral given to Lender or any other assets of BorrowerLender, and Lender, by accepting the Note, this Agreement, the Mortgage Security Instruments and the other Loan Documents, shall not ▇▇▇ for, seek or demand any deficiency judgment or any other monetary payment against Borrower or any of the direct or indirect members, partners or shareholders of Borrower or the employees, agents, directors or officers of Borrower or its Affiliates Exculpated Parties in any such action or proceeding under or by reason of or under or in connection with the Note, this Agreement, the Mortgage Security Instruments or the other Loan Documents. The provisions of this Section 13.1(a) shall not, however: , (a1) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents, subject in all respects to the foregoing limitation of remedies and personal liability; (b2) impair the right of Lender to name Borrower as a party defendant in any action or suit for foreclosure and sale under any Security Instrument, to the Mortgageextent necessary under applicable law, and for the limited purposes of, effecting such foreclosure;; (c3) affect the validity or enforceability of any indemnity or guaranty or indemnity made in connection with the Loan (including, without limitation, indemnities set forth in Article 12 hereof, Section 11.2 hereof, in the GuarantyGuaranty and the Environmental Indemnity) executed by Borrower or Guarantor 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 receiver; and/or (eB) enforce its rights and remedies provided in Articles 8 and 9 hereof; (5) impair the enforcement of the Assignment of Leases; or (f6) impair the right of Lender to enforce Section 4.12(e) of this Agreement; (7) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order for the sole and limited purpose, and only to fully realize on any security given by Borrower in connection with the Loan (including extent required under applicable law, of realizing upon the security granted by the Mortgage) or any other assets of Borrower Security Instrument or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against such security any Individual Property; or (including 8) constitute a waiver of the Property or any other assets of Borrower).
(a) Nothing contained in this Section 11.22 shall limit the rights right of Lender to proceed against Borrower for enforce the liability and obligation of Borrower, by money judgment or otherwise, to the extent of any Loss incurred by Lender (including attorneys’ fees and costs reasonably incurred) arising out of or in connection with the following (or against Guarantor under the Guaranty, on the additional terms and conditions thereof and subject to any limitations set forth herein or therein):following:
(i) to enforce fraud or intentional misrepresentation by any Leases entered into by Borrower or its Affiliates as TenantParty in connection with the Loan;
(ii) to recover damages for fraud, material misrepresentation, material breach the gross negligence or willful misconduct of warranty or intentional physical wasteany Borrower Party;
(iii) to recover any Condemnation Proceeds or Insurance Proceeds litigation or other similar funds which have been misappropriated legal proceeding related to the Debt filed by any Borrower Party that delays, opposes, impedes, obstructs, hinders, enjoins or whichotherwise interferes with or frustrates the efforts of Lender, under following an Event of Default, to accelerate the terms of Loan, foreclose upon the Loan DocumentsProperty, should have been paid to Lenderseek a receiver or enforce the Guaranty and Environmental Indemnity;
(iv) waste to recover (A) any Tenant security deposits, Tenant letters Individual Property caused by the intentional acts or intentional omissions of credit any Borrower Party and/or the removal or other deposits or fees paid to Borrower or (B) prepaid rents for a period disposal of more than thirty (30) days in advance any portion of its due date which have not been delivered to Lenderany Individual Property after an Event of Default;
(v) the misapplication, misappropriation or conversion by any Borrower Party of (A) any insurance proceeds paid by reason of any loss, damage or destruction to recover Business Income the any Individual Property, (B) any Awards or other amounts received by Borrower during in connection with the Condemnation of all or a portion of any Individual Property, (C) any Rents following an Event of Default which have not been applied to the Loan or (D) any Tenant security deposits or Rents collected in accordance with the Loan Documents to operating and maintenance expenses of the Propertyadvance;
(vi) failure to recover damagespay Taxes, costs and expenses arising from, charges for labor or materials or other charges that can create liens on any portion of any Individual Property in connection accordance with the terms and provisions of the Mortgage pertaining to Hazardous Materials or the Environmental Indemnityhereof;
(vii) failure to recover any amount expended by pay Insurance Premiums, to maintain the Policies in full force and effect and/or to provide Lender in connection with the foreclosure evidence of the Mortgagesame, but only in the event that any Borrower or any Guarantor takes action to impede such foreclosure or otherwise contests the foreclosure in bad faitheach case, as expressly provided herein;
(viii) any security deposits, advance deposits or any other deposits collected with respect to recover damagesany Individual Property which are not delivered to Lender upon a foreclosure of such Individual Property or action in lieu thereof, costs and expenses arising from, or in connection with, the failure by Borrower to pay Taxes and Insurance Premiums when due 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;
(ix) any tax on the making and/or recording of any Security Instrument, the Note or any of the other 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 seizure or forfeiture of any Individual Property, or any portion thereof, or Borrower’s interest therein, resulting from criminal wrongdoing by any Borrower was not required Party;
(xi) the failure to deposit such amounts with Lender pursuant to Section 6 hereof, make any True Up Payment (but only to the extent there was available revenue from that the Property generated net operating income for the immediately preceding twelve (12) month period in question sufficient to pay such Taxes and Insurance Premiums, and provided further that Lender does not prevent such proceeds from being so appliedthe same);
(ixxii) Intentionally omitted;
(xiii) Borrower fails to recover damages, costs and expenses arising comply with its obligations to deposit revenues derived from the failure Properties into the Restricted Account in accordance with Section 9.2(a) hereof; and for purposes of this subsection (xiii), Losses shall be deemed to mean any funds not so deposited by Borrower into the Restricted Account);
(xiv) any default or breach by Borrower or any SPE Component Entity (if any) of any of the representations provisions set forth in Article 5 hereof (other than a default or breach of the terms of Section 3.1.8 to be true or Borrower’s failure to comply with the provisions of Sections 4.2.11 of this Agreement5.1(a)(i), (ii), (iii), (iv), (vi), (vii) and (xi) hereof)); andor
(xxv) to recover damages, costs and expenses arising from, Section 11.1 or in connection with, any Lien arising from a written instrument executed by any Borrower Section 11.6 hereof is violated or any Affiliate thereof expressly creating such Lien, to the extent such Lien is prohibited under this Agreementbreached.
(b) Notwithstanding anything to the foregoingcontrary in this Agreement, the agreement of Lender not to limit recourse liability as set forth in Section 11.22(a) above SHALL BECOME NULL AND VOID and shall be of no further force and effect and the Debt shall be fully recourse to Borrower (and to Guarantor under the Guaranty, on the additional terms and conditions thereof and subject to any limitations set forth herein or therein) in the event that:
(i) any Borrower commences a voluntary bankruptcy or insolvency proceeding;
(ii) an involuntary bankruptcy or insolvency proceeding is commenced against any Borrower and is not dismissed within 90 days of filing; or
(iii) voluntary Transfer of the Property occurs by written instrument executed by any Borrower Note or any Affiliate thereof, which instrument expressly effects such Transfer, or a Secondary Financing is voluntarily incurred in violation of the Loan Documents, except as otherwise consented to by (A) Lender in writing (which consent may be withheld in Lender’s sole discretion).
(c) Notwithstanding the provisions of clauses (i) and (ii) of Section 11.22(b) no Guarantor shall be liable for any amount related to a Qualified Involuntary Bankruptcy.
(d) In addition, this agreement shall not waive be deemed to have waived any rights right which Lender would may have under Section 506(a), 506(b), 1111(b) or any other provisions of Title 11 of the Bankruptcy Code to file a claim for the full amount of the Debt or to require that the Property all collateral shall continue to secure all of the DebtDebt 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) any default or breach by Borrower or any SPE Component Entity (if any) of the provisions of Section 5.1(a)(i), (ii), (iii), (iv), (vi), (vii) or (xi), (iii) any representation, warranty or covenant contained in Article 6 hereof is violated or breached; (iii) a Bankruptcy Event occurs.
Appears in 1 contract
Exculpation. Subject Notwithstanding anything in this Agreement or in any other Loan Document to the qualifications belowcontrary, except as otherwise set forth in this Section 8.01 to the contrary, Lender shall not enforce the liability and obligation of Borrower or any Person holding a direct or indirect interest in Borrower (a) if Borrower or any of its direct or indirect owners is a partnership, its or their direct or indirect constituent partners or any of their respective partners, (b) if Borrower or any of its direct or indirect owners is a trust, its or their beneficiaries or any of their respective Partners (as hereinafter defined), (c) if Borrower or any of its direct or indirect owners is a corporation, any of its or their direct or indirect shareholders, directors, principals, officers or employees, or (d) if Borrower or any of its direct or indirect owners is a limited liability company, any of its or their direct or indirect 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 Mortgage Agreement or any of the other Loan Documents by any action or proceeding, including, without limitation, any action or proceeding wherein a money judgment shall be sought against the Borrower or any direct or indirect members, partners or shareholders of Borrower or the employees, agents, directors or officers of Borrower or its AffiliatesPartners, except that Lender may bring an action against Borrowera UCC sale, including a foreclosure action, an action for specific performance performance, or any other appropriate action or proceeding (including, without limitation, an action to enable obtain a deficiency judgment) against Borrower solely for the purpose of enabling Lender to enforce and realize upon its (i) Borrower’s interest under in the NoteCollateral, this Agreement(ii) subject to the rights of Mortgage Lender, Intermediate Mez Lender and Senior Mez Lender, the Mortgage Rent to the extent received by Borrower during the existence of an Event of Default (all Rent covered by this clause (ii) being hereinafter referred to as the “Recourse Distributions”) and not applied towards Debt Service or the other Loan Documents, or in operation and maintenance of the Property, the Business Income, or Property and (iii) any other collateral given to Lender pursuant then subject to the Loan Documents or any other assets of Borrower(the collateral described in the foregoing clauses (i) — (iii) is hereinafter referred to as 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 and the Partners only to the extent of Borrower’s interest in the Property, in the Business Income in any other collateral given to Lender or any other assets of Borrower, and Lender, by accepting the Note, this Agreement, the Mortgage and the other Loan Documents, shall not ▇▇▇ for, seek or demand any deficiency judgment or any other monetary payment against Borrower or the direct or indirect members, partners or shareholders of Borrower or the employees, agents, directors or officers of Borrower or its Affiliates in any such action or proceeding under or by reason of or under or in connection with the Note, this Agreement, the Mortgage 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 Agreement or secured by any of the other Loan DocumentsDocuments or the right of Lender to enforce this Agreement during the existence of an Event of Default the cure of which has not been accepted by Lender; (b) impair the right of Lender to name Borrower as a party defendant in any action or suit for judicial foreclosure and sale under the Mortgagethis Agreement; (c) affect the validity or enforceability of any guaranty or indemnity made in connection with the Loan (includingNote, without limitationthis Agreement, the Guaranty) or any of the rights and remedies other Loan Documents, or impair the right of Lender thereunderto seek a personal judgment against the Guarantor to the extent and for the obligations guaranteed in the Guaranty; (d) impair the right of Lender to obtain the appointment of a receiver; (e) impair the enforcement right of Lender to bring suit for a monetary judgment against Borrower with respect to fraud or material misrepresentation by Borrower, or any Affiliate of Borrower in connection with this Agreement, the Assignment Note or the other Loan Documents, and the foregoing provisions shall not modify, diminish or discharge the liability of LeasesBorrower or Guarantor to the extent of Guarantor’s liability under the Guaranty delivered by Guarantor with respect to same; or (f) impair the right of Lender to bring suit for a monetary judgment to obtain the Recourse Distributions received by Borrower or any of its Affiliates including, without limitation, the right to bring suit for a monetary judgement to proceed against any Guarantor, to the extent of Guarantor’s liability under any guaranty delivered by Guarantor, and the foregoing provisions shall not modify, diminish or discharge the liability of Borrower or Guarantor with respect to same; (g) impair the right of Lender to bring suit for a monetary judgment against Borrower with respect to Borrower’s or Owner’s misappropriation of tenant security deposits or Rent collected more than one (1) month in advance, and the foregoing provisions shall not modify, diminish or discharge the liability of Borrower or Guarantor to the extent of Guarantor’s liability under any guaranty delivered by Guarantor with respect to same; (h) impair the right of Lender to obtain insurance proceeds due to Lender pursuant to this Agreement; (i) impair the right of Lender to enforce the provisions of Sections 2.02(g) and 4.01, inclusive of this Agreement, even after repayment in full by Borrower of the Debt or to bring suit for a monetary judgment against Borrower with respect to any obligation set forth in said Sections; (j) prevent or in any way hinder Lender from exercising, or constitute a prohibition defense, or counterclaim, or other basis for relief in respect of the exercise of, any other remedy against any or all of the collateral securing the Note as provided in the Loan Documents; (k) impair the right of Lender to bring suit for a monetary judgment against Borrower with respect to any misapplication or conversion of Loss Proceeds, and the foregoing provisions shall not modify, diminish or discharge the liability of Borrower or Guarantor to the extent of Guarantor’s liability under any guaranty delivered by Guarantor with respect to same; (l) impair the right of Lender to s▇▇ for, seek or demand a deficiency judgment against Borrower solely for the purpose of foreclosing the Premises or any part thereof, or realizing upon the Default Collateral; provided, however, that any such deficiency judgment referred to in order this clause (l) shall be enforceable against Borrower and Guarantor only to fully realize on the extent of any security given by of the Default Collateral; (m) impair the ability of Lender to bring suit for monetary judgment against Borrower with respect to arson or physical waste to or of the Collateral or damage to the collateral resulting from the gross negligence or willful misconduct of Borrower or, to the extent that there is sufficient cash flow, failure to pay any Imposition, or in lieu thereof, deposit a sum equal to any Impositions into the Basic Carrying Costs Sub-Account ; (n) impair the right of Lender to bring a suit for a monetary judgment against Borrower in connection with the Loan event of the exercise of any right or remedy under any federal, state or local forfeiture laws resulting in the loss of the lien of this Agreement, or the priority thereof, against the Collateral; (including the security granted by the Mortgageo) be deemed a waiver of any right which Lender may have under Sections 506(a), 506(b), 1111(b) or any other assets of Borrower or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against such security (including the Property or any other assets of Borrower).
(a) Nothing contained in this Section 11.22 shall limit the rights of Lender to proceed against Borrower for any of the following (or against Guarantor under the Guaranty, on the additional terms and conditions thereof and subject to any limitations set forth herein or therein):
(i) to enforce any Leases entered into by Borrower or its Affiliates as Tenant;
(ii) to recover damages for fraud, material misrepresentation, material breach of warranty or intentional physical waste;
(iii) to recover any Condemnation Proceeds or Insurance Proceeds or other similar funds which have been misappropriated by Borrower or which, under the terms of the Loan Documents, should have been paid to Lender;
(iv) to recover (A) any Tenant security deposits, Tenant letters of credit or other deposits or fees paid to Borrower or (B) prepaid rents for a period of more than thirty (30) days in advance of its due date which have not been delivered to Lender;
(v) to recover Business Income received by Borrower during an Event of Default which have not been applied to the Loan or in accordance with the Loan Documents to operating and maintenance expenses of the Property;
(vi) to recover damages, costs and expenses arising from, or in connection with the provisions of the Mortgage pertaining to Hazardous Materials or the Environmental Indemnity;
(vii) to recover any amount expended by Lender in connection with the foreclosure of the Mortgage, but only in the event that any Borrower or any Guarantor takes action to impede such foreclosure or otherwise contests the foreclosure in bad faith;
(viii) to recover damages, costs and expenses arising from, or in connection with, the failure by Borrower to pay Taxes and Insurance Premiums when due to the extent that Borrower was not required to deposit such amounts with Lender pursuant to Section 6 hereof, but only to the extent there was available revenue from the Property for the period in question sufficient to pay such Taxes and Insurance Premiums, and provided further that Lender does not prevent such proceeds from being so applied;
(ix) to recover damages, costs and expenses arising from the failure of the representations set forth in Section 3.1.8 to be true or Borrower’s failure to comply with the provisions of Sections 4.2.11 of this Agreement; and
(x) to recover damages, costs and expenses arising from, or in connection with, any Lien arising from a written instrument executed by any Borrower or any Affiliate thereof expressly creating such Lien, to the extent such Lien is prohibited under this Agreement.
(b) Notwithstanding the foregoing, the agreement of Lender not to limit recourse liability as set forth in Section 11.22(a) above SHALL BECOME NULL AND VOID and shall be of no further force and effect and the Debt shall be fully recourse to Borrower (and to Guarantor under the Guaranty, on the additional terms and conditions thereof and subject to any limitations set forth herein or therein) in the event that:
(i) any Borrower commences a voluntary bankruptcy or insolvency proceeding;
(ii) an involuntary bankruptcy or insolvency proceeding is commenced against any Borrower and is not dismissed within 90 days of filing; or
(iii) voluntary Transfer of the Property occurs by written instrument executed by any Borrower or any Affiliate thereof, which instrument expressly effects such Transfer, or a Secondary Financing is voluntarily incurred in violation of the Loan Documents, except as otherwise consented to by Lender in writing (which consent may be withheld in Lender’s sole discretion).
(c) Notwithstanding the provisions of clauses (i) and (ii) of Section 11.22(b) no Guarantor shall be liable for any amount related to a Qualified Involuntary Bankruptcy.
(d) In addition, this agreement shall not waive any rights which Lender would have under any provisions of Title 11 provision of the Bankruptcy Code to file a claim for the full amount of the Debt or to require that the Property all collateral shall continue to secure all of the Debt; (p) impair the right of Lender to bring suit for monetary judgment against Borrower with respect to any losses resulting from any claims, actions or proceedings initiated by Borrower (or any Affiliate of Borrower) alleging that the relationship of Borrower and Lender is that of joint venturers, partners, tenants in common, joint tenants or any relationship other than that of debtor and creditor; (q) impair the right of Lender to bring suit for a monetary judgment against Borrower in the event of a Transfer in violation of the provisions of this Agreement; (r) impair the right of Lender to bring suit for a monetary judgment in the event that Borrower moves its principal place of business or its books and records relating to the Collateral which are governed by the UCC, or changes its name, its jurisdiction of organization, type of organization or other legal structure or, if it has one, organizational identification number, without first giving Lender thirty (30) days prior written notice; or (s) impair the right of Lender to bring suit for a monetary judgment in the event that Borrower changes its name or otherwise does anything which would make the information set forth in any UCC Financing Statements relating to the Collateral materially misleading without giving Lender thirty (30) days prior written notice thereof. The provisions of this Section shall be inapplicable to Borrower if (a) any proceeding, action, petition or filing under the Bankruptcy Code, or any similar state or federal law now or hereafter in effect relating to bankruptcy, reorganization or insolvency, or the arrangement or adjustment of debts, shall be (A) filed by Borrower, Owner or Guarantor or (B) filed against Borrower, Owner or Guarantor and consented to or acquiesced in by Borrower or Owner or any Affiliate of Borrower, Owner or Guarantor, or if Borrower, Owner or Guarantor or any Affiliate of Borrower, Owner or Guarantor shall institute any proceeding for Borrower’s or Owner’s dissolution or liquidation, or Borrower, Owner or Guarantor shall make an assignment for the benefit of creditors or (b) Borrower or any Affiliate contests in bad faith or in any material way interferes with in bad faith, directly or indirectly (collectively, a “Contest”) any UCC sale or other material remedy exercised by Lender upon the occurrence of an Event of Default under the Loan Documents whether by making any motion, bringing any counterclaim (other than a compulsory counterclaim), claiming any defense, seeking any injunction or other restraint, commencing any action, or otherwise in bad faith (provided that if any such Person obtains a non-appealable order successfully asserting a Contest, Borrower shall have no liability under this clause (b)) or (c) Borrower (i) fails to cause Owner to deliver notice of default under any Ground Lease to Lender or any other Person designated in writing by Lender or (ii) fails to prevent Owner from amending or modifying any Ground Lease without the prior written consent of Lender, in which event Lender shall have recourse against all of the assets of Borrower including, without limitation, any right, title and interest of Borrower in and to the Collateral.
Appears in 1 contract
Sources: Loan and Security Agreement (Ashford Hospitality 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 Mortgage 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 the Borrower or any direct principal, director, officer, employee, beneficiary, shareholder, partner, member, trustee, agent, or indirect members, partners or shareholders Affiliate of Borrower or any legal representatives, successors or assigns of any of the employeesforegoing (but, agentsin each case, directors or officers specifically excluding Guarantor to the extent of Borrower or its Affiliatesliabilities under the Guaranty and Environmental 112 Indemnity) (collectively, the “Exculpated Parties”), except that Lender may bring an action against Borrower, including a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender to enforce and realize upon its interest under the Note, this Agreement, the Mortgage Security Instrument and the other Loan Documents, or in the Property, the Business IncomeRents, or any other collateral given to Lender pursuant to the Loan Documents or any other assets of BorrowerDocuments; 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 Business Income Rents and in any other collateral given to Lender or any other assets of BorrowerLender, and Lender, by accepting the Note, this Agreement, the Mortgage Security Instrument and the other Loan Documents, shall not ▇▇▇ sue for, seek or demand any deficiency judgment or any other monetary payment against Borrower or any of the direct or indirect members, partners or shareholders of Borrower or the employees, agents, directors or officers of Borrower or its Affiliates Exculpated Parties in any such action or proceeding under or by reason of or under or in connection with the Note, this Agreement, the Mortgage 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 MortgageSecurity Instrument; (c3) affect the validity or enforceability of any indemnity, guaranty or indemnity made in connection with the Loan similar instrument (including, without limitation, the Guarantyindemnities set forth in Article 12 hereof, in the Guaranty and in the Environmental Indemnity) made in connection with the Loan or any of the rights and remedies of Lender thereunderthereunder (including, without limitation, Lend▇▇’▇ ▇ight 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, as expressly set forth therein); (d4) impair the right of Lender to Lend▇▇ ▇▇ obtain the appointment of a receiver; (e5) impair the enforcement of the Assignment assignment of Leasesleases and rents contained in the Security Instrument; or (f6) intentionally omitted; (7) 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 Loan (including the security granted by the Mortgage) or any other assets of Borrower Security Instrument or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against such security (including the Property or any other assets Individual Property; or (8) constitute a waiver of Borrower).
(a) Nothing contained in this Section 11.22 shall limit the rights right of Lender to proceed against Borrower for enforce the liability and obligation of Borrower, by money judgment or otherwise, to the extent of any Losses incurred by Lend▇▇ (▇▇cluding attorneys’ fees and costs reasonably incurred) arising out of or in connection with any of the following (or against Guarantor under the Guarantyexcluding, on the additional terms in each case, punitive and conditions thereof and subject to any limitations set forth herein or thereinconsequential damages):
(i) to enforce (A) fraud by Borr▇▇▇▇, ▇▇arantor, or any Leases entered into by Affiliate of Borrower or its Affiliates as TenantGuarantor, or any of their respective partners, shareholders, members, officers, or directors in connection with the Loan and/or (B) material misrepresentation by Borr▇▇▇▇, ▇▇arantor, any Affiliate of Borrower or any of their respective representatives (that were acting at the direction of Borr▇▇▇▇, ▇▇arantor or Sponsor or that were actually authorized to take the action resulting in personal liability to Borrower pursuant to this subsection (i)) in connection with the Loan, which was known by Borrower, Guarantor, any Affiliate of Borrower or any of their respective authorized representatives to be false when made;
(ii) to recover damages for fraudthe willful misconduct of Borrower, material misrepresentationGuarantor, material breach Sponsor, or any Borrower Party in connection with the Loan or the Property or the commission of warranty a criminal act by Borr▇▇▇▇, ▇▇arantor, Sponsor or intentional physical wasteany Borrower Party, in each case, which results in any seizure or forfeiture of the Property, or any portion thereof, or Borrower’s interest therein;
(iii) intentional material physical waste with respect to recover any portion of the Property caused by the intentional acts or intentional omissions (which intentional omissions occurred prior to the Property Transfer Date) of Borrower, Guarantor, Sponsor, or any Borrower Party (including, without limitation, any arson or abandonment of the Property) (provided, however, that (a) the failure to maintain the Property shall not be considered waste hereunder to the extent that (1) there is insufficient cash flow from the Property to pay the costs of such maintenance or (2) the Property Transfer Date has occurred and (b) the failure to restore the Property following a Casualty or Condemnation 113 shall not be considered waste hereunder to the extent (1) that Net Proceeds are not made available to Borrower hereunder, (2) the amount so made available to Borrower is insufficient to pay the costs necessary to restore the Property or Insurance Proceeds (3) the Property Transfer Date has occurred) and/or the removal or other similar funds disposal of any material Personal Property in which have been misappropriated by Borrower or whichLender has a Lien, under in violation of the terms of the Loan Documents, should have been paid to Lenderexcept for the removal or disposition of any personal property in the normal course of business which is replaced with personal property of substantially the same value and utility;
(iv) to recover the misapplication, misappropriation or conversion by Borrower of (A) any Tenant security depositsinsurance proceeds paid by reason of any loss, Tenant letters of credit damage or other deposits or fees paid destruction to Borrower or the Property, (B) prepaid rents any Awards or other amounts received in connection with the Condemnation of all or a portion of the Property, (C) any Rents after Lender has notified Borrower of an Event of Default (or Borrower otherwise has actual knowledge that an Event of Default has occurred), less only that portion of such revenues which is actually used by Borrower to operate the Property in the ordinary course of business, provided such use is approved in writing by Lender, or (D) any Tenant security deposits or Rents collected in advance, less (with respect to security deposits only) only that portion of such security deposits which are used as required pursuant to the terms of the applicable Lease (but not retained by Borrower), provided, however, that (x) any funds applied as specifically required or as then permitted by the Loan Documents shall not be considered misapplied, misappropriated or converted hereunder and (y) Borrower shall not be liable to the extent Borrower did not have the legal right to direct disbursement of such funds due to an involuntary bankruptcy, receivership or similar proceeding;
(v) failure to pay any unpaid Taxes or Other Charges, charges for a labor or materials or any other charges that can create liens on any portion of the Property (in each case, that were incurred or are attributable to any period of more than prior to the Property Transfer Date) that continues for thirty (30) days in advance of its due date which have not been delivered to Lender;
(v) to recover Business Income received after receipt by Borrower during an Event of Default which have not been applied written notice thereof, to the Loan extent that the revenue from the Property is (I) sufficient to pay such amounts and (II) available to Borrower to pay such amounts (provided that, without limiting the foregoing, Borrower shall not be liable hereunder for any such failure resulting from (x) amounts deposited with Lender as Tax Reserve Funds for Taxes or Other Charges where Lender elects not to apply such funds toward payment of such Taxes or Other Charges owed or (y) Taxes or Other Charges owed that are contested strictly in accordance with the Loan Documents to operating and maintenance expenses terms of the PropertyLoan Documents);
(vi) failure to recover damagesmaintain insurance prior to the Property Transfer Date as required by this Agreement to the extent that the revenue from the Property is (I) sufficient to pay the Insurance Premiums relating thereto and (II) available to Borrower to pay such Insurance Premiums (provided that, costs without limiting the foregoing, (x) Borrower shall not be liable hereunder for any such failure resulting from the failure to pay amounts deposited with Lender as Insurance Reserve Funds for Insurance Premiums to be paid to maintain such insurance where Lender elects not to apply such funds toward payment of such Insurance Premiums and expenses arising from(y) Borrower shall not be liable to the extent Borrower did not have the legal right to pay such Insurance Premiums due to an involuntary bankruptcy, receivership or in connection with the provisions of the Mortgage pertaining to Hazardous Materials or the Environmental Indemnitysimilar proceeding);
(vii) to recover the material breach of any amount expended by Lender in connection with the foreclosure of the Mortgagerepresentation, but only warranty, covenant or indemnification provision in the event that any Borrower or any Guarantor takes action to impede such foreclosure or otherwise contests the foreclosure in bad faithEnvironmental Indemnity concerning Environmental Laws and Hazardous Substances;
(viii) any fees or commissions paid by Borr▇▇▇▇ ▇▇▇er the occurrence of an Event of Default (of which Borrower has been notified by Lender) to recover damagesGuarantor, costs and expenses arising fromSponsor and/or any Affiliate of Borrower, or Guarantor and/or Sponsor in connection withviolation of the terms of the Note, this Agreement, the failure by Borrower to pay Taxes and Insurance Premiums when due to Security Instrument or the extent that Borrower was not required to deposit such amounts with Lender pursuant to Section 6 hereof, but only to the extent there was available revenue from the Property for the period in question sufficient to pay such Taxes and Insurance Premiums, and provided further that Lender does not prevent such proceeds from being so appliedother Loan Documents;
(ix) to recover damagesBorr▇▇▇▇’▇ ▇reach (following notice and the expiration of any cure periods) of, costs and expenses arising from the failure of the representations set forth in Section 3.1.8 to be true or Borrower’s failure to comply with with, the provisions of Sections 4.2.11 of this Agreement; andSection 12.3 hereof;
(x) any representation, warranty or covenant contained in Section 5.1 hereof is violated or breached in any material respect and any such material breach or violation with respect to recover damagesSection 5.1 does not result in the substantive consolidation of the assets of Borrower with any other Person in a bankruptcy or similar proceeding; and/or
(xi) any representation, warranty or covenant contained in Article 6 hereof (not including any covenant to give notice or to pay any costs and expenses arising fromor fees) is violated or breached (other than a Major Transfer Violation), provided, however that Borrower shall not be liable under this subsection (xi) for any involuntary Lien or in connection with, for the failure of Borrower to pay any Lien arising from a written instrument executed by any Borrower or any Affiliate thereof expressly creating such Lien, permitted Indebtedness to the extent that there are insufficient funds generated from the Property and/or sufficient funds from the Property are not otherwise made available to Borrower to pay such Lien permitted Indebtedness (it is prohibited under this Agreementacknowledged and agreed that any circumstance or condition that arises as a result of insufficient cash flow from the Property and/or Lender not making cash flow from the Property available to Borrower shall not be construed to arise from a “voluntary” act or omission of the Borrower).
(b) Notwithstanding anything to the foregoingcontrary in this Agreement, the agreement of Lender not to limit recourse liability as set forth in Section 11.22(a) above SHALL BECOME NULL AND VOID and shall be of no further force and effect and the Debt shall be fully recourse to Borrower (and to Guarantor under the Guaranty, on the additional terms and conditions thereof and subject to any limitations set forth herein or therein) in the event that:
(i) any Borrower commences a voluntary bankruptcy or insolvency proceeding;
(ii) an involuntary bankruptcy or insolvency proceeding is commenced against any Borrower and is not dismissed within 90 days of filing; or
(iii) voluntary Transfer of the Property occurs by written instrument executed by any Borrower Note or any Affiliate thereof, which instrument expressly effects such Transfer, or a Secondary Financing is voluntarily incurred in violation of the Loan Documents, except as otherwise consented to by (A) Lender in writing (which consent may be withheld in Lender’s sole discretion).
(c) Notwithstanding the provisions of clauses (i) and (ii) of Section 11.22(b) no Guarantor shall be liable for any amount related to a Qualified Involuntary Bankruptcy.
(d) In addition, this agreement shall not waive be deemed to have waived any rights right which Lender would may have under Section 506(a), 506(b), 1111(b) or any other provisions of Title 11 of the Bankruptcy Code to file a claim for the full amount of the Debt or to require that the Property all collateral shall continue to secure all of the DebtDebt owing to Lender in accordance with the Loan Documents, and (B) the Debt shall be fully recourse to Borrower in the event that: (i) any representation, warranty or covenant contained in Article 5 hereof is violated or breached and any such breach or violation with respect to Article 5 results in the substantive consolidation of the assets of Borrower with any other Person in a bankruptcy or similar proceeding; (ii) a Major Transfer Violation; (iii) any Borrower files a voluntary petition under the Bankruptcy Code or any other Creditors Rights Laws; (iv) an Affiliate, officer, director, or representative which (with respect to each of the foregoing) Controls, directly or indirectly, any Borrower files, or joins in the filing of, an involuntary petition against any Borrower under the Bankruptcy Code or any other Creditors Rights Laws, or solicits or causes to be solicited petitioning creditors for any involuntary petition against any Borrower from any Person; (v) any Borrower files an answer consenting to or joining in any involuntary petition filed against it (other than a petition filed against it by Lend▇▇), ▇y any other Person under the Bankruptcy Code or any other Creditors Rights Laws, or solicits or causes to be solicited petitioning creditors for any involuntary petition from any Person or colludes with other creditors to cause an involuntary bankruptcy filing with respect to any Borrower; (vi) any Affiliate, officer, director, or representative which (with respect to each of the foregoing) Controls Borrower consents to or joins in an application for the appointment of a custodian, receiver, trustee, or examiner for Borrower or any portion of the Property or colludes with other creditors to cause an application for the appointment of a custodian, receiver, trustee, or examiner for Borrower or any portion of the Property; (vii) any Borrower makes an assignment for the benefit of creditors, or admits in any legal proceeding, its insolvency or inability to pay its debts as they become due (unless to do otherwise would require a false statement or violate Rule 9011 of the Federal Rules of Bankruptcy Procedure or other applicable rules requiring sufficient legal and factual basis for filing papers in a proceeding under Federal or state insolvency laws); (viii) intentionally omitted; or (ix) any Borrower (or any Affiliate of Borrower) contests or opposes any motion made by Lend▇▇ ▇▇ obtain relief from the automatic stay or seeks to reinstate the automatic stay in the event of any federal or state bankruptcy or insolvency proceeding involving Borrower (provided, however, that Borrower shall not have any 115 liability under (and the Debt shall not be fully recourse to Borrower under) this subsection (ix) for (a) contesting or opposing any motion made by Lender to obtain relief from the automatic stay or seeking to reinstate the automatic stay in the event of any federal or state bankruptcy or insolvency proceeding involving Borrower to the extent that the same was required by Applicable Law or (b) providing requested or required information).
Appears in 1 contract
Sources: Loan Agreement (Creative Media & Community Trust Corp)
Exculpation. Subject to the qualifications below, Lender shall not enforce the liability and obligation of Borrower or its constituent members, partners, shareholders, directors, employees or agents or the direct or indirect constituent members, partners, shareholders, directors, employees or agents thereof (collectively, the "BORROWER PARTIES") or any other Person, to perform and observe the obligations contained in the Note, this Agreement, the Mortgage Note or any of the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against any of the Borrower Parties or any direct or indirect members, partners or shareholders of Borrower or the employees, agents, directors or officers of Borrower or its Affiliatesother Person, except that Lender may bring an action against Borrower, including a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender to enforce and realize upon its interest under the Note, this Agreement, the Mortgage and the other Loan Documents, or in the Property, the Business Income, Rents or any other collateral given to Lender pursuant to this Agreement and the other Loan Documents or any other assets of BorrowerDocuments; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against the Borrower Parties only to the extent of Borrower’s their interest in the Property, in the Business Income Rents and in any other collateral given to Lender or any other assets of BorrowerLender, and Lender, by accepting the Note, this Agreement, the Mortgage Note and the other Loan Documents, agrees that it shall not ▇▇▇ sue for, seek or demand any deficiency judgment against any of the B▇▇▇ower Parties or any other monetary payment against Borrower or the direct or indirect members, partners or shareholders of Borrower or the employees, agents, directors or officers of Borrower or its Affiliates Person in any such action or proceeding under or by reason of or under or in connection with the Note, this Agreement, the Mortgage Note or any of 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 this Agreement, the Note or any of the other Loan Documents; (bii) impair the right of Lender to name any of the Borrower Parties, as a party defendant in any action or suit for foreclosure and sale under the Mortgage; (ciii) affect the validity or enforceability of any guaranty or indemnity made in connection with the Loan (including, without limitation, the Guaranty) or any of the rights and remedies of Lender thereunder; (div) impair the right of Lender to obtain the appointment of a receiver; (ev) impair the enforcement of the Assignment of LeasesLeases and Rents executed in connection herewith; or (fvi) constitute a prohibition against waiver of the right of Lender to seek a deficiency judgment enforce the liability and obligation of Borrower (but not against any members of Borrower in order to fully realize on any security given by Borrower in connection with the Loan (including the security granted by the Mortgage) or their direct or indirect constituent members or partners or any other assets Person), by money judgment or otherwise, to the extent of Borrower any loss, damage, cost, expense, liability, claim or to commence any other appropriate action or proceeding in order for obligation incurred by Lender to exercise its remedies against such security (including the Property or any other assets attorneys' fees and costs reasonably incurred) arising out of Borrower).
(a) Nothing contained in this Section 11.22 shall limit the rights of Lender to proceed against Borrower for any of the following (or against Guarantor under the Guaranty, on the additional terms and conditions thereof and subject to any limitations set forth herein or therein):
(i) to enforce any Leases entered into by Borrower or its Affiliates as Tenant;
(ii) to recover damages for fraud, material misrepresentation, material breach of warranty or intentional physical waste;
(iii) to recover any Condemnation Proceeds or Insurance Proceeds or other similar funds which have been misappropriated by Borrower or which, under the terms of the Loan Documents, should have been paid to Lender;
(iv) to recover (A) any Tenant security deposits, Tenant letters of credit or other deposits or fees paid to Borrower or (B) prepaid rents for a period of more than thirty (30) days in advance of its due date which have not been delivered to Lender;
(v) to recover Business Income received by Borrower during an Event of Default which have not been applied to the Loan or in accordance with the Loan Documents to operating and maintenance expenses of the Property;
(vi) to recover damages, costs and expenses arising from, or in connection with the provisions of the Mortgage pertaining to Hazardous Materials or the Environmental Indemnity;following:
(viia) to recover fraud or intentional misrepresentation by Borrower or any amount expended by Lender Guarantor in connection with the foreclosure of the MortgageLoan;
(b) intentional physical waste (including, but only in the event that any not limited to, waste due to gross negligence) by Borrower or any Guarantor takes action affiliate thereof; provided, however, such physical waste shall exclude wear and tear to impede such foreclosure the Property that occurs in the ordinary course of business of the Property by Borrower or otherwise contests the foreclosure in bad faithany affiliate thereof;
(viiic) to recover damagesthe material breach of any representation, costs warranty, covenant or indemnification provision in that certain Environmental and expenses arising from, or in connection with, the failure Hazardous Substance Indemnification Agreement of even date herewith given by Borrower to pay Taxes Lender or in this Agreement concerning Environmental Laws, Hazardous Substances and Insurance Premiums when due to the extent that Borrower was not required to deposit such amounts with Lender pursuant to Section 6 hereof, but only to the extent there was available revenue from the Property for the period in question sufficient to pay such Taxes and Insurance Premiums, and provided further that Lender does not prevent such proceeds from being so appliedAsbestos;
(ixd) to recover damages, costs and expenses arising from the failure removal or disposal by Borrower or any affiliate thereof of any portion of the representations set forth Property after an Event of Default, unless such portion of the Property is replaced by an item of equal or greater value as determined by Lender in Section 3.1.8 its reasonable discretion;
(e) the misapplication or conversion by Borrower or any affiliate thereof of (i) any insurance proceeds paid by reason of any loss, damage or destruction to be true the Property, (ii) any awards or Borrower’s other amounts received in connection with the condemnation of all or a portion of the Property, (iii) any Rents following an Event of Default or (iv) any Rents paid more than one month in advance;
(f) failure to comply with pay charges for labor or materials or taxes or other charges that can create liens superior to the provisions lien of Sections 4.2.11 the Mortgage on any portion of this Agreementthe Property unless such taxes or other charges are being contested in accordance herewith; and
(xg) to recover damages, costs and expenses arising from, or in connection with, any Lien arising from a written instrument executed security deposits collected by any Borrower or any Affiliate affiliate thereof expressly creating such Lienwith respect to the Property which are not delivered to Lender upon a foreclosure of the Property or action in lieu thereof, except to the extent any such Lien is prohibited under this Agreementsecurity 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.
(b1) Notwithstanding the foregoinga receiver (other than a receiver appointed by Lender), the agreement liquidator or trustee of Lender not to limit recourse liability as set forth in Section 11.22(a) above SHALL BECOME NULL AND VOID and Borrower or Guarantor shall be of no further force and effect and the Debt shall be fully recourse to Borrower (and to Guarantor under the Guaranty, on the additional terms and conditions thereof and subject to any limitations set forth herein or therein) in the event that:
(i) any Borrower commences a voluntary bankruptcy or insolvency proceeding;
(ii) an involuntary bankruptcy or insolvency proceeding is commenced against any Borrower and appointed which is not dismissed within 90 days of filing; or
ninety (iii90) voluntary Transfer of the Property occurs days, or (2) if any petition for bankruptcy, reorganization or arrangement pursuant to federal bankruptcy law, or any similar federal or state law, shall be filed by written instrument executed Borrower or Guarantor, or (3) if Borrower or Guarantor files an answer consenting to, or otherwise joining in, any involuntary petition for bankruptcy, reorganization or arrangement pursuant to federal bankruptcy law, or any similar federal or state law filed against it by any other Person, or is found pursuant to a final, unappealable order of a court of competent jurisdiction to have solicited or caused to be solicited creditors to file any involuntary petition for bankruptcy, reorganization or arrangement pursuant to federal bankruptcy law, or any similar federal or state law against Borrower or any Affiliate thereof, which instrument expressly effects such TransferGuarantor, or a Secondary Financing is voluntarily incurred in violation of the Loan Documents(4) if Borrower or Guarantor are found, except as otherwise consented to by Lender in writing (which consent may be withheld in Lender’s sole discretion).
(c) Notwithstanding the provisions of clauses (i) and (ii) of Section 11.22(b) no Guarantor shall be liable for any amount related pursuant to a Qualified Involuntary Bankruptcyfinal unappealable order of a court of competent jurisdiction, to have been in collusion with creditors that initiate a bankruptcy action or proceeding against Borrower or Guarantor.
(d) In addition, this agreement shall not waive any rights which Lender would have under any provisions of Title 11 of the Bankruptcy Code to file a claim for the full amount of the Debt or to require that the Property shall continue to secure all of the Debt.
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 Mortgage 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 the Borrower or Borrower, any direct or indirect of its Affiliates and/or any of their respective principals, directors, officers, employees, beneficiaries, shareholders, partners, members, partners or shareholders of Borrower or the employeestrustees, agents, directors or officers any legal representatives, successors or assigns of Borrower or its Affiliatesany of the foregoing (collectively, the “Exculpated Parties”), except that Lender may bring an action against Borrower, including a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender to enforce and realize upon its interest under the Note, this Agreement, the Mortgage Security Instruments and the other Loan Documents, or in the Propertyany Individual Property (or any portion thereof), the Business IncomeRents, or any other collateral given to Lender pursuant to the Loan Documents or any other assets of BorrowerDocuments; 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 PropertyProperties, in the Business Income Rents and in any other collateral given to Lender or any other assets of BorrowerLender, and Lender, by accepting the Note, this Agreement, the Mortgage Security Instruments and the other Loan Documents, shall not ▇▇▇ for, seek or demand any deficiency judgment or any other monetary payment against Borrower or any of the direct or indirect members, partners or shareholders of Borrower or the employees, agents, directors or officers of Borrower or its Affiliates Exculpated Parties in any such action or proceeding under or by reason of or under or in connection with the Note, this Agreement, the Mortgage 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 Mortgageany Security Instrument; (c3) affect the validity or enforceability of any indemnity, guaranty or indemnity 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 (including, without limitation, the Guaranty) 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 Instruments 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) impair the enforcement of the Assignment of Leases; or (f7) 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 Loan (including the security granted by the Mortgage) or any other assets of Borrower Security Instrument or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against such security (including the Property (or any other assets portion thereof); or (8) constitute a waiver of Borrower).
(a) Nothing contained in this Section 11.22 shall limit the rights right of Lender to proceed against Borrower for enforce the liability and obligation of Borrower, by money judgment or otherwise, to the extent of any Loss incurred by Lender (including reasonable attorneys’ fees and costs reasonably incurred) arising out of or in connection with the following (or against Guarantor under the Guaranty, on the additional terms and conditions thereof and subject to any limitations set forth herein or therein):following:
(i) to enforce fraud or intentional misrepresentation by any Leases entered into by Borrower or its Affiliates as TenantParty in connection with the Loan;
(ii) the gross negligence or willful misconduct of any Borrower Party (including, without limitation, any litigation or other legal proceeding related to recover damages for fraudthe Debt filed by any Borrower Party or any other action of any Borrower Party that delays, material misrepresentationopposes, material breach impedes, obstructs, hinders, enjoins or otherwise interferes with or frustrates the efforts of warranty or intentional physical wasteLender to exercise any rights and remedies available to Lender as provided herein and in the other Loan Documents);
(iii) physical waste to recover any Condemnation Proceeds Individual Property (or Insurance Proceeds any portion thereof) caused by the intentional acts or other similar funds which have been misappropriated intentional omissions of any Borrower Party and/or the removal or disposal by a Borrower Party or which, under its Affiliates of any portion of any Individual Property during the terms continuance of the Loan Documents, should have been paid to Lenderan Event of Default;
(iv) to recover the misapplication, misappropriation or conversion by any Borrower Party of (A) any Tenant security depositsinsurance proceeds paid by reason of any loss, Tenant letters of credit damage or other deposits destruction to any Individual Property (or fees paid to Borrower or any portion thereof), (B) prepaid rents for any Awards or other amounts received in connection with the Condemnation of all or a period portion of more than thirty any Individual Property, (30C) days any Rents, (D) any Security Deposits or Rents collected in advance of its due date which have not been delivered or (E) any other monetary collateral for the Loan (including, without limitation, any Reserve Funds and/or any portion thereof disbursed to Lender(or at the direction of) Borrower);
(v) failure to recover Business Income received by Borrower during an Event pay Taxes, charges for labor or materials or other charges that can create liens on any portion of Default which have not been applied to the Loan or Property in accordance with the Loan Documents terms and provisions hereof; provided, however, Borrower shall have no liability under this subsection (v) 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 operating pay such amounts; provided, that, in no instance shall Borrower be released from any liability pursuant to this clause (v) to the extent (1) such insufficiency of cash flow arises from the intentional misappropriation or conversion of Rent by any Borrower Party or (2) Borrower incurred such charges after the occurrence and maintenance expenses during the continuance of the Propertyan Event of Default;
(vi) failure to recover damagespay Insurance Premiums, costs to maintain the Policies in full force and expenses arising from, or in connection with the provisions effect and/or to provide Lender evidence of the Mortgage pertaining same, in each case, as expressly provided herein; provided, however, Borrower shall have no liability under this subsection (vi) if sufficient cash flow is not available from the Properties to Hazardous Materials pay such amounts; provided, that, in no instance shall Borrower be released from any liability pursuant to this clause (vi) to the extent such insufficiency of cash flow arises from the intentional misappropriation or the Environmental Indemnityconversion of Rent by any Borrower Party;
(vii) any Security Deposits which are not delivered to recover Lender within the timeframe required hereunder except to the extent any amount expended by Lender such Security Deposits were applied in accordance with the terms and conditions of any of the Leases prior to the occurrence of the applicable Event of Default. For purposes of clarification, for a Security Deposit to be deemed “delivered to Lender” in connection with the foreclosure of foregoing, the Mortgage, but only same must be in the event that any Borrower form of cash or any Guarantor takes action to impede such foreclosure or otherwise contests the foreclosure in bad faitha letter of credit solely in Lender’s name;
(viii) to recover damages, costs and expenses arising from, any violation or in connection with, breach by any Borrower Party of any applicable law mandating the failure by Borrower to pay Taxes and Insurance Premiums when due to the extent that Borrower was not required to deposit such amounts with Lender pursuant to Section 6 hereof, but only to the extent there was available revenue from the forfeiture or seizure of any Individual Property for the period in question sufficient to pay such Taxes and Insurance Premiums, and provided further that Lender does not prevent such proceeds from being so applied(or any portion thereof and/or interest therein);
(ix) to recover damages, costs and expenses arising from the failure to make any REMIC Payment as and when required herein;
(x) any indemnity obligations of Lender to Bank under the representations set forth in Section 3.1.8 to be true or Borrower’s failure Restricted Account Agreement;
(xi) Borrower fails to comply with the Cash Management Provision 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 Sections 4.2.11 of of, this Agreement; andAgreement and the other Loan Documents;
(xxii) to recover damages, costs and expenses arising from, or in connection withwithout limiting Section 13.1(b)(ii) below, any Lien arising from violation or breach of any representation, warranty or covenants contained in Article 5;
(xiii) without limiting Section 13.1(b)(iii) below, any violation or breach of any representation, warranty or covenants contained in Article 6;
(xiv) any failure of Lender to be paid the Release Price for the Individual Property known as One Ally Center upon a written instrument executed total Condemnation of such Individual Property; and/or
(xv) (1) any (A) material amendment or modification or (B) termination or cancellation of any Leased Fee Lease by Borrower, in each case without Lender’s consent, which consent is to be given or withheld in accordance with the terms of Section 4.14 hereof or (2) any termination or cancellation of any Leased Fee Lease due to a default by Borrower or any Affiliate thereof expressly creating such Lien, to the extent such Lien is prohibited under this Agreementthereunder.
(b) Notwithstanding anything to the foregoingcontrary in this Agreement, the agreement of Lender not to limit recourse liability as set forth in Section 11.22(a) above SHALL BECOME NULL AND VOID and shall be of no further force and effect and the Debt shall be fully recourse to Borrower (and to Guarantor under the Guaranty, on the additional terms and conditions thereof and subject to any limitations set forth herein or therein) in the event that:
(i) any Borrower commences a voluntary bankruptcy or insolvency proceeding;
(ii) an involuntary bankruptcy or insolvency proceeding is commenced against any Borrower and is not dismissed within 90 days of filing; or
(iii) voluntary Transfer of the Property occurs by written instrument executed by any Borrower Note or any Affiliate thereof, which instrument expressly effects such Transfer, or a Secondary Financing is voluntarily incurred in violation of the Loan Documents, except as otherwise consented to by (A) Lender in writing (which consent may be withheld in Lender’s sole discretion).
(c) Notwithstanding the provisions of clauses (i) and (ii) of Section 11.22(b) no Guarantor shall be liable for any amount related to a Qualified Involuntary Bankruptcy.
(d) In addition, this agreement shall not waive be deemed to have waived any rights right which Lender would may have under Section 506(a), 506(b), 1111(b) or any other provisions of Title 11 of the Bankruptcy Code to file a claim for the full amount of the Debt or to require that the Property all collateral shall continue to secure all of the DebtDebt 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) any representation, warranty or covenant contained in Article 5 is violation or breached which results in the substantive consolidation of Borrower or any SPE Component with any other Person; (iii) 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 any voluntary act that causes a change (directly or indirectly) in the ownership of any Borrower and/or any SPE Component Entity to the extent such ownership change required Lender’s consent under this Agreement; (iv) a Bankruptcy Event occurs; or (v) the Ground Lease is terminated, cancelled or otherwise ceases to exist or is rejected in a proceeding under the Bankruptcy Code and/or any Creditors Rights Laws (provided, however, that liability for breach of this clause (v) shall be limited to the Release Price of such Individual Property subject to the Ground Lease together with Lender’s fees, costs and expenses in connection therewith (including Lender’s reasonable attorneys’ fees and expenses) and (II) Borrower shall have no liability with respect to a rejection of the Ground Lease by a ground lessor in a proceeding of the ground lessor under the Bankruptcy Code and/or any Creditors Rights Laws to the extent that (x) Borrower retains its rights under such Ground Lease and (y) Lender’s first priority lien in the leasehold estate created by such Ground Lease (subject only to Permitted Encumbrances) is unimpaired.
Appears in 1 contract
Exculpation. Subject to the qualifications below, Lender shall not enforce the liability and obligation of Borrower or its constituent members, partners, shareholders, directors, employees or agents or the direct or indirect constituent members, partners, shareholders, directors, employees or agents thereof (collectively, the “Borrower Parties”) or any other Person, to perform and observe the obligations contained in the Note, this Agreement, the Mortgage Note or any of the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against any of the Borrower Parties or any direct or indirect members, partners or shareholders of Borrower or the employees, agents, directors or officers of Borrower or its Affiliatesother Person, except that Lender may bring an action against Borrower, including a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender to enforce and realize upon its interest under the Note, this Agreement, the Mortgage and the other Loan Documents, or in the Property, the Business Income, Rents or any other collateral given to Lender pursuant to this Agreement and the other Loan Documents or any other assets of BorrowerDocuments; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against the Borrower Parties only to the extent of Borrower’s their interest in the Property, in the Business Income Rents and in any other collateral given to Lender or any other assets of BorrowerLender, and Lender, by accepting the Note, this Agreement, the Mortgage Note and the other Loan Documents, agrees that it shall not ▇▇▇ for, seek or demand any deficiency judgment against any of the Borrower Parties or any other monetary payment against Borrower or the direct or indirect members, partners or shareholders of Borrower or the employees, agents, directors or officers of Borrower or its Affiliates Person in any such action or proceeding under or by reason of or under or in connection with the Note, this Agreement, the Mortgage Note or any of 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 this Agreement, the Note or any of the other Loan Documents; (bii) impair the right of Lender to name any of the Borrower Parties, as a party defendant in any action or suit for foreclosure and sale under the Mortgage; (ciii) affect the validity or enforceability of any guaranty or indemnity made in connection with the Loan (including, without limitation, the Guaranty) or any of the rights and remedies of Lender thereunder; (div) impair the right of Lender to obtain the appointment of a receiver; (ev) impair the enforcement of the Assignment of LeasesLeases and Rents; or (fvi) constitute a prohibition against waiver of the right of Lender to seek a deficiency judgment enforce the liability and obligation of Borrower (but not against any members of Borrower (other than Guarantor to the extent provided in order to fully realize on any security given by Borrower in connection with the Loan (including Non-Recourse Guaranty and/or the security granted by the MortgagePartial Payment Guaranty) or their direct or indirect constituent members or partners or any other assets Person), by money judgment or otherwise, to the extent of Borrower any loss, damage, cost, expense, liability, claim or to commence other obligation (but excluding any other appropriate action punitive, consequential or proceeding in order for speculative damages) incurred by Lender to exercise its remedies against such security (including the Property or any other assets attorneys’ fees and costs reasonably incurred) arising out of Borrower).
(a) Nothing contained in this Section 11.22 shall limit the rights of Lender to proceed against Borrower for any of the following (or against Guarantor under the Guaranty, on the additional terms and conditions thereof and subject to any limitations set forth herein or therein):
(i) to enforce any Leases entered into by Borrower or its Affiliates as Tenant;
(ii) to recover damages for fraud, material misrepresentation, material breach of warranty or intentional physical waste;
(iii) to recover any Condemnation Proceeds or Insurance Proceeds or other similar funds which have been misappropriated by Borrower or which, under the terms of the Loan Documents, should have been paid to Lender;
(iv) to recover (A) any Tenant security deposits, Tenant letters of credit or other deposits or fees paid to Borrower or (B) prepaid rents for a period of more than thirty (30) days in advance of its due date which have not been delivered to Lender;
(v) to recover Business Income received by Borrower during an Event of Default which have not been applied to the Loan or in accordance with the Loan Documents to operating and maintenance expenses of the Property;
(vi) to recover damages, costs and expenses arising from, or in connection with the provisions of the Mortgage pertaining to Hazardous Materials or the Environmental Indemnity;following:
(viia) to recover any amount expended fraud or intentional misrepresentation by Lender Borrower or Guarantor in connection with the foreclosure Loan;
(b) intentional physical waste of the MortgageProperty (including, but only in the event that any not limited to, waste due to gross negligence) by Borrower or any Guarantor takes action affiliate thereof; provided, however, such physical waste shall exclude wear and tear to impede such foreclosure the Property that occurs in the ordinary course of business of the Property by Borrower or otherwise contests the foreclosure in bad faithany affiliate thereof;
(viiic) to recover damagesthe material breach of any representation, costs and expenses arising fromwarranty, covenant or indemnification provision in the Environmental Indemnity or in connection withthis Agreement concerning Environmental Laws, the failure by Borrower to pay Taxes Hazardous Substances and Insurance Premiums when due to the extent that Borrower was not required to deposit such amounts with Lender pursuant to Section 6 hereof, but only to the extent there was available revenue from the Property for the period in question sufficient to pay such Taxes and Insurance Premiums, and provided further that Lender does not prevent such proceeds from being so appliedAsbestos;
(ixd) to recover damages, costs and expenses arising from the failure removal or disposal by Borrower or any affiliate thereof of any portion of the representations set forth Property after an Event of Default has occurred and while it is continuing, unless such portion of the Property is replaced by an item of equal or greater value as determined by Lender in Section 3.1.8 its reasonable discretion;
(e) the misapplication or conversion by Borrower or any affiliate thereof of (i) any insurance proceeds paid by reason of any loss, damage or destruction to be true the Property, (ii) any awards or Borrower’s other amounts received in connection with the condemnation of all or a portion of the Property, (iii) any Rents following an Event of Default or (iv) any Rents paid more than one (1) month in advance;
(f) failure to comply pay charges for labor or materials or taxes or other charges that can create liens superior to the lien of the Mortgage on any portion of the Property unless such taxes or other charges are being contested in accordance herewith or such taxes or charges have been delivered to Lender in accordance with the provisions of Sections 4.2.11 of this AgreementSection 3.3 hereof or Borrower has complied with Section 5.2 hereof; and
(xg) to recover damages, costs and expenses arising from, or in connection with, any Lien arising from a written instrument executed security deposits collected by any Borrower or any Affiliate affiliate thereof expressly creating such Lienwith respect to the Property which are not delivered to Lender upon a foreclosure of the Property or action in lieu thereof, except to the extent any such Lien is prohibited under this Agreement.
(b) Notwithstanding security deposits were applied in accordance with the foregoing, the agreement of Lender not to limit recourse liability as set forth in Section 11.22(a) above SHALL BECOME NULL AND VOID and shall be of no further force and effect and the Debt shall be fully recourse to Borrower (and to Guarantor under the Guaranty, on the additional terms and conditions thereof and subject 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. Notwithstanding anything to the contrary in any limitations set forth herein or therein) in of the event that:
Loan Documents (i) Lender shall not be deemed to have waived any Borrower commences a voluntary bankruptcy right which Lender may have under Section 506(a), 506(b), 1111(b) or insolvency proceeding;
(ii) an involuntary bankruptcy or insolvency proceeding is commenced against any Borrower and is not dismissed within 90 days of filing; or
(iii) voluntary Transfer other provisions of the Property occurs by written instrument executed by any Borrower or any Affiliate thereof, which instrument expressly effects such Transfer, or a Secondary Financing is voluntarily incurred in violation of the Loan Documents, except as otherwise consented to by Lender in writing (which consent may be withheld in Lender’s sole discretion).
(c) Notwithstanding the provisions of clauses (i) and (ii) of Section 11.22(b) no Guarantor shall be liable for any amount related to a Qualified Involuntary Bankruptcy.
(d) In addition, this agreement shall not waive any rights which Lender would have under any provisions of Title 11 of the U.S. Bankruptcy Code to file a claim for the full amount of the Debt or to require that the Property all collateral shall continue to secure all of the DebtDebt owing to Lender in accordance with the Loan Documents, and (ii) the Debt shall become fully recourse to Borrower (but not its members (other than Guarantor solely to the extent provided in the Non-Recourse Guaranty and/or the Partial Payment Guaranty) or other direct or indirect constituent members or partners or any other Person) in the event that: (A) the first full Monthly Debt Service Payment Amount (as defined in the Note) under the Note is not paid when due; (B) other than in connection with a default under subsection (x) of the definition of Special Purpose Bankruptcy Remote Entity set forth in Schedule 5 hereto, Borrower fails to maintain its status as a Special Purpose Bankruptcy Remote Entity in accordance with the provisions of this Agreement and such failure results in the substantive consolidation of Borrower with another Person; (C) except as otherwise permitted pursuant to the Loan Documents, Borrower fails to obtain Lender’s prior written consent to any subordinate financing or other voluntary lien encumbering the Property; (D) except as otherwise permitted pursuant to the Loan Documents, Borrower fails to obtain Lender’s prior written consent to any assignment, transfer, or conveyance of the Property or any interest therein as and to the extent required by this Agreement or the Mortgage; or (E) (1) if any petition for bankruptcy, reorganization or arrangement pursuant to federal bankruptcy law, or any similar federal or state law, shall be filed by Borrower or Guarantor, or (2) if Borrower or Guarantor files an answer consenting to, or otherwise joining in, any involuntary petition for bankruptcy, reorganization or arrangement pursuant to federal bankruptcy law, or any similar federal or state law filed against it by any other Person, or is found pursuant to a final, unappealable order of a court of competent jurisdiction to have solicited or caused to be solicited creditors to file any involuntary petition for bankruptcy, reorganization or arrangement pursuant to federal bankruptcy law, or any similar federal or state law against Borrower or Guarantor, or (3) if Borrower or Guarantor are found, pursuant to a final unappealable order of a court of competent jurisdiction, to have been in collusion with creditors that initiate a bankruptcy action or proceeding against Borrower or Guarantor.
Appears in 1 contract
Exculpation. 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 Mortgage or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against the Borrower or any direct or indirect members, partners or shareholders of Borrower or the employees, agents, directors or officers of Borrower or its Affiliates, except that Lender may bring an action against Borrower, including a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender to enforce and realize upon its interest under the Note, this Agreement, the Mortgage and the other Loan Documents, or in the Property, the Business Income, or any other collateral given to Lender pursuant to the Loan Documents or any other assets of 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 Property, in the Business Income in any other collateral given to Lender or any other assets of Borrower, and Lender, by accepting the Note, this Agreement, the Mortgage and the other Loan Documents, shall not ▇▇▇ for, seek or demand any deficiency judgment or any other monetary payment against Borrower or the direct or indirect members, partners or shareholders of Borrower or the employees, agents, directors or officers of Borrower or its Affiliates in any such action or proceeding under or by reason of or under or in connection with the Note, this Agreement, the 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 Mortgage; (c) affect the validity or enforceability of any guaranty or indemnity made in connection with the Loan (including, without limitation, the Guaranty) or any of the rights and remedies of Lender thereunder; (d) impair the right of Lender to obtain the appointment of a receiver; (e) impair the enforcement of the Assignment of Leases; or (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 Loan (including the security granted by the Mortgage) or Notwithstanding any other assets provision of Borrower or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against such security (including the Property or any other assets of Borrower).
(a) Nothing contained in this Section 11.22 shall limit the rights of Lender to proceed against Borrower for any of the following (or against Guarantor under the Guaranty, on the additional terms and conditions thereof and subject to any limitations set forth herein or therein):Agreement:
(i) to enforce the extent that, at law or in equity, the Managing Member, Investment Manager or Liquidating Trustee, as the case may be, has duties (including fiduciary duties) and liabilities relating thereto to the Company, the Company or any Leases entered into Member or Assignee of the Company arising under or otherwise relating to this Agreement, the Managing Member, Investment Manager or Liquidating Trustee, as the case may be, shall not be liable for monetary or other damages to the Company or such Member or Assignee for: (A) losses sustained or liabilities incurred by Borrower the Company or its Affiliates such Member or Assignee, except to the extent that it is Judicially Determined that an act or omission of the Managing Member or Liquidating Trustee, as Tenant;the case may be, was material to the matter giving rise to such losses or liabilities and that such act or omission constituted criminal wrongdoing, willful misfeasance, bad faith or gross negligence on the part of the Managing Member, Investment Manager or Liquidating Trustee, as the case may; (B) losses sustained or liabilities incurred by the Company or such Member or Assignee arising from or otherwise relating to any act or omission of any Person selected by the Managing Member, Investment Manager or Liquidating Trustee to perform services for or otherwise transact business with the Company, as the case may be, except to the extent that it is Judicially Determined that the selection of such Person involved criminal wrongdoing, willful misfeasance, bad faith or gross negligence on the part of the Managing Member, Investment Manager or the Liquidating Trustee, as the case may be, and was material to the matter giving rise to such losses or liabilities; or (C) circumstances beyond the control of the Managing Member, Investment Manager or Liquidating Trustee, including changes in tax or other laws, rules or regulations or the bankruptcy, insolvency or suspension of normal business activities of any broker-dealer, bank or other financial institution that holds assets of the Company; and
(ii) to recover damages the extent that, at law or in equity, a Managing Member Associate (other than the Managing Member) or Liquidating Trustee Associate (other than the Liquidating Trustee) has duties (including fiduciary duties) and liabilities relating thereto to the Company or any Member or Assignee of the Company arising under or otherwise relating to this Agreement, such Managing Member Associate or Liquidating Trustee Associate shall not be liable for fraud, material misrepresentation, material breach of warranty or intentional physical waste;
(iii) to recover any Condemnation Proceeds or Insurance Proceeds monetary or other similar funds which have been misappropriated by Borrower or which, under the terms of the Loan Documents, should have been paid to Lender;
(iv) to recover (A) any Tenant security deposits, Tenant letters of credit or other deposits or fees paid to Borrower or (B) prepaid rents for a period of more than thirty (30) days in advance of its due date which have not been delivered to Lender;
(v) to recover Business Income received by Borrower during an Event of Default which have not been applied damages to the Loan Company or in accordance with such Member or Assignee for losses sustained or liabilities incurred by the Loan Documents to operating and maintenance expenses of the Property;
(vi) to recover damagesCompany or such Member or Assignee, costs and expenses arising from, or in connection with the provisions of the Mortgage pertaining to Hazardous Materials or the Environmental Indemnity;
(vii) to recover any amount expended by Lender in connection with the foreclosure of the Mortgage, but only in the event that any Borrower or any Guarantor takes action to impede such foreclosure or otherwise contests the foreclosure in bad faith;
(viii) to recover damages, costs and expenses arising from, or in connection with, the failure by Borrower to pay Taxes and Insurance Premiums when due except to the extent that Borrower it is Judicially Determined that an act or omission of such Managing Member Associate or Liquidating Trustee Associate, as the case may be, was not required to deposit such amounts with Lender pursuant to Section 6 hereof, but only material to the extent there was available revenue from matter giving rise to such losses or liabilities and that such act or omission constituted criminal wrongdoing, willful misfeasance or bad faith on the Property for part of such Managing Member Associate or Liquidating Trustee Associate, as the period in question sufficient to pay such Taxes and Insurance Premiums, and provided further that Lender does not prevent such proceeds from being so applied;
(ix) to recover damages, costs and expenses arising from the failure of the representations set forth in Section 3.1.8 to be true or Borrower’s failure to comply with the provisions of Sections 4.2.11 of this Agreement; and
(x) to recover damages, costs and expenses arising from, or in connection with, any Lien arising from a written instrument executed by any Borrower or any Affiliate thereof expressly creating such Lien, to the extent such Lien is prohibited under this Agreementcase may be.
(b) Notwithstanding the foregoing, the agreement of Lender not to limit recourse liability as set forth in Section 11.22(a) above SHALL BECOME NULL AND VOID Each Managing Member Associate and shall be of no further force and effect and the Debt Liquidating Trustee Associate shall be fully recourse to Borrower (protected in relying in good faith upon the books and to Guarantor under the Guaranty, on the additional terms and conditions thereof and subject to any limitations set forth herein or therein) in the event that:
(i) any Borrower commences a voluntary bankruptcy or insolvency proceeding;
(ii) an involuntary bankruptcy or insolvency proceeding is commenced against any Borrower and is not dismissed within 90 days of filing; or
(iii) voluntary Transfer records of the Property occurs by written instrument executed Company and upon such information, opinions, reports or statements presented to the Company by any Borrower of its members, managers, partners, shareholders, directors, officers or agents (including legal counsel, accountants, auditors, appraisers, investment bankers and other independent experts acting for the Company or any Affiliate thereofmember, which instrument expressly effects manager, partner, shareholder, director, officer or agent of the Company as to matters such TransferManaging Member Associate or Liquidating Trustee Associate, as the case may be, reasonably believes are within such other Person's professional or expert competence, including information, opinions, reports, or a Secondary Financing is voluntarily incurred in violation of statements as to the Loan Documents, except as otherwise consented to by Lender in writing (which consent may be withheld in Lender’s sole discretion).
(c) Notwithstanding the provisions of clauses (i) value and (ii) of Section 11.22(b) no Guarantor shall be liable for any amount related to a Qualified Involuntary Bankruptcy.
(d) In addition, this agreement shall not waive any rights which Lender would have under any provisions of Title 11 of the Bankruptcy Code to file a claim for the full amount of the Debt assets, liabilities, profits or losses or any other facts pertinent to require that the Property shall continue to secure all existence and amount of the Debtassets from which distributions might properly be made.
Appears in 1 contract
Sources: Operating Agreement (Secured Real Estate Fund II, LLC)
Exculpation. Subject to the qualifications below, The Lender has and shall not enforce the have no liability and or obligation of Borrower to perform and observe the obligations contained in the Note, this Agreement, the Mortgage whatsoever or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against the Borrower or any direct or indirect members, partners or shareholders of Borrower or the employees, agents, directors or officers of Borrower or its Affiliates, except that Lender may bring an action against Borrower, including a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender to enforce and realize upon its interest under the Note, this Agreement, the Mortgage and the other Loan Documents, or in the Property, the Business Income, or any other collateral given to Lender pursuant to the Loan Documents or any other assets of 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 Property, in the Business Income in any other collateral given to Lender or any other assets of Borrower, and Lender, by accepting the Note, this Agreement, the Mortgage and the other Loan Documents, shall not ▇▇▇ for, seek or demand any deficiency judgment or any other monetary payment against Borrower or the direct or indirect members, partners or shareholders of Borrower or the employees, agents, directors or officers of Borrower or its Affiliates in any such action or proceeding under or by reason of or under or howsoever in connection with the Noteconstruction, completion or management of the Improvements, and has no obligation except to make Loan Advances as provided in this Participation Agreement and the Loan Agreement, and the Mortgage Lender is not obligated to inspect the Improvements; nor is the Lender liable and under no circumstances whatsoever shall the Lender be or become liable for the other Loan Documents. The provisions performance or default of this Section shall notany contractor or subcontractor, however: (a) constitute a waiveror for any failure to construct, release complete, protect or impairment insure the Improvements, or any part thereof, or for the payment of any cost or expense incurred in connection therewith, or for the performance or non-performance of any obligation evidenced or secured by any of the Lessor or the Lessee to the Lender or to any other person, firm or entity without limitation; and nothing, including without limitation, any disbursement of Loan Documents; (b) impair the right Advances or acceptance of Lender to name Borrower any document or instrument, shall be construed as a party defendant in any action representation or suit warranty, express or implied, on the Lender's part. Further, the Lessee shall be solely responsible for foreclosure all aspects of the Lessee's business and sale under the Mortgage; (c) affect the validity or enforceability of any guaranty or indemnity made conduct in connection with the Loan (construction, completion and management of the Improvements including, without limitation, the Guaranty) or any of the rights and remedies of Lender thereunder; (d) impair the right of Lender to obtain the appointment of a receiver; (e) impair the enforcement of the Assignment of Leases; or (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 Loan (including the security granted by the Mortgage) or any other assets of Borrower or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against such security (including the Property or any other assets of Borrower).but not limited to:
(a) Nothing contained in this Section 11.22 shall limit the rights of Lender to proceed against Borrower for any The quality and suitability of the following (or against Guarantor under the Guaranty, on the additional terms Plans and conditions thereof and subject to any limitations set forth herein or therein):
(i) to enforce any Leases entered into by Borrower or its Affiliates as TenantSpecifications;
(iib) to recover damages for fraud, material misrepresentation, material breach Supervision of warranty or intentional physical wastethe work of Construction;
(iiic) to recover any Condemnation Proceeds or Insurance Proceeds or other similar funds which have been misappropriated by Borrower or whichThe qualifications, under the terms financial condition and performance of the Loan Documentsall architects, should have been paid to Lenderengineers, contractors, subcontractors and material suppliers and consultants;
(ivd) Conformance of the work of Construction and the Improvements to recover (A) any Tenant security deposits, Tenant letters the requirements of credit or other deposits or fees paid all Applicable Laws and public and private restrictions and requirements and to Borrower or (B) prepaid rents for a period the requirements of more than thirty (30) days in advance of its due date which have not been delivered to Lenderthis Participation Agreement;
(ve) to recover Business Income received by Borrower during an Event The quality and suitability of Default which have not been applied to the Loan or in accordance with the Loan Documents to operating all materials and maintenance expenses of the Property;
(vi) to recover damages, costs and expenses arising from, or in connection with the provisions of the Mortgage pertaining to Hazardous Materials or the Environmental Indemnity;
(vii) to recover any amount expended by Lender in connection with the foreclosure of the Mortgage, but only in the event that any Borrower or any Guarantor takes action to impede such foreclosure or otherwise contests the foreclosure in bad faith;
(viii) to recover damages, costs and expenses arising from, or in connection with, the failure by Borrower to pay Taxes and Insurance Premiums when due to the extent that Borrower was not required to deposit such amounts with Lender pursuant to Section 6 hereof, but only to the extent there was available revenue from the Property for the period in question sufficient to pay such Taxes and Insurance Premiums, and provided further that Lender does not prevent such proceeds from being so applied;
(ix) to recover damages, costs and expenses arising from the failure of the representations set forth in Section 3.1.8 to be true or Borrower’s failure to comply with the provisions of Sections 4.2.11 of this Agreementworkmanship; and
(xf) The accuracy of all requests for the disbursement proceeds of the Loans and the proper application of disbursed proceeds of the Loans. The Lender shall have no obligation to recover damagessupervise, costs and expenses arising frominspect or inform the Lessee, or in connection with, any Lien arising from a written instrument executed by any Borrower the Lessor or any Affiliate thereof expressly creating third party of any aspect of the work or construction of the Improvements or any other matter referred to above. Any inspection or review made by or on behalf of the Lender shall be made for the purpose of determining whether or not the obligations of the Lessee under this Participation Agreement are being properly discharged, and neither the Lessee, the Lessor nor any third party shall be entitled to rely upon any such Lien, inspection or review. The Lender owes no duty of care to the extent such Lien is prohibited under this Agreement.
(b) Notwithstanding Lessee or the foregoingLessor or any third person to protect against or inform the Lessee, the agreement of Lender not to limit recourse liability as set forth in Section 11.22(a) above SHALL BECOME NULL AND VOID and shall be of no further force and effect and the Debt shall be fully recourse to Borrower (and to Guarantor under the Guaranty, on the additional terms and conditions thereof and subject to Lessor or any limitations set forth herein or therein) in the event that:
(i) any Borrower commences a voluntary bankruptcy or insolvency proceeding;
(ii) an involuntary bankruptcy or insolvency proceeding is commenced against any Borrower and is not dismissed within 90 days of filing; or
(iii) voluntary Transfer third person of the Property occurs by written instrument executed by any Borrower existence of negligent, faulty, inadequate or any Affiliate thereof, which instrument expressly effects such Transfer, defective design or a Secondary Financing is voluntarily incurred in violation construction of the Loan Documents, except as otherwise consented to by Lender in writing (which consent may be withheld in Lender’s sole discretion)Improvements.
(c) Notwithstanding the provisions of clauses (i) and (ii) of Section 11.22(b) no Guarantor shall be liable for any amount related to a Qualified Involuntary Bankruptcy.
(d) In addition, this agreement shall not waive any rights which Lender would have under any provisions of Title 11 of the Bankruptcy Code to file a claim for the full amount of the Debt or to require that the Property shall continue to secure all of the Debt.
Appears in 1 contract
Sources: Master Participation Agreement (Atria 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 Mortgage 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 the Borrower or any direct principal, director, officer, employee, beneficiary, shareholder, partner, member, trustee, agent, or indirect members, partners or shareholders affiliate of Borrower or any legal representatives, successors or assigns of any of the employeesforegoing (collectively, agents, directors or officers of Borrower or its Affiliatesthe “Exculpated Parties”), except that Lender may bring an action against Borrower, including a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender to enforce and realize upon its interest under the Note, this Agreement, the Mortgage Security Instruments and the other Loan Documents, or in the PropertyProperties (or any portion thereof), the Business IncomeRents, or any other collateral given to Lender pursuant to the Loan Documents or any other assets of BorrowerDocuments; 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 Business Income Rents and in any other collateral given to Lender or any other assets of BorrowerLender, and Lender, by accepting the Note, this Agreement, the Mortgage Security Instruments and the other Loan Documents, shall not ▇s▇▇ for, seek or demand any deficiency judgment or any other monetary payment against Borrower or any of the direct or indirect members, partners or shareholders of Borrower or the employees, agents, directors or officers of Borrower or its Affiliates Exculpated Parties in any such action or proceeding under or by reason of or under or in connection with the Note, this Agreement, the Mortgage 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 MortgageSecurity Instruments; (c3) affect the validity or enforceability of the Guaranty, the Environmental Indemnity and/or any guaranty or indemnity made set forth in connection with the Loan (including, without limitation, the Guaranty) Section 11.2 hereof 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) impair the enforcement of the Assignment assignment of Leasesleases and rents contained in the Security Instruments and in any other Loan Documents; or (f6) 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 Loan (including the security granted by the Mortgage) or any other assets of Borrower Security Instruments or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against such security the Properties (including the Property or any other assets portion thereof); or (7) constitute a waiver of Borrower).
(a) Nothing contained in this Section 11.22 shall limit the rights right of Lender to proceed against Borrower for enforce the liability and obligation of Borrower, by money judgment or otherwise, to the extent of any Loss incurred by Lender (including reasonable attorneys’ fees and costs reasonably incurred) arising out of or in connection with the following (or against Guarantor under the Guaranty, on the additional terms and conditions thereof and subject to any limitations set forth herein or therein):following:
(i) to enforce fraud or intentional material misrepresentation by any Leases entered into by Borrower or its Affiliates as TenantParty in connection with the Loan;
(ii) to recover damages for fraud, material misrepresentation, material breach the gross negligence or willful misconduct of warranty or intentional physical wasteany Borrower Party;
(iii) 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;
(iv) material physical waste to recover the Properties caused by the intentional acts or intentional omissions of any Condemnation Proceeds Borrower Party (it being agreed that is shall not be waste for purposes of this clause (iv)(A) if Borrower fails to maintain the Properties because (1) the revenue generated by the Properties (on an aggregate basis) on a current basis (after payment of the applicable Priority Payments) is insufficient to do so or Insurance Proceeds (2) the Properties (on an aggregate basis) generated sufficient revenue (after payment of the applicable Priority Payments) to maintain the Properties but Borrower lacks access to such revenue as a result of any cash trap by Lender during a Trigger Period or other similar funds which have been misappropriated by Borrower any exercise of Lender’s remedies under the Loan Documents) and/or (B) the removal or which, under disposal of any portion of the Properties after an Event of Default in violation of the terms of the Loan Documents, should have been paid to Lender;
(ivv) to recover the misappropriation, conversion or intentional misapplication by any Borrower Party of (A) any Tenant insurance proceeds paid by reason of any Casualty, (B) any Awards received in connection with a Condemnation, (C) any Rents, or (D) any Rents paid more than one (1) month in advance;
(vi) failure to pay charges for labor or materials or other charges or judgments that can create liens on any portion of the Properties except to the extent the same are being contested in good faith in accordance with this Agreement; provided, however, that there shall be no personal liability under this subsection solely for the failure to pay charges for labor or materials or other charges that can create liens on any portion of the Properties if (A) the revenue generated by the Properties (on an aggregate basis) on a current basis (after payment of the applicable Priority Payments) is insufficient to pay such charges, (B) the Properties (on an aggregate basis) generated sufficient revenue (after payment of the applicable Priority Payments) to pay such charges but Borrower lacks access to such revenue as a result of any cash trap by Lender during a Trigger Period or any exercise of Lender’s remedies under the Loan Documents and/or (C) sufficient sums had been reserved with Lender under the Loan Documents for the express purpose of paying the charges for labor or materials or other charges that can create liens on any portion of the Properties in question and Lender failed to pay same or give Borrower access to such sums to pay same (and in each case, Lender’s access to such funds was not restricted or impeded in any way);
(vii) any security deposits, Tenant letters of credit advance deposits or any other deposits collected with respect to the Properties which are not delivered to Lender upon a foreclosure of the Properties or fees paid action in lieu thereof, except to Borrower 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 (B) prepaid rents for a period of more than thirty (30) days in advance of its due date which have not been action-in-lieu thereof or previously delivered to Lender;
(vviii) to recover Business Income received by Borrower during an Event of Default which have not been applied any zoning matters with respect to the Loan Property, and/or any zoning violations identified in any of the Zoning Reports;
(ix) a breach of Section 4.23(e), Section 11.2 and/or Section 17.17 of this Agreement;
(x) the failure to pay Taxes or Insurance Premiums in accordance with the Loan Documents to operating and maintenance expenses terms of the Property;
(vi) to recover damages, costs and expenses arising from, or in connection with the provisions of the Mortgage pertaining to Hazardous Materials this Agreement or the Environmental Indemnity;
failure to maintain the Policies (viito the extent such Policies are generally available) required pursuant to recover any amount expended by Lender the terms of this Agreement in connection with the foreclosure of the Mortgagefull force and effect; provided, but only in the event however, that any Borrower or any Guarantor takes action to impede such foreclosure or otherwise contests the foreclosure in bad faith;
(viii) to recover damages, costs and expenses arising from, or in connection with, there shall be no personal liability under this subsection solely for the failure by Borrower to pay Taxes and Insurance Premiums when due to if (A) the extent that Borrower was not required to deposit such amounts with Lender pursuant to Section 6 hereof, but only to revenue generated by the extent there was available revenue from Properties (on an aggregate basis) over the Property for prior twelve (12) month period (after payment of the period in question sufficient applicable Priority Payments) is insufficient to pay such Taxes and Insurance Premiums, (B) the Properties (on an aggregate basis) generated sufficient revenue (after payment of the applicable Priority Payments) to pay such Taxes and provided further that Insurance Premiums but Borrower lacks access to such revenue as a result of any cash trap by Lender does during a Trigger Period or any exercise of Lender’s remedies under the Loan Documents, and/or (C) sufficient sums had been reserved with Lender under Section 8.6 hereof for the express purpose of paying the Taxes and/or Insurance Premiums in question and Lender failed to pay same or give Borrower access to such sums to pay same (and in each case, Lender’s access to such funds was not prevent such proceeds from being so appliedrestricted or impeded in any way);
(ixxi) if Borrower or any Affiliate of Borrower, in any judicial or quasi-judicial case, action or proceeding relating to recover damages, costs and expenses arising from the failure Debt brought by Lender (A) contests the validity or enforceability of the representations Loan Documents or (B) directly or indirectly contests or intentionally hinders, delays or obstructs the pursuit of any rights or remedies by Lender (including the commencement and/or prosecution of a foreclosure action, judicial or non-judicial, the appointment of a receiver for the Property or any portion thereof or any enforcement of the terms of the Assignment of Leases) after an Event of Default; provided, however, that there shall be no liability to Borrower under this subsection for raising and pursuing actions or defenses to the extent the same are raised and pursued in good faith;
(xii) any termination of a Ground Lease (other than (A) a termination due to the occurrence of a casualty or condemnation which gives the lessor the unilateral right to terminate a Ground Lease and in connection with which the insurance proceeds and condemnation award, as applicable, have been paid to Lender in accordance with this Agreement or (B) a termination in connection with the acquisition of the underlying Fee Estate provided there is no violation of the terms of the Loan Documents and Borrower causes the lien of the Security Instrument to be spread to cover such Fee Estate) or the material modification of a Ground Lease, in each case without Lender’s consent;
(xiii) any material amendment or modification of any Lease affecting any Individual Property in violation of the terms of this Agreement or any cancellation or termination of any Lease (other than a termination of a Lease due to the Tenant’s unilateral right to terminate such Lease as set forth in Section 3.1.8 to be true such Lease at the time of Lender’s approval or Borrower’s deemed approval thereof) in violation of the terms of this Agreement;
(xiv) the failure by any Individual Borrower or SPE Component Entity to comply with the provisions of Sections 4.2.11 any representation, warranty or covenant set forth in Article 5 of this Agreement; andand/or
(xxv) Borrower fails to recover damages, costs and expenses arising from, obtain Lender’s prior written consent to any transfer to the extent required pursuant to the terms of this Agreement that is not a Full Recourse Transfer or in connection with, any Lien arising from a Borrower fails to obtain Lender’s prior written instrument executed by any Borrower or any Affiliate thereof expressly creating such Lienconsent, to the extent such Lien is prohibited under required pursuant to the terms of this Agreement, to any Indebtedness or voluntary Lien encumbering the Property that is not a Full Recourse Lien.
(b) Notwithstanding anything to the foregoingcontrary in this Agreement, the agreement of Lender not to limit recourse liability as set forth in Section 11.22(a) above SHALL BECOME NULL AND VOID and shall be of no further force and effect and the Debt shall be fully recourse to Borrower (and to Guarantor under the Guaranty, on the additional terms and conditions thereof and subject to any limitations set forth herein or therein) in the event that:
(i) any Borrower commences a voluntary bankruptcy or insolvency proceeding;
(ii) an involuntary bankruptcy or insolvency proceeding is commenced against any Borrower and is not dismissed within 90 days of filing; or
(iii) voluntary Transfer of the Property occurs by written instrument executed by any Borrower Notes or any Affiliate thereof, which instrument expressly effects such Transfer, or a Secondary Financing is voluntarily incurred in violation of the Loan Documents, except as otherwise consented to by (I) Lender in writing (which consent may be withheld in Lender’s sole discretion).
(c) Notwithstanding the provisions of clauses (i) and (ii) of Section 11.22(b) no Guarantor shall be liable for any amount related to a Qualified Involuntary Bankruptcy.
(d) In addition, this agreement shall not waive be deemed to have waived any rights right which Lender would may have under Section 506(a), 506(b), 1111(b) or any other provisions of Title 11 of the Bankruptcy Code to file a claim for the full amount of the Debt secured by the Security Instruments or to require that the Property all collateral shall continue to secure all of the DebtDebt 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 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 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; (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 (provided that the foregoing shall not be deemed to require Borrower to file an objection to any such involuntary petition if Borrower determines reasonably and in good faith that it has no reasonable basis for doing so, or if Borrower is otherwise not permitted by law to file such an objection); (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 Properties other than at Lender’s request (provided that in connection with any acquiescence, Borrower shall not be required to file an objection to any such application if Borrower determines reasonably and in good faith following consultation with legal counsel that it has no reasonable basis for doing so, or if Borrower is otherwise not permitted by law to file such an objection); (E) Borrower making an assignment for the benefit of creditors other than at Lender’s request, or admitting, in writing or in any legal proceeding other than at Lender’s request, its insolvency or inability to pay its debts as they become due; (F) if any Borrower fails to maintain its status as a Single Purpose Entity and such failure is cited in a final non-appealable judgment by a court of competent jurisdiction as a material factor in the substantive consolidation of such Borrower with any other Person in connection with any federal or state bankruptcy proceeding; (G) Borrower fails to obtain Lender’s prior written consent (to the extent such consent is required pursuant to the terms of the Loan Documents) to any transfer (1) that results in a direct or indirect change in Control over Borrower or (2) of any of the Properties by deed, b▇▇▇ of sale, installment sales agreement, ground lease (but excluding any space Lease entered into in the ordinary course of business) or any similar agreement (collectively, a “Full Recourse Transfer”); and/or (H) Borrower fails to obtain Lender’s prior written consent (to the extent such consent is required pursuant to the terms of the Loan Documents) to any voluntary mortgage, deed of trust, collateral assignment or other voluntary lien or interest encumbering all or a substantial portion of the Property (a “Full Recourse Lien”); provided that nothing in clauses (B), (C), (D) and (E) of this paragraph shall impose on Borrower or Guarantor any recourse liability for providing (x) any truthful testimony or (y) truthful responses to duly-served discovery or legal process in the event that Borrower or Guarantor or any of their respective Affiliates, as applicable, is advised by counsel that such Person is required to provide such testimony or response pursuant to applicable law.
(c) As used in this Section 13.1, “Priority Payments” shall mean: (i) with respect to the applicable recourse carveout liability described in Section 13.1(a)(x) above as it relates to the failure to pay Taxes and Insurance Premiums, no other payments; (ii) with respect to the applicable recourse carveout liability described in Section 13.1(a)(iv) above, the payment of all Taxes and Insurance Premiums, Ground Rent, Debt Service and sums required to be deposited into any Reserve Accounts other than the Excess Cash Flow Account, and (iii) with respect to the applicable recourse carveout liability described in Section 13.1(a)(vi) above as it relates to the failure to pay any charges that create Liens, the payment of all Taxes, Insurance Premiums, Ground Rent, Debt Service and sums required to be deposited into any Reserve Account other than the Excess Cash Flow Account, and all sums necessary to avoid material physical waste to the Property, in each case on a current basis.
Appears in 1 contract
Exculpation. Subject to the qualifications provisions set forth below, Lender shall not enforce the liability and obligation of Borrower to perform and observe the obligations contained neither Maker nor any Principal (as defined in the Note, this Loan Agreement, the Mortgage or the other Loan Documents by any action or proceeding wherein a money judgment ) shall be sought against personally liable to pay the Borrower or any direct or indirect members, partners or shareholders of Borrower or Loan and Holder agrees to look solely to the employees, agents, directors or officers of Borrower or its Affiliates, except that Lender may bring an action against Borrower, including a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender to enforce and realize upon its interest under the Note, this Agreement, the Mortgage and the other Loan Documents, or Project (as defined in the Property, the Business Income, or Loan Agreement) and any other collateral given heretofore, now, or hereafter pledged by any party to Lender pursuant secure the Loan. Notwithstanding the foregoing, Maker and each Principal, jointly and severally, shall be personally liable:
(a) for all losses, damages, costs and expenses including attorneys' fees incurred by Holder as a result of (i) any failure after the occurrence and during the continuance of any Event of Default (without benefit of any applicable grace or cure period), to apply any portion of the gross income from the Project to the Loan Documents or to customary operating expenses of the Project, (ii) any material misrepresentation in any Loan Document, fraud or any other assets misappropriation of Borrower; providedany funds deriving from the Project, however(iii) any intentional or material waste or abandonment of the Project, thator (iv) any breach of any representation, except covenant or obligation concerning Hazardous Materials (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 defined in the Property, Loan Agreement) set forth in the Business Income Loan Agreement or set forth in any other collateral given that certain Hazardous Materials Indemnity Agreement from Maker and Principals to Lender or any other assets Holder of Borrowereven date herewith, and Lendereach as amended from time to time, by accepting the Note, this Agreement, the Mortgage and the other Loan Documents, shall not ▇▇▇ for, seek or demand any deficiency judgment or any other monetary payment against Borrower or the direct or indirect members, partners or shareholders of Borrower or the employees, agents, directors or officers of Borrower or its Affiliates in any such action or proceeding under or by reason of or under or in connection with the Note, this Agreement, the 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; and
(b) impair the right for payment of Lender to name Borrower as a party defendant in any action or suit for foreclosure and sale under the Mortgage; (c) affect the validity or enforceability of any guaranty or indemnity made in connection with the Loan (including, without limitation, the Guaranty) or any of the rights and remedies of Lender thereunder; (d) impair the right of Lender to obtain the appointment of a receiver; (e) impair the enforcement of the Assignment of Leases; or (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 Loan (including the Participation, if due, and all principal, interest, fees, costs, expenses and attorney's fees) and all other obligations of Maker under the Loan Documents in the event of (i) any breach of any of the covenants in Sections 6.3, 6.4 or 6.5 of the Loan Agreement pertaining to transfers of interests and additional encumbrances, respectively or (ii) the filing by Maker, or the filing against Maker by any Principal, of any proceeding for relief under any federal or state bankruptcy, insolvency or receivership laws or any assignment for the benefit of creditors made by Maker. The foregoing shall in no way limit or impair the enforcement against the Project or any other security granted by the Mortgage) or any other assets Loan Documents of Borrower or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against such security (including the Property or any other assets of Borrower).
(a) Nothing contained in this Section 11.22 shall limit the rights of Lender to proceed against Borrower for any of the following (or against Guarantor under the Guaranty, on the additional terms Holder's rights and conditions thereof and subject remedies pursuant to any limitations set forth herein or therein):
(i) to enforce any Leases entered into by Borrower or its Affiliates as Tenant;
(ii) to recover damages for fraud, material misrepresentation, material breach of warranty or intentional physical waste;
(iii) to recover any Condemnation Proceeds or Insurance Proceeds or other similar funds which have been misappropriated by Borrower or which, under the terms of the Loan Documents, should have been paid to Lender;
(iv) to recover (A) any Tenant security deposits, Tenant letters of credit or other deposits or fees paid to Borrower or (B) prepaid rents for a period of more than thirty (30) days in advance of its due date which have not been delivered to Lender;
(v) to recover Business Income received by Borrower during an Event of Default which have not been applied to the Loan or in accordance with the Loan Documents to operating and maintenance expenses of the Property;
(vi) to recover damages, costs and expenses arising from, or in connection with the provisions of the Mortgage pertaining to Hazardous Materials or the Environmental Indemnity;
(vii) to recover any amount expended by Lender in connection with the foreclosure of the Mortgage, but only in the event that any Borrower or any Guarantor takes action to impede such foreclosure or otherwise contests the foreclosure in bad faith;
(viii) to recover damages, costs and expenses arising from, or in connection with, the failure by Borrower to pay Taxes and Insurance Premiums when due to the extent that Borrower was not required to deposit such amounts with Lender pursuant to Section 6 hereof, but only to the extent there was available revenue from the Property for the period in question sufficient to pay such Taxes and Insurance Premiums, and provided further that Lender does not prevent such proceeds from being so applied;
(ix) to recover damages, costs and expenses arising from the failure of the representations set forth in Section 3.1.8 to be true or Borrower’s failure to comply with the provisions of Sections 4.2.11 of this Agreement; and
(x) to recover damages, costs and expenses arising from, or in connection with, any Lien arising from a written instrument executed by any Borrower or any Affiliate thereof expressly creating such Lien, to the extent such Lien is prohibited under this Agreement.
(b) Notwithstanding the foregoing, the agreement of Lender not to limit recourse liability as set forth in Section 11.22(a) above SHALL BECOME NULL AND VOID and shall be of no further force and effect and the Debt shall be fully recourse to Borrower (and to Guarantor under the Guaranty, on the additional terms and conditions thereof and subject to any limitations set forth herein or therein) in the event that:
(i) any Borrower commences a voluntary bankruptcy or insolvency proceeding;
(ii) an involuntary bankruptcy or insolvency proceeding is commenced against any Borrower and is not dismissed within 90 days of filing; or
(iii) voluntary Transfer of the Property occurs by written instrument executed by any Borrower or any Affiliate thereof, which instrument expressly effects such Transfer, or a Secondary Financing is voluntarily incurred in violation of the Loan Documents, except as otherwise consented to by Lender in writing (which consent may be withheld in Lender’s sole discretion).
(c) Notwithstanding the provisions of clauses (i) and (ii) of Section 11.22(b) no Guarantor shall be liable for any amount related to a Qualified Involuntary Bankruptcy.
(d) In addition, this agreement shall not waive any rights which Lender would have under any provisions of Title 11 of the Bankruptcy Code to file a claim for the full amount of the Debt or to require that the Property shall continue to secure all of the Debt.
Appears in 1 contract
Exculpation. Subject to the qualifications below, Lender shall not enforce the The liability and obligation of Borrower to perform and observe the obligations contained in the Note, this Agreement, the Mortgage Landlord or the other Loan Documents Landlord Parties to Tenant for any default by any action Landlord under this Lease or proceeding wherein a money judgment shall be sought against the Borrower arising in connection herewith or any direct or indirect memberswith Landlord's operation, partners or shareholders of Borrower or the employeesmanagement, agentsleasing, directors or officers of Borrower or its Affiliatesrepair, except that Lender may bring an action against Borrowerrenovation, including a foreclosure action, an action for specific performance alteration or any other appropriate action matter relating to the Project or proceeding the Premises shall be limited solely and exclusively to enable Lender an amount which is equal to enforce and realize upon its the the interest under the Note, this Agreement, the Mortgage and the other Loan Documents, or of Landlord in the PropertyBuilding, the Business Income, including sales or any other collateral given to Lender pursuant to the Loan Documents or any other assets of 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 Property, in the Business Income in any other collateral given to Lender or any other assets of Borrower, and Lender, insurance proceeds received by accepting the Note, this Agreement, the Mortgage and the other Loan Documents, shall not ▇▇▇ for, seek or demand any deficiency judgment or any other monetary payment against Borrower Landlord or the direct or indirect members, partners or shareholders of Borrower or the employees, agents, directors or officers of Borrower or its Affiliates in any such action or proceeding under or by reason of or under or Landlord Parties in connection with the NoteProject, this AgreementBuilding or Premises and including any rents, issues or profits from the Mortgage Building. Neither Landlord, nor any of the Landlord Parties shall have any personal liability therefor, and Tenant hereby expressly waives and releases such personal liability on behalf of itself and all persons claiming by, through or the other Loan Documents. The provisions of under Tenant; provided that nothing in this Section shall not, however: (a) constitute a waiver, release operate to limit or impairment permit Tenant from seeking injunctive or equitable relief. The limitations 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 Mortgage; (c) affect the validity or enforceability of any guaranty or indemnity made in connection with the Loan (including, without limitation, the Guaranty) or any of the rights and remedies of Lender thereunder; (d) impair the right of Lender to obtain the appointment of a receiver; (e) impair the enforcement of the Assignment of Leases; or (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 Loan (including the security granted by the Mortgage) or any other assets of Borrower or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against such security (including the Property or any other assets of Borrower).
(a) Nothing liability contained in this Section 11.22 29.13 shall limit inure to the rights benefit of Lender to proceed against Borrower Landlord's and the Landlord Parties' present and future partners, beneficiaries, officers, directors, trustees, shareholders, agents and employees, and their respective partners, heirs, successors and assigns. Under no circumstances shall any present or future partner of Landlord (if Landlord is a partnership), or trustee or beneficiary (if Landlord or any partner of Landlord is a trust), have any liability for the performance of Landlord's obligations under this Lease. Notwithstanding any contrary provision herein, neither Landlord nor the Landlord Parties, nor Tenant nor the Tenant Parties, shall be liable under any circumstances for injury or damage to, or interference with, the other party's business, including but not limited to, loss of the following (or against Guarantor under the Guarantyprofits, on the additional terms and conditions thereof and subject to any limitations set forth herein or therein):
(i) to enforce any Leases entered into by Borrower or its Affiliates as Tenant;
(ii) to recover damages for fraud, material misrepresentation, material breach loss of warranty or intentional physical waste;
(iii) to recover any Condemnation Proceeds or Insurance Proceeds rents or other similar funds which have been misappropriated revenues, loss of business opportunity, loss of goodwill or loss of use, in each case, however occurring, except in connection with a holdover by Borrower or which, under Tenant pursuant to the terms of the Loan Documents, should have been paid to Lender;
(iv) to recover (A) any Tenant security deposits, Tenant letters of credit or other deposits or fees paid to Borrower or (B) prepaid rents for a period of more than thirty (30) days in advance of its due date which have not been delivered to Lender;
(v) to recover Business Income received by Borrower during an Event of Default which have not been applied to the Loan or in accordance with the Loan Documents to operating and maintenance expenses of the Property;
(vi) to recover damages, costs and expenses arising from, or in connection with the provisions of the Mortgage pertaining to Hazardous Materials or the Environmental Indemnity;
(vii) to recover any amount expended by Lender in connection with the foreclosure of the Mortgage, but only in the event that any Borrower or any Guarantor takes action to impede such foreclosure or otherwise contests the foreclosure in bad faith;
(viii) to recover damages, costs and expenses arising from, or in connection with, the failure by Borrower to pay Taxes and Insurance Premiums when due to the extent that Borrower was not required to deposit such amounts with Lender pursuant to Section 6 hereof, but only to the extent there was available revenue from the Property for the period in question sufficient to pay such Taxes and Insurance Premiums, and provided further that Lender does not prevent such proceeds from being so applied;
(ix) to recover damages, costs and expenses arising from the failure of the representations set forth in Section 3.1.8 to be true or Borrower’s failure to comply with the provisions of Sections 4.2.11 Article 16 of this Agreement; and
(x) to recover damages, costs and expenses arising from, or in connection with, any Lien arising from a written instrument executed by any Borrower or any Affiliate thereof expressly creating such Lien, to the extent such Lien is prohibited under this AgreementLease.
(b) Notwithstanding the foregoing, the agreement of Lender not to limit recourse liability as set forth in Section 11.22(a) above SHALL BECOME NULL AND VOID and shall be of no further force and effect and the Debt shall be fully recourse to Borrower (and to Guarantor under the Guaranty, on the additional terms and conditions thereof and subject to any limitations set forth herein or therein) in the event that:
(i) any Borrower commences a voluntary bankruptcy or insolvency proceeding;
(ii) an involuntary bankruptcy or insolvency proceeding is commenced against any Borrower and is not dismissed within 90 days of filing; or
(iii) voluntary Transfer of the Property occurs by written instrument executed by any Borrower or any Affiliate thereof, which instrument expressly effects such Transfer, or a Secondary Financing is voluntarily incurred in violation of the Loan Documents, except as otherwise consented to by Lender in writing (which consent may be withheld in Lender’s sole discretion).
(c) Notwithstanding the provisions of clauses (i) and (ii) of Section 11.22(b) no Guarantor shall be liable for any amount related to a Qualified Involuntary Bankruptcy.
(d) In addition, this agreement shall not waive any rights which Lender would have under any provisions of Title 11 of the Bankruptcy Code to file a claim for the full amount of the Debt or to require that the Property shall continue to secure all of the Debt.
Appears in 1 contract
Sources: Office Lease (8x8 Inc /De/)
Exculpation. Subject Notwithstanding anything contained herein to the qualifications belowcontrary, Lender no Exculpated Party shall not enforce the have or incur liability for, and obligation each Exculpated Party is hereby released and exculpated from, any Cause of Borrower Action for any claim related to perform and observe the obligations contained any act or omission in the Noteconnection with, this Agreementrelating to, or arising out of, the Mortgage or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against the Borrower or any direct or indirect members, partners or shareholders of Borrower or the employees, agents, directors or officers of Borrower or its Affiliates, except that Lender may bring an action against Borrower, including a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender to enforce and realize upon its interest under the Note, this AgreementChapter 11 Cases, the Mortgage and the other Loan Documentsformulation, preparation, dissemination, negotiation, or in Filing of the PropertyRestructuring Support Agreement and related prepetition transactions, the Business IncomeDisclosure Statement, the Plan, the Plan Supplement, or any Restructuring Transaction, contract, instrument, release or other collateral given to Lender pursuant to agreement or document (including providing any legal opinion requested by any Entity regarding any transaction, contract, instrument, document, or other agreement contemplated by the Loan Documents or any other assets of 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 Property, in the Business Income in any other collateral given to Lender or any other assets of Borrower, and Lender, by accepting the Note, this Agreement, the Mortgage and the other Loan Documents, shall not ▇▇▇ for, seek or demand any deficiency judgment or any other monetary payment against Borrower Plan or the direct or indirect members, partners or shareholders of Borrower reliance by any Exculpated Party on the Plan or the employees, agents, directors Confirmation Order in lieu of such legal opinion) created or officers of Borrower or its Affiliates in any such action or proceeding under or by reason of or under or entered into in connection with the NoteDisclosure Statement, this the Plan, the Plan Supplement, the Restructuring Support Agreement, the Mortgage Rights Offering, the DIP Facility, the Exit Facility, the DIP Credit Agreement, the Backstop Commitment Agreement, the Exit Commitment Letters, the Filing of the Chapter 11 Cases, the pursuit of Confirmation, the pursuit of Consummation, the administration and implementation of the Plan, including the issuance of Securities pursuant to the Plan, or the other Loan Documentsdistribution of property under the Plan, except for claims related to any act or omission that is determined in a Final Order by a court of competent jurisdiction to have constituted actual fraud or willful misconduct, but in all respects such Entities shall be entitled to reasonably rely upon the advice of counsel with respect to their duties and responsibilities pursuant to the Plan. The provisions Exculpated Parties have, and upon completion of this Section the Plan shall be deemed to have, participated in good faith and in compliance with the applicable laws with regard to the solicitation of, and distribution of, consideration pursuant to the Plan and, therefore, are not, however: (a) constitute a waiverand on account of such distributions shall not be, release or impairment liable at any time for the violation of any obligation evidenced applicable law, rule, or secured by any regulation governing the solicitation of acceptances or rejections of the Loan Documents; (b) impair the right of Lender to name Borrower as a party defendant in any action Plan or suit for foreclosure and sale under the Mortgage; (c) affect the validity or enforceability of any guaranty or indemnity such distributions made in connection with the Loan (including, without limitation, the Guaranty) or any of the rights and remedies of Lender thereunder; (d) impair the right of Lender to obtain the appointment of a receiver; (e) impair the enforcement of the Assignment of Leases; or (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 Loan (including the security granted by the Mortgage) or any other assets of Borrower or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against such security (including the Property or any other assets of Borrower).
(a) Nothing contained in this Section 11.22 shall limit the rights of Lender to proceed against Borrower for any of the following (or against Guarantor under the Guaranty, on the additional terms and conditions thereof and subject to any limitations set forth herein or therein):
(i) to enforce any Leases entered into by Borrower or its Affiliates as Tenant;
(ii) to recover damages for fraud, material misrepresentation, material breach of warranty or intentional physical waste;
(iii) to recover any Condemnation Proceeds or Insurance Proceeds or other similar funds which have been misappropriated by Borrower or which, under the terms of the Loan Documents, should have been paid to Lender;
(iv) to recover (A) any Tenant security deposits, Tenant letters of credit or other deposits or fees paid to Borrower or (B) prepaid rents for a period of more than thirty (30) days in advance of its due date which have not been delivered to Lender;
(v) to recover Business Income received by Borrower during an Event of Default which have not been applied pursuant to the Loan or in accordance with the Loan Documents Plan. Exhibit 2 to operating and maintenance expenses of the Property;
(vi) to recover damages, costs and expenses arising from, or in connection with the provisions of the Mortgage pertaining to Hazardous Materials or the Environmental Indemnity;
(vii) to recover any amount expended by Lender in connection with the foreclosure of the Mortgage, but only in the event that any Borrower or any Guarantor takes action to impede such foreclosure or otherwise contests the foreclosure in bad faith;
(viii) to recover damages, costs and expenses arising from, or in connection with, the failure by Borrower to pay Taxes and Insurance Premiums when due to the extent that Borrower was not required to deposit such amounts with Lender pursuant to Section 6 hereof, but only to the extent there was available revenue from the Property for the period in question sufficient to pay such Taxes and Insurance Premiums, and provided further that Lender does not prevent such proceeds from being so applied;
(ix) to recover damages, costs and expenses arising from the failure of the representations set forth in Section 3.1.8 to be true or Borrower’s failure to comply with the provisions of Sections 4.2.11 of this Agreement; and
(x) to recover damages, costs and expenses arising from, or in connection with, any Lien arising from a written instrument executed by any Borrower or any Affiliate thereof expressly creating such Lien, to the extent such Lien is prohibited under this Agreement.
(b) Notwithstanding the foregoing, the agreement of Lender not to limit recourse liability as set forth in Section 11.22(a) above SHALL BECOME NULL AND VOID and shall be of no further force and effect and the Debt shall be fully recourse to Borrower (and to Guarantor under the Guaranty, on the additional terms and conditions thereof and subject to any limitations set forth herein or therein) in the event that:
(i) any Borrower commences a voluntary bankruptcy or insolvency proceeding;
(ii) an involuntary bankruptcy or insolvency proceeding is commenced against any Borrower and is not dismissed within 90 days of filing; or
(iii) voluntary Transfer of the Property occurs by written instrument executed by any Borrower or any Affiliate thereof, which instrument expressly effects such Transfer, or a Secondary Financing is voluntarily incurred in violation of the Loan Documents, except as otherwise consented to by Lender in writing (which consent may be withheld in Lender’s sole discretion).
(c) Notwithstanding the provisions of clauses (i) and (ii) of Section 11.22(b) no Guarantor shall be liable for any amount related to a Qualified Involuntary Bankruptcy.
(d) In addition, this agreement shall not waive any rights which Lender would have under any provisions of Title 11 of the Bankruptcy Code to file a claim for the full amount of the Debt or to require that the Property shall continue to secure all of the Debt.Term Sheet
Appears in 1 contract
Sources: Restructuring Support Agreement (Penn Virginia Corp)
Exculpation. Subject to the qualifications below, 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 Agreementno Exculpated Party shall have or incur liability for and each Exculpated Party is hereby released and exculpated from any Cause of Action for any claim related to any act or omission in connection with, relating to, or arising out of, the Mortgage or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against the Borrower or any direct or indirect members, partners or shareholders of Borrower or the employees, agents, directors or officers of Borrower or its Affiliates, except that Lender may bring an action against Borrower, including a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender to enforce and realize upon its interest under the Note, this AgreementChapter 11 Cases, the Mortgage and the other Loan Documentsformulation, preparation, dissemination, negotiation, filing, or in termination of the PropertyRestructuring Support Agreement and related prepetition transactions, the Business IncomeDIP Facility, the Disclosure Statement, the Plan, the Exit Facility, the Plan Supplement, or any Restructuring Transaction, contract, instrument, release, or other collateral given to Lender pursuant to agreement or document (including any legal opinion requested by any Entity regarding any transaction, contract, instrument, document or other agreement contemplated by the Loan Documents or any other assets of 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 Property, in the Business Income in any other collateral given to Lender or any other assets of Borrower, and Lender, by accepting the Note, this Agreement, the Mortgage and the other Loan Documents, shall not ▇▇▇ for, seek or demand any deficiency judgment or any other monetary payment against Borrower Plan or the direct or indirect members, partners or shareholders of Borrower reliance by any Released Party on the Plan or the employees, agents, directors Confirmation Order in lieu of such legal opinion) created or officers of Borrower or its Affiliates in any such action or proceeding under or by reason of or under or entered into in connection with the Note, this Restructuring Support Agreement, the Mortgage DIP Facility, the Disclosure Statement, the Plan, the Exit Facility, the Plan Supplement, the Chapter 11 Cases, the filing of the Chapter 11 Cases, the pursuit of Confirmation, the pursuit of Consummation, the administration and implementation of the Plan, including the issuance or distribution of securities pursuant to the Plan, or the other Loan Documents. The provisions distribution 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 property under the Mortgage; (c) affect the validity or enforceability of any guaranty or indemnity made in connection with the Loan (including, without limitation, the Guaranty) or any of the rights and remedies of Lender thereunder; (d) impair the right of Lender to obtain the appointment of a receiver; (e) impair the enforcement of the Assignment of Leases; or (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 Loan (including the security granted by the Mortgage) Plan or any other assets of Borrower related agreement, or to commence upon any other appropriate action related act or proceeding omission, transaction, agreement, event, or other occurrence taking place on or before the Effective Date, except for claims related to any act or omission that is determined in order for Lender a Final Order by a court competent jurisdiction to exercise its remedies against have constituted actual fraud, willful misconduct, or gross negligence, but in all respects such security (including Entities shall be entitled to reasonably rely upon the Property or any other assets advice of Borrower).
(a) Nothing contained in this Section 11.22 shall limit counsel with respect to their duties and responsibilities pursuant to the rights of Lender to proceed against Borrower for any Plan. The Exculpated Parties have, and upon confirmation of the following (Plan shall be deemed to have, participated in good faith and in compliance with the applicable laws with regard to the solicitation of votes and distribution of consideration pursuant to the Plan and, therefore, are not, and on account of such distributions shall not be, liable at any time for the violation of any applicable law, rule, or against Guarantor under regulation governing the Guaranty, on the additional terms and conditions thereof and subject to any limitations set forth herein solicitation of acceptances or therein):
(i) to enforce any Leases entered into by Borrower or its Affiliates as Tenant;
(ii) to recover damages for fraud, material misrepresentation, material breach of warranty or intentional physical waste;
(iii) to recover any Condemnation Proceeds or Insurance Proceeds or other similar funds which have been misappropriated by Borrower or which, under the terms rejections of the Loan Documents, should have been paid to Lender;
(iv) to recover (A) any Tenant security deposits, Tenant letters of credit Plan or other deposits or fees paid to Borrower or (B) prepaid rents for a period of more than thirty (30) days in advance of its due date which have not been delivered to Lender;
(v) to recover Business Income received by Borrower during an Event of Default which have not been applied such distributions made pursuant to the Loan or in accordance with the Loan Documents to operating and maintenance expenses of the Property;
(vi) to recover damages, costs and expenses arising from, or in connection with the provisions of the Mortgage pertaining to Hazardous Materials or the Environmental Indemnity;
(vii) to recover any amount expended by Lender in connection with the foreclosure of the Mortgage, but only in the event that any Borrower or any Guarantor takes action to impede such foreclosure or otherwise contests the foreclosure in bad faith;
(viii) to recover damages, costs and expenses arising from, or in connection with, the failure by Borrower to pay Taxes and Insurance Premiums when due to the extent that Borrower was not required to deposit such amounts with Lender pursuant to Section 6 hereof, but only to the extent there was available revenue from the Property for the period in question sufficient to pay such Taxes and Insurance Premiums, and provided further that Lender does not prevent such proceeds from being so applied;
(ix) to recover damages, costs and expenses arising from the failure of the representations set forth in Section 3.1.8 to be true or Borrower’s failure to comply with the provisions of Sections 4.2.11 of this Agreement; and
(x) to recover damages, costs and expenses arising from, or in connection with, any Lien arising from a written instrument executed by any Borrower or any Affiliate thereof expressly creating such Lien, to the extent such Lien is prohibited under this AgreementPlan.
(b) Notwithstanding the foregoing, the agreement of Lender not to limit recourse liability as set forth in Section 11.22(a) above SHALL BECOME NULL AND VOID and shall be of no further force and effect and the Debt shall be fully recourse to Borrower (and to Guarantor under the Guaranty, on the additional terms and conditions thereof and subject to any limitations set forth herein or therein) in the event that:
(i) any Borrower commences a voluntary bankruptcy or insolvency proceeding;
(ii) an involuntary bankruptcy or insolvency proceeding is commenced against any Borrower and is not dismissed within 90 days of filing; or
(iii) voluntary Transfer of the Property occurs by written instrument executed by any Borrower or any Affiliate thereof, which instrument expressly effects such Transfer, or a Secondary Financing is voluntarily incurred in violation of the Loan Documents, except as otherwise consented to by Lender in writing (which consent may be withheld in Lender’s sole discretion).
(c) Notwithstanding the provisions of clauses (i) and (ii) of Section 11.22(b) no Guarantor shall be liable for any amount related to a Qualified Involuntary Bankruptcy.
(d) In addition, this agreement shall not waive any rights which Lender would have under any provisions of Title 11 of the Bankruptcy Code to file a claim for the full amount of the Debt or to require that the Property shall continue to secure all of the Debt.
Appears in 1 contract
Sources: Restructuring Support Agreement (Denbury Resources Inc)
Exculpation. Subject to the qualifications below, Lender shall not enforce the liability and obligation of Borrower Borrowers to perform and observe the obligations contained in the NoteNotes, this Agreement, the Mortgage or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against the Borrower or any direct or indirect members, partners or shareholders of Borrower or the employees, agents, directors or officers of Borrower or its AffiliatesBorrower, except that Lender may bring an action against Borrower, including a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender to enforce and realize upon its interest under the NoteNotes, this Agreement, the Mortgage and the other Loan Documents, or in the any Property, the Business IncomeRents, the IP or any other collateral given to Lender pursuant to the Loan Documents or any other assets of BorrowerDocuments; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against any Borrower only to the extent of such Borrower’s interest in the its Property, in its Rents, in the Business Income IP and in any other collateral given by it to Lender or any other assets of BorrowerLender, and Lender, by accepting the NoteNotes, this Agreement, the Mortgage and the other Loan Documents, agrees that it shall not ▇▇▇ for, seek or demand any deficiency judgment or against any other monetary payment against Borrower or the direct or indirect members, partners or shareholders of Borrower or the employees, agents, directors or officers of Borrower or its Affiliates in any such action or proceeding under under, or by reason of or under of, or in connection with with, the NoteNotes, this Agreement, the 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 any Borrower as a party defendant in any action or suit for foreclosure and sale under the Mortgage; (c) affect the validity or enforceability of or any guaranty or indemnity made in connection with the Loan (Loan, including, without limitation, the Non-Recourse Guaranty) , the Non-Qualified Prepayment Guaranty, the Closing Completion Guaranty, the Construction Completion Guaranty and the HRHI Guaranty, or any of the rights and remedies of Lender thereunder; (d) impair the right of Lender to obtain the appointment of a receiver; (e) impair the enforcement of the Assignment of Leases; or (f) constitute a prohibition against Lender to seek seeking a deficiency judgment against any Borrower in order to fully realize on any security given by Borrower in connection with the Loan (including the security granted by the Mortgage) Mortgage or any other assets of Borrower or to commence commencing any other appropriate action or proceeding in order for Lender to exercise its remedies against such security (including the any Property or any other assets the IP; or (g) constitute a waiver of Borrower).
(a) Nothing contained in this Section 11.22 shall limit the rights right of Lender to proceed against Borrower for enforce the liability and obligation of any Borrower, by money judgment or otherwise, to the extent of any actual loss, damage (excluding any lost revenue, diminution of value and other consequential damages), reasonable cost, reasonable 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 (or against Guarantor under the Guaranty, on the additional terms and conditions thereof and subject to any limitations set forth herein or therein):following:
(i) to enforce fraud or intentional misrepresentation by any Leases entered into by Borrower Borrower, HRHI, any Guarantor or its Affiliates as Tenantany of their respective principals, officers, agents or employees in connection with the Loan;
(ii) physical waste to recover damages for fraud, material misrepresentation, material breach of warranty or intentional physical waste;
(iii) to recover any Condemnation Proceeds or Insurance Proceeds or other similar funds which have been misappropriated by Borrower or which, under the terms of the Loan Documents, should have been paid to Lender;
(iv) to recover (A) any Tenant security deposits, Tenant letters of credit or other deposits or fees paid to Borrower or (B) prepaid rents for a period of more than thirty (30) days in advance of its due date which have not been delivered to Lender;
(v) to recover Business Income received by Borrower during an Event of Default which have not been applied to the Loan or in accordance with the Loan Documents to operating and maintenance expenses of the Property;
(vi) to recover damages, costs and expenses arising from, or in connection with the provisions of the Mortgage pertaining to Hazardous Materials or the Environmental Indemnity;
(vii) to recover any amount expended by Lender in connection with the foreclosure of the Mortgage, but only in the event that any Borrower or any Guarantor takes action to impede such foreclosure or otherwise contests the foreclosure in bad faith;
(viii) to recover damages, costs and expenses arising from, or in connection with, the failure by Borrower to pay Taxes and Insurance Premiums when due to the extent that Borrower was not required to deposit such amounts with Lender pursuant to Section 6 hereof, but only to the extent there was available revenue from the Property for the period in question sufficient to pay such Taxes and Insurance Premiums, and provided further that Lender does not prevent such proceeds from being so applied;
(ix) to recover damages, costs and expenses arising from the failure intentional misconduct or gross negligence of the representations set forth in Section 3.1.8 to be true or any Borrower’s failure to comply with the provisions of Sections 4.2.11 of this Agreement; and
(x) to recover damages, costs and expenses arising from, or in connection withHRHI, any Lien arising from a written instrument executed by any Borrower Guarantor or any Affiliate thereof expressly creating such Lienof their respective principals, to the extent such Lien is prohibited under this Agreement.
(b) Notwithstanding the foregoingofficers, the agreement agents or employees and/or any removal of Lender not to limit recourse liability as set forth in Section 11.22(a) above SHALL BECOME NULL AND VOID and shall be any asset forming a part of no further force and effect and the Debt shall be fully recourse to Borrower (and to Guarantor under the Guaranty, on the additional terms and conditions thereof and subject to any limitations set forth herein or therein) in the event that:
(i) any Borrower commences a voluntary bankruptcy or insolvency proceeding;
(ii) an involuntary bankruptcy or insolvency proceeding is commenced against any Borrower and is not dismissed within 90 days of filing; or
(iii) voluntary Transfer of the Property occurs by written instrument executed by any Borrower or any Affiliate thereof, which instrument expressly effects such Transfer, or a Secondary Financing is voluntarily incurred in violation of this Agreement or the other Loan Documents, except as otherwise consented to by Lender in writing (which consent may be withheld in Lender’s sole discretion).
(c) Notwithstanding the provisions of clauses (i) and (ii) of Section 11.22(b) no Guarantor shall be liable for any amount related to a Qualified Involuntary Bankruptcy.
(d) In addition, this agreement shall not waive any rights which Lender would have under any provisions of Title 11 of the Bankruptcy Code to file a claim for the full amount of the Debt or to require that the Property shall continue to secure all of the Debt.;
Appears in 1 contract
Exculpation. Subject to (a) To the qualifications belowfullest extent permitted under applicable law, Lender shall not enforce none of the liability and obligation of Borrower to perform and observe the obligations contained in the Note, this AgreementGeneral Partner, the Mortgage or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against the Borrower or any direct or indirect members, partners or shareholders of Borrower or the employees, agents, directors or officers of Borrower or its Affiliates, except that Lender may bring an action against Borrower, including a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender to enforce and realize upon its interest under the Note, this Agreement, the Mortgage and the other Loan Documents, or in the Property, the Business IncomeInvestment Manager, or any other collateral given of their respective Affiliates, executors, heirs, assigns, successors, directors, principals or their respective legal representatives (each, a “Covered Person”), shall be liable to Lender pursuant to any Partner or the Loan Documents Partnership for (i) any acts or omissions (or alleged acts or omissions) or any other assets error of 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 Property, in the Business Income in any other collateral given to Lender or any other assets of Borrower, and Lender, by accepting the Note, this Agreement, the Mortgage and the other Loan Documents, shall not ▇▇▇ for, seek or demand any deficiency judgment or for any other monetary payment against Borrower losses, liabilities, damages, expenses or the direct or indirect members, partners or shareholders of Borrower or the employees, agents, directors or officers of Borrower or its Affiliates in any such action or proceeding under or by reason of or under or in connection with the Note, this Agreement, the 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 Mortgage; (c) affect the validity or enforceability of any guaranty or indemnity made in connection with the Loan costs (including, without limitation, the Guaranty) any judgment, award, settlement, reasonable attorneys’ fees and other costs or any of the rights and remedies of Lender thereunder; (d) impair the right of Lender to obtain the appointment of a receiver; (e) impair the enforcement of the Assignment of Leases; or (f) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize on any security given by Borrower expenses incurred in connection with the Loan defense of any actual or threatened action, proceeding (including including, without limitation, routine examinations, regulatory inquiries and regulatory “sweeps”) or claim (collectively, “Indemnified Losses”)) suffered, incurred and/or sustained by them in connection with the security granted Partnership’s affairs, except those Indemnified Losses resulting from the willful misconduct, bad faith, fraud, criminal conduct or gross negligence of the Covered Person, or material breach of this Agreement by the Mortgage) Covered Person (collectively or any other assets of Borrower individually, “Disabling Conduct”), or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against such security (including the Property or any other assets of Borrower).
(a) Nothing contained in this Section 11.22 shall limit the rights of Lender to proceed against Borrower for any of the following (or against Guarantor under the Guaranty, on the additional terms and conditions thereof and subject to any limitations set forth herein or therein):
(i) to enforce any Leases entered into by Borrower or its Affiliates as Tenant;
(ii) to recover damages for fraud, material misrepresentation, material breach any acts or omissions (or alleged acts or omissions) of warranty any broker or intentional physical waste;
(iii) to recover any Condemnation Proceeds or Insurance Proceeds or other similar funds which have been misappropriated by Borrower or which, under the terms agent of the Loan DocumentsPartnership or any Covered Person, should have been paid to Lender;
(iv) to recover (A) any Tenant security depositsprovided that such broker or agent was selected, Tenant letters of credit or other deposits or fees paid to Borrower or (B) prepaid rents for a period of more than thirty (30) days in advance of its due date which have not been delivered to Lender;
(v) to recover Business Income received by Borrower during an Event of Default which have not been applied to the Loan or engaged and retained in accordance with the Loan Documents to operating and maintenance expenses standard of care set forth above. Each of the Property;
(vi) Covered Persons may consult with counsel and accountants with respect to recover damagesthe Partnership’s affairs and will be fully protected and justified in any action or inaction which is taken in reasonable reliance upon the advice or opinion of such counsel or accountants, costs provided that such counsel or accountants were selected, engaged and expenses arising from, or retained in connection accordance with the standard of care set forth above. The foregoing provisions, as well as the indemnification provisions set forth in Section 3.08, however, shall not be construed so as to provide for the exculpation or indemnification of the Mortgage pertaining to Hazardous Materials or the Environmental Indemnity;
any Covered Person for any liability (vii) to recover any amount expended by Lender including liability under U.S. Federal securities laws which, under certain circumstances, impose liability even on Persons acting in connection with the foreclosure of the Mortgagegood faith), but only in the event that any Borrower or any Guarantor takes action to impede such foreclosure or otherwise contests the foreclosure in bad faith;
(viii) to recover damages, costs and expenses arising from, or in connection with, the failure by Borrower to pay Taxes and Insurance Premiums when due to the extent that Borrower was not required to deposit such amounts with Lender pursuant to Section 6 hereof, (but only to the extent there was available revenue from the Property for the period extent) that such exculpation or indemnification would be in question sufficient violation of applicable law, but shall be construed so as to pay such Taxes and Insurance Premiums, and provided further that Lender does not prevent such proceeds from being so applied;
(ix) to recover damages, costs and expenses arising from the failure of the representations set forth in Section 3.1.8 to be true or Borrower’s failure to comply with the effectuate these provisions of Sections 4.2.11 of this Agreement; and
(x) to recover damages, costs and expenses arising from, or in connection with, any Lien arising from a written instrument executed by any Borrower or any Affiliate thereof expressly creating such Lien, to the fullest extent such Lien is prohibited under this Agreementpermitted by law.
(b) Pursuant to the exculpation provision described in this Section 3.07, the Partnership (not the General Partner, the Investment Manager or any other Covered Person) shall be responsible for any Indemnified Losses resulting from trading errors and similar human errors, absent Disabling Conduct or the inability to waive or limit such Indemnified Losses under applicable law. Notwithstanding the foregoing, the agreement of Lender not to limit recourse liability as set forth Investment Manager or its Affiliates may, in Section 11.22(a) above SHALL BECOME NULL AND VOID and shall be of no further force and effect and the Debt shall be fully recourse to Borrower (and to Guarantor under the Guaranty, on the additional terms and conditions thereof and subject to any limitations set forth herein or therein) in the event that:
(i) any Borrower commences a voluntary bankruptcy or insolvency proceeding;
(ii) an involuntary bankruptcy or insolvency proceeding is commenced against any Borrower and is not dismissed within 90 days of filing; or
(iii) voluntary Transfer of the Property occurs by written instrument executed by any Borrower or any Affiliate thereof, which instrument expressly effects such Transfer, or a Secondary Financing is voluntarily incurred in violation of the Loan Documents, except as otherwise consented to by Lender in writing (which consent may be withheld in Lender’s their sole discretion), voluntarily reimburse the Partnership for Indemnified Losses suffered as a result of certain trade errors identified by the Investment Manager or its Affiliates.1 This Section 3.07 shall survive termination of this Agreement.
(c) Notwithstanding the provisions of clauses (i) and (ii) of Section 11.22(b) no Guarantor shall be liable for any amount related to a Qualified Involuntary Bankruptcy.
(d) In addition, this agreement shall not waive any rights which Lender would have under any provisions of Title 11 of the Bankruptcy Code to file a claim for the full amount of the Debt or to require that the Property shall continue to secure all of the Debt.
Appears in 1 contract
Sources: Limited Partnership Agreement (Eminence Capital, Lp)
Exculpation. Subject (a) Unless due to, and 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 Agreementextent of, the Mortgage gross negligence or the other Loan Documents by willful misconduct of Landlord or Landlord’s agents or employees or of a Senior Interest Holder or its agents, neither Landlord nor any action or proceeding wherein a money judgment shall be sought against the Borrower or Senior Interest Holder, nor any direct or indirect of their agents, officers, directors, shareholders, managers, members, partners or shareholders of Borrower principals (disclosed or the undisclosed) shall be liable to Tenant or Tenant’s agents, employees, agentscontractors, directors invitees or officers of Borrower or its Affiliates, except that Lender may bring an action against Borrower, including a foreclosure action, an action for specific performance licensees or any other appropriate action occupant of the Premises in connection with any injury to Tenant or proceeding to enable Lender to enforce and realize upon its interest under the Note, this Agreement, the Mortgage and the any other Loan Documentsperson or for any damage to, or in loss (by theft or otherwise) of, any of Tenant’s Property or of the Property, the Business Income, property of Tenant or any other collateral given to Lender pursuant person arising from or in connection with the use by Tenant or such other person of the Premises or the Building, irrespective of the cause of such injury, damage or loss, it being understood that no property, other than such as might normally be brought upon or kept in the Premises as incidental to the Loan Documents reasonable use of the Premises for the purposes herein permitted will be brought upon or any other assets of Borrowerbe kept in the Premises; provided, however, thatthat even if due to any such gross negligence of Landlord, except as specifically provided hereinLandlord’s agents or employees, or any Senior Interest Holder or its agents or breach by Landlord of its obligations under this Lease, Tenant waives, to the full extent permitted by applicable law, any judgment claim for consequential damages in connection therewith. Landlord and any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower’s interest in the Property, in the Business Income in any other collateral given to Lender or any other assets of Borrower, Senior Interest Holder and Lender, by accepting the Note, this Agreement, the Mortgage and the other Loan Documents, their respective agents shall not ▇▇▇ for, seek or demand any deficiency judgment or any other monetary payment against Borrower or the direct or indirect members, partners or shareholders of Borrower or the employees, agents, directors or officers of Borrower or its Affiliates in any such action or proceeding under or by reason of or under or in connection with the Note, this Agreement, the 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 Mortgage; (c) affect the validity or enforceability of any guaranty or indemnity made in connection with the Loan (including, without limitation, the Guaranty) or any of the rights and remedies of Lender thereunder; (d) impair the right of Lender to obtain the appointment of a receiver; (e) impair the enforcement of the Assignment of Leases; or (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 Loan (including the security granted by the Mortgage) or any other assets of Borrower or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against such security (including the Property or any other assets of Borrower).
(a) Nothing contained in this Section 11.22 shall limit the rights of Lender to proceed against Borrower be liable for any of the following (loss or against Guarantor under the Guaranty, on the additional terms and conditions thereof and subject damage to any limitations set forth herein person or therein):
(i) to enforce any Leases entered into by Borrower or its Affiliates as Tenant;
(ii) to recover damages for fraud, material misrepresentation, material breach of warranty or intentional physical waste;
(iii) to recover any Condemnation Proceeds or Insurance Proceeds or other similar funds which have been misappropriated by Borrower or which, under the terms of the Loan Documents, should have been paid to Lender;
(iv) to recover (A) any Tenant security deposits, Tenant letters of credit or other deposits or fees paid to Borrower or (B) prepaid rents for a period of more than thirty (30) days in advance of its due date which have not been delivered to Lender;
(v) to recover Business Income received by Borrower during an Event of Default which have not been applied to the Loan or in accordance with the Loan Documents to operating and maintenance expenses of the Property;
(vi) to recover damages, costs and expenses arising from, or in connection with the provisions of the Mortgage pertaining to Hazardous Materials or the Environmental Indemnity;
(vii) to recover any amount expended by Lender in connection with the foreclosure of the Mortgage, but only in the event that any Borrower or any Guarantor takes action to impede such foreclosure or otherwise contests the foreclosure in bad faith;
(viii) to recover damages, costs and expenses arising from, or in connection with, the failure by Borrower to pay Taxes and Insurance Premiums when property even if due to the extent that Borrower was not required negligence of Landlord or any Senior Interest Holder or their agents. Any employee to deposit such amounts with Lender pursuant to Section 6 hereof, but only to the extent there was available revenue from the Property for the period in question sufficient to pay such Taxes and Insurance Premiums, and provided further that Lender does not prevent such proceeds from being so applied;
(ix) to recover damages, costs and expenses arising from the failure whom any property shall be entrusted by or on behalf of the representations set forth in Section 3.1.8 Tenant shall be deemed to be true acting as Tenant’s agent with respect to such property and neither Landlord nor any Senior Interest Holder nor their respective agents or Borrower’s failure employees shall be liable for any loss of or damage to comply with the provisions of Sections 4.2.11 of this Agreement; and
(x) to recover damages, costs and expenses arising from, any such property by theft or in connection with, any Lien arising from a written instrument executed by any Borrower or any Affiliate thereof expressly creating such Lien, to the extent such Lien is prohibited under this Agreementotherwise.
(b) Notwithstanding the foregoing, the agreement of Lender not to limit recourse Except for such liability as set forth in Section 11.22(a) above SHALL BECOME NULL AND VOID and shall may be imposed by law for the gross negligence of Landlord or Landlord’s agents or employees, or for the breach by Landlord of any term of this Lease to be performed by Landlord, no further force and effect and the Debt shall be fully recourse to Borrower (and to Guarantor under the Guaranty, on the additional terms and conditions thereof and subject to any limitations set forth herein or therein) in the event that:
(i) performance by Landlord, Tenant or others of any Borrower commences a voluntary bankruptcy repairs or insolvency proceeding;
Alterations in or to the Building or Premises, (ii) an involuntary bankruptcy failure of Landlord or insolvency proceeding is commenced against others to make any Borrower and is not dismissed within 90 days of filing; or
such repairs or Alterations, (iii) voluntary Transfer damage to the Building Systems or equipment, Premises or the property of Tenant, (iv) injury to any persons caused by other tenants or persons in the Building or by operations in the construction of any private, public or quasi-public work, or by any other cause, (v) Latent Defect in the Building, Building Systems or equipment or Premises, (vi) diminution or shutting off of light, air or view by any structure which may be erected on lands in the vicinity of the Property occurs Building or (vii) inconvenience or annoyance to Tenant or injury to or interruption of Tenant’s business by written instrument executed by any Borrower or any Affiliate thereof, which instrument expressly effects such Transfer, or a Secondary Financing is voluntarily incurred reason of anything referred to in violation of the Loan Documents, except as otherwise consented to by Lender in writing (which consent may be withheld in Lender’s sole discretion).
(c) Notwithstanding the provisions of clauses foregoing subsections (i) and through (iivi) of Section 11.22(b) no Guarantor shall be liable for impose any amount related liability on Landlord to a Qualified Involuntary Bankruptcy.
(d) In additionTenant. No representation, this agreement shall not waive any rights which Lender would have under any provisions of Title 11 guaranty or warranty is made that the communications or security systems, devices or procedures of the Bankruptcy Code Building will be effective to file a claim for the full amount prevent injury to Tenant or any other person or damage to, or loss (by theft or otherwise) of, any of the Debt property of Tenant or the property of any other person, and Landlord reserves the right to require that the Property shall continue discontinue or modify at any time such communications or security systems or procedures without liability to secure all of the DebtTenant.
Appears in 1 contract
Sources: Lease (MF Global Ltd.)
Exculpation. Subject to the qualifications below, Lender The Administrative Agent shall not enforce the liability and obligation of Borrower to perform and observe the obligations contained in the Note, this Agreement, the Mortgage have any duties or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against the Borrower or any direct or indirect members, partners or shareholders of Borrower or the employees, agents, directors or officers of Borrower or its Affiliatesobligations, except that Lender may bring an action against Borrower, including a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender to enforce those expressly set forth herein and realize upon its interest under the Note, this Agreement, the Mortgage and in the other Loan Documents, and its duties hereunder shall be administrative in nature. Without limiting the generality of the foregoing, the Administrative Agent:
(a) shall not have or be deemed to have any fiduciary relationship with any Lender or Issuing Bank or be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Agreement or any other Loan Document or otherwise exist against the Administrative Agent;
(b) shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby or by the other Loan Documents that the Administrative Agent is required to exercise as directed in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be, or as the Administrative Agent shall believe in good faith to be, expressly provided for herein or in the Propertyother Loan Documents), provided that the Business IncomeAdministrative Agent shall not be required to take any action that, in its opinion or the opinion of its counsel, may expose the Administrative Agent to liability or that is contrary to any other collateral given to Loan Document or applicable law, including for the avoidance of doubt any action that may be in violation of the automatic stay under any applicable bankruptcy or insolvency proceeding or that may affect a forfeiture, modification or termination of property of a Defaulting Lender pursuant to the Loan Documents in violation of any applicable bankruptcy or any other assets of Borrowerinsolvency law; provided, however, thatand
(c) shall not, except as specifically provided herein, any judgment expressly set forth herein and in any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower’s interest in the Property, in the Business Income in any other collateral given to Lender or any other assets of Borrower, and Lender, by accepting the Note, this Agreement, the Mortgage and the other Loan Documents, have any duty to disclose, and shall not ▇▇▇ forbe liable for the failure to disclose, seek or demand any deficiency judgment information relating to the Borrower or any other monetary payment against Borrower of its Affiliates that is communicated to or obtained by the direct Person serving as the Administrative Agent or indirect members, partners or shareholders any of Borrower or the employees, agents, directors or officers of Borrower or its Affiliates in any capacity. The Administrative Agent and its Related Parties shall not be liable for any action taken or not taken by it (i) with the consent or at the request of the Required Lenders (or such action other number or proceeding percentage of the Lenders as shall be necessary, or as the Administrative Agent shall believe in good faith shall be necessary, under the circumstances as provided herein or in the other Loan Documents) or (ii) in the absence of its own gross negligence or willful misconduct (such absence to be preserved unless otherwise determined by reason a court of competent jurisdiction by final and nonappealable judgment). The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice (stating that it is a “notice of default”) describing such Default is given to the Administrative Agent by the Borrower, a Lender or under an Issuing Bank. The Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with the Note, this Agreement, the Mortgage Agreement or the any other Loan Documents. The provisions of this Section shall notDocument, however: (aii) constitute a waiver, release or impairment the contents of any obligation evidenced certificate, report or secured by other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the Loan Documents; (b) impair the right of Lender to name Borrower as a party defendant in any action covenants, agreements or suit for foreclosure and sale under the Mortgage; (c) affect the validity other terms or enforceability of any guaranty or indemnity made in connection with the Loan (including, without limitation, the Guaranty) or any of the rights and remedies of Lender thereunder; (d) impair the right of Lender to obtain the appointment of a receiver; (e) impair the enforcement of the Assignment of Leases; or (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 Loan (including the security granted by the Mortgage) or any other assets of Borrower or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against such security (including the Property or any other assets of Borrower).
(a) Nothing contained in this Section 11.22 shall limit the rights of Lender to proceed against Borrower for any of the following (or against Guarantor under the Guaranty, on the additional terms and conditions thereof and subject to any limitations set forth herein or therein):
(i) to enforce therein or the occurrence of any Leases entered into by Borrower or its Affiliates as Tenant;
(ii) to recover damages for fraudDefault, material misrepresentation, material breach of warranty or intentional physical waste;
(iii) to recover any Condemnation Proceeds or Insurance Proceeds or other similar funds which have been misappropriated by Borrower or which, under the terms of the Loan Documents, should have been paid to Lender;
(iv) to recover (A) the sufficiency, validity, enforceability, effectiveness or genuineness of this Agreement, any Tenant security depositsother Loan Document or any other agreement, Tenant letters of credit instrument or other deposits document or fees paid to Borrower or (B) prepaid rents for a period of more than thirty (30) days in advance of its due date which have not been delivered to Lender;
(v) to recover Business Income received by Borrower during an Event the satisfaction of Default which have not been applied to the Loan or in accordance with the Loan Documents to operating and maintenance expenses of the Property;
(vi) to recover damages, costs and expenses arising from, or in connection with the provisions of the Mortgage pertaining to Hazardous Materials or the Environmental Indemnity;
(vii) to recover any amount expended by Lender in connection with the foreclosure of the Mortgage, but only in the event that any Borrower or any Guarantor takes action to impede such foreclosure or otherwise contests the foreclosure in bad faith;
(viii) to recover damages, costs and expenses arising from, or in connection with, the failure by Borrower to pay Taxes and Insurance Premiums when due to the extent that Borrower was not required to deposit such amounts with Lender pursuant to Section 6 hereof, but only to the extent there was available revenue from the Property for the period in question sufficient to pay such Taxes and Insurance Premiums, and provided further that Lender does not prevent such proceeds from being so applied;
(ix) to recover damages, costs and expenses arising from the failure of the representations condition set forth in Section 3.1.8 Article V or elsewhere herein, other than to confirm receipt of items expressly required to be true or Borrower’s failure to comply with the provisions of Sections 4.2.11 of this Agreement; and
(x) to recover damages, costs and expenses arising from, or in connection with, any Lien arising from a written instrument executed by any Borrower or any Affiliate thereof expressly creating such Lien, delivered to the extent such Lien is prohibited under this AgreementAdministrative Agent.
(b) Notwithstanding the foregoing, the agreement of Lender not to limit recourse liability as set forth in Section 11.22(a) above SHALL BECOME NULL AND VOID and shall be of no further force and effect and the Debt shall be fully recourse to Borrower (and to Guarantor under the Guaranty, on the additional terms and conditions thereof and subject to any limitations set forth herein or therein) in the event that:
(i) any Borrower commences a voluntary bankruptcy or insolvency proceeding;
(ii) an involuntary bankruptcy or insolvency proceeding is commenced against any Borrower and is not dismissed within 90 days of filing; or
(iii) voluntary Transfer of the Property occurs by written instrument executed by any Borrower or any Affiliate thereof, which instrument expressly effects such Transfer, or a Secondary Financing is voluntarily incurred in violation of the Loan Documents, except as otherwise consented to by Lender in writing (which consent may be withheld in Lender’s sole discretion).
(c) Notwithstanding the provisions of clauses (i) and (ii) of Section 11.22(b) no Guarantor shall be liable for any amount related to a Qualified Involuntary Bankruptcy.
(d) In addition, this agreement shall not waive any rights which Lender would have under any provisions of Title 11 of the Bankruptcy Code to file a claim for the full amount of the Debt or to require that the Property shall continue to secure all of the Debt.
Appears in 1 contract
Sources: Third Amendment (Noble Energy Inc)
Exculpation. Subject (a) Notwithstanding anything to the contrary herein or in any of 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 Mortgage 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 the Borrower or any direct principal, director, officer, employee, beneficiary, shareholder, partner, member, manager, trustee, agent, or indirect members, partners or shareholders Affiliate of Borrower (but specifically excluding Guarantor subject to the terms of the Guaranty) or any legal representatives, successors or assigns of any of the employeesforegoing (collectively, agents, directors or officers of Borrower or its Affiliatesthe “Exculpated Parties”), except that Lender may bring an action against Borrower, including a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender to enforce and realize upon its interest under the Note, this Agreement, the Mortgage Pledge Agreement and the other Loan Documents, or in the Property, the Business Income, Collateral or any other collateral given to Lender pursuant to the Loan Documents or any other assets of BorrowerDocuments; 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 Business Income Collateral and in any other collateral given to Lender or any other assets of BorrowerLender, and Lender, by accepting the Note, this Agreement, the Mortgage Pledge Agreement and the other Loan Documents, shall not ▇▇▇ for, seek or demand any deficiency judgment or any other monetary payment against Borrower or any of the direct or indirect members, partners or shareholders of Borrower or the employees, agents, directors or officers of Borrower or its Affiliates Exculpated Parties in any such action or proceeding under or by reason of or under or in connection with the Note, this Agreement, the Mortgage 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 MortgagePledge Agreement; (c3) affect the validity or enforceability of any separate written indemnity or guaranty or indemnity made in connection with the Loan (including, without limitation, 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 and/or Guarantor (as applicable) personally in such separate written indemnity or guaranty and without the effect of the exculpatory provisions of this Article 13); (d4) impair the right of Lender to obtain the appointment of a receiver; (e5) impair the enforcement of the Assignment of Leasesintentionally omitted; or (f6) constitute a prohibition against Lender to seek seeking a deficiency judgment against Borrower in order to fully realize on any security given by Borrower in connection with the Loan (including the security granted by the MortgagePledge Agreement (but not to impose personal liability upon Borrower contrary to this Section 13.1) or any other assets of Borrower or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against such security the Collateral; or (including 7) constitute a waiver of the Property or any other assets of Borrower).
(a) Nothing contained in this Section 11.22 shall limit the rights right of Lender to proceed against Borrower for enforce the liability and obligation of Borrower, by money judgment or otherwise, to the extent of any Losses incurred by Lender (including attorneys’ fees and costs reasonably incurred) directly arising out of or caused by the following (or against Guarantor under the Guaranty, on the additional terms and conditions thereof and subject to any limitations set forth herein or therein):following:
(i) to enforce fraud or willful misrepresentation by Borrower, Mortgage Borrower any Leases entered into by Borrower SPE Component Entity, any of the Exculpated Parties or its Affiliates as TenantGuarantor in connection with the Loan;
(ii) to recover damages for fraudthe gross negligence or willful misconduct of Borrower, material misrepresentationany SPE Component Entity, material breach any of warranty the Exculpated Parties, Guarantor or intentional physical wasteMortgage Borrower;
(iii) material physical waste to recover the Property (or any Condemnation Proceeds portion thereof) caused by the intentional acts or Insurance Proceeds or other similar funds which have been misappropriated by Borrower or whichintentional omissions of Borrower, under the terms Mortgage Borrower, any SPE Component Entity, any of the Loan DocumentsExculpated Parties or Guarantor or Mortgage Borrower and/or the removal or disposal of any portion of the Property by Borrower, should have been paid to LenderMortgage Borrower, any SPE Component Entity, any of the Exculpated Parties or Guarantor after an Event of Default;
(iv) to recover the misapplication, misappropriation or conversion by Borrower or Mortgage Borrower of (A) any Tenant security depositsinsurance proceeds paid by reason of any Casualty to the Property (or any portion thereof), Tenant letters of credit or other deposits or fees paid to Borrower or (B) prepaid rents for any Awards or other amounts received in connection with the Condemnation of all or a period portion of more than thirty (30) days in advance of its due date the Property, which have such proceeds or Award are received by Borrower and not been delivered to Lenderapplied as required hereunder or under the other Loan Documents;
(v) to recover Business Income the misapplication, misappropriation or conversion by Borrower or Mortgage Borrower of any Rents during the continuance of an Event of Default, which are received by Borrower during an Event of Default which have or Mortgage Borrower and not been applied by Borrower or Mortgage Borrower to the Loan payment of either (i) normal and necessary Operating Expenses or in accordance with (ii) the Loan Documents Debt;
(vi) failure by Borrower or Mortgage Borrower to operating and maintenance expenses pay, or cause to be paid, prior to delinquency any Taxes or Other Charges if non-payment of the same would create liens senior to the lien of the Security Instrument on all or any portion of the Property;
(vi) to recover damages, costs and expenses arising from, or in connection with the provisions of the Mortgage pertaining to Hazardous Materials or the Environmental Indemnity;
(vii) the failure of Borrower or Mortgage Borrower to recover deliver any amount expended by Lender in connection security deposits, advance deposits or any other deposits collected with respect to the Property to Lender, upon a foreclosure of the Mortgage, but only in the event that any Borrower Property (or any Guarantor takes portion thereof) or action in lieu thereof, except to impede 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 otherwise contests the foreclosure action in bad faithlieu thereof;
(viii) to recover damagesthe material breach of any representation, costs and expenses arising fromwarranty, covenant or indemnification provision in the Environmental Indemnity, this Agreement or in connection withthe Pledge Agreement concerning environmental laws, the failure by Borrower to pay Taxes hazardous substances and Insurance Premiums when due to the extent that Borrower was not required to deposit such amounts asbestos and any indemnification of Lender with Lender pursuant to Section 6 hereof, but only to the extent there was available revenue from the Property for the period respect thereto in question sufficient to pay such Taxes and Insurance Premiums, and provided further that Lender does not prevent such proceeds from being so appliedeither document;
(ix) to recover damages, costs and expenses arising from the failure of the representations set forth in Section 3.1.8 to be true or Borrower’s failure to comply with the provisions of indemnification obligations in Sections 4.2.11 of this Agreement; and11.2 and 12.3 hereof;
(x) to recover damagesthe breach of any material representation, costs and expenses arising fromwarranty or covenant contained in Article 5 hereof; and/or
(xi) (A) the seizure or forfeiture of the Property, or in connection withany portion thereof, any Lien arising or Borrower’s interest therein, resulting from a written instrument executed criminal wrongdoing by any Borrower or Guarantor; (B) if, after the occurrence and during the continuance of an Event of Default, Lender shall send a notification of Proposal to Accept Collateral pursuant to Section 9-620 or 9-621 of the UCC (or any Affiliate thereof expressly creating successor or parallel provision), and Borrower shall object to such Lienacceptance of collateral (provided, that, such objection shall only be deemed a recourse event hereunder to the extent such Lien is prohibited that the aforesaid “Proposal to Accept Collateral” would, if consummated, be made in full satisfaction of the Debt);
(xii) any distribution or other payments made in connection with any part of the Collateral in contravention of the terms hereof (including, without limitation, with respect to any Net Liquidation Proceeds After Debt Service); or
(xiii) the issuer of the Owner’s Title Policy asserts the provisions of Exclusions from Coverage 3(a), (b) or (e) to refuse payment to Lender for any loss under this Agreementthe Owner’s Title Policy solely by reason of the action, inaction or knowledge, as of the date of the Owner’s Title Policy, of Borrower, provided Lender had no knowledge of the subject defect, lien, encumbrance or other matter creating or causing the applicable loss.
(b) Notwithstanding anything to the foregoingcontrary in this Agreement, the agreement of Lender not to limit recourse liability as set forth in Section 11.22(a) above SHALL BECOME NULL AND VOID and shall be of no further force and effect and the Debt shall be fully recourse to Borrower (and to Guarantor under the Guaranty, on the additional terms and conditions thereof and subject to any limitations set forth herein or therein) in the event that:
(i) any Borrower commences a voluntary bankruptcy or insolvency proceeding;
(ii) an involuntary bankruptcy or insolvency proceeding is commenced against any Borrower and is not dismissed within 90 days of filing; or
(iii) voluntary Transfer of the Property occurs by written instrument executed by any Borrower Note or any Affiliate thereof, which instrument expressly effects such Transfer, or a Secondary Financing is voluntarily incurred in violation of the Loan Documents, except as otherwise consented to by (A) Lender in writing (which consent may be withheld in Lender’s sole discretion).
(c) Notwithstanding the provisions of clauses (i) and (ii) of Section 11.22(b) no Guarantor shall be liable for any amount related to a Qualified Involuntary Bankruptcy.
(d) In addition, this agreement shall not waive be deemed to have waived any rights right which Lender would may have under Section 506(a), 506(b), 1111(b) or any other provisions of Title 11 of the Bankruptcy Code to file a claim for the full amount of the Debt or to require that the Property all collateral shall continue to secure all of the DebtDebt 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 or any SPE Component Entity files a voluntary petition under the Bankruptcy Code or any other Creditors Rights Laws; (ii) an Affiliate, officer, director, or representative which Controls, directly or indirectly, Borrower or Mortgage Borrower files, or joins in the filing of, an involuntary petition against Borrower, Mortgage Borrower or any SPE Component Entity under the Bankruptcy Code or any other Creditors Rights Laws, or solicits or causes to be solicited petitioning creditors for any involuntary petition against Borrower, Mortgage Borrower or any SPE Component Entity from any Person; (iii) Borrower, Mortgage Borrower or any SPE Component Entity 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 Creditors Rights Laws, or solicits or causes to be solicited petitioning creditors for any involuntary petition against it; (iv) any Affiliate, officer, director, or representative which Controls Borrower, Mortgage Borrower or any SPE Component Entity consents to or acquiesces in or joins in an application for the appointment of a custodian, receiver, trustee, or examiner for Borrower, Mortgage Borrower any SPE Component Entity or any portion of the Property (other than a receiver requested by Mortgage Lender in connection with enforcement of its rights under the Mortgage Loan Documents) or the Collateral; (v) Borrower, Mortgage Borrower or any SPE Component Entity 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; (vi) [Intentionally Omitted]; (vii) Borrower, Mortgage Borrower or any SPE Component Entity (or any Restricted Party) contests or opposes any motion made by Lender to obtain relief from the automatic stay or seeks to reinstate the automatic stay in the event of any federal or state bankruptcy or insolvency proceeding involving the Guarantor or its Affiliates; (viii) Borrower (or any Restricted Party) accepts from any Guarantor or Guarantor solicits or provides any debtor-in-possession financing to Borrower in the event Borrower (or any Restricted Party) is the subject of a bankruptcy or insolvency proceeding; or (ix) any covenant contained in Article 6 hereof is violated or breached.
Appears in 1 contract
Sources: Mezzanine Loan Agreement (Cole Corporate Income Trust, Inc.)
Exculpation. 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 Mortgage or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against the Borrower or any direct or indirect members, partners or shareholders of Borrower or the employees, agents, directors or officers of Borrower or its Affiliates, except that Lender may bring an action against Borrower, including a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender to enforce and realize upon its interest under the Note, this Agreement, the Mortgage and the other Loan Documents, or in the Property, the Business Income, or any other collateral given to Lender pursuant to the Loan Documents or any other assets of 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 Property, in the Business Income in any other collateral given to Lender or any other assets of Borrower, and Lender, by accepting the Note, this Agreement, the Mortgage and the other Loan Documents, shall not ▇▇▇ for, seek or demand any deficiency judgment or any other monetary payment against Borrower or the direct or indirect members, partners or shareholders of Borrower or the employees, agents, directors or officers of Borrower or its Affiliates in any such action or proceeding under or by reason of or under or in connection with the Note, this Agreement, the Mortgage or the other Loan Documents. The provisions of this Section shall not, however: (a) constitute a waiverThis Lease is executed by certain employees of ▇▇▇▇▇, release or impairment not individually, but solely on behalf 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 Mortgage; (c) affect the validity or enforceability of any guaranty or indemnity made in connection with the Loan (including, without limitationLandlord, the Guaranty) or authorized nominee and agent for ▇▇▇▇▇. In consideration for entering into this Lease, Tenant hereby waives any rights to bring a cause of action against the rights individuals executing this Lease on behalf of Landlord (except for any cause of action based upon lack of authority .or fraud), and remedies of Lender thereunder; (d) impair the right of Lender all persons dealing with Landlord must look solely to obtain the appointment of a receiver; (e) impair Landlord's assets for the enforcement of any claim against Landlord, and the Assignment of Leases; or (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 Loan (including the security granted by the Mortgage) or any other assets of Borrower or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against such security (including the Property or any other assets of Borrower).
(a) Nothing contained in this Section 11.22 Top obligations hereunder are not binding upon, nor shall limit the rights of Lender to proceed against Borrower for any of the following (or against Guarantor under the Guaranty, on the additional terms and conditions thereof and subject to any limitations set forth herein or therein):
(i) to enforce any Leases entered into by Borrower or its Affiliates as Tenant;
(ii) to recover damages for fraud, material misrepresentation, material breach of warranty or intentional physical waste;
(iii) to recover any Condemnation Proceeds or Insurance Proceeds or other similar funds which have been misappropriated by Borrower or which, under the terms of the Loan Documents, should have been paid to Lender;
(iv) to recover (A) any Tenant security deposits, Tenant letters of credit or other deposits or fees paid to Borrower or (B) prepaid rents for a period of more than thirty (30) days in advance of its due date which have not been delivered to Lender;
(v) to recover Business Income received by Borrower during an Event of Default which have not been applied resort be had to the Loan or in accordance with the Loan Documents to operating and maintenance expenses private property of the Property;
(vi) to recover damages, costs and expenses arising from, or in connection with the provisions of the Mortgage pertaining to Hazardous Materials or the Environmental Indemnity;
(vii) to recover any amount expended by Lender in connection with the foreclosure of the Mortgage, but only in the event that any Borrower or any Guarantor takes action to impede such foreclosure or otherwise contests the foreclosure in bad faith;
(viii) to recover damages, costs and expenses arising from, or in connection withof, the failure by Borrower to pay Taxes and Insurance Premiums when due to the extent that Borrower was not required to deposit such amounts with Lender pursuant to Section 6 hereoftrustees, but only to the extent there was available revenue from the Property for the period in question sufficient to pay such Taxes and Insurance Premiumsofficers, and provided further that Lender does not prevent such proceeds from being so applied;
(ix) to recover damagesdirectors, costs and expenses arising from the failure employees or agents of the representations set forth in Section 3.1.8 to be true or Borrower’s failure to comply with the provisions of Sections 4.2.11 of this Agreement; and
(x) to recover damages, costs and expenses arising from, or in connection with, any Lien arising from a written instrument executed by any Borrower or any Affiliate thereof expressly creating such Lien, to the extent such Lien is prohibited under this Agreement▇▇▇▇▇.
(b) Notwithstanding Anything contained in this Lease to the foregoingcontrary notwithstanding, Tenant agrees that Tenant shall look solely to the agreement estate and property of Lender not to limit recourse liability as set forth Landlord in Section 11.22(a) above SHALL BECOME NULL AND VOID and shall be the real estate of no further force and effect which the Premises is a part and the Debt shall be fully recourse to Borrower rentals therefrom for the collection of any judgment (and to Guarantor under or other judicial process) requiring the Guaranty, on the additional terms and conditions thereof and subject to any limitations set forth herein or therein) payment of money by Landlord in the event that:
(i) of any Borrower commences a voluntary bankruptcy default or insolvency proceeding;
(ii) an involuntary bankruptcy breach by Landlord with respect to any condition, covenant, or insolvency proceeding is commenced against agreement of this Lease to be observed and/or performed by Landlord, subject, however, to the prior rights of any Borrower and is not dismissed within 90 days of filing; or
(iii) voluntary Transfer mortgagee of the Property occurs by written instrument executed by any Borrower real estate of which the Premises is a part, or part thereof; and no other assets of Landlord or any Affiliate thereofpartner, which instrument expressly effects such Transfermember, shareholder, board member, officer, agent or a Secondary Financing is voluntarily incurred employee thereof shall be subject to levy, execution or other judicial process for the satisfaction of Tenant's claims. In the event Landlord conveys or transfers its interest in violation of the Loan DocumentsBuilding or in this Lease, except as otherwise consented to by Lender collateral security for a loan, upon such conveyance or transfer Landlord (and in writing (which consent may be withheld in Lender’s sole discretion).
(cthe case of any subsequent conveyances or transfers, the then grantor or transferor) Notwithstanding the provisions of clauses (i) and (ii) of Section 11.22(b) no Guarantor shall be liable for entirely released and relieved from all liability with respect to the performance of any amount related covenants and obligations on the part of the landlord to a Qualified Involuntary Bankruptcy.
(d) In additionbe performed hereunder from and after the date of such conveyance or transfer; it being intended hereby that the covenants and obligations on the part of the landlord to be performed hereunder shall, subject as aforesaid, be binding on Landlord, its successors and assigns only during and in respect of their respective periods of ownership of any interest in the Building or in this agreement Lease. This provision shall not waive be deemed, construed or interpreted to be or constitute any rights which Lender would have under any provisions of Title 11 of the Bankruptcy Code to file a claim for the full amount of the Debt agreement, express or to require implied, between Landlord and Tenant that the Property Landlord's interest hereunder and in the Building shall continue be subject to secure all imposition of the Debtan equitable lien or otherwise."
Appears in 1 contract
Sources: Lease (Affymetrix Inc)
Exculpation. Subject to the qualifications below, Lender (a) The Administrative Agent shall not enforce the liability have any duties or obligations except those expressly set forth herein and obligation of Borrower to perform and observe the obligations contained in the Note, this Agreement, the Mortgage or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against the Borrower or any direct or indirect members, partners or shareholders of Borrower or the employees, agents, directors or officers of Borrower or its Affiliates, except that Lender may bring an action against Borrower, including a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender to enforce and realize upon its interest under the Note, this Agreement, the Mortgage and the other Loan Documents, and its duties hereunder shall be administrative in nature. Without limiting the generality of the foregoing, the Administrative Agent:
(i) shall not be subject to any fiduciary or other implied duties, regardless of whether an Event of Default or Prepayment Event has occurred and is continuing;
(ii) shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby or by the other Loan Documents that the Administrative Agent is required to exercise as directed in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be expressly provided for herein or in the Propertyother Loan Documents); provided that the Administrative Agent shall not be required to take any action that, in its opinion or the Business Incomeopinion of its counsel, may expose the Administrative Agent to liability or that is contrary to any other collateral given to Loan Document or applicable law, including for the avoidance of doubt any action that may be in violation of the automatic stay under any debtor relief law or that may effect a forfeiture, modification or termination of property of a Defaulting Lender pursuant to the Loan Documents or in violation of any other assets of Borrowerdebtor relief law; provided, however, thatand
(iii) shall not, except as specifically provided herein, any judgment expressly set forth herein and in any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower’s interest in the Property, in the Business Income in any other collateral given to Lender or any other assets of Borrower, and Lender, by accepting the Note, this Agreement, the Mortgage and the other Loan Documents, have any duty to disclose, and shall not ▇▇▇ forbe liable for the failure to disclose, seek or demand any deficiency judgment information relating to the Borrower or any other monetary payment against Borrower of its Affiliates that is communicated to or obtained by the direct Person serving as the Administrative Agent or indirect members, partners or shareholders any of Borrower or the employees, agents, directors or officers of Borrower or its Affiliates in any such action or proceeding under or by reason of or under or in connection with the Note, this Agreement, the 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 Mortgage; (c) affect the validity or enforceability of any guaranty or indemnity made in connection with the Loan (including, without limitation, the Guaranty) or any of the rights and remedies of Lender thereunder; (d) impair the right of Lender to obtain the appointment of a receiver; (e) impair the enforcement of the Assignment of Leases; or (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 Loan (including the security granted by the Mortgage) or any other assets of Borrower or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against such security (including the Property or any other assets of Borrower).
(a) Nothing contained in this Section 11.22 shall limit the rights of Lender to proceed against Borrower for any of the following (or against Guarantor under the Guaranty, on the additional terms and conditions thereof and subject to any limitations set forth herein or therein):
(i) to enforce any Leases entered into by Borrower or its Affiliates as Tenant;
(ii) to recover damages for fraud, material misrepresentation, material breach of warranty or intentional physical waste;
(iii) to recover any Condemnation Proceeds or Insurance Proceeds or other similar funds which have been misappropriated by Borrower or which, under the terms of the Loan Documents, should have been paid to Lender;
(iv) to recover (A) any Tenant security deposits, Tenant letters of credit or other deposits or fees paid to Borrower or (B) prepaid rents for a period of more than thirty (30) days in advance of its due date which have not been delivered to Lender;
(v) to recover Business Income received by Borrower during an Event of Default which have not been applied to the Loan or in accordance with the Loan Documents to operating and maintenance expenses of the Property;
(vi) to recover damages, costs and expenses arising from, or in connection with the provisions of the Mortgage pertaining to Hazardous Materials or the Environmental Indemnity;
(vii) to recover any amount expended by Lender in connection with the foreclosure of the Mortgage, but only in the event that any Borrower or any Guarantor takes action to impede such foreclosure or otherwise contests the foreclosure in bad faith;
(viii) to recover damages, costs and expenses arising from, or in connection with, the failure by Borrower to pay Taxes and Insurance Premiums when due to the extent that Borrower was not required to deposit such amounts with Lender pursuant to Section 6 hereof, but only to the extent there was available revenue from the Property for the period in question sufficient to pay such Taxes and Insurance Premiums, and provided further that Lender does not prevent such proceeds from being so applied;
(ix) to recover damages, costs and expenses arising from the failure of the representations set forth in Section 3.1.8 to be true or Borrower’s failure to comply with the provisions of Sections 4.2.11 of this Agreement; and
(x) to recover damages, costs and expenses arising from, or in connection with, any Lien arising from a written instrument executed by any Borrower or any Affiliate thereof expressly creating such Lien, to the extent such Lien is prohibited under this Agreementcapacity.
(b) Notwithstanding The Administrative Agent shall not be liable for any action taken or not taken by it (i) with the foregoing, consent or at the agreement request of Lender not to limit recourse liability the Required Lenders (or such other number or percentage of the Lenders as set forth in Section 11.22(a) above SHALL BECOME NULL AND VOID and shall be of no further force and effect and necessary, or as the Debt Administrative Agent shall believe in good faith shall be fully recourse to Borrower (and to Guarantor necessary, under the Guarantycircumstances as provided in Sections 11.1 and 7.3), on the additional terms and conditions thereof and subject to any limitations set forth herein or therein(ii) in the event that:
(i) absence of its own gross negligence or willful misconduct as determined by a court of competent jurisdiction by final and nonappealable judgment. The Administrative Agent shall be deemed not to have knowledge of any Borrower commences a voluntary bankruptcy Event of Default or insolvency proceeding;
(ii) an involuntary bankruptcy Prepayment Event unless and until notice describing such Event of Default or insolvency proceeding Prepayment Event is commenced against any Borrower and is not dismissed within 90 days of filing; or
(iii) voluntary Transfer of given to the Property occurs Administrative Agent in writing by written instrument executed by any the Borrower or any Affiliate thereof, which instrument expressly effects such Transfer, or a Secondary Financing is voluntarily incurred in violation of the Loan Documents, except as otherwise consented to by Lender in writing (which consent may be withheld in Lender’s sole discretion).
(c) Notwithstanding the provisions of clauses The Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) and any statement, warranty or representation made in or in connection with this Agreement or any other Loan Document, (ii) the contents of Section 11.22(bany certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) no Guarantor shall the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or therein or the occurrence of any Default, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement, any other Loan Document or any other agreement, instrument or document, or the creation, perfection or priority of any Lien purported to be liable for created by the Collateral Documents, (v) the value or the sufficiency of any amount related Collateral or (vi) the satisfaction of any condition set forth in Article IV or elsewhere herein, other than to a Qualified Involuntary Bankruptcyconfirm receipt of items expressly required to be delivered to the Administrative Agent.
(d) In addition, this agreement The Administrative Agent shall not waive be responsible or have any rights which Lender would liability for, or have under any duty to ascertain, inquire into, monitor or enforce, compliance with the provisions of Title 11 this Agreement relating to Competitors or Affiliates thereof. Without limiting the generality of the Bankruptcy Code foregoing, the Administrative Agent shall not (x) be obligated to file ascertain, monitor or inquire as to whether any Lender or Participant or prospective Lender or Participant is a claim for the full amount Competitor or an Affiliate thereof or (y) have any liability with respect to or arising out of the Debt any assignment or participation of Advances, or disclosure of confidential information, to require that the Property shall continue to secure all of the Debtany Competitor or Affiliate thereof.
Appears in 1 contract
Exculpation. Subject Notwithstanding any provision of this Agreement or any Loan Document to the qualifications belowcontrary, Lender but subject to the further provisions of this Article X, the Secured Parties shall not enforce the liability and obligation of Borrower the Borrowers to perform and observe the obligations contained in the Note, this Agreement, the Mortgage or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against the Borrower any Transaction Party or any direct of their respective officers, directors, managers, shareholders or indirect membersemployees (collectively, partners or shareholders of Borrower or the employees, agents, directors or officers of Borrower or its Affiliates“Exculpated Parties”), except that Lender the Administrative Agent may bring an action against Borrower, including a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender the Administrative Agent to enforce and realize upon its interest under the Note, this Agreement, the Mortgage and the other Loan Documents, or and the interest in the Property, the Business Income, or any other collateral given to Lender pursuant to the Loan Documents or any other assets of BorrowerCollateral; 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 the Borrowers’ interests in the PropertyCollateral. The Secured Parties agree that they shall not, except as otherwise provided herein or in the Business Income in any other collateral given to Lender or any other assets of BorrowerMortgages, and Lender, by accepting the Note, this Agreement, the Mortgage and the other Loan Documents, shall not ▇s▇▇ for, seek or demand any deficiency judgment or against any other monetary payment against Borrower or of the direct or indirect members, partners or shareholders of Borrower or the employees, agents, directors or officers of Borrower or its Affiliates Exculpated Parties in any such action or proceeding proceeding, under or by reason of or under or in connection with the Note, this Agreement, the Mortgage or the other Loan Documents. The provisions of this Section 10.01 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 the Administrative Agent to name Borrower any Transaction Party as a party defendant in any action or suit for judicial foreclosure and sale under the any Mortgage; (ciii) affect the validity or enforceability of any indemnity, guaranty (including the Guaranty), master lease or indemnity similar instrument made in connection with the Loan (including, without limitation, the Guaranty) or any of the rights and remedies of Lender thereunderDocuments; (div) impair the right of Lender the Administrative Agent to obtain the appointment of a receiver; (ev) impair the enforcement of the any Assignment of Leases; (vi) impair the right of the Secured Parties to enforce the provisions of the Mortgages; (vii) exercise of any other remedy set forth in this Agreement or in any other Loan Document which is not inconsistent with the terms of this Section 10.01; or (fviii) constitute a prohibition against Lender impair the right of the Secured Parties to seek obtain a deficiency judgment or other judgment on the Notes against Borrower in order Borrowers if necessary to fully realize on any security given by Borrower in connection with the Loan (including the security granted by the MortgageA) preserve or any other assets of Borrower or to commence any other appropriate action or proceeding in order for Lender to exercise enforce its rights and remedies against such security the Collateral or (including B) obtain any insurance proceeds or condemnation awards to which the Property or any other assets of Borrower).
(a) Nothing contained in this Section 11.22 shall limit the rights of Lender to proceed against Borrower for any of the following (or against Guarantor under the Guaranty, on the additional terms and conditions thereof and subject to any limitations set forth herein or therein):
(i) to enforce any Leases entered into by Borrower or its Affiliates as Tenant;
(ii) to recover damages for fraud, material misrepresentation, material breach of warranty or intentional physical waste;
(iii) to recover any Condemnation Proceeds or Insurance Proceeds or other similar funds which have been misappropriated by Borrower or which, Secured Parties would otherwise be entitled under the terms of the Loan Documents; provided, should have been paid to Lender;
(iv) to recover (A) any Tenant security deposits, Tenant letters of credit or other deposits or fees paid to Borrower or (B) prepaid rents for a period of more than thirty (30) days in advance of its due date which have not been delivered to Lender;
(v) to recover Business Income received by Borrower during an Event of Default which have not been applied to the Loan or in accordance with the Loan Documents to operating and maintenance expenses of the Property;
(vi) to recover damages, costs and expenses arising from, or in connection with the provisions of the Mortgage pertaining to Hazardous Materials or the Environmental Indemnity;
(vii) to recover any amount expended by Lender in connection with the foreclosure of the Mortgage, but only in the event that any Borrower or any Guarantor takes action to impede such foreclosure or otherwise contests the foreclosure in bad faith;
(viii) to recover damages, costs and expenses arising from, or in connection withhowever, the failure by Borrower to pay Taxes and Insurance Premiums when due Secured Parties shall only enforce such judgment to the extent that Borrower was not required to deposit such amounts with Lender pursuant to Section 6 hereof, but only to the extent there was available revenue from the Property for the period in question sufficient to pay such Taxes and Insurance Premiums, and provided further that Lender does not prevent such proceeds from being so applied;
(ix) to recover damages, costs and expenses arising from the failure of the representations set forth in Section 3.1.8 to be true or Borrower’s failure to comply with the provisions of Sections 4.2.11 of this Agreement; and
(x) to recover damages, costs and expenses arising from, or in connection with, any Lien arising from a written instrument executed by any Borrower or any Affiliate thereof expressly creating such Lien, to the extent such Lien is prohibited under this Agreementinsurance proceeds and/or condemnation awards.
(b) Notwithstanding the foregoing, the agreement of Lender not to limit recourse liability as set forth in Section 11.22(a) above SHALL BECOME NULL AND VOID and shall be of no further force and effect and the Debt shall be fully recourse to Borrower (and to Guarantor under the Guaranty, on the additional terms and conditions thereof and subject to any limitations set forth herein or therein) in the event that:
(i) any Borrower commences a voluntary bankruptcy or insolvency proceeding;
(ii) an involuntary bankruptcy or insolvency proceeding is commenced against any Borrower and is not dismissed within 90 days of filing; or
(iii) voluntary Transfer of the Property occurs by written instrument executed by any Borrower or any Affiliate thereof, which instrument expressly effects such Transfer, or a Secondary Financing is voluntarily incurred in violation of the Loan Documents, except as otherwise consented to by Lender in writing (which consent may be withheld in Lender’s sole discretion).
(c) Notwithstanding the provisions of clauses (i) and (ii) of Section 11.22(b) no Guarantor shall be liable for any amount related to a Qualified Involuntary Bankruptcy.
(d) In addition, this agreement shall not waive any rights which Lender would have under any provisions of Title 11 of the Bankruptcy Code to file a claim for the full amount of the Debt or to require that the Property shall continue to secure all of the Debt.
Appears in 1 contract
Sources: Term Loan Agreement (American Realty Capital Hospitality Trust, Inc.)
Exculpation. Subject Notwithstanding anything in this Security Instrument or in any other Loan Document to the qualifications belowcontrary, except as otherwise set forth in this Section 18.32 to the contrary, Lender shall not enforce the liability and obligation of Borrower or any Person holding a direct or indirect interest in Borrower or (a) if Borrower or any of its direct or indirect owners is a partnership, its or their direct or indirect constituent partners or any of their respective partners, (b) if Borrower or any of its direct or indirect owners is a trust, its or their beneficiaries or any of their respective Partners (as hereinafter defined), (c) if Borrower or any of its direct or indirect owners is a corporation, any of its or their direct or indirect shareholders, directors, principals, officers or employees, or (d) if Borrower or any of its direct or indirect owners is a limited liability company, any of its or their direct or indirect 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 Mortgage Security Instrument or any of the other Loan Documents by any action or proceeding, including, without limitation, any action or proceeding wherein a money judgment shall be sought against the Borrower or any direct or indirect members, partners or shareholders of Borrower or the employees, agents, directors or officers of Borrower or its AffiliatesPartners, except that Lender may bring an action against Borrower, including a foreclosure action, an action for specific performance performance, or any other appropriate action or proceeding (including, without limitation, an action to enable obtain a deficiency judgment) against Borrower solely for the purpose of enabling Lender to enforce and realize upon its (i) Borrower’s interest under the Note, this Agreement, the Mortgage and the other Loan Documents, or in the Property, (ii) the Business Income, Rent to the extent received by Borrower during the existence of an Event of Default (all Rent covered by this clause (ii) being hereinafter referred to as the “Recourse Distributions”) and not applied towards Debt Service or the operation or maintenance of the Property and (iii) any other collateral given to Lender pursuant then subject to the Loan Documents or any other assets of Borrower(the collateral described in the foregoing clauses (i) — (iii) is hereinafter referred to as 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 and the Partners only to the extent of Borrower’s interest in the Property, in the Business Income in any other collateral given to Lender or any other assets of Borrower, and Lender, by accepting the Note, this Agreement, the Mortgage and the other Loan Documents, shall not ▇▇▇ for, seek or demand any deficiency judgment or any other monetary payment against Borrower or the direct or indirect members, partners or shareholders of Borrower or the employees, agents, directors or officers of Borrower or its Affiliates in any such action or proceeding under or by reason of or under or in connection with the Note, this Agreement, the Mortgage 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 Security Instrument or secured by any of the other Loan DocumentsDocuments or the right of Lender to foreclose this Security Instrument during the existence of an Event of Default the cure of which has not been accepted by Lender; (b) impair the right of Lender to name Borrower as a party defendant in any action or suit for judicial foreclosure and sale under the Mortgagethis Security Instrument; (c) affect the validity or enforceability of any guaranty or indemnity made in connection with the Loan (includingNote, without limitationthis Security Instrument, the Guaranty) or any of the rights and remedies of Lender thereunder; (d) other Loan Documents, or impair the right of Lender to obtain the appointment of a receiver; (e) impair the enforcement of the Assignment of Leases; or (f) constitute a prohibition against Lender to seek a deficiency personal judgment against Borrower in order to fully realize on any security given by Borrower in connection with the Loan (including the security granted by the Mortgage) or any other assets of Borrower or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against such security (including the Property or any other assets of Borrower).
(a) Nothing contained in this Section 11.22 shall limit the rights of Lender to proceed against Borrower for any of the following (or against Guarantor under the Guaranty, on the additional terms and conditions thereof and subject to any limitations set forth herein or therein):
(i) to enforce any Leases entered into by Borrower or its Affiliates as Tenant;
(ii) to recover damages for fraud, material misrepresentation, material breach of warranty or intentional physical waste;
(iii) to recover any Condemnation Proceeds or Insurance Proceeds or other similar funds which have been misappropriated by Borrower or which, under the terms of the Loan Documents, should have been paid to Lender;
(iv) to recover (A) any Tenant security deposits, Tenant letters of credit or other deposits or fees paid to Borrower or (B) prepaid rents for a period of more than thirty (30) days in advance of its due date which have not been delivered to Lender;
(v) to recover Business Income received by Borrower during an Event of Default which have not been applied to the Loan or in accordance with the Loan Documents to operating and maintenance expenses of the Property;
(vi) to recover damages, costs and expenses arising from, or in connection with the provisions of the Mortgage pertaining to Hazardous Materials or the Environmental Indemnity;
(vii) to recover any amount expended by Lender in connection with the foreclosure of the Mortgage, but only in the event that any Borrower or any Guarantor takes action to impede such foreclosure or otherwise contests the foreclosure in bad faith;
(viii) to recover damages, costs and expenses arising from, or in connection with, the failure by Borrower to pay Taxes and Insurance Premiums when due to the extent that Borrower was not required to deposit such amounts with Lender pursuant to Section 6 hereof, but only to the extent there was available revenue from the Property and for the period obligations guaranteed in question sufficient to pay such Taxes and Insurance Premiums, and provided further that Lender does not prevent such proceeds from being so applied;
(ix) to recover damages, costs and expenses arising from the failure of the representations set forth in Section 3.1.8 to be true or Borrower’s failure to comply with the provisions of Sections 4.2.11 of this Agreement; and
(x) to recover damages, costs and expenses arising from, or in connection with, any Lien arising from a written instrument executed by any Borrower or any Affiliate thereof expressly creating such Lien, to the extent such Lien is prohibited under this Agreement.
(b) Notwithstanding the foregoing, the agreement of Lender not to limit recourse liability as set forth in Section 11.22(a) above SHALL BECOME NULL AND VOID and shall be of no further force and effect and the Debt shall be fully recourse to Borrower (and to Guarantor under the Guaranty, on the additional terms and conditions thereof and subject to any limitations set forth herein or therein) in the event that:
(i) any Borrower commences a voluntary bankruptcy or insolvency proceeding;
(ii) an involuntary bankruptcy or insolvency proceeding is commenced against any Borrower and is not dismissed within 90 days of filing; or
(iii) voluntary Transfer of the Property occurs by written instrument executed by any Borrower or any Affiliate thereof, which instrument expressly effects such Transfer, or a Secondary Financing is voluntarily incurred in violation of the Loan Documents, except as otherwise consented to by Lender in writing (which consent may be withheld in Lender’s sole discretion).
(c) Notwithstanding the provisions of clauses (i) and (ii) of Section 11.22(b) no Guarantor shall be liable for any amount related to a Qualified Involuntary Bankruptcy.
(d) In addition, this agreement shall not waive any rights which Lender would have under any provisions of Title 11 of the Bankruptcy Code to file a claim for the full amount of the Debt or to require that the Property shall continue to secure all of the Debt.
Appears in 1 contract
Sources: Mortgage, Security Agreement, Assignment of Rents and Fixture Filing (Ashford Hospitality 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 Mortgage 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 the Borrower or any direct principal, director, officer, employee, beneficiary, shareholder, partner, member, trustee, agent, or indirect members, partners or shareholders Affiliate of Borrower or any legal representatives, successors or assigns of any of the employeesforegoing (collectively, agents, directors or officers of Borrower or its Affiliatesthe “Exculpated Parties”), except that Lender may bring an action against Borrower, including a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender to enforce and realize upon its interest under the Note, this Agreement, the Mortgage Security Instrument and the other Loan Documents, or in the Property, the Business IncomeRents, or any other collateral given to Lender pursuant to the Loan Documents or any other assets of BorrowerDocuments; 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 Business Income Rents and in any other collateral given to Lender or any other assets of BorrowerLender, and Lender, by accepting the Note, this Agreement, the Mortgage Security Instrument and the other Loan Documents, shall not ▇▇▇ sue for, seek or demand any deficiency judgment or any other monetary payment against Borrower or any of the direct or indirect members, partners or shareholders of Borrower or the employees, agents, directors or officers of Borrower or its Affiliates Exculpated Parties in any such action or proceeding under or by reason of or under or in connection with the Note, this Agreement, the Mortgage 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 MortgageSecurity Instrument; (c3) affect the validity or enforceability of any indemnity, guaranty or indemnity 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 (including, without limitation, the Guaranty) or any of the rights and remedies of Lender thereunderthereunder (including, without limitation, ▇▇▇▇▇▇’s right to enforce said rights and remedies against ▇▇▇▇▇▇▇▇ and/or Guarantor (as applicable) personally and without the effect of the exculpatory provisions of this Article 13 as to Borrower and/or Guarantor) (provided, that the foregoing shall not modify the effect of the exculpatory -133- provisions of this Article 13 with respect to any principal, director, officer, employee, beneficiary, shareholder, partner, member, trustee, agent, or other Affiliate of Borrower or any legal representatives, successors or assigns of any of the foregoing, and provided further that Guarantor’s liability shall be as more particularly set forth in the Guaranty); (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 receiver; (e) impair the enforcement of the Assignment of Leasesthis Agreement; or (f7) 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 Loan (including the security granted by the Mortgage) or any other assets of Borrower Security Instrument or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against such security (including the Property (or any other assets of Borrowerportion thereof).
(a) Nothing contained in this Section 11.22 shall limit the rights of Lender to proceed against Borrower for any of the following (or against Guarantor under the Guaranty, on the additional terms and conditions thereof and subject to any limitations set forth herein or therein):
(i) to enforce any Leases entered into by Borrower or its Affiliates as Tenant;
(ii) to recover damages for fraud, material misrepresentation, material breach of warranty or intentional physical waste;
(iii) to recover any Condemnation Proceeds or Insurance Proceeds or other similar funds which have been misappropriated by Borrower or which, under the terms of the Loan Documents, should have been paid to Lender;
(iv) to recover (A) any Tenant security deposits, Tenant letters of credit or other deposits or fees paid to Borrower or (B) prepaid rents for a period of more than thirty (30) days in advance of its due date which have not been delivered to Lender;
(v) to recover Business Income received by Borrower during an Event of Default which have not been applied to the Loan or in accordance with the Loan Documents to operating and maintenance expenses of the Property;
(vi) to recover damages, costs and expenses arising from, or in connection with the provisions of the Mortgage pertaining to Hazardous Materials or the Environmental Indemnity;
(vii) to recover any amount expended by Lender in connection with the foreclosure of the Mortgage, but only in the event that any Borrower or any Guarantor takes action to impede such foreclosure or otherwise contests the foreclosure in bad faith;
(viii) to recover damages, costs and expenses arising from, or in connection with, the failure by Borrower to pay Taxes and Insurance Premiums when due to the extent that Borrower was not required to deposit such amounts with Lender pursuant to Section 6 hereof, but only to the extent there was available revenue from the Property for the period in question sufficient to pay such Taxes and Insurance Premiums, and provided further that Lender does not prevent such proceeds from being so applied;
(ix) to recover damages, costs and expenses arising from the failure of the representations set forth in Section 3.1.8 to be true or Borrower’s failure to comply with the provisions of Sections 4.2.11 of this Agreement; and
(x) to recover damages, costs and expenses arising from, or in connection with, any Lien arising from a written instrument executed by any Borrower or any Affiliate thereof expressly creating such Lien, to the extent such Lien is prohibited under this Agreement.
(b) Notwithstanding the foregoing, nothing herein shall in any manner or way release, affect or impair the agreement right of Lender not to limit recourse liability as set forth in Section 11.22(a) above SHALL BECOME NULL AND VOID recover, and shall be of no further force and effect and the Debt Borrower shall be fully recourse to Borrower (and to Guarantor under the Guaranty, on the additional terms and conditions thereof personally liable and subject to legal action, for any limitations set forth herein Loss actually incurred by ▇▇▇▇▇▇ (including reasonable attorneys’ fees and costs reasonably incurred) arising out of or therein) in connection with the event thatfollowing:
(i) fraud or intentional misrepresentation by any Borrower commences a voluntary bankruptcy or insolvency proceedingParty in connection with the Loan;
(ii) an involuntary bankruptcy or insolvency proceeding is commenced against the willful misconduct of any Borrower and is not dismissed within 90 days of filing; orParty;
(iii) voluntary Transfer any litigation or other legal proceeding related to the Debt filed by any Borrower Party or any other action of any Borrower Party that is filed with the intention of delaying, opposing, impeding, obstructing, hindering, enjoining or otherwise interfering with or frustrating the efforts of Lender to exercise any rights and remedies available to Lender as provided herein and in the other Loan Documents;
(iv) material physical waste to the Property caused by the intentional acts or intentional omissions of any Borrower Party; provided, that, the foregoing shall not include a Borrower’s failure to maintain the Property to the extent the Property did not generate sufficient cash flow during the period in question (or such cash flow was not made available by Lender to Borrower for Borrower’s use) to pay all of the Borrower’s current and/or past due liabilities (including the cost of maintenance) with respect to the Property after paying Taxes and Insurance Premiums;
(v) the misappropriation or conversion by any Borrower Party of (A) any insurance proceeds paid by reason of any loss, damage or destruction to the Property (or any portion thereof), (B) any Awards or other amounts received in connection with the Condemnation of all or a portion of the Property, (C) any Rents, (D) any Security Deposits or Rents collected in advance or (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);
(vi) failure to pay Taxes, charges for labor or materials or other charges that can create liens on any portion of the Property occurs by written instrument executed by any in accordance with the terms and provisions hereof; provided, that, Borrower shall not be liable to the extent (i) with respect to Taxes, funds to pay such amounts were deposited with Lender as Tax and Insurance Funds for Taxes or any Affiliate thereofOther Charges at the time payment was due, which instrument expressly effects (ii)with respect to Taxes, such TransferTaxes or Other Charges owed or lien on the Property, or a Secondary Financing is voluntarily incurred as applicable, are being contested strictly in violation accordance with the terms of the Loan Documents, or (iii) the Property did not generate sufficient cash flow at the time in question (or such cash flow was not made available by Lender to Borrower as, and when, required hereunder for -134- Borrower’s use) to pay such Taxes prior to paying any other current and/or past due liabilities with respect to the Property;
(vii) failure to pay Insurance Premiums, to maintain the Policies in full force and effect, in each case, as expressly provided herein; provided, that, Borrower shall not be liable to the extent funds to pay such amounts were deposited with Lender as Tax and Insurance Funds for Insurance Premiums at the time payment was due; provided, further, that the foregoing shall not include Borrower’s failure to pay Insurance Premiums or maintain the Policies to the extent that the Property did not generate sufficient cash flow during the period in question (or such cash flow was not made available to Borrower by ▇▇▇▇▇▇ as, and when, required hereunder for ▇▇▇▇▇▇▇▇’s use) to pay such Insurance Premiums after paying Taxes but prior to paying any other current and/or past due liabilities with respect to the Property;
(viii) any Security Deposits which are not delivered to Lender within the timeframe required hereunder 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 applicable Event of Default. For purposes of clarification, for a Security Deposit to be deemed “delivered to Lender” in connection with the foregoing, the same must be in the form of cash or in a letter of credit solely in ▇▇▇▇▇▇’s name;
(ix) [intentionally omitted];
(x) any breach of any applicable Legal Requirement mandating the forfeiture by any Borrower of any of the Properties, or any portion thereof, because of the conduct or purported conduct of criminal activity by a Borrower Party in connection therewith;
(xi) the failure to make any REMIC Payment and/or any True Up Payment as and when required herein; provided that such failure shall not result in recourse liability hereunder unless ▇▇▇▇▇▇▇▇ fails to cure such failure within fifteen (15) days of receipt of written notice from Lender of such failure;
(xii) (A) any voluntary termination of any PILOT Lease and/or PILOT Document or transfer or surrender of any PILOT Lease and/or PILOT Document by Borrower without ▇▇▇▇▇▇’s prior written consent other than in connection with Borrower acquiring the fee estate from the applicable PILOT Lessor or as otherwise consented expressly permitted under this Agreement, (B) any termination of any PILOT Lease and/or PILOT Document as a result of a foreclosure of the applicable Security Instrument or deed in lieu thereof or (C) Borrower’s failure to comply with, or Borrower’s breach of, any PILOT Lease and/or PILOT Document that results in (x) a reduction of any tax abatement and/or mandatory repayment of any past or current tax abatement under such PILOT Lease and/or PILOT Document, as applicable, (y) termination of such PILOT Lease and/or PILOT Document, as applicable, and the benefits thereunder in favor of Borrower or Tenant or (z) a default by such Borrower under the applicable Lease for such PILOT Property;
(xiii) the failure by Borrower 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; provided that (A) such failure shall not result in recourse liability hereunder unless Borrower fails to cure such failure within fifteen (15) days of receipt of written notice from Lender of such failure and (B) the recourse liability hereunder shall be limited to the actual costs incurred by Lender in writing (which consent may be withheld in Lender’s sole discretion).
(c) Notwithstanding the provisions of clauses (i) and (ii) of Section 11.22(b) no Guarantor shall be liable for any amount related to a Qualified Involuntary Bankruptcy.
(d) In addition, this agreement shall not waive any rights which Lender would have under any provisions of Title 11 of the Bankruptcy Code to file a claim for the full amount of the Debt or to require that the Property shall continue to secure all of the Debt.purchasing such Interest Rate Cap Agreement;
Appears in 1 contract
Sources: Loan Agreement (Ares 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 Mortgage 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 the Borrower or any direct principal, director, officer, employee, beneficiary, shareholder, partner, member, trustee, agent, or indirect members, partners or shareholders Affiliate of Borrower or any legal representatives, successors or assigns of any of the employeesforegoing (collectively, agents, directors or officers of Borrower or its Affiliatesthe “Exculpated Parties”), except that Lender may bring an action against Borrower, including a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender to enforce and realize upon its interest under the Note, this Agreement, the Mortgage Security Instrument and the other Loan Documents, or in the PropertyProperty (or any portion thereof), the Business IncomeRents, or any other collateral given to Lender pursuant to the Loan Documents or any other assets of BorrowerDocuments; 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 Business Income Rents and in any other collateral given to Lender or any other assets of BorrowerLender, and Lender, by accepting the Note, this Agreement, the Mortgage Security Instrument and the other Loan Documents, shall not ▇▇▇ sue for, seek or demand any deficiency judgment or any other monetary payment against Borrower or any of the direct or indirect members, partners or shareholders of Borrower or the employees, agents, directors or officers of Borrower or its Affiliates Exculpated Parties in any such action or proceeding under or by reason of or under or in connection with the Note, this Agreement, the Mortgage 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 MortgageSecurity Instrument; (c3) affect the validity or enforceability of any indemnity, guaranty or indemnity 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 (including, without limitation, the Guaranty) or any of the rights and remedies of Lender thereunderthereunder (including, without limitation, L▇▇▇▇▇’s right to enforce said rights and remedies against B▇▇▇▇▇▇▇ 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) impair the enforcement of the Assignment of Leases; or (f7) 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 Loan (including the security granted by the Mortgage) or any other assets of Borrower Security Instrument or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against such security (including the Property (or any other assets portion thereof); or (8) constitute a waiver of Borrower).
(a) Nothing contained in this Section 11.22 shall limit the rights right of Lender to proceed against Borrower for enforce the liability and obligation of Borrower, by money judgment or otherwise, to the extent of any Loss actually incurred by L▇▇▇▇▇ (including reasonable attorneys’ fees and costs reasonably incurred) arising out of or in connection with the following (or against Guarantor under the Guaranty, on the additional terms and conditions thereof and subject to any limitations set forth herein or therein):following:
(i) to enforce fraud or intentional material misrepresentation by B▇▇▇▇▇▇▇, M▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, any Leases entered into by Borrower SPE Component Entity, any Mezzanine SPE Component Entity, Sponsor, any Affiliated Manager, Guarantor or its Affiliates as Tenantany director, officer, beneficiary, shareholder, partner, member, employee or agent acting on behalf of any of the foregoing (each, a “Recourse Party”) in connection with the Loan;
(ii) to recover damages for fraud, material misrepresentation, material breach willful misconduct of warranty or intentional physical wasteany Recourse Party in connection with the Loan;
(iii) to recover the breach of any Condemnation Proceeds or Insurance Proceeds or other similar funds which have been misappropriated by Borrower or which, under the terms of indemnification provision in the Loan DocumentsDocuments concerning environmental laws, should have been paid to Lenderhazardous substances and asbestos and any indemnification of Lender with respect thereto;
(iv) material physical waste to recover (A) any Tenant security deposits, Tenant letters Property caused by the intentional acts of credit or other deposits or fees paid to Borrower or (B) prepaid rents for a period of more than thirty (30) days in advance of its due date which have not been delivered to Lender;
(v) to recover Business Income received by Borrower during an Event of Default which have not been applied to the Loan or in accordance with the Loan Documents to operating and maintenance expenses of the Property;
(vi) to recover damages, costs and expenses arising from, or in connection with the provisions of the Mortgage pertaining to Hazardous Materials or the Environmental Indemnity;
(vii) to recover any amount expended by Lender in connection with the foreclosure of the Mortgage, but only in the event that any Borrower or any Guarantor takes action to impede such foreclosure or otherwise contests the foreclosure in bad faith;
(viii) to recover damages, costs and expenses arising from, or in connection with, the failure by Borrower to pay Taxes and Insurance Premiums when due to the extent that Borrower was not required to deposit such amounts with Lender pursuant to Section 6 hereofRecourse Party, but only to the extent there was available revenue is sufficient cash flow from the Property Properties to prevent such physical waste and such cash flow is made available by Lender for the period purpose of preventing such physical waste;
(v) the removal of any property in question sufficient contravention of the Loan Documents during the continuance of an Event of Default other than in the ordinary course of business;
(vi) the misappropriation or conversion of any of the following by a Recourse Party in contravention of the Loan Documents: (A) any insurance proceeds received by Borrower by reason of any Casualty, (B) any Awards or other amounts received by Borrower from a governmental authority in connection with a Condemnation of all or a portion of the Property, or (C) any revenues generated by the Properties;
(vii) any Security Deposits, advance deposits or any other deposits collected with respect to pay any Property which are not delivered to Lender upon a foreclosure of such Taxes Property or action in lieu thereof, except to the extent any such Security Deposits were applied in accordance with the terms and Insurance Premiumsconditions of any of the applicable Lease;
(viii) any litigation or other legal proceeding related to the Loan filed by a Recourse Party with the effect of delaying, opposing, impeding, obstructing, hindering, enjoining or otherwise interfering with the efforts of L▇▇▇▇▇ to exercise any rights and remedies available to Lender during the continuance of an Event of Default; provided, however, that there shall be no liability hereunder on account of, and provided further that the foregoing shall not restrict, B▇▇▇▇▇▇▇’s or Guarantor’s right to, dispute, in good faith, whether the relevant Event of Default shall have occurred or whether an action taken by Lender pursuant to the Loan Documents is permitted thereby, nor shall Borrower be restricted from, or have liability hereunder for, bringing a good faith counterclaim which if not raised in the foreclosure proceeding would be barred, and which does not prevent such proceeds from being so appliedseek to enjoin the enforcement action by L▇▇▇▇▇;
(ix) Borrower fails to recover damagesobtain L▇▇▇▇▇’s prior written consent to any additional indebtedness or voluntary lien encumbering any Property and not permitted by the Loan Documents;
(x) a material breach by Borrower of Section 5.5;
(xi) any voluntary termination, costs and expenses arising or any voluntary, material modification of any Ground Lease by Borrower without L▇▇▇▇▇’s prior written consent other than as expressly permitted under this Agreement; provided, that the liability with respect to this Section 13.1(a)(xi) shall not exceed the Allocated Loan Amount of the applicable Ground Leased Property;
(xii) (A) any voluntary termination of any PILOT Lease and/or PILOT Document or transfer or surrender of any PILOT Lease and/or PILOT Document (including any PILOT Bond) by Borrower without L▇▇▇▇▇’s prior written consent other than in connection with Borrower acquiring the fee estate from the failure applicable PILOT Lessor or as otherwise expressly permitted under this Agreement, (B) any termination of any PILOT Lease and/or PILOT Document as a result of a foreclosure of the representations set forth applicable Security Instrument or deed in Section 3.1.8 to be true lieu thereof or (C) Borrower’s or the applicable Tenant’s failure to comply with or Borrower’s or the provisions applicable Tenant’s breach of Sections 4.2.11 of this Agreement; and
any PILOT Lease and/or PILOT Document that results in (x) to recover damagesa reduction of any tax abatement and/or mandatory repayment of any past or current tax abatement under such PILOT Lease and/or PILOT Document, costs as applicable, (y) termination of such PILOT Lease and/or PILOT Document, as applicable, and expenses arising from, or the benefits thereunder in connection with, any Lien arising from a written instrument executed by any favor of Borrower or Tenant or (z) a default by such Borrower under the applicable Lease for such PILOT Property (and, in any Affiliate thereof expressly creating such Liencase, Losses shall include lost rental income); provided, that, in each case, the liability with respect to this Section 13.1(a)(xii) shall not exceed the Allocated Loan Amount of the applicable PILOT Property;
(xiii) other than as set forth in Section 13.1(b)(v), a breach by Borrower of any covenant of Article 5 of this Agreement documents (excluding any provision requiring each Borrower to remain solvent, maintain adequate capital or pay its debts as they come due);
(xiv) the Condominium Documents are amended, modified, supplemented, terminated, cancelled or otherwise cease to exist without Lender’s prior written consent;
(xv) any breach or violation of the representations and warranties in Section 3.18 hereof with respect to any Leases for which a tenant estoppel certificate was not delivered on or prior to the Closing Date;
(xvi) any liability or obligation of Borrower relating to the Previously-Owned Property; and/or
(xvii) failure to pay (A) Taxes when the same become delinquent, subject to Borrower’s right to contest the same as provided in this Agreement or (B) Insurance Premiums on or prior to the date the same is due; provided, in each case, there shall be no liability under this Section 13.1(a)(xvii) if (x) there is insufficient cash flow from the Properties to pay such Taxes or Insurance Premiums prior to the date upon which such payment becomes delinquent or (y) there are sufficient funds in the Tax Account or the Insurance Account, as applicable, to pay such Taxes or Insurance Premiums prior to the extent date upon which such Lien payment becomes delinquent and Lender is prohibited under required to use such amounts for the payment of such Taxes or Insurance Premiums and fails to make such payment in accordance with this Agreement.
(b) Notwithstanding anything to the foregoingcontrary in this Agreement, the agreement of Lender not to limit recourse liability as set forth in Section 11.22(a) above SHALL BECOME NULL AND VOID and shall be of no further force and effect and the Debt shall be fully recourse to Borrower (and to Guarantor under the Guaranty, on the additional terms and conditions thereof and subject to any limitations set forth herein or therein) in the event that:
(i) any Borrower commences a voluntary bankruptcy or insolvency proceeding;
(ii) an involuntary bankruptcy or insolvency proceeding is commenced against any Borrower and is not dismissed within 90 days of filing; or
(iii) voluntary Transfer of the Property occurs by written instrument executed by any Borrower Note or any Affiliate thereof, which instrument expressly effects such Transfer, or a Secondary Financing is voluntarily incurred in violation of the Loan Documents, except as otherwise consented to by (A) Lender in writing (which consent may be withheld in Lender’s sole discretion).
(c) Notwithstanding the provisions of clauses (i) and (ii) of Section 11.22(b) no Guarantor shall be liable for any amount related to a Qualified Involuntary Bankruptcy.
(d) In addition, this agreement shall not waive be deemed to have waived any rights right which Lender would may have under Section 506(a), 506(b), 1111(b) or any other provisions of Title 11 of the Bankruptcy Code to file a claim for the full amount of the Debt or to require that the Property all collateral shall continue to secure all of the DebtDebt 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 or any SPE Component Entity or any Affiliate thereof files, or joins in the filing of, a petition against Borrower under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law, or solicits or causes to be solicited (or otherwise colludes with) petitioning creditors for any involuntary petition against Borrower,
(ii) Borrower or any SPE Component Entity or any Affiliate thereof files an answer consenting to an involuntary petition filed against Borrower (other than any answer which is required to be made by applicable law), by any other person under the Bankruptcy Code or any other federal or state bankruptcy or insolvency law,
(iii) Borrower or any SPE Component Entity consents to or joins in an application for the appointment of a custodian, receiver, trustee, or examiner for Borrower (other than with the prior written consent of L▇▇▇▇▇),
(iv) B▇▇▇▇▇▇▇ makes an assignment for the benefit of creditors (other than to Lender in connection with the Loan or with the prior written consent of L▇▇▇▇▇),
(v) there is a breach of any provision of Article 5 (Single Purpose Entity Covenants) hereof or the separateness covenants contained in the Borrower’s or SPE Component Entity’s organizational documents (excluding, in each case, any provision requiring each Borrower to remain solvent, maintain adequate capital or pay its debts as they come due) and such breach is cited by a court of competent jurisdiction in a final order in a proceeding under the Bankruptcy Code as a material factor in ordering the substantive consolidation of Borrower with any other Person other than a co-Borrower under the Loan; provided that the motion or pleading seeking substantive consolidation was not brought or supported by L▇▇▇▇▇ and, as a result thereof, Borrower is subsequently substantively consolidated in a case under the Bankruptcy Code with any Person other than a co-Borrower under the Loan, or
(vi) Borrower fails to obtain L▇▇▇▇▇’s prior consent to (a) the transfer or conveyance of all or any portion of any Property, or (b) the transfer of direct or indirect equity interests in Borrower or Mezzanine Borrower, in each case in violation of the Loan Documents.
Appears in 1 contract
Sources: Loan Agreement (Industrial Logistics Properties Trust)
Exculpation. 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 Mortgage 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 the Borrower or any direct principal, director, officer, employee, beneficiary, shareholder, partner, member, trustee, agent, or indirect members, partners or shareholders affiliate of Borrower (but specifically excluding Guarantor) or any legal representatives, successors or assigns of any of the employeesforegoing (collectively, agents, directors or officers of Borrower or its Affiliatesthe "Exculpated Parties"), except that Lender may bring an action against Borrower, including a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender to enforce and realize upon its interest under the Note, this Agreement, the Mortgage Security Instrument and the other Loan Documents, or in the Property, the Business IncomeRents, or any other collateral given to Lender pursuant to the Loan Documents or any other assets of BorrowerDocuments; 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 Property, in the Business Income Rents and in any other collateral given to Lender or any other assets of BorrowerLender, and Lender, by accepting the Note, this Agreement, the Mortgage Security Instrument and the other Loan Documents, shall not ▇▇▇ for, seek or demand any deficiency judgment or any other monetary payment against Borrower or any of the direct or indirect membersExculpated Parties, partners or shareholders of Borrower or the employees, agents, directors or officers of Borrower or its Affiliates in any such action or proceeding under or by reason of or under or in connection with the Note, this Agreement, the Mortgage 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 MortgageSecurity Instrument; (c) affect the validity or enforceability of any guaranty indemnity, guaranty, or indemnity similar instrument made in connection with the Loan (including, without limitation, the Guaranty) or any of the rights and remedies of Lender thereunder; (d) impair the right of Lender to obtain the appointment of a receiver; (e) impair the enforcement of the Assignment assignment of Leasesleases and rents contained in the Security Instrument; or (f) impair the right of Lender to enforce the provisions of the Environmental Indemnity or of Section 4.1.6(h) hereof; (g) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize on any security given by Borrower DMEAST #17478116 v7 92 in connection with the Loan (including the security granted by the Mortgage) or any other assets of Borrower or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against such security security; or (h) 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 Losses incurred by Lender (including attorneys' fees and costs reasonably incurred) arising out of or in connection with any of the following: (i) fraud or willful misrepresentation by Borrower, any of the Exculpated Parties or any Borrower Party in connection with the Loan; (ii) the gross negligence or willful misconduct of Borrower, any of the Exculpated Parties or any Borrower Party in connection with the Loan; (iii) the breach beyond any applicable notice and cure periods expressly contained in the Environmental Indemnity or in any other Loan Document, of any representation, warranty, covenant or indemnification provision in the Environmental Indemnity or in any other Loan Document concerning environmental laws, hazardous substances and asbestos and any indemnification of Lender with respect thereto in any such document; (iv) waste to the Property (or any portion thereof) caused by intentional acts or intentional omissions of Borrower, any Exculpated Party, or any Borrower Party, or the removal or disposal of any portion of the Property after an Event of Default; (v) the misapplication, misappropriation or conversion by Borrower, any of the Exculpated Parties or the Borrower Parties, to the extent actually received by Borrower, any of the Exculpated Parties or the Borrower Parties, 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 (D) any Tenant security deposits or Rents collected in advance; (vi) any Personal Property of Borrower taken from the Property by or on behalf of Borrower, any of the Exculpated Parties or any Borrower Parties, and not replaced with Personal Property of the same utility and of the same of greater value; (vii) any act of arson by Borrower, any of the Exculpated Parties, or any Borrower Parties; (viii) any fees or comrmss1ons paid by Borrower or on behalf of Borrower after the occurrence of an Event of Default to any Exculpated Party or any Borrower Party in violation of the terms of the Note, this Agreement, the Security Instrument or the other Loan Documents; (ix) failure to pay Taxes, charges for labor or materials, or other charges that can create Liens on any portion of the Property (unless such Taxes DMEAST #17478116 v7 93 and 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/or the failure to pay Insurance Premiums in accordance with the terms hereof; (x) any security deposits, advance deposits or any other deposits collected with respect to the Property which are not delivered to Lender upon a foreclosure of the 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; (xi) any failure by Borrower to permit on-site inspections of the Property as required by, and subject to the terms of, this Agreement and/or the other assets Loan Documents; (xii) any failure of Borrower to appoint a new property manager upon the request of Lender as required by the terms of this Agreement and/or the other Loan Documents; (xiii) Borrower).
(a) Nothing 's breach of, or failure to comply with, the representations, warranties and covenants contained in this Section 11.22 shall limit Sections 4.1.5 and/or 4.1.9(c) hereof; (xiv) Borrower's indemnification of Lender Indemnitees set forth m Sections 9.2, 11.13.3, and 11.13.4 hereof; (xv) any litigation or other legal proceeding related to the rights Debt filed by Borrower, any Borrower Party or any Exculpated Party that delays, opposes, impedes, obstructs, hinders, enjoins or otherwise interferes with or frustrates the efforts of Lender to proceed against Borrower for exercise any rights and remedies available to Lender as provided herein and in the other Loan Documents; (xvi) the seizure or forfeiture of the Property, or any portion thereof, or Borrower's interest therein, resulting from criminal wrongdoing by Borrower, any of the following Exculpated Parties, or any Borrower Parties; (xvii) Borrower's failure to make the Condemnation Payment, if required, pursuant to Section 5.3.3 hereof; and/or (xviii) a casualty affecting the Property, which results in Losses to Lender because of (1) the Property is non-conforming or against Guarantor legal non-conforming under the Guarantyapplicable zoning laws, on ordinances and/or regulations in the additional terms jurisdiction in which the Property is located ("Zoning Code"), and conditions thereof and subject (2) the affected Improvements cannot be rebuilt to any limitations set forth herein or therein):
(i) to enforce any Leases entered into by Borrower or its Affiliates as Tenant;
(ii) to recover damages for fraud, material misrepresentation, material breach of warranty or intentional physical waste;
(iii) to recover any Condemnation Proceeds or Insurance Proceeds or other similar funds which have been misappropriated by Borrower or which, their pre-casualty condition under the terms of the Loan Documents, should have been paid to Lender;
(iv) to recover (A) any Tenant security deposits, Tenant letters Zoning Code other than as a result of credit or other deposits or fees paid to Borrower or (B) prepaid rents for a period of more than thirty (30) days in advance of its due date which have not been delivered to Lender;
(v) to recover Business Income received by Borrower during an Event of Default which have not been applied changes to the Loan or Zoning Code as in accordance with the Loan Documents to operating and maintenance expenses effect as of the Property;
date hereof, and (vi3) the Net Proceeds available to recover damages, costs and expenses arising from, or in connection with Lender under the provisions terms of the Mortgage pertaining Security Instrument are insufficient to Hazardous Materials repay the Debt in full or Borrower does not otherwise repay the Environmental Indemnity;
(vii) Debt in full. DMEAST #17478116 v7 94 Notwithstanding anything to recover any amount expended by Lender the contrary in connection with this Agreement, the foreclosure of the Mortgage, but only in the event that any Borrower Note or any Guarantor takes action to impede such foreclosure or otherwise contests the foreclosure in bad faith;
(viii) to recover damages, costs and expenses arising from, or in connection with, the failure by Borrower to pay Taxes and Insurance Premiums when due to the extent that Borrower was not required to deposit such amounts with Lender pursuant to Section 6 hereof, but only to the extent there was available revenue from the Property for the period in question sufficient to pay such Taxes and Insurance Premiums, and provided further that Lender does not prevent such proceeds from being so applied;
(ix) to recover damages, costs and expenses arising from the failure of the representations set forth in Section 3.1.8 to be true or Borrower’s failure to comply with the provisions of Sections 4.2.11 of this Agreement; and
(x) to recover damages, costs and expenses arising from, or in connection with, any Lien arising from a written instrument executed by any Borrower or any Affiliate thereof expressly creating such Lien, to the extent such Lien is prohibited under this Agreement.
(b) Notwithstanding the foregoing, the agreement of Lender not to limit recourse liability as set forth in Section 11.22(a) above SHALL BECOME NULL AND VOID and shall be of no further force and effect and the Debt shall be fully recourse to Borrower (and to Guarantor under the Guaranty, on the additional terms and conditions thereof and subject to any limitations set forth herein or therein) in the event that:
(i) any Borrower commences a voluntary bankruptcy or insolvency proceeding;
(ii) an involuntary bankruptcy or insolvency proceeding is commenced against any Borrower and is not dismissed within 90 days of filing; or
(iii) voluntary Transfer of the Property occurs by written instrument executed by any Borrower or any Affiliate thereof, which instrument expressly effects such Transfer, or a Secondary Financing is voluntarily incurred in violation of the Loan Documents, except as otherwise consented to by (A) Lender in writing (which consent may be withheld in Lender’s sole discretion).
(c) Notwithstanding the provisions of clauses (i) and (ii) of Section 11.22(b) no Guarantor shall be liable for any amount related to a Qualified Involuntary Bankruptcy.
(d) In addition, this agreement shall not waive be deemed to have waived any rights right which Lender would may have under Section 506(a), 506(b), llll(b) or any other provisions of Title 11 of the Bankruptcy Code to file a claim for the full amount of the Debt or to require that the Property all collateral shall continue to secure all of the Debt.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 this Agreement and the Note is not paid when due; (ii) Borrower fails to comply with the provisions of Section 4.2.1 hereof or Article 8 hereof; (iii) Borrower fails to comply with any provision of Section 3.1.24 hereof; (iv) Borrower fails to comply with the Cash Management Agreement relating to the institution of cash management generally; (v) Borrower or any SPC Party files a voluntary petition under the Bankruptcy code or any other Federal or state bankruptcy or insolvency law; (vi) an Affiliate, officer, director, or representative which Controls, directly or indirectly, Borrower or any SPC Party, files, or joins in the filing of, an involuntary petition against Borrower or any SPC 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 Borrower or any SPC Party from any Person; (vii) Borrower or any SPC Party 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; (viii) any Affiliate, officer, director, or representative which Controls Borrower or any SPC Party consents to or acquiesces in or joins in an application for the appointment of a custodian, receiver, trustee, or examiner for Borrower or any SPC Party or any portion of the Property; (ix) Borrower or any SPC Party 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; (x) there is substantive consolidation of Borrower (or any Restricted Party) with any other Person in connection with any federal or state bankruptcy proceeding involving the Guarantor or any of its Affiliates, (xi) Borrower (or any Restricted Party) contests or opposes any motion made by Lender to obtain relief from the automatic stay or seeks to reinstate the automatic stay in the event of any federal or state bankruptcy or insolvency proceeding involving the Guarantor or its Affiliates; or (xii) Borrower (or any Restricted Party) accepts from any Guarantor or Guarantor solicits or provides any debtor-in-possession financing to Borrower in the event Borrower (or any Restricted Party) is the subject of a bankruptcy or insolvency proceeding. The obligations and liabilities of Borrower under this Section 11.22 shall fully survive indefinitely notwithstanding any termination, satisfaction, assignment, entry of a judgment of foreclosure, exercise of any power of sale, or delivery of a deed in lieu of foreclosure of the Security Instrument. DMEAST #17478116 v7 95
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 Mortgage 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 the Borrower or any direct principal, director, officer, employee, beneficiary, shareholder, partner, member, trustee, agent, or indirect members, partners or shareholders Affiliate of Borrower or any legal representatives, successors or assigns of any of the employeesforegoing (collectively, agents, directors or officers of Borrower or its Affiliatesthe "Exculpated Parties"), except that Lender may bring an action against Borrower, including a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender to enforce and realize upon its interest under the Note, this Agreement, the Mortgage Security Instrument and the other Loan Documents, or in the Property, the Business IncomeRents, or any other collateral given to Lender pursuant to the Loan Documents or any other assets of BorrowerDocuments; 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 Property, in the Business Income Rents and in any other collateral given to Lender or any other assets of BorrowerLender, and Lender, by accepting the Note, this Agreement, the Mortgage Security Instrument and the other Loan Documents, shall not ▇▇▇ sue for, seek or demand any deficiency judgment or any other monetary payment against Borrower or any of the direct or indirect members, partners or shareholders of Borrower or the employees, agents, directors or officers of Borrower or its Affiliates Exculpated Parties in any such action or proceeding under or by reason of or under or in connection with the Note, this Agreement, the Mortgage 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 MortgageSecurity Instrument; (c3) affect the validity or enforceability of any guaranty or indemnity the Guaranty and the Environmental Indemnity made in connection with the Loan (including, without limitation, the Guaranty) or any of the rights and remedies of Lender thereunderthereunder (including, without limitation, ▇▇▇▇▇▇'s right to enforce said rights and remedies against ▇▇▇▇▇▇▇▇ 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 obtain the appointment of a receiver; (e5) impair the enforcement of LOAN AGREEMENT – Page 112 41458-112/Patuxent Crossing (MD) and Coliseum Marketplace (VA) the Assignment assignment of Leasesleases and rents contained in the Security Instrument and in any other Loan Documents; or (f6) intentionally deleted; (7) constitute a prohibition against Lender to seek a deficiency judgment against Borrower (but not Guarantor) in order to fully realize on any security given by Borrower in connection with the Loan (including the security granted by the Mortgage) or any other assets Security Instrument to the full extent of Borrower ▇▇▇▇▇▇▇▇'s interest in the Property and collateral for the Loan or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against such security the Property; or (including 8) constitute a waiver of the Property or any other assets of Borrower).
(a) Nothing contained in this Section 11.22 shall limit the rights right of Lender to proceed against Borrower for enforce the liability and obligation of Borrower, by money judgment or otherwise, to the extent of any Loss incurred by ▇▇▇▇▇▇ (including attorneys' fees and costs reasonably incurred) arising out of or in connection with the following (or against Guarantor under the Guaranty, on the additional terms and conditions thereof and subject to any limitations set forth herein or therein):following:
(i) to enforce fraud or intentional material misrepresentation by any Leases entered into by Borrower or its Affiliates as TenantParty in connection with the Loan;
(ii) to recover damages for fraudthe gross negligence or willful misconduct of any Borrower Party in connection with the Loan, material misrepresentation, material breach of warranty the Loan Documents or intentional physical wastein connection with the Property;
(iii) to recover any Condemnation Proceeds or Insurance Proceeds litigation or other similar funds legal proceeding related to the Debt filed by any Borrower Party, or any other intentional action or omission of any Borrower Party, in any such case which have been misappropriated intentionally delays, obstructs, hinders or otherwise interferes with the efforts of Lender to exercise any lawful rights and remedies available to Lender as provided herein and in the other Loan Documents (other than compulsory counterclaims or defenses raised in good faith, so long as Borrower Party is successful in such action pursuant to a final non-appealable judgment by Borrower or which, under the terms a court of the Loan Documents, should have been paid to Lendercompetent jurisdiction);
(iv) material physical waste to recover the Property caused by the intentional acts or intentional omissions of any Borrower Party (Ato the extent there exists sufficient cash flow from the Property to avoid such waste) and/or the removal or disposal of any Tenant security deposits, Tenant letters portion of credit or other deposits or fees paid to Borrower or (B) prepaid rents for a period the Property after an Event of more than thirty (30) days in advance of its due date which have not been delivered to LenderDefault;
(v) to recover Business Income received the misapplication, misappropriation or conversion by any Borrower during an Event Party of Default which have not been applied (A) any insurance proceeds paid by reason of any loss, damage or destruction to the Loan Property (or any portion thereof), (B) any Awards or other amounts received in accordance connection with the Loan Documents to operating and maintenance expenses Condemnation of all or a portion of the Property, (C) any Rents, (D) any Security Deposits or Rents collected in advance or (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);
(vi) failure to recover damagespay Taxes, costs and expenses arising from, charges for labor or materials or other charges that can create liens on any portion of the Property in connection accordance with the terms and provisions of the Mortgage pertaining to Hazardous Materials or the Environmental Indemnity;
hereof (vii) to recover any amount expended by Lender in connection with the foreclosure of the Mortgage, but only in the event that any Borrower or any Guarantor takes action to impede such foreclosure or otherwise contests the foreclosure in bad faith;
(viii) to recover damages, costs and expenses arising from, or in connection with, the failure by Borrower to pay Taxes and Insurance Premiums when due to the extent that Borrower was not required to deposit such amounts with Lender pursuant to Section 6 hereof, but only to the extent there was available revenue exists sufficient cash flow from the Property to do so, provided Borrower shall have provided ▇▇▇▇▇▇ written notice of such insufficiency of cash flow in advance of the due date for the period in question sufficient such expenses);
(vii) failure to pay such Taxes and 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 further that herein (but only to the extent there exists sufficient cash flow from the Property to do so, LOAN AGREEMENT – Page 113 41458-112/Patuxent Crossing (MD) and Coliseum Marketplace (VA) provided ▇▇▇▇▇▇▇▇ shall have provided Lender does written notice of such insufficiency of cash flow in advance of the due date for such expenses);
(viii) any Security Deposits which are not prevent delivered to Lender within the timeframe required hereunder except to the extent any such proceeds from being so appliedSecurity Deposits were applied in accordance with the terms and conditions of any of the Leases prior to the occurrence of the applicable Event of Default. For purposes of clarification, for a Security Deposit to be deemed "delivered to Lender" in connection with the foregoing, the same must be in the form of cash or in a letter of credit solely in Lender's name;
(ix) to recover damages, costs and expenses arising from any tax on the failure making and/or recording of the representations set forth in Section 3.1.8 to be true Security Instrument, the Note or Borrower’s failure to comply with any of the provisions other Loan Documents or any transfer or similar taxes (whether due upon the making of Sections 4.2.11 the same or upon ▇▇▇▇▇▇'s exercise of this Agreement; andits remedies under the Loan Documents), but excluding any income, franchise or other similar taxes;
(x) to recover damages, costs and expenses arising from, any violation or in connection with, breach of any Lien arising from a written instrument executed by any Borrower applicable law mandating the forfeiture or seizure of the Property (or any Affiliate portion thereof expressly creating such Lienand/or interest therein);
(xi) any violation of Sections 11.1 or 11.6 hereof;
(xii) any indemnity obligations of Borrower to Lender under Article 11 or 12 of this Agreement;
(xiii) Borrower fails to comply with any Cash Management Provisions as required by and in accordance with the terms and provisions of, this Agreement and the other Loan Documents;
(xiv) any representation, warranty or covenant contained in Section 5.1 is violated or breached;
(xv) any violation or breach of the Property Document Provisions and/or any Property Document Event;
(xvi) any Tenant complying with a rent payment notice given by Lender pursuant to the extent Loan Documents or any Lease; and/or
(xvii) any failure of Borrower to complete and pay for all "Landlord's Work" (as such Lien term is prohibited defined in the Lease) required under this Agreementthe Lease with the Tenant doing business as "One Life Fitness" by May 17, 2023 (the date which is 180 days after the effective date of such Lease).
(b) Notwithstanding anything to the foregoingcontrary in this Agreement, the agreement of Lender not to limit recourse liability as set forth in Section 11.22(a) above SHALL BECOME NULL AND VOID and shall be of no further force and effect and the Debt shall be fully recourse to Borrower (and to Guarantor under the Guaranty, on the additional terms and conditions thereof and subject to any limitations set forth herein or therein) in the event that:
(i) any Borrower commences a voluntary bankruptcy or insolvency proceeding;
(ii) an involuntary bankruptcy or insolvency proceeding is commenced against any Borrower and is not dismissed within 90 days of filing; or
(iii) voluntary Transfer of the Property occurs by written instrument executed by any Borrower Note or any Affiliate thereof, which instrument expressly effects such Transfer, or a Secondary Financing is voluntarily incurred in violation of the Loan Documents, except as otherwise consented to by (A) Lender in writing (which consent may be withheld in Lender’s sole discretion).
(c) Notwithstanding the provisions of clauses (i) and (ii) of Section 11.22(b) no Guarantor shall be liable for any amount related to a Qualified Involuntary Bankruptcy.
(d) In addition, this agreement shall not waive be deemed to have waived any rights right which Lender would may have under Section 506(a), 506(b), 1111(b) or any other provisions of Title 11 of the Bankruptcy Code to file a claim for the full amount of the Debt or to require that the Property all collateral shall continue to secure all of the DebtDebt 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) any representation, warranty or covenant LOAN AGREEMENT – Page 114 41458-112/Patuxent Crossing (MD) and Coliseum Marketplace (VA) contained in Section 5.1 is violated or breached and such violation or breach results in the substantive consolidation of Borrower with any other Person; (iii) Article 6 hereof is violated or breached; or (iv) a Bankruptcy Event occurs.
Appears in 1 contract
Exculpation. Subject Notwithstanding any provision herein or in any of the other Loan Documents to the qualifications belowcontrary, Lender except as set forth in this Section 4.04, Payee shall not enforce the liability and obligation of Borrower Maker to perform and observe the obligations contained in the this Note, this Agreement, the Mortgage Mortgages or the other Loan Documents by any an action or proceeding wherein a money judgment shall be sought against the Borrower Maker or any direct judgment shall be sought against any director, officer, employee, partner or indirect membersstockholder of Maker, partners or shareholders of Borrower or the employees, agents, directors or officers of Borrower or its Affiliatesgeneral partners (all of the foregoing, except that Lender may bring an action against Borrowercollectively, including a foreclosure action"Principals"). Payee, an action for specific performance or any other appropriate action or proceeding to enable Lender to enforce and realize upon its interest under the by accepting this Note, this Agreement, the Mortgage Mortgages and the other Loan Documents, or in the Property, the Business Income, or any other collateral given to Lender pursuant to the Loan Documents or any other assets of 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 Property, in the Business Income in any other collateral given to Lender or any other assets of Borrower, and Lender, by accepting the Note, this Agreement, the Mortgage and the other Loan Documents, agrees that it shall not ▇▇▇ sue for, seek or demand any deficiency judgment against Maker or any other monetary payment judgment, including a judgment for specific performance, against Borrower its Principals or the direct any one or indirect members, partners or shareholders more of Borrower or the employees, agents, directors or officers of Borrower or its Affiliates them in any such action or proceeding proceeding, under or by reason of or under or in connection with the this Note, this Agreement, the Mortgage Mortgages or the other Loan Documents except to the extent necessary or appropriate to proceed against or execute or foreclose on any or all of the collateral granted to Payee under the Loan Documents. The provisions of this Section 4.04 shall not, however: , (a) constitute a waiver, release impair the validity of the indebtedness evidenced by this Note or impairment in any way affect or impair the lien of any obligation evidenced the Mortgages or secured by any of the other Loan Documents, or the right of Payee to foreclose the Mortgages or otherwise realize upon any collateral securing this Note following an Event of Default; (b) impair the right of Lender Payee to name Borrower Maker or any other Person as a party defendant in any action or suit for judicial foreclosure and sale or otherwise under the MortgageMortgages to the extent necessary to realize upon any collateral securing this Note; (c) affect the validity or enforceability of any guaranty or indemnity made in connection with the Loan (including, without limitation, the Guaranty) or any of the rights and remedies of Lender thereunder; (d) impair the right of Lender Payee to obtain the appointment of a receiver; (ed) impair the enforcement of the Assignment Assignments; (e) impair the right of LeasesPayee to bring suit with respect to, or Maker's personal liability for, fraud or intentional misrepresentation by Maker or any other Person in connection with this Note, the Mortgages or any other Loan Document; or (f) impair the right of Payee to bring suit with respect to, or Maker's personal liability for, Maker's misappropriation of tenant security deposits or Rents; (g) impair the right of Payee to obtain, or Maker's personal liability for Maker's misapplication or misappropriation of insurance proceeds or condemnation awards due to Payee under the Mortgages; (h) impair the right of Payee to enforce, or Maker's personal liability for, the provisions of Section 16.01 or Section 16.02 of the Mortgages whether before or after payment in full of the Principal Amount; (i) prevent or in any way hinder Payee from exercising, or constitute a prohibition defense, or counterclaim or or-her basis for relief in respect of the exercise of, any other remedy against Lender to seek a deficiency judgment against Borrower the collateral securing the Note as provided in order to fully realize on any security given by Borrower in connection with the Loan Documents or as prescribed by law or in equity in case of Defaults; (including j) prevent or in any way hinder Payee from exercising, or constitute a defense, a counterclaim, or other basis for relief in respect of the security granted by exercise of its remedies in respect of any judgments or other sums due from Maker to Payee other than under the MortgageLoan Documents; (k) impair the aright of Payee to bring suit with respect to, or Maker's personal liability for, Maker's misappropriation, during the continuance of an Event of Default, from any Cross-collateralized Property of any items of personalty or any fixtures or any other assets of Borrower or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against such security (including the Property or any other assets of Borrower).
(a) Nothing contained in this Section 11.22 shall limit the rights of Lender to proceed against Borrower for any of the following (or against Guarantor under the Guaranty, on the additional terms and conditions thereof and subject misappropriation with respect to any limitations set forth herein or therein):
(i) to enforce any Leases entered into by Borrower or its Affiliates as Tenant;
(ii) to recover damages for fraud, material misrepresentation, material breach Cross-collateralized Property during the continuance of warranty or intentional physical waste;
(iii) to recover any Condemnation Proceeds or Insurance Proceeds or other similar funds which have been misappropriated by Borrower or which, under the terms of the Loan Documents, should have been paid to Lender;
(iv) to recover (A) any Tenant security deposits, Tenant letters of credit or other deposits or fees paid to Borrower or (B) prepaid rents for a period of more than thirty (30) days in advance of its due date which have not been delivered to Lender;
(v) to recover Business Income received by Borrower during an Event of Default which have not been applied or (1) impair the right of Payee to the Loan or in accordance bring suit with the Loan Documents to operating and maintenance expenses of the Property;
(vi) to recover damages, costs and expenses arising fromrespect to, or Maker's personal liability for, losses, damages or liabilities suffered by Payee arising from any acts or omissions by Maker that resulted in connection with waste, provided, however, that waste shall not be deemed to include the provisions non-payment of the Mortgage pertaining to Hazardous Materials or the Environmental Indemnity;
(vii) to recover any amount expended by Lender in connection with the foreclosure of the Mortgageimpositions, but only in the event that any Borrower mechanics liens, materialmen's liens or any Guarantor takes action to impede such foreclosure or otherwise contests the foreclosure in bad faith;
(viii) to recover damages, costs and expenses other liens arising fromfrom work performed on, or in connection withmaterials delivered to, the failure by Borrower to pay Taxes and Insurance Premiums when due to the extent that Borrower was not required to deposit such amounts with Lender pursuant to Section 6 hereof, but only to the extent there was available revenue from the Property for the period in question sufficient to pay such Taxes and Insurance Premiums, and provided further that Lender does not prevent such proceeds from being so applied;
(ix) to recover damages, costs and expenses arising from the failure of the representations set forth in Section 3.1.8 to be true or Borrower’s failure to comply with the provisions of Sections 4.2.11 of this Agreement; and
(x) to recover damages, costs and expenses arising from, or in connection with, any Lien arising from a written instrument executed by any Borrower or any Affiliate thereof expressly creating such Lien, to the extent such Lien is prohibited under this AgreementCross collateralized Properties.
(b) Notwithstanding the foregoing, the agreement of Lender not to limit recourse liability as set forth in Section 11.22(a) above SHALL BECOME NULL AND VOID and shall be of no further force and effect and the Debt shall be fully recourse to Borrower (and to Guarantor under the Guaranty, on the additional terms and conditions thereof and subject to any limitations set forth herein or therein) in the event that:
(i) any Borrower commences a voluntary bankruptcy or insolvency proceeding;
(ii) an involuntary bankruptcy or insolvency proceeding is commenced against any Borrower and is not dismissed within 90 days of filing; or
(iii) voluntary Transfer of the Property occurs by written instrument executed by any Borrower or any Affiliate thereof, which instrument expressly effects such Transfer, or a Secondary Financing is voluntarily incurred in violation of the Loan Documents, except as otherwise consented to by Lender in writing (which consent may be withheld in Lender’s sole discretion).
(c) Notwithstanding the provisions of clauses (i) and (ii) of Section 11.22(b) no Guarantor shall be liable for any amount related to a Qualified Involuntary Bankruptcy.
(d) In addition, this agreement shall not waive any rights which Lender would have under any provisions of Title 11 of the Bankruptcy Code to file a claim for the full amount of the Debt or to require that the Property shall continue to secure all of the Debt.
Appears in 1 contract
Exculpation. Subject (a) After Closing, Buyer agrees that it does not have and will not have, any claims or causes of action arising out of or in connection with this Agreement or the transactions contemplated hereby against Seller except (i) in the case of Seller’s Fraud or (ii) with respect to any Surviving Obligations. Buyer agrees to look (a) prior to the qualifications belowClosing, Lender shall not enforce the liability solely to Seller and obligation of Borrower to perform and observe the obligations contained in the Note, this Agreement, the Mortgage or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against the Borrower or any direct or indirect members, partners or shareholders of Borrower or the employees, agents, directors or officers of Borrower or its Affiliates, except that Lender may bring an action against Borrower, including a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender to enforce and realize upon its interest under the Note, this Agreement, the Mortgage and the other Loan Documents, or in the Property, the Business Income, or any other collateral given to Lender pursuant to the Loan Documents or any other assets of 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 BorrowerSeller’s interest in the PropertyAcquired Entities and (b) after the Closing, other than as otherwise expressly provided in this Agreement or with respect to any Surviving Obligations, solely to the Representations and Warranties Insurance Policy (if any) for the satisfaction of any liability or obligation of Seller arising under this Agreement or the transactions contemplated hereby. Subject to the foregoing provisions, Buyer hereby unconditionally and irrevocably waives any and all claims and causes of action of any nature whatsoever that Buyer may now or hereafter have against, and hereby unconditionally and irrevocably releases and discharges from any and all liability whatsoever, Seller, other than Seller to the extent provided for in the Business Income in any other collateral given to Lender or any other assets first and second sentences of Borrower, and Lender, by accepting the Note, this Agreement, the Mortgage and the other Loan Documents, shall not ▇▇▇ for, seek or demand any deficiency judgment or any other monetary payment against Borrower or the direct or indirect members, partners or shareholders of Borrower or the employees, agents, directors or officers of Borrower or its Affiliates in any such action or proceeding under or by reason of or under or Section 12.1(a) in connection with or arising out of this Agreement or the Notetransactions contemplated hereby.
(b) Notwithstanding anything to the contrary contained herein, Seller’s shareholders, partners, members, the partners or members of such partners or members, the shareholders of such partners or members, and the trustees, officers, directors, employees, agents and security holders of Seller and the partners or members of Seller assume no personal liability for any obligations entered into on behalf of Seller and such persons’ (other than Seller) individual assets shall not be subject to any claims of any person relating to such obligations. The foregoing shall govern any direct and indirect obligations of Seller under this Agreement, the Mortgage or the other Loan Documents. The provisions of this Section 12.1(a) shall not, however: (a) constitute a waiver, release or impairment of any obligation evidenced or secured by any of survive 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 Mortgage; (c) affect the validity or enforceability of any guaranty or indemnity made in connection with the Loan (including, without limitation, the Guaranty) Closing or any of the rights and remedies of Lender thereunder; (d) impair the right of Lender to obtain the appointment of a receiver; (e) impair the enforcement of the Assignment of Leases; or (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 Loan (including the security granted by the Mortgage) or any other assets of Borrower or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against such security (including the Property or any other assets of Borrower).
(a) Nothing contained in this Section 11.22 shall limit the rights of Lender to proceed against Borrower for any of the following (or against Guarantor under the Guaranty, on the additional terms and conditions thereof and subject to any limitations set forth herein or therein):
(i) to enforce any Leases entered into by Borrower or its Affiliates as Tenant;
(ii) to recover damages for fraud, material misrepresentation, material breach of warranty or intentional physical waste;
(iii) to recover any Condemnation Proceeds or Insurance Proceeds or other similar funds which have been misappropriated by Borrower or which, under the terms of the Loan Documents, should have been paid to Lender;
(iv) to recover (A) any Tenant security deposits, Tenant letters of credit or other deposits or fees paid to Borrower or (B) prepaid rents for a period of more than thirty (30) days in advance of its due date which have not been delivered to Lender;
(v) to recover Business Income received by Borrower during an Event of Default which have not been applied to the Loan or in accordance with the Loan Documents to operating and maintenance expenses of the Property;
(vi) to recover damages, costs and expenses arising from, or in connection with the provisions of the Mortgage pertaining to Hazardous Materials or the Environmental Indemnity;
(vii) to recover any amount expended by Lender in connection with the foreclosure of the Mortgage, but only in the event that any Borrower or any Guarantor takes action to impede such foreclosure or otherwise contests the foreclosure in bad faith;
(viii) to recover damages, costs and expenses arising from, or in connection with, the failure by Borrower to pay Taxes and Insurance Premiums when due to the extent that Borrower was not required to deposit such amounts with Lender pursuant to Section 6 hereof, but only to the extent there was available revenue from the Property for the period in question sufficient to pay such Taxes and Insurance Premiums, and provided further that Lender does not prevent such proceeds from being so applied;
(ix) to recover damages, costs and expenses arising from the failure of the representations set forth in Section 3.1.8 to be true or Borrower’s failure to comply with the provisions of Sections 4.2.11 termination of this Agreement; and
(x) to recover damages, costs and expenses arising from, or in connection with, any Lien arising from a written instrument executed by any Borrower or any Affiliate thereof expressly creating such Lien, to the extent such Lien is prohibited under this Agreement.
(b) Notwithstanding the foregoing, the agreement of Lender not to limit recourse liability as set forth in Section 11.22(a) above SHALL BECOME NULL AND VOID and shall be of no further force and effect and the Debt shall be fully recourse to Borrower (and to Guarantor under the Guaranty, on the additional terms and conditions thereof and subject to any limitations set forth herein or therein) in the event that:
(i) any Borrower commences a voluntary bankruptcy or insolvency proceeding;
(ii) an involuntary bankruptcy or insolvency proceeding is commenced against any Borrower and is not dismissed within 90 days of filing; or
(iii) voluntary Transfer of the Property occurs by written instrument executed by any Borrower or any Affiliate thereof, which instrument expressly effects such Transfer, or a Secondary Financing is voluntarily incurred in violation of the Loan Documents, except as otherwise consented to by Lender in writing (which consent may be withheld in Lender’s sole discretion).
(c) Notwithstanding anything to the contrary contained herein, Buyer’s shareholders, partners, members, the partners or members of such partners or members, the shareholders of such partners or members, and the trustees, officers, directors, employees, agents and security holders of Buyer and the partners or members of Buyer assume no personal liability for any obligations entered into on behalf of Buyer and such persons’ (other than Buyer) individual assets shall not be subject to any claims of any person relating to such obligations. The foregoing shall govern any direct and indirect obligations of Buyer under this Agreement. The provisions of clauses (ithis Section 12.1(c) and (ii) shall survive the Closing or any termination of Section 11.22(b) no Guarantor shall be liable for any amount related to a Qualified Involuntary Bankruptcythis Agreement.
(d) In addition, this agreement shall not waive any rights which Lender would have under any provisions of Title 11 of the Bankruptcy Code to file a claim for the full amount of the Debt or to require that the Property shall continue to secure all of the Debt.
Appears in 1 contract
Sources: Membership Purchase Agreement
Exculpation. Subject to the qualifications below, Lender (a) Optionee agrees that it shall not enforce the liability and obligation of Borrower Optionor to perform and observe the obligations contained in the Note, this Agreement, the Mortgage or the other Loan Documents Agreement by any action or proceeding wherein a money judgment shall be sought against the Borrower or any direct or indirect members, partners or shareholders of Borrower or the employees, agents, directors or officers of Borrower or its Affiliates, except that Lender may bring an action against Borrower, including a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender to enforce and realize upon its interest under the Note, this Agreement, the Mortgage and the other Loan Documents, or in the Property, the Business Income, or any other collateral given to Lender pursuant to the Loan Documents or any other assets of Borrower; provided, however, that, except Optionor 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 Property, in the Business Income in any other collateral given to Lender or any other assets of Borrowerhereinafter defined), and Lender, by accepting the Note, this Agreement, the Mortgage and the other Loan Documents, shall not ▇▇▇ sue for, seek or demand any deficiency money judgment or against any other monetary payment against Borrower or the direct or indirect membersmember, partners manager, shareholder, partner, beneficiary or shareholders other owner of Borrower beneficial ownership interests in Optionor, or any director, officer, agent, attorney, employee or trustee of any of the employeesforegoing (each, agentsan “Optionor Exculpated Party” and, directors or officers of Borrower or its Affiliates in any such action or proceeding collectively, the “Optionor Exculpated Parties”) under or by reason of or under or in connection with the Note, this Agreement, the Mortgage or the other Loan Documents. The provisions of this Section 21(a) shall not, however: , (ai) constitute a waiver, release or impairment of any obligation evidenced of Optionor hereunder; or secured by any of the Loan Documents; (bii) impair the right of Lender Optionee to name Borrower Optionor as a party defendant in any action or suit for foreclosure and sale under the Mortgage; (c) affect the validity or enforceability of any guaranty or indemnity made in connection with the Loan (including, without limitation, the Guaranty) or any of the rights and remedies of Lender thereunder; (d) impair the right of Lender to obtain the appointment of a receiver; (e) impair the enforcement of the Assignment of Leases; or (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 Loan (including the security granted by the Mortgage) or any other assets of Borrower or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against such security (including the Property or any other assets of Borrower).
(a) Nothing contained in this Section 11.22 shall limit the rights of Lender to proceed against Borrower for any of the following (or against Guarantor under the Guaranty, on the additional terms and conditions thereof and subject to any limitations set forth herein or therein):
(i) to enforce any Leases entered into by Borrower or its Affiliates as Tenant;
(ii) to recover damages for fraud, material misrepresentation, material breach of warranty or intentional physical waste;
(iii) to recover any Condemnation Proceeds or Insurance Proceeds or other similar funds which have been misappropriated by Borrower or which, under the terms of the Loan Documents, should have been paid to Lender;
(iv) to recover (A) any Tenant security deposits, Tenant letters of credit or other deposits or fees paid to Borrower or (B) prepaid rents for a period of more than thirty (30) days in advance of its due date which have not been delivered to Lender;
(v) to recover Business Income received by Borrower during an Event of Default which have not been applied to the Loan or in accordance with the Loan Documents to operating and maintenance expenses of the Property;
(vi) to recover damages, costs and expenses arising from, or in connection with the provisions of the Mortgage pertaining to Hazardous Materials or the Environmental Indemnity;
(vii) to recover any amount expended by Lender in connection with the foreclosure of the Mortgage, but only in the event that any Borrower or any Guarantor takes action to impede such foreclosure or otherwise contests the foreclosure in bad faith;
(viii) to recover damages, costs and expenses arising from, or in connection with, the failure by Borrower to pay Taxes and Insurance Premiums when due to the extent that Borrower was not required to deposit such amounts with Lender pursuant to Section 6 hereof, but only to the extent there was available revenue from the Property for the period in question sufficient to pay such Taxes and Insurance Premiums, and provided further that Lender does not prevent such proceeds from being so applied;
(ix) to recover damages, costs and expenses arising from the failure of the representations set forth in Section 3.1.8 to be true or Borrower’s failure to comply with the provisions of Sections 4.2.11 of this Agreement; and
(x) to recover damages, costs and expenses arising from, or in connection with, any Lien arising from a written instrument executed by any Borrower or any Affiliate thereof expressly creating such Lien, to the extent such Lien is prohibited under this Agreement.
(b) Notwithstanding Optionor agrees that it shall not enforce the foregoingliability and obligation of Optionee to perform and observe the obligations contained in this Agreement by any action or proceeding against any Optionee Exculpated Party (as hereinafter defined), and shall not sue for, seek or demand any money judgment against any direct or indirect member, manager, shareholder, partner, beneficiary or other owner of beneficial ownership interests in Optionee, or any director, officer, agent, attorney, employee or trustee of any of the foregoing (each, an “Optionee Exculpated Party” and, collectively, the agreement “Optionee Exculpated Parties”) under or by reason of Lender not to limit recourse liability as set forth or in connection with this Agreement. The provisions of this Section 11.22(a21(b) above SHALL BECOME NULL AND VOID and shall be of no further force and effect and the Debt shall be fully recourse to Borrower (and to Guarantor under the Guarantynot, on the additional terms and conditions thereof and subject to any limitations set forth herein or therein) in the event that:
however, (i) constitute a waiver, release or impairment of any Borrower commences a voluntary bankruptcy obligation of Optionee hereunder; or insolvency proceeding;
(ii) an involuntary bankruptcy impair the right of Optionor to name Optionee as a party defendant in any action or insolvency proceeding is commenced against any Borrower and is not dismissed within 90 days of filing; or
(iii) voluntary Transfer of the Property occurs by written instrument executed by any Borrower or any Affiliate thereof, which instrument expressly effects such Transfer, or a Secondary Financing is voluntarily incurred in violation of the Loan Documents, except as otherwise consented to by Lender in writing (which consent may be withheld in Lender’s sole discretion)suit under this Agreement.
(c) Notwithstanding the The provisions of clauses (i) and (ii) of this Section 11.22(b) no Guarantor 21 shall be liable for any amount related to a Qualified Involuntary Bankruptcy.
(d) In additionsurvive the Closing, this agreement shall not waive any rights which Lender would have under any provisions of Title 11 the expiration of the Bankruptcy Code to file a claim for Option Period and the full amount termination of the Debt or to require that the Property shall continue to secure all of the Debtthis Agreement.
Appears in 1 contract
Sources: Mta Project Documents
Exculpation. Subject From and after the Effective Date, the Exculpated Fiduciaries and, solely to the qualifications below, Lender shall not enforce extent provided by section 1125(e) of the liability and obligation of Borrower to perform and observe the obligations contained in the Note, this AgreementBankruptcy Code, the Mortgage or the other Loan Documents by Section 1125(e) Parties, shall neither have nor incur any action or proceeding wherein a money judgment shall be sought against the Borrower or any direct or indirect members, partners or shareholders of Borrower or the employees, agents, directors or officers of Borrower or its Affiliates, except that Lender may bring an action against Borrower, including a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender to enforce and realize upon its interest under the Note, this Agreement, the Mortgage and the other Loan Documentsliability to, or in the Propertybe subject to any right of action by, the Business Incomeany Holder of a Claim or an Interest, or any other collateral given party in interest, or any of their respective employees, representatives, financial advisors, attorneys, or agents acting in such capacity, or Affiliates, or any of their successors or assigns, for any act or omission in connection with, relating to, or arising out of, the Chapter 11 Case, formulating, negotiating or implementing this Plan and/or previous iterations hereof, the Plan Supplement, the Disclosure Statement and/or previous iterations thereof, the Alternative Plan Sponsor Agreement, the Original Plan Sponsor Agreement, the Restructuring Support Agreement, the Alternative Master Lease or the Original Master Lease (as applicable), the solicitation of acceptances of this Plan and/or previous iterations hereof, the pursuit of Confirmation of this Plan, the Confirmation of this Plan, the consummation of this Plan, the administration of this Plan, the property to Lender pursuant to be distributed under this Plan, the Loan Documents consummation of the transactions contemplated by the Alternative Plan Sponsor Agreement, the Original Plan Sponsor Agreement, or any other assets act taken or omitted to be taken in connection with or in contemplation of Borrowerthe Chapter 11 Case or implementation of this Plan; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding that this Section 9.5 shall be enforceable against Borrower only not apply to the extent of Borrower’s interest in the Property, in the Business Income in any other collateral given to Lender or any other assets of Borrowerrelease (x) obligations under this Plan, and Lender, by accepting obligations under the Note, this Alternative Plan Sponsor Agreement, the Mortgage and the other Loan Documents, shall not ▇▇▇ for, seek or demand any deficiency judgment or any other monetary payment against Borrower or the direct or indirect members, partners or shareholders of Borrower or the employees, agents, directors or officers of Borrower or its Affiliates in any such action or proceeding under or by reason of or under or in connection with the Note, this Original Plan Sponsor Agreement, the Mortgage Restructuring Support Agreement, the Alternative Master Lease or the other Loan Documents. The provisions of Original Master Lease (as applicable), the Merger Agreement and the contracts, instruments, releases, agreements, and documents delivered, Reinstated or assumed under 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 Mortgage; (c) affect the validity or enforceability of any guaranty or indemnity made in connection with the Loan Plan (including, without limitation, the Guaranty) or any Credit Facility (if the Closing of the rights Alternative Transaction does not occur) and remedies the Intercompany Note, as applicable), and (y) any Claims or Causes of Lender thereunder; (d) impair the right Action arising out of Lender to obtain the appointment of fraud, willful misconduct or gross negligence as determined by a receiver; (e) impair the enforcement Final Order. Any of the Assignment Exculpated Parties shall be entitled to rely, in all respects, upon the reasonable and informed advice of Leases; or (f) constitute a prohibition against Lender counsel with respect to seek a deficiency judgment against Borrower in order to fully realize on any security given by Borrower in connection with the Loan (including the security granted by the Mortgage) or any other assets of Borrower or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against such security (including the Property or any other assets of Borrower).
(a) Nothing contained in this Section 11.22 shall limit the rights of Lender to proceed against Borrower for any of the following (or against Guarantor under the Guaranty, on the additional terms their duties and conditions thereof and subject to any limitations set forth herein or therein):
(i) to enforce any Leases entered into by Borrower or its Affiliates as Tenant;
(ii) to recover damages for fraud, material misrepresentation, material breach of warranty or intentional physical waste;
(iii) to recover any Condemnation Proceeds or Insurance Proceeds or other similar funds which have been misappropriated by Borrower or which, under the terms of the Loan Documents, should have been paid to Lender;
(iv) to recover (A) any Tenant security deposits, Tenant letters of credit or other deposits or fees paid to Borrower or (B) prepaid rents for a period of more than thirty (30) days in advance of its due date which have not been delivered to Lender;
(v) to recover Business Income received by Borrower during an Event of Default which have not been applied to the Loan or in accordance with the Loan Documents to operating and maintenance expenses of the Property;
(vi) to recover damages, costs and expenses arising from, or in connection with the provisions of the Mortgage pertaining to Hazardous Materials or the Environmental Indemnity;
(vii) to recover any amount expended by Lender in connection with the foreclosure of the Mortgage, but only in the event that any Borrower or any Guarantor takes action to impede such foreclosure or otherwise contests the foreclosure in bad faith;
(viii) to recover damages, costs and expenses arising from, or in connection with, the failure by Borrower to pay Taxes and Insurance Premiums when due to the extent that Borrower was not required to deposit such amounts with Lender pursuant to Section 6 hereof, but only to the extent there was available revenue from the Property for the period in question sufficient to pay such Taxes and Insurance Premiums, and provided further that Lender does not prevent such proceeds from being so applied;
(ix) to recover damages, costs and expenses arising from the failure of the representations set forth in Section 3.1.8 to be true or Borrower’s failure to comply with the provisions of Sections 4.2.11 of this Agreement; and
(x) to recover damages, costs and expenses arising from, or in connection with, any Lien arising from a written instrument executed by any Borrower or any Affiliate thereof expressly creating such Lien, to the extent such Lien is prohibited responsibilities under this AgreementPlan.
(b) Notwithstanding the foregoing, the agreement of Lender not to limit recourse liability as set forth in Section 11.22(a) above SHALL BECOME NULL AND VOID and shall be of no further force and effect and the Debt shall be fully recourse to Borrower (and to Guarantor under the Guaranty, on the additional terms and conditions thereof and subject to any limitations set forth herein or therein) in the event that:
(i) any Borrower commences a voluntary bankruptcy or insolvency proceeding;
(ii) an involuntary bankruptcy or insolvency proceeding is commenced against any Borrower and is not dismissed within 90 days of filing; or
(iii) voluntary Transfer of the Property occurs by written instrument executed by any Borrower or any Affiliate thereof, which instrument expressly effects such Transfer, or a Secondary Financing is voluntarily incurred in violation of the Loan Documents, except as otherwise consented to by Lender in writing (which consent may be withheld in Lender’s sole discretion).
(c) Notwithstanding the provisions of clauses (i) and (ii) of Section 11.22(b) no Guarantor shall be liable for any amount related to a Qualified Involuntary Bankruptcy.
(d) In addition, this agreement shall not waive any rights which Lender would have under any provisions of Title 11 of the Bankruptcy Code to file a claim for the full amount of the Debt or to require that the Property shall continue to secure all of the Debt.
Appears in 1 contract
Sources: Alternative Plan Sponsor Agreement
Exculpation. Subject to the qualifications below, Lender shall not enforce the liability and obligation of Borrower or its constituent members, partners, shareholders, directors, employees or agents or the direct or indirect constituent members, partners, shareholders, directors, employees or agents thereof (collectively, the “Borrower Parties”) or any other Person, to perform and observe the obligations contained in the Note, this Agreement, the Mortgage Note or any of the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against any of the Borrower Parties or any direct or indirect members, partners or shareholders of Borrower or the employees, agents, directors or officers of Borrower or its Affiliatesother Person, except that Lender may bring an action against Borrower, including a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender to enforce and realize upon its interest under the Note, this Agreement, the Mortgage and the other Loan Documents, or in the Property, the Business Income, Rents or any other collateral given to Lender pursuant to this Agreement and the other Loan Documents or any other assets of BorrowerDocuments; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against the Borrower Parties only to the extent of Borrower’s their interest in the Property, in the Business Income Rents and in any other collateral given to Lender or any other assets of BorrowerLender, and Lender, by accepting the Note, this Agreement, the Mortgage Note and the other Loan Documents, agrees that it shall not ▇s▇▇ for, seek or demand any deficiency judgment against any of the Borrower Parties or any other monetary payment against Borrower or the direct or indirect members, partners or shareholders of Borrower or the employees, agents, directors or officers of Borrower or its Affiliates Person in any such action or proceeding under or by reason of or under or in connection with the Note, this Agreement, the Mortgage Note or any of 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 this Agreement, the Note or any of the other Loan Documents; (bii) impair the right of Lender to name any of the Borrower Parties, as a party defendant in any action or suit for foreclosure and sale under the Mortgage; (ciii) affect the validity or enforceability of any guaranty or indemnity made in connection with the Loan (including, without limitation, the Guaranty) or any of the rights and remedies of Lender thereunder; (div) impair the right of Lender to obtain the appointment of a receiver; (ev) impair the enforcement of the Assignment of LeasesLeases and Rents; or (fvi) constitute a prohibition against waiver of the right of Lender to seek a deficiency judgment enforce the liability and obligation of Borrower (but not against any members of Borrower (other than Guarantor to the extent provided in order to fully realize on any security given by Borrower in connection with the Loan (including the security granted by the MortgageNon-Recourse Guaranty) or their direct or indirect constituent members or partners or any other assets Person), by money judgment or otherwise, to the extent of Borrower any loss, damage, cost, expense, liability, claim or to commence other obligation (but excluding any other appropriate action punitive, consequential or proceeding in order for speculative damages) incurred by Lender to exercise its remedies against such security (including the Property or any other assets attorneys’ fees and costs reasonably incurred) arising out of Borrower).
(a) Nothing contained in this Section 11.22 shall limit the rights of Lender to proceed against Borrower for any of the following (or against Guarantor under the Guaranty, on the additional terms and conditions thereof and subject to any limitations set forth herein or therein):
(i) to enforce any Leases entered into by Borrower or its Affiliates as Tenant;
(ii) to recover damages for fraud, material misrepresentation, material breach of warranty or intentional physical waste;
(iii) to recover any Condemnation Proceeds or Insurance Proceeds or other similar funds which have been misappropriated by Borrower or which, under the terms of the Loan Documents, should have been paid to Lender;
(iv) to recover (A) any Tenant security deposits, Tenant letters of credit or other deposits or fees paid to Borrower or (B) prepaid rents for a period of more than thirty (30) days in advance of its due date which have not been delivered to Lender;
(v) to recover Business Income received by Borrower during an Event of Default which have not been applied to the Loan or in accordance with the Loan Documents to operating and maintenance expenses of the Property;
(vi) to recover damages, costs and expenses arising from, or in connection with the provisions of the Mortgage pertaining to Hazardous Materials or the Environmental Indemnity;following:
(viia) to recover any amount expended fraud or intentional misrepresentation by Lender Borrower or Guarantor in connection with the foreclosure Loan;
(b) intentional physical waste of the MortgageProperty (including, but only in the event that any not limited to, waste due to gross negligence) by Borrower or any Guarantor takes action affiliate thereof; provided, however, such physical waste shall exclude wear and tear to impede such foreclosure the Property that occurs in the ordinary course of business of the Property by Borrower or otherwise contests the foreclosure in bad faithany affiliate thereof;
(viiic) to recover damagesthe material breach of any representation, costs and expenses arising fromwarranty, covenant or indemnification provision in the Environmental Indemnity or in connection withthis Agreement concerning Environmental Laws, the failure by Borrower to pay Taxes Hazardous Substances and Insurance Premiums when due to the extent that Borrower was not required to deposit such amounts with Lender pursuant to Section 6 hereof, but only to the extent there was available revenue from the Property for the period in question sufficient to pay such Taxes and Insurance Premiums, and provided further that Lender does not prevent such proceeds from being so appliedAsbestos;
(ixd) to recover damages, costs and expenses arising from the failure removal or disposal by Borrower or any affiliate thereof of any portion of the representations set forth Property after an Event of Default has occurred and while it is continuing, unless such portion of the Property is replaced by an item of equal or greater value as determined by Lender in Section 3.1.8 its reasonable discretion;
(e) the misapplication or conversion by Borrower or any affiliate thereof of (i) any insurance proceeds paid by reason of any loss, damage or destruction to be true the Property, (ii) any awards or Borrower’s other amounts received in connection with the condemnation of all or a portion of the Property, (iii) any Rents following an Event of Default or (iv) any Rents paid more than one (1) month in advance;
(f) failure to comply pay charges for labor or materials or taxes or other charges that can create liens superior to the lien of the Mortgage on any portion of the Property unless such taxes or other charges are being contested in accordance herewith or such taxes or charges have been delivered to Lender in accordance with the provisions of Sections 4.2.11 of this AgreementSection 3.3 hereof or Borrower has complied with Section 5.2 hereof; and
(xg) to recover damages, costs and expenses arising from, or in connection with, any Lien arising from a written instrument executed security deposits collected by any Borrower or any Affiliate affiliate thereof expressly creating such Lienwith respect to the Property which are not delivered to Lender upon a foreclosure of the Property or action in lieu thereof, except to the extent any such Lien is prohibited under this Agreement.
(b) Notwithstanding security deposits were applied in accordance with the foregoing, the agreement of Lender not to limit recourse liability as set forth in Section 11.22(a) above SHALL BECOME NULL AND VOID and shall be of no further force and effect and the Debt shall be fully recourse to Borrower (and to Guarantor under the Guaranty, on the additional terms and conditions thereof and subject 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. Notwithstanding anything to the contrary in any limitations set forth herein or therein) in of the event that:
Loan Documents (i) Lender shall not be deemed to have waived any Borrower commences a voluntary bankruptcy right which Lender may have under Section 506(a), 506(b), 1111(b) or insolvency proceeding;
(ii) an involuntary bankruptcy or insolvency proceeding is commenced against any Borrower and is not dismissed within 90 days of filing; or
(iii) voluntary Transfer other provisions of the Property occurs by written instrument executed by any Borrower or any Affiliate thereof, which instrument expressly effects such Transfer, or a Secondary Financing is voluntarily incurred in violation of the Loan Documents, except as otherwise consented to by Lender in writing (which consent may be withheld in Lender’s sole discretion).
(c) Notwithstanding the provisions of clauses (i) and (ii) of Section 11.22(b) no Guarantor shall be liable for any amount related to a Qualified Involuntary Bankruptcy.
(d) In addition, this agreement shall not waive any rights which Lender would have under any provisions of Title 11 of the U.S. Bankruptcy Code to file a claim for the full amount of the Debt or to require that the Property all collateral shall continue to secure all of the DebtDebt owing to Lender in accordance with the Loan Documents, and (ii) the Debt shall become fully recourse to Borrower (but not its members (other than Guarantor solely to the extent provided in the Non-Recourse Guaranty) or other direct or indirect constituent members or partners or any other Person) in the event that: (A) the first full Monthly Debt Service Payment Amount (as defined in the Note) under the Note is not paid when due; (B) other than in connection with a default under subsection (x) of the definition of Special Purpose Bankruptcy Remote Entity set forth in Schedule 5 hereto, Borrower fails to maintain its status as a Special Purpose Bankruptcy Remote Entity in accordance with the provisions of this Agreement and such failure results in the substantive consolidation of Borrower with another Person; (C) except as otherwise permitted pursuant to the Loan Documents, Borrower fails to obtain Lender’s prior written consent to any subordinate financing or other voluntary lien encumbering the Property; (D) except as otherwise permitted pursuant to the Loan Documents, Borrower fails to obtain Lender’s prior written consent to any assignment, transfer, or conveyance of the Property or any interest therein as and to the extent required by this Agreement or the Mortgage; or (E) (1) if any petition for bankruptcy, reorganization or arrangement pursuant to federal bankruptcy law, or any similar federal or state law, shall be filed by Borrower or Guarantor, or (2) if Borrower or Guarantor files an answer consenting to, or otherwise joining in, any involuntary petition for bankruptcy, reorganization or arrangement pursuant to federal bankruptcy law, or any similar federal or state law filed against it by any other Person, or is found pursuant to a final, unappealable order of a court of competent jurisdiction to have solicited or caused to be solicited creditors to file any involuntary petition for bankruptcy, reorganization or arrangement pursuant to federal bankruptcy law, or any similar federal or state law against Borrower or Guarantor, or (3) if Borrower or Guarantor are found, pursuant to a final unappealable order of a court of competent jurisdiction, to have been in collusion with creditors that initiate a bankruptcy action or proceeding against Borrower or Guarantor or (F) an Event of Default described in Section 8.1(s) hereof shall have occurred.
Appears in 1 contract
Exculpation. Subject (a) Lender acknowledges that in making the Loan, Lender has not relied on the credit or the assets of Borrower and that Lender is relying on and looking solely to the qualifications belowcredit and the assets of the Junior B Mezzanine Guarantor, the Collateral under the Pledge Agreements that do not constitute assets of the Borrower or its general partner, and any other collateral, guaranties, or indemnities (from Persons other than Borrower or its general partner) (collectively, the “Collateral Obligations”, and the obligors under such Collateral Obligations, the “Collateral Providers”), for the repayment of the Loan. Therefore, notwithstanding anything to the contrary contained in the Note, this Loan Agreement or any of the other Loan Documents, neither Borrower nor any present nor future direct general partner in Borrower (as used in this Section 11.22, “general partner”) shall have any personal liability, directly or indirectly, under or in connection with the Note, this Loan Agreement or any of the Loan Documents, or any amendment or amendments to any of the foregoing made at any time or times hereafter. Lender shall not have any claim against Borrower and shall have no recourse against any assets of Borrower or such general partner, including the Property, under any circumstances, for Borrower’s breach of any obligation under the Note, this Loan Agreement or any other Loan Document, and Lender shall not enforce the liability and obligation of Borrower or its general partner, except as provided below, to perform and observe the obligations contained in the Note, this Agreement, the Mortgage Note or any of the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against the Borrower or any direct such general partner or indirect memberstheir respective assets. Lender, partners or shareholders on behalf of itself and its successors and assigns, hereby waives any and all such personal liability and rights against the assets of Borrower or and the employees, agents, directors or officers of Borrower or its Affiliates, except that Lender may bring an action against Borrowergeneral partner, including a foreclosure actionthe Property; provided, an action for specific performance however, that nothing contained herein shall affect or limit Lender’s rights (i) to enforce any of the obligations under the Note, this Loan Agreement or any of the other appropriate action Loan Document against the Junior B Mezzanine Guarantor or proceeding to enable Lender to enforce and realize upon its interest interests under the Note, this Agreement, the Mortgage Pledge Agreements and the other Loan Documents, or in the Property, the Business Income, or any other collateral Collateral Obligations given to Lender pursuant to the Loan Documents Documents; (ii) to name Borrower in any action or proceeding solely to enforce Lender’s rights and remedies against Junior B Mezzanine Guarantor or the Collateral Providers, including foreclosure and other remedies under the Pledge Agreement and the other Collateral Obligations; (iii) to seek specific performance of any other assets of Borrowerterms and conditions under the Loan Documents; or (iv) to seek declaratory relief under the Loan Documents; provided, howeverfurther that in each of clauses (i), 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 interest in the Property(iii) and (iv) above, in the Business Income in any other collateral given to Lender or any other assets of Borrower, and Lender, by accepting the Note, this Agreement, the Mortgage and the other Loan Documents, no event shall not ▇▇▇ for, seek or demand any deficiency judgment or any other monetary payment against Borrower or the direct its general partner have any personal liability with respect to such actions or indirect membersproceedings or judgments issued therein, partners or shareholders of Borrower or the employees, agents, directors or officers in no event shall any assets of Borrower or its Affiliates in general partner be available to pay any such action judgment or proceeding under or by reason of or other obligation under or in connection with the Notesuch action or proceeding, this Agreementand in no event shall Lender enforce or execute any judgment against any assets of Borrower or its general partner or seek any monetary relief against Borrower or its general partner. For further avoidance of doubt, the Mortgage or the other Loan Documents. The provisions of this Section shall not, however: not (a) constitute a waiver, release or impairment of any obligation of Junior B Mezzanine Guarantor or the Collateral Providers evidenced or secured by any of the Loan Documents; (b) impair to the right of extent Lender to commences an action or suit seeking foreclosure under the Pledge Agreements, it shall only name Borrower as a party defendant in any such action or suit for to the extent required to pursue such foreclosure and sale under the MortgagePledge Agreements; (c) affect the validity or enforceability of any guaranty or indemnity made in connection with the Loan (including, without limitation, the Guaranty) or any of the rights and remedies of Lender thereunder, including the right of Lender to seek recourse thereunder against the guarantor, to the extent permitted in such guaranty; or (d) impair the right of Lender to obtain the appointment of a receiver; (e) impair receiver with respect to Junior B Mezzanine Guarantor or the enforcement Collateral Providers. The execution of this Agreement by the Junior B Mezzanine Guarantor shall not in any way increase of alter the obligations of the Assignment of Leases; or (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 Loan (including the security granted by the Mortgage) or any other assets of Borrower or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against such security (including the Property or any other assets of Borrower).
(a) Nothing contained in this Section 11.22 shall limit the rights of Lender to proceed against Borrower for any of the following (or against Junior B Mezzanine Guarantor under the Guaranty, on the additional terms and conditions thereof and subject to any limitations set forth herein or therein):
(i) to enforce any Leases entered into by Borrower or its Affiliates as Tenant;
(ii) to recover damages for fraud, material misrepresentation, material breach of warranty or intentional physical waste;
(iii) to recover any Condemnation Proceeds or Insurance Proceeds or other similar funds which have been misappropriated by Borrower or which, under the terms of the Loan Documents, should have been paid to Lender;
(iv) to recover (A) any Tenant security deposits, Tenant letters of credit or other deposits or fees paid to Borrower or (B) prepaid rents for a period of more than thirty (30) days in advance of its due date which have not been delivered to Lender;
(v) to recover Business Income received by Borrower during an Event of Default which have not been applied to the Loan or in accordance with the Loan Documents to operating and maintenance expenses of the Property;
(vi) to recover damages, costs and expenses arising from, or in connection with the provisions of the Mortgage pertaining to Hazardous Materials or the Environmental Indemnity;
(vii) to recover any amount expended by Lender in connection with the foreclosure of the Mortgage, but only in the event that any Borrower or any Guarantor takes action to impede such foreclosure or otherwise contests the foreclosure in bad faith;
(viii) to recover damages, costs and expenses arising from, or in connection with, the failure by Borrower to pay Taxes and Insurance Premiums when due to the extent that Borrower was not required to deposit such amounts with Lender pursuant to Section 6 hereof, but only to the extent there was available revenue from the Property for the period in question sufficient to pay such Taxes and Insurance Premiums, and provided further that Lender does not prevent such proceeds from being so applied;
(ix) to recover damages, costs and expenses arising from the failure of the representations those obligations set forth in Section 3.1.8 to be true or Borrower’s failure to comply with the provisions of Sections 4.2.11 of this Agreement; and
(x) to recover damages, costs and expenses arising from, or in connection with, any Lien arising from a written instrument executed by any Borrower or any Affiliate thereof expressly creating such Lien, to the extent such Lien is prohibited under this Agreementits Guaranty.
(b) Notwithstanding anything to the foregoingcontrary in this Agreement, the agreement of Lender not to limit recourse liability as set forth in Section 11.22(a) above SHALL BECOME NULL AND VOID and shall be of no further force and effect and the Debt shall be fully recourse to Borrower (and to Guarantor under the Guaranty, on the additional terms and conditions thereof and subject to any limitations set forth herein or therein) in the event that:
(i) any Borrower commences a voluntary bankruptcy or insolvency proceeding;
(ii) an involuntary bankruptcy or insolvency proceeding is commenced against any Borrower and is not dismissed within 90 days of filing; or
(iii) voluntary Transfer of the Property occurs by written instrument executed by any Borrower Note or any Affiliate thereof, which instrument expressly effects such Transfer, or a Secondary Financing is voluntarily incurred in violation of the Loan Documents, except as otherwise consented to by Lender in writing (which consent may be withheld in Lender’s sole discretion).
(c) Notwithstanding the provisions of clauses (i) and (ii) of Section 11.22(b) no Guarantor shall be liable for any amount related to a Qualified Involuntary Bankruptcy.
(d) In addition, this agreement shall not waive be deemed to have waived any rights right which Lender would may have under Section 506(a), 506(b), 1111 (b) or any other provisions of Title 11 of the Bankruptcy Code to file a claim for the full amount of the Debt or to require that the Property all Collateral shall continue to secure all of the DebtDebt owing to Lender in accordance with the Loan Documents.
(c) Notwithstanding anything to the contrary contained in this Agreement (other than Section 11.22(4) below) or the Note, except as set forth in Section 11.22(4) below, neither any present or future Constituent Partner in Borrower nor any present or future shareholder, officer, director, employee, trustee, beneficiary, advisor, partner, member, principal, participant or agent of or in Borrower or of or in any person or entity that is or becomes a Constituent Partner in Borrower (collectively, the “Borrower’s Partners”) shall have any personal liability, directly or indirectly, under this Agreement, the Note or any of the Loan Documents, or any Modifications to any of the foregoing made at any time or times hereafter and, except as set forth in this Section 11.22(c) and Section 11.22(d) below, Lender, on behalf of itself and its successors and assigns, hereby waives any such personal liability. The term “Constituent Partner”, as used herein, shall mean, any direct partner in Borrower and any person or entity that, directly or indirectly, through one or more other partnerships, limited liability companies or corporation or other entities is a partner in Borrower. For purposes of this Section 11.22(c), subject to Section 11.22(d) below, neither the negative capital account of any Constituent Partner in Borrower or in any other Constituent Partner in Borrower, nor any obligation of any Constituent Partner in Borrower to restore a negative capital account or to contribute or loan capital to Borrower or to any other Constituent Partner in Borrower shall at any time be deemed to be the property or an asset of Borrower (or any other Constituent Partner) and neither Lender nor any of its successors or assigns shall have any right to collect, enforce or proceed against with respect to any such negative capital account or obligation to restore, contribute or loan.
Appears in 1 contract
Sources: Junior B Mezzanine Loan Agreement (Thomas Properties Group Inc)
Exculpation. Subject Notwithstanding any provision of this Agreement or any Loan Document to the qualifications belowcontrary, Lender but subject to the further provisions of this Article X, the Secured Parties shall not enforce the liability and obligation of Borrower the Borrowers to perform and observe the obligations contained in the Note, this Agreement, the Mortgage or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against the Borrower any Transaction Party or any direct of their respective officers, directors, managers, shareholders or indirect membersemployees (collectively, partners or shareholders of Borrower or the employees, agents, directors or officers of Borrower or its Affiliates“Exculpated Parties”), except that Lender an Agent may bring an action against Borrower, including a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender the Agents to enforce and realize upon its interest under the Note, this Agreement, the Mortgage and the other Loan Documents, or and the interest in the Property, the Business Income, or any other collateral given to Lender pursuant to the Loan Documents or any other assets of BorrowerCollateral; 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 the Borrowers’ interests in the PropertyCollateral. The Secured Parties agree that they shall not, except as otherwise provided herein or in the Business Income in any other collateral given to Lender or any other assets of BorrowerMortgages, and Lender, by accepting the Note, this Agreement, the Mortgage and the other Loan Documents, shall not ▇s▇▇ for, seek or demand any deficiency judgment or against any other monetary payment against Borrower or of the direct or indirect members, partners or shareholders of Borrower or the employees, agents, directors or officers of Borrower or its Affiliates Exculpated Parties in any such action or proceeding proceeding, under or by reason of or under or in connection with the Note, this Agreement, the Mortgage or the other Loan Documents. The provisions of this Section 10.01 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 any Agent to name Borrower any Transaction Party as a party defendant in any action or suit for judicial foreclosure and sale under the any Mortgage; (ciii) affect the validity or enforceability of any indemnity, guaranty (including the Guaranty), master lease or indemnity similar instrument made in connection with the Loan (including, without limitation, the Guaranty) or any of the rights and remedies of Lender thereunderDocuments; (div) impair the right of Lender the any Agent to obtain the appointment of a receiver; (ev) impair the enforcement of the any Assignment of Leases; (vi) impair the right of the Secured Parties to enforce the provisions of the Mortgages; (vii) exercise of any other remedy set forth in this Agreement or in any other Loan Document which is not inconsistent with the terms of this Section 10.01; or (fviii) constitute a prohibition against Lender impair the right of the Secured Parties to seek obtain a deficiency judgment or other judgment on the Notes against Borrower in order Borrowers if necessary to fully realize on any security given by Borrower in connection with the Loan (including the security granted by the MortgageA) preserve or any other assets of Borrower or to commence any other appropriate action or proceeding in order for Lender to exercise enforce its rights and remedies against such security the Collateral or (including the Property or B) obtain any other assets of Borrower).
(a) Nothing contained in this Section 11.22 shall limit the rights of Lender to proceed against Borrower for any of the following (or against Guarantor under the Guaranty, on the additional terms and conditions thereof and subject to any limitations set forth herein or therein):
(i) to enforce any Leases entered into by Borrower or its Affiliates as Tenant;
(ii) to recover damages for fraud, material misrepresentation, material breach of warranty or intentional physical waste;
(iii) to recover any Condemnation Proceeds or Insurance Proceeds or other similar funds Awards to which have been misappropriated by Borrower or which, the Secured Parties would otherwise be entitled under the terms of the Loan Documents; provided, should have been paid to Lender;
(iv) to recover (A) any Tenant security deposits, Tenant letters of credit or other deposits or fees paid to Borrower or (B) prepaid rents for a period of more than thirty (30) days in advance of its due date which have not been delivered to Lender;
(v) to recover Business Income received by Borrower during an Event of Default which have not been applied to the Loan or in accordance with the Loan Documents to operating and maintenance expenses of the Property;
(vi) to recover damages, costs and expenses arising from, or in connection with the provisions of the Mortgage pertaining to Hazardous Materials or the Environmental Indemnity;
(vii) to recover any amount expended by Lender in connection with the foreclosure of the Mortgage, but only in the event that any Borrower or any Guarantor takes action to impede such foreclosure or otherwise contests the foreclosure in bad faith;
(viii) to recover damages, costs and expenses arising from, or in connection withhowever, the failure by Borrower to pay Taxes and Insurance Premiums when due Secured Parties shall only enforce such judgment to the extent that Borrower was not required to deposit such amounts with Lender pursuant to Section 6 hereof, but only to the extent there was available revenue from the Property for the period in question sufficient to pay such Taxes and Insurance Premiums, and provided further that Lender does not prevent such proceeds from being so applied;
(ix) to recover damages, costs and expenses arising from the failure of the representations set forth in Section 3.1.8 to be true or Borrower’s failure to comply with the provisions of Sections 4.2.11 of this Agreement; and
(x) to recover damages, costs and expenses arising from, or in connection with, any Lien arising from a written instrument executed by any Borrower or any Affiliate thereof expressly creating such Lien, to the extent such Lien is prohibited under this AgreementInsurance Proceeds and/or Awards.
(b) Notwithstanding the foregoing, the agreement of Lender not to limit recourse liability as set forth in Section 11.22(a) above SHALL BECOME NULL AND VOID and shall be of no further force and effect and the Debt shall be fully recourse to Borrower (and to Guarantor under the Guaranty, on the additional terms and conditions thereof and subject to any limitations set forth herein or therein) in the event that:
(i) any Borrower commences a voluntary bankruptcy or insolvency proceeding;
(ii) an involuntary bankruptcy or insolvency proceeding is commenced against any Borrower and is not dismissed within 90 days of filing; or
(iii) voluntary Transfer of the Property occurs by written instrument executed by any Borrower or any Affiliate thereof, which instrument expressly effects such Transfer, or a Secondary Financing is voluntarily incurred in violation of the Loan Documents, except as otherwise consented to by Lender in writing (which consent may be withheld in Lender’s sole discretion).
(c) Notwithstanding the provisions of clauses (i) and (ii) of Section 11.22(b) no Guarantor shall be liable for any amount related to a Qualified Involuntary Bankruptcy.
(d) In addition, this agreement shall not waive any rights which Lender would have under any provisions of Title 11 of the Bankruptcy Code to file a claim for the full amount of the Debt or to require that the Property shall continue to secure all of the Debt.
Appears in 1 contract
Sources: Term Loan Agreement (Hospitality Investors Trust, Inc.)
Exculpation. 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 Mortgage or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against the Borrower or any direct or indirect members, partners or shareholders of Borrower or the employees, agents, directors or officers of Borrower or its Affiliates, principals or shareholders, except that Lender may bring an action against Borrower, including a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender to enforce and realize upon its interest and rights under the Note, this Agreement, the Mortgage and the other Loan Documents, or in the Property, the Business IncomeRents, the Insurance Proceeds, the Condemnation Proceeds or any other collateral given to Lender pursuant to the Loan Documents or any other assets of BorrowerDocuments; 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 Business Income in Rents, the Insurance Proceeds, the Condemnation Proceeds and any other collateral given to Lender or any other assets of BorrowerLender, and Lender, by accepting the Note, this Agreement, the Mortgage and the other Loan Documents, shall not ▇▇▇▇▇▇ agrees that it shall not sue for, seek or demand any deficiency judgment or any other monetary payment against Borrower or the direct or indirect members, partners or shareholders of Borrower or the employees, agents, directors or officers of Borrower or its Affiliates in any such action or proceeding under or by reason of or under or in connection with the Note, this Agreement, the Mortgage or the other any Loan DocumentsDocument. The provisions of this Section 17 shall not, however: , (a) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan DocumentsDocument; (b) impair the right of Lender to name Borrower as a party defendant in any action or suit for foreclosure and sale under the Mortgage; (c) affect the validity or enforceability of any of the Loan Documents or any guaranty or indemnity made in connection with the Loan (including, without limitation, the Guaranty) 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) impair the enforcement of the Assignment of LeasesMortgage; or (f) constitute a prohibition against prohibit Lender to seek from seeking a deficiency judgment against Borrower in order to fully realize on any security given by Borrower in connection with the Loan (including the security granted by the Mortgage) or any other assets of Borrower Mortgage or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against such security all of the Property; or (including g) constitute a waiver of the Property or any other assets of Borrower).
(a) Nothing contained in this Section 11.22 shall limit the rights right of Lender to proceed against enforce the liability and obligation of Borrower for by money judgment or otherwise, to the extent of any Losses incurred by Lender arising out of or in connection with the following (or against Guarantor under each, a “Recourse Liability” and collectively, the Guaranty, on the additional terms and conditions thereof and subject to any limitations set forth herein or therein“Recourse Liabilities”):
(i) to enforce any Leases entered into fraud or misrepresentation by Borrower Borrower, Guarantor or its any of their respective Affiliates as Tenantin connection with the Loan;
(ii) to recover damages for fraudthe misappropriation, material misrepresentationconversion or other application in violation of the Loan Documents by ▇▇▇▇▇▇▇▇, material breach Guarantor, or any Affiliate of warranty either of (A) any Insurance Proceeds paid by reason of any Casualty, (B) any Condemnation Proceeds received in connection with any Taking or intentional physical waste(C) any Rents, lease termination fees or security deposits;
(iii) the failure of Borrower to recover any Condemnation Proceeds apply all revenues from the Property to the Loan or Insurance Proceeds or other similar funds which have been misappropriated by Borrower or which, under to the terms normal operating expenses of the Loan Documents, should have been paid Property prior to Lendermaking distributions to its direct or indirect owners;
(iv) the failure of Borrower to recover (A) any Tenant security deposits, Tenant letters of credit or other deposits or fees paid to Borrower or (B) prepaid rents for a period of more than thirty (30) days in advance of its due date which have not been delivered deliver to Lender, at its request following a foreclosure or deed in lieu of foreclosure, tenant security deposits (except to the extent any such security deposits were applied in accordance with the terms and conditions of any of the Leases) and any tangible personal property, including records and files relating to the operation of the Property in Borrower’s possession or which are otherwise reasonably available to Borrower;
(v) to recover Business Income received the extent net cash flow from the Property is sufficient, the failure of Borrower to pay when due any insurance deductible, insurance premiums or other operating expenses relating to the maintenance or operation of the Property which accrued prior to Lender’s acquisition of the Property by Borrower foreclosure or deed in lieu of foreclosure;
(vi) any act of intentional waste of the Property or any portion thereof, or, during an the continuance of any Event of Default which have not been applied Default, the removal or disposal of any portion of the Property (unless replaced with property of comparable quality);
(vii) the failure of Borrower to maintain its status as a Single Purpose Entity;
(viii) the failure of Borrower to pay when due any Impositions to the extent net cash flow from the Property is sufficient and provided that Lender makes any applicable escrowed funds available to pay same or to maintain the insurance coverage required under the Loan or Documents to the extent that such insurance coverage is available and provided that Borrower has given Lender thirty (30) days prior written notice of Borrower’s inability to obtain insurance coverage in accordance with the Loan Documents to operating and maintenance expenses of the Property;
(vi) to recover damages, costs and expenses arising from, or in connection with the provisions of the Mortgage pertaining to Hazardous Materials or the Environmental Indemnity;
(vii) to recover any amount expended by Lender in connection with the foreclosure of the Mortgage, but only in the event that any Borrower or any Guarantor takes action to impede such foreclosure or otherwise contests the foreclosure in bad faith;
(viii) to recover damages, costs and expenses arising from, or in connection with, the failure by Borrower to pay Taxes and Insurance Premiums when due to the extent that Borrower was not required to deposit such amounts with Lender pursuant to Section 6 hereof, but only to the extent there was available revenue from the Property for the period in question sufficient to pay such Taxes and Insurance Premiums, and provided further that Lender does not prevent such proceeds from being so appliedAgreement;
(ix) any defense or judicial intervention by ▇▇▇▇▇▇▇▇, Guarantor or their respective Affiliates which is asserted in bad faith (as determined by a final, non-appealable order of a court of competent jurisdiction) that delays, impedes, obstructs, hinders, enjoins or otherwise materially interferes with or frustrates the efforts of Lender to recover damagesexercise any rights and remedies available to Lender as provided in the Loan Documents;
(x) any and all reasonable third party costs, costs sale fees, real estate taxes or other transfer taxes incurred in connection with any foreclosure or conveyance in lieu thereof;
(xi) the breach of any representation, warranty, covenant or indemnification provision in any Loan Document concerning Environmental Laws or Hazardous Substances, and expenses any indemnification of Lender with respect thereto contained in any Loan Document; and
(xii) arising from or relating to (A) the failure superseding of a nonconforming use at any portion of the representations set forth in Section 3.1.8 to be true or Borrower’s failure Property by a conforming use, as a result of which the Property is required to comply with then-current zoning laws, rules and/or regulations (including without limitation, parking) and/or (B) a Casualty pursuant to which Restoration of the Improvements is required to comply with then-current zoning laws, rules and/or regulations (including, without limitation, parking requirements), provided that Lender has complied with the provisions of Sections 4.2.11 Section 7.6 of the Loan Agreement regarding the disbursement of Net Restoration Proceeds. Notwithstanding anything to the contrary in this Agreement; and
(x) to recover damages, costs and expenses arising from, or in connection with, any Lien arising from a written instrument executed by any Borrower Note or any Affiliate thereof expressly creating such Lienof 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 extent such Lien is prohibited under this Agreement.
U.S. 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 in accordance with the Loan Documents, and (bB) Notwithstanding the foregoing, the Lender’s agreement of Lender not to limit recourse pursue personal liability of Borrower as set forth in Section 11.22(a) above SHALL BECOME NULL AND VOID and shall be of no further force and effect effect, and the Debt Indebtedness shall be fully recourse to Borrower (and to Guarantor under the Guaranty, on the additional terms and conditions thereof and subject to any limitations set forth herein or therein) in the event that:
that one or more of the following occurs (ieach, a “Full Recourse Event”): (1) any Borrower commences files a voluntary petition under the U.S. Bankruptcy Code or any other federal or state bankruptcy or insolvency proceeding;
law, (ii2) an involuntary bankruptcy or insolvency proceeding is commenced against Borrower (other than by Lender) where Borrower or any of its Affiliates have colluded, consented to or acquiesced to such filing, (3) any material, uncured failure of Borrower and to maintain its status as a Single Purpose Entity is a material factor in the substantive consolidation of Borrower with any other Person or (4) a material default occurs under Article 6 of the Loan Agreement. For purposes hereof, any default under Article 6 of the Loan Agreement shall be deemed to be material if (i) such Transfer results a change of Control of Borrower, (ii) such Transfer results in more than forty-nine percent (49%) of the total direct or indirect Equity Interests in Borrower being owned by Persons that did not dismissed within 90 days own such Equity Interests as of filing; or
the Closing Date or (iii) voluntary such Transfer is a Transfer of the Property occurs by written instrument executed by any Borrower or any Affiliate thereof, which instrument expressly effects such Transfer, or a Secondary Financing is voluntarily incurred fee interest in violation of the Loan Documents, except as otherwise consented to by Lender in writing (which consent may be withheld in Lender’s sole discretion)Property.
(c) Notwithstanding the provisions of clauses (i) and (ii) of Section 11.22(b) no Guarantor shall be liable for any amount related to a Qualified Involuntary Bankruptcy.
(d) In addition, this agreement shall not waive any rights which Lender would have under any provisions of Title 11 of the Bankruptcy Code to file a claim for the full amount of the Debt or to require that the Property shall continue to secure all of the Debt.
Appears in 1 contract
Exculpation. (I) Subject to the qualifications below, Lender neither Agent nor Lenders shall not enforce the liability and obligation of Borrower to perform and observe the obligations contained in the Note, this Agreement, the Mortgage 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 the Borrower or any direct principal, director, officer, employee, beneficiary, shareholder, partner, member, trustee, agent, or indirect members, partners or shareholders affiliate of Borrower (but specifically excluding Guarantor) or any legal representatives, successors or assigns of any of the employeesforegoing (collectively, agents, directors or officers of Borrower or its Affiliatesthe “Exculpated Parties”), except that Lender Agent may bring an action against Borrower, including a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender Agent and Lenders to enforce and realize upon its interest under the Note, this Agreement, the Mortgage Pledge Agreement and the other Loan Documents, or in the Property, the Business IncomeCollateral, or any other collateral given to Lender Agent and/or Lenders pursuant to the Loan Documents or any other assets of BorrowerDocuments; 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 Business Income Collateral and in any other collateral given to Lender or any other assets of BorrowerAgent, and LenderLenders and Agent, by accepting the Note, this Agreement, the Mortgage Pledge Agreement and the other Loan Documents, shall not ▇s▇▇ for, seek or demand any deficiency judgment or any other monetary payment against Borrower or any of the direct or indirect membersExculpated Parties, partners or shareholders of Borrower or the employees, agents, directors or officers of Borrower or its Affiliates in any such action or proceeding under or by reason of or under or in connection with the Note, this Agreement, the 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 MortgagePledge Agreement; (c) affect the validity or enforceability of any guaranty indemnity, guaranty, or indemnity similar instrument made in connection with the Loan (including, without limitation, the Guaranty) 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 omitted]; (f) impair the enforcement right of Agent or Lenders to enforce the provisions of the Assignment of LeasesGuaranty or the Environmental Indemnity; or (fg) 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 Loan (including the security granted by the Mortgage) or any other assets of Borrower or to commence any other appropriate action or proceeding in order for Lender Agent or Lenders to exercise its remedies against such security security; or (including h) constitute a waiver of the Property or any other assets of Borrower).
(a) Nothing contained in this Section 11.22 shall limit the rights right of Lender to proceed against Borrower for enforce the liability and obligation of Borrower, by money judgment or otherwise, to the extent of any actual Losses incurred by Agent and Lenders (including out-of-pocket attorneys’ fees and costs reasonably incurred) arising out of or in connection with the following (or against Guarantor under the Guaranty, on the additional terms and conditions thereof and subject to any limitations set forth herein or therein“Loss Liability”):
(i) to enforce any Leases entered into by Borrower or its Affiliates as Tenant;
(ii) to recover damages for fraud, material misrepresentation, material breach of warranty fraud or intentional physical waste;
(iii) to recover misrepresentation by Mortgage Borrower, Borrower, Guarantor or any Condemnation Proceeds or Insurance Proceeds or other similar funds which have been misappropriated by Borrower or which, under the terms of the Loan Documents, should have been paid to Lender;
(iv) to recover (A) any Tenant security deposits, Tenant letters of credit or other deposits or fees paid to Borrower or (B) prepaid rents for a period of more than thirty (30) days in advance of its due date which have not been delivered to Lender;
(v) to recover Business Income received by Borrower during an Event of Default which have not been applied to the Loan or in accordance with the Loan Documents to operating and maintenance expenses of the Property;
(vi) to recover damages, costs and expenses arising from, or Party in connection with the provisions of the Mortgage pertaining to Hazardous Materials or the Environmental IndemnityLoan;
(vii) to recover any amount expended by Lender in connection with the foreclosure of the Mortgage, but only in the event that any Borrower or any Guarantor takes action to impede such foreclosure or otherwise contests the foreclosure in bad faith;
(viii) to recover damages, costs and expenses arising from, or in connection with, the failure by Borrower to pay Taxes and Insurance Premiums when due to the extent that Borrower was not required to deposit such amounts with Lender pursuant to Section 6 hereof, but only to the extent there was available revenue from the Property for the period in question sufficient to pay such Taxes and Insurance Premiums, and provided further that Lender does not prevent such proceeds from being so applied;
(ix) to recover damages, costs and expenses arising from the failure of the representations set forth in Section 3.1.8 to be true or Borrower’s failure to comply with the provisions of Sections 4.2.11 of this Agreement; and
(x) to recover damages, costs and expenses arising from, or in connection with, any Lien arising from a written instrument executed by any Borrower or any Affiliate thereof expressly creating such Lien, to the extent such Lien is prohibited under this Agreement.
(b) Notwithstanding the foregoing, the agreement of Lender not to limit recourse liability as set forth in Section 11.22(a) above SHALL BECOME NULL AND VOID and shall be of no further force and effect and the Debt shall be fully recourse to Borrower (and to Guarantor under the Guaranty, on the additional terms and conditions thereof and subject to any limitations set forth herein or therein) in the event that:
(i) any Borrower commences a voluntary bankruptcy or insolvency proceeding;
(ii) an involuntary bankruptcy or insolvency proceeding is commenced against any Borrower and is not dismissed within 90 days of filing; or
(iii) voluntary Transfer of the Property occurs by written instrument executed by any Borrower or any Affiliate thereof, which instrument expressly effects such Transfer, or a Secondary Financing is voluntarily incurred in violation of the Loan Documents, except as otherwise consented to by Lender in writing (which consent may be withheld in Lender’s sole discretion).
(c) Notwithstanding the provisions of clauses (i) and (ii) of Section 11.22(b) no Guarantor shall be liable for any amount related to a Qualified Involuntary Bankruptcy.
(d) In addition, this agreement shall not waive any rights which Lender would have under any provisions of Title 11 of the Bankruptcy Code to file a claim for the full amount of the Debt or to require that the Property shall continue to secure all of the Debt.
Appears in 1 contract
Sources: Mezzanine Loan Agreement (Black Creek Diversified Property Fund Inc.)
Exculpation. 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 Mortgage or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against the Borrower or any direct or indirect members, partners or shareholders of Borrower or the employees, agents, directors or officers of Borrower or its AffiliatesBorrower, except that Lender may bring an action against Borrower, including a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender to enforce and realize upon its interest under the Note, this Agreement, the Mortgage and the other Loan Documents, or in the Property, the Business IncomeRents, or any other collateral given to Lender pursuant to the Loan Documents or any other assets of BorrowerDocuments; 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 Property, in the Business Income Rents and in any other collateral given to Lender or any other assets of BorrowerLender, and Lender, by accepting the Note, this Agreement, the Mortgage and the other Loan Documents, agrees that it shall not ▇▇▇ sue for, seek or demand any deficiency judgment or any other monetary payment against Borrower or the direct or indirect members, partners or shareholders of Borrower or the employees, agents, directors or officers of Borrower or its Affiliates Borro▇▇▇ in any such action or proceeding under or by reason of or under or in connection with the Note, this Agreement, the 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 Mortgage; (c) affect the validity or enforceability of any guaranty or indemnity made in connection with the Loan (including, without limitation, the Guaranty) or any of the rights and remedies of Lender thereunder; (d) impair the right of Lender to obtain the appointment of a receiver; (e) impair the enforcement of the Assignment of Leases; or (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 Loan (including the security granted by the Mortgage) or any other assets of Borrower Mortgage or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against such security the Property; or (including g) constitute a waiver of the Property or any other assets of Borrower).
(a) Nothing contained in this Section 11.22 shall limit the rights right of Lender to proceed against enforce the liability and obligation of Borrower, by money judgment or otherwise, to the extent of any 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 for or any guarantor in connection with the Loan;
(ii) intentional waste or willful misconduct of Borrower;
(iii) the following (breach of any material representation, warranty, covenant or against Guarantor under indemnification provision in the GuarantyEnvironmental Indemnity or in the Mortgage concerning environmental laws, on the additional terms hazardous substances and conditions thereof asbestos and subject any indemnification of Lender with respect thereto in either document subject, however, to any limitations set forth herein or therein):
(i) to enforce any Leases entered into by Borrower or its Affiliates as Tenantin such documents;
(iiiv) to recover damages for fraud, material misrepresentation, material breach the removal or disposal by Borrower of warranty or intentional physical wasteany portion of the Property in violation of the Loan Documents after the occurrence and during the continuance of an Event of Default;
(iiiv) 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 recover the Property, (B) any Condemnation Proceeds or Insurance Proceeds awards or other similar funds 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) any security deposits, advance deposits or any other deposits collected with respect to the Property which have been misappropriated by Borrower are not delivered to Lender upon a foreclosure of the Property or whichaction in lieu thereof, under 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
(vii) Borrower fails to obtain Lender's prior written consent to any voluntary lien (other than subordinate financing) encumbering the Property. Notwithstanding anything to the contrary in this Agreement, the Note or any of the Loan Documents, should have been paid to Lender;
(iv) to recover (A) Lender shall not be deemed to have waived any Tenant security depositsright which Lender may have under Section 506(a), Tenant letters of credit 506(b), 1111(b) or any other deposits or fees paid to Borrower or (B) prepaid rents for a period of more than thirty (30) days in advance of its due date which have not been delivered to Lender;
(v) to recover Business Income received by Borrower during an Event of Default which have not been applied to the Loan or in accordance with the Loan Documents to operating and maintenance expenses of the Property;
(vi) to recover damages, costs and expenses arising from, or in connection with the provisions of the Mortgage pertaining to Hazardous Materials or the Environmental Indemnity;
(vii) to recover any amount expended by Lender in connection with the foreclosure of the Mortgage, but only in the event that any Borrower or any Guarantor takes action to impede such foreclosure or otherwise contests the foreclosure in bad faith;
(viii) to recover damages, costs and expenses arising from, or in connection with, the failure by Borrower to pay Taxes and Insurance Premiums when due to the extent that Borrower was not required to deposit such amounts with Lender pursuant to Section 6 hereof, but only to the extent there was available revenue from the Property for the period in question sufficient to pay such Taxes and Insurance Premiums, and provided further that Lender does not prevent such proceeds from being so applied;
(ix) to recover damages, costs and expenses arising from the failure of the representations set forth in Section 3.1.8 to be true or Borrower’s failure to comply with the provisions of Sections 4.2.11 of this Agreement; and
(x) to recover damages, costs and expenses arising from, or in connection with, any Lien arising from a written instrument executed by any Borrower or any Affiliate thereof expressly creating such Lien, to the extent such Lien is prohibited under this Agreement.
(b) Notwithstanding the foregoing, the agreement of Lender not to limit recourse liability as set forth in Section 11.22(a) above SHALL BECOME NULL AND VOID and shall be of no further force and effect and the Debt shall be fully recourse to Borrower (and to Guarantor under the Guaranty, on the additional terms and conditions thereof and subject to any limitations set forth herein or therein) in the event that:
(i) any Borrower commences a voluntary bankruptcy or insolvency proceeding;
(ii) an involuntary bankruptcy or insolvency proceeding is commenced against any Borrower and is not dismissed within 90 days of filing; or
(iii) voluntary Transfer of the Property occurs by written instrument executed by any Borrower or any Affiliate thereof, which instrument expressly effects such Transfer, or a Secondary Financing is voluntarily incurred in violation of the Loan Documents, except as otherwise consented to by Lender in writing (which consent may be withheld in Lender’s sole discretion).
(c) Notwithstanding the provisions of clauses (i) and (ii) of Section 11.22(b) no Guarantor shall be liable for any amount related to a Qualified Involuntary Bankruptcy.
(d) In addition, this agreement shall not waive any rights which Lender would have under any provisions of Title 11 of the U.S. Bankruptcy Code to file a claim for the full amount of the Debt secured by the Mortgage or to require that the Property all collateral shall continue to secure all of the DebtDebt 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. 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 Mortgage or the other Loan Documents by any action or proceeding wherein a money judgment or deficiency judgment shall be sought against the Borrower or any direct principal, director, officer, employee, beneficiary, shareholder, partner, member, trustee, agent or indirect members, partners or shareholders Affiliate of Borrower or any legal representatives, successors or assigns of any of the employees, agents, directors or officers of Borrower or its Affiliatesforegoing, except that Lender may bring an action against Borrower, including a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender to enforce and realize upon its interest under the Note, this Agreement, the Mortgage and the other Loan Documents, or in the Property, the Business Income, Gross Revenues or any other collateral given to Lender pursuant to the Loan Documents or any other assets of BorrowerDocuments; 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 Property, in the Business Income Gross Revenues and in any other collateral given to Lender or any other assets of BorrowerLender, and Lender, by accepting the Note, this Agreement, the Mortgage and the other Loan Documents, shall not ▇▇▇ for, seek or demand any money judgment or deficiency judgment or any other monetary payment against Borrower or the direct any principal, director, officer, employee, beneficiary, shareholder, partner, member, trustee, agent or indirect members, partners or shareholders Affiliate of Borrower or any legal representatives, successors or assigns of any of the employees, agents, directors or officers of Borrower or its Affiliates foregoing in any such action or proceeding under or by reason of or under or in connection with the Note, this Agreement, the 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 Mortgage; (c) affect the validity or enforceability of any of the Loan Documents or any guaranty or indemnity made in connection with the Loan (including, without limitation, the Guaranty) or any of the rights and remedies of Lender thereunder; (d) impair the right of Lender to obtain the appointment of a receiver; (e) impair the enforcement of the Assignment of Leases; or (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 on any security given by Borrower in connection with the Loan (including the security granted by the Mortgage) or any other assets of Borrower Mortgage or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against such security the Property; or (including h) constitute a waiver of the Property or any other assets of Borrower).
(a) Nothing contained in this Section 11.22 shall limit the rights right of Lender to proceed against enforce the liability and obligation of Borrower, by money judgment or otherwise, to the extent of any 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 (all such liability and obligation of Borrower for any or all of the following (or against Guarantor under the Guaranty, on the additional terms and conditions thereof and subject being referred to any limitations set forth herein or thereinas "Borrower's Recourse Liabilities "):
(i) fraud, willful misconduct, misrepresentation or failure to enforce disclose a material fact by Borrower, Guarantor, any Leases entered into by Affiliate of Borrower or its Affiliates as TenantGuarantor, 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);
(ii) to recover damages for fraudthe breach in any material respect of any representation, material misrepresentationwarranty, material breach covenant or indemnification provision in the Environmental Indemnity or in any other Loan Document concerning environmental laws, hazardous substances and/or asbestos and any indemnification of warranty or intentional physical wasteLender with respect thereto in either document;
(iii) wrongful removal or destruction of any portion of the Property or damage to recover the Property caused by willful misconduct or gross negligence of Borrower, Guarantor, any Condemnation Proceeds or Insurance Proceeds or other similar funds which have been misappropriated by Affiliate of Borrower or whichGuarantor, under or any of ▇▇▇.▇▇ respective agents or representatives in connection with the terms of the Loan Documents, should have been paid to LenderLoan;
(iv) to recover (A) any Tenant security depositsintentional physical waste of the Property by Borrower, Tenant letters Guarantor, any Affiliate of credit or other deposits or fees paid to Borrower or (B) prepaid rents for a period Guarantor, or any of more than thirty (30) days their respective agents or representatives in advance of its due date which have not been delivered to Lenderconnection with the Loan;
(v) to recover Business Income received the forfeiture by Borrower during an Event of Default which have not been applied to the Loan or in accordance with the Loan Documents to operating and maintenance expenses 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;
(vi) to recover damagesthe misappropriation, costs and expenses arising frommisapplication or conversion by Borrower, Guarantor, any Affiliate of Borrower or Guarantor, or any of their respective agents or representatives in connection with the Loan 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 Gross Revenues (including Rents, Insurance Proceeds, security deposits, advance deposits or any other deposits 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 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 that can create Liens on any portion of the Property, provided that no liability shall arise under this clause if such charges were not incurred in violation of the Loan Documents and there is insufficient cash flow from the Property to pay all of Borrower's current and/or past due liabilities (including such charges);
(viii) any unapplied security deposits, advance deposits or any other deposits collected with respect to the Property which are not delivered to Lender in accordance with the provisions of the Mortgage pertaining to Hazardous Materials or Loan Documents during the Environmental Indemnitycontinuance of an Event of Default;
(viiix) the failure to recover pay Taxes or transfer taxes, provided Borrower shall not be liable for the failure to pay Taxes to the extent funds to pay such amounts are available in the Tax Account and Lender failed to pay same or there is insufficient cash flow from the Property to pay for such Taxes or transfer taxes (so long as Borrower has not misappropriated Rents in violation of the Loan Documents);
(x) failure to obtain and maintain the fully paid for Policies in accordance with Section 5.1.1 hereof, provided Borrower shall not be liable to the extent funds to pay such amounts are available in the Insurance Account and Lender failed to pay same or there is insufficient cash flow from the Property to pay for such Policies (so long as Borrower has not misappropriated Rents in violation of the Loan Documents);
(xi) Borrower's indemnification of Lender set forth m Section 9.2 hereof;
(xii) any amount expended cost or expense incurred by Lender in connection with the foreclosure enforcement of its rights and remedies hereunder or under any other Loan Document; and/or
(xiii) any misrepresentation or failure to disclose a material fact in that certain estoppel certificate delivered by the Condominium Association to Lender on the Closing Date. Notwithstanding anything to the contrary in this Agreement or any of the Mortgage, but only in the event that any Borrower or any Guarantor takes action to impede such foreclosure or otherwise contests the foreclosure in bad faith;
(viii) to recover damages, costs and expenses arising from, or in connection with, the failure by Borrower to pay Taxes and Insurance Premiums when due to the extent that Borrower was not required to deposit such amounts with Lender pursuant to Section 6 hereof, but only to the extent there was available revenue from the Property for the period in question sufficient to pay such Taxes and Insurance Premiums, and provided further that Lender does not prevent such proceeds from being so applied;
(ix) to recover damages, costs and expenses arising from the failure of the representations set forth in Section 3.1.8 to be true or Borrower’s failure to comply with the provisions of Sections 4.2.11 of this Agreement; and
(x) to recover damages, costs and expenses arising from, or in connection with, any Lien arising from a written instrument executed by any Borrower or any Affiliate thereof expressly creating such Lien, to the extent such Lien is prohibited under this Agreement.
(b) Notwithstanding the foregoing, the agreement of Lender not to limit recourse liability as set forth in Section 11.22(a) above SHALL BECOME NULL AND VOID and shall be of no further force and effect and the Debt shall be fully recourse to Borrower (and to Guarantor under the Guaranty, on the additional terms and conditions thereof and subject to any limitations set forth herein or therein) in the event that:
(i) any Borrower commences a voluntary bankruptcy or insolvency proceeding;
(ii) an involuntary bankruptcy or insolvency proceeding is commenced against any Borrower and is not dismissed within 90 days of filing; or
(iii) voluntary Transfer of the Property occurs by written instrument executed by any Borrower or any Affiliate thereof, which instrument expressly effects such Transfer, or a Secondary Financing is voluntarily incurred in violation of the other Loan Documents, except as otherwise consented to by (A) Lender in writing (which consent may be withheld in Lender’s sole discretion).
(c) Notwithstanding the provisions of clauses (i) and (ii) of Section 11.22(b) no Guarantor shall be liable for any amount related to a Qualified Involuntary Bankruptcy.
(d) In addition, this agreement shall not waive be deemed to have waived any rights right which Lender would may have under Section 506(a), 506(b), 1111(b) or any other provisions of Title 11 of the Bankruptcy Code to file a claim for the full amount of the Debt Obligations or to require that the Property all collateral shall continue to secure all of the DebtObligations 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" ): (i) a breach of the covenants set forth in Section 4.4 hereof or a breach of any of the representations set forth in the "Recycled SPE Certificate" delivered to Lender in connection with the Loan; (ii) Borrower fails to obtain Lender's prior consent to any subordinate financing secured by the Property or other voluntary Lien encumbering the Property; (iii) 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 ownership interest in Borrower, in either case as required by the Mortgage or this Agreement other than a Permitted Transfer; (iv) Borrower or any SPC Party files a voluntary petition under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (v) Borrower is substantively consolidated with any other Person; unless such consolidation was initiated by Lender or was involuntary and not consented to by Borrower, such SPC Party or Guarantor and is discharged, stayed or dismissed within sixty (60) days following the occurrence of such consolidation; (vi) the filing of an involuntary petition against Borrower and/or any SPC Party under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law by any other Person (excluding Lender) in which Borrower and/or any SPC Party colludes with or otherwise assists such Person, and/or Borrower and/or any SPC Party solicits or causes to be solicited petitioning creditors for any involuntary petition against Borrower and/or any SPC Party by any Person; (vii) Borrower and/or any SPC Party files an answer consenting to, or otherwise acquiescing in, or joining in, any involuntary petition filed against it by any other Person (excluding Lender) under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (viii) Borrower or any Affiliate, officer, director or representative 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; (ix) Borrower or any SPC Party 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 (x) 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 other than defenses raised or sought in good faith in connection with such enforcement action or exercise or assertion of rights or remedies by or on behalf of Lender.
Appears in 1 contract
Sources: Loan Agreement (Bluerock Residential Growth REIT, Inc.)