Exculpation. (a) Subject to the qualifications below, Lender shall not enforce the liability and obligation of Borrower to perform and observe the obligations contained in the Note, this Agreement, the Security Instrument or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against Borrower or any officer, director, shareholder, partner, member, principal, employee of Borrower or any direct or indirect owner of Borrower (provided that the foregoing shall not limit in any manner, the liability of any Guarantor), except that Lender may bring 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 Security Instrument and the other Loan Documents, or in the Property (or any portion thereof), the Rents, or any other collateral given to Lender pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower’s interest in the Property, in the Rents and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Security Instrument and the other Loan Documents, agrees that it shall not sue for, seek or demand any deficiency judgment against Borrower in any such action or proceeding under or by reason of or under or in connection with the Note, this Agreement, the Security Instrument or the other Loan Documents. The provisions of this Section 9.3 shall not, however, (i) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (ii) impair the right of Lender to name Borrower as a party defendant in any action or suit for foreclosure and sale under the Security Instrument; (iii) affect the validity or enforceability of any guaranty, indemnity or similar agreement or undertaking made in connection with the Loan or any of the rights and remedies of Lender thereunder; (iv) impair the right of Lender to obtain the appointment of a receiver; (v) impair the enforcement of any assignment of leases contained in the Security Instrument and any other Loan Documents; or (vi) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted by the Security Instrument (if required by applicable law and provided such deficiency judgment is not enforced personally against Borrower or any officer, director, shareholder, partner, member, principal, employee of Borrower or any direct or indirect owner of Borrower (excluding Guarantor under the Guaranty and Environmental Indemnity, as applicable)) or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against the Property (or any portion thereof).
Appears in 3 contracts
Samples: Loan Agreement (Global Net Lease, Inc.), Loan Agreement (Healthcare Trust, Inc.), Loan Agreement (Necessity Retail REIT, Inc.)
Exculpation. (a) Subject to the qualifications below, Lender shall not enforce the liability and obligation of Borrowers (or any of Borrowers’ members, managers, partners shareholders, officers, directors or Affiliates, whether direct or indirect, collectively, the “Borrower Parties”) to perform and observe the obligations contained in the NoteNotes, this Agreement, the Security Instrument Mortgage or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against Borrower or any officer, director, shareholder, partner, member, principal, employee of Borrower or any direct or indirect owner of Borrower (provided that the foregoing shall not limit in any manner, the liability of any Guarantor)either Borrower, except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender to enforce and realize upon its interest under the NoteNotes, this Agreement, the Security Instrument Mortgage and the other Loan Documents, or in any or all of the Property (or any portion thereof)Properties, the Rents, the Vacant Space Rent or any other collateral given to Lender pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrowers or the Borrower Parties only to the extent of Borrower’s Borrowers’ or the Borrower Parties’ interest in the PropertyProperties, in the Rents Rents, in the Vacant Space Rent and in any other collateral given to Lender, and Lender, by accepting the NoteNotes, this Agreement, the Security Instrument Mortgage and the other Loan Documents, agrees that it shall not sue xxx for, seek or demand any deficiency judgment against either Borrower or the Borrower Parties 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 Security Instrument Mortgage or the other Loan Documents. The provisions of this Section 9.3 shall not, however, (ia) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (iib) impair the right of Lender to name Borrower Borrowers as a party defendant defendants in any action or suit for foreclosure and sale under the Security InstrumentMortgage; (iiic) affect the validity or enforceability of any guaranty, indemnity or similar agreement or undertaking guaranty made in connection with the Loan or any of the rights and remedies of Lender thereunder; (ivd) impair the right of Lender to obtain the appointment of a receiver; (ve) impair the enforcement of any assignment the Assignment of leases contained in the Security Instrument and any other Loan DocumentsLeases; or (vif) constitute a prohibition against Lender to seek seeking a deficiency judgment against Borrower Borrowers in order to fully realize the security granted by the Security Instrument (if required by applicable law and provided such deficiency judgment is not enforced personally against Borrower Mortgage or any officer, director, shareholder, partner, member, principal, employee of Borrower or any direct or indirect owner of Borrower (excluding Guarantor under the Guaranty and Environmental Indemnity, as applicable)) or to commence commencing any other appropriate action or proceeding in order for Lender to exercise its remedies against the Property Properties; or (g) constitute a waiver of the right of Lender to enforce the liability and obligation of Borrowers, by money judgment or otherwise, to the extent of any portion thereof).actual loss, damage, cost, expense, liability, claim or other obligation incurred by Lender (including attorneys’ fees and costs reasonably incurred) arising out of or in connection with the following:
Appears in 3 contracts
Samples: Pledge and Security Agreement (MPG Office Trust, Inc.), Pledge and Security Agreement (MPG Office Trust, Inc.), Loan Agreement (Maguire Properties Inc)
Exculpation. (a) Subject to Except as otherwise provided herein or in the qualifications belowother Loan Documents, Lender shall not enforce the liability and obligation of Borrower to perform and observe the obligations contained herein or in the Note, this Agreement, the Security Instrument 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 and the Environmental Indemnity), (3) any Affiliate of Borrower, (4) any Person owning, directly or indirectly, any legal or beneficial interest in Borrower or any officer, director, shareholder, Affiliate of Borrower or (5) any direct or indirect limited partner, member, principal, employee officer, beneficiary, trustee, shareholder, Affiliate or director of Borrower or any direct or indirect owner of Borrower Persons described in clauses (provided that 1) through (5) above (collectively, subject to the foregoing shall not limit exceptions in any mannerclauses (i) and (ii) below, the liability of any Guarantor“Exculpated Parties”), except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender to enforce and realize upon its interest under the Note, this Agreement, the Security Instrument Note, the Mortgages and the other Loan Documents, or and the interest in the Property (or any portion thereof)Properties, the Rents, or Rents and any other collateral given to Lender pursuant to created by this Agreement, the Note, the Mortgages and the other Loan Documents; provided, however, that, except as specifically provided herein, that any judgment in any such action or proceeding shall be enforceable against Borrower Borrower, only to the extent of Borrower’s interest in the PropertyProperties, in the Rents and in any other collateral given to Lender, and . Lender, by accepting the Note, this Agreement, the Security Instrument Note, the Mortgages and the other Loan Documents, agrees that it shall not sue not, except as otherwise provided in this Section 15.1, xxx for, seek or demand any deficiency judgment against Borrower any 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 Security Instrument Note, the Mortgages or the other Loan Documents. The provisions of this Section 9.3 15.1 shall not, however, (i) constitute a waiver, release or impairment of any obligation evidenced or secured by any of this Agreement, the Note, the Mortgages or the other Loan Documents; (ii) impair the right of Lender to name Borrower or Operating Lessee as a party defendant in any action or suit for judicial foreclosure and sale under this Agreement and the Security InstrumentMortgages; (iii) affect the validity or enforceability of any indemnity (including, without limitation, those contained in Article 14 of this Agreement and the Environmental Indemnity), guaranty, indemnity master lease or similar agreement or undertaking instrument made in connection with this Agreement, the Note, the Mortgages and the other Loan or any of the rights and remedies of Lender thereunderDocuments; (iv) impair the right of Lender to obtain the appointment of a receiver; (v) impair the enforcement of any the assignment of leases provisions contained in the Security Instrument and any other Loan DocumentsMortgages; or (vi) 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 obtain any Insurance Proceeds or Awards to which Lender would otherwise be entitled under this Agreement; provided, however, Lender shall only enforce such judgment to the security granted by extent of the Security Instrument (if required by applicable law and provided such deficiency judgment is not enforced personally against Borrower or any officer, director, shareholder, partner, member, principal, employee of Borrower or any direct or indirect owner of Borrower (excluding Guarantor under the Guaranty and Environmental Indemnity, as applicable)) or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against the Property (or any portion thereof)Insurance Proceeds and/or Awards.
Appears in 3 contracts
Samples: Loan Agreement (Ashford Hospitality Trust Inc), Loan Agreement (Ashford Hospitality Trust Inc), Loan Agreement (Ashford Hospitality Trust Inc)
Exculpation. (a) Subject to the qualifications below, the Debt and the Other Obligations shall be non-recourse to Borrower, Guarantor and their respective Affiliates and Lender shall not enforce the liability and obligation of Borrower to perform and observe the obligations contained in the Note, this Agreement, the Security Instrument Mortgage or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against Borrower or any officerBorrower, director, shareholder, partner, member, principal, employee of Borrower or any direct or indirect owner of Borrower (provided that the foregoing shall not limit in any manner, the liability of any Guarantor), Guarantor and their respective Affiliates except that Lender may bring a foreclosure action, an action for specific performance of non-monetary obligations or any other appropriate action or proceeding to enable Lender to enforce and realize upon its interest under the Note, this Agreement, the Security Instrument Mortgage and the other Loan Documents, or in the Property (or any portion thereof)Property, the Rents, or any other collateral given to Lender pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower’s interest in the Property, in the Rents and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Security Instrument Mortgage and the other Loan Documents, agrees that it shall not sue xxx for, seek or demand any deficiency judgment against 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 Security Instrument Mortgage or the other Loan Documents. The provisions of this Section 9.3 shall not, however, (ia) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (iib) 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 Security InstrumentMortgage; (iiic) affect the validity or enforceability of the Guaranty or any guaranty, indemnity or similar agreement or undertaking other guaranty made in connection with the Loan or any of the rights and remedies of Lender thereunder; (ivd) impair the right of Lender to obtain the appointment of a receiverreceiver with respect to the Property; (ve) impair the enforcement of any assignment of leases contained in the Security Instrument and any other Loan DocumentsAssignment of Leases; or (vif) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted by the Security Instrument (if required by applicable law and provided such deficiency judgment is not enforced personally against Borrower or any officer, director, shareholder, partner, member, principal, employee of Borrower or any direct or indirect owner of Borrower (excluding Guarantor under Mortgage to the Guaranty and Environmental Indemnity, as applicable)) or extent necessary to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against all of the Property Property; or (g) constitute a waiver of the right of Lender to enforce the liability and obligation of Borrower, by money judgment or otherwise, to the extent of any portion thereof).actual loss, damage, cost, expense, liability, claim or other obligation actually incurred by Lender but excluding consequential, special or punitive damages (including attorneys’ fees and costs reasonably incurred) arising out of or in connection with the following:
Appears in 3 contracts
Samples: Loan Agreement (Innkeepers Usa Trust/Fl), Loan Agreement (Innkeepers Usa Trust/Fl), Loan Agreement (Innkeepers Usa Trust/Fl)
Exculpation. No Manager, Officer, Member, Affiliate of a Member, any of their respective direct or indirect officers, directors, equityholders, employees or managers or any liquidating trustee or fiduciary of the Company (aeach a “Covered Person”) Subject shall be liable to the qualifications belowCompany or any Member under any theory of law, Lender shall not enforce including tort, contract or otherwise (INCLUDING A COVERED PERSON’S OWN NEGLIGENCE OR GROSS NEGLIGENCE) for any loss, damage or claim incurred by reason of any act or omission by such Covered Person in good faith on behalf of the liability Company and obligation in a manner reasonably believed to be within the scope of Borrower to perform and observe the obligations contained in the Note, authority conferred on such Covered Person by this Agreement, the Security Instrument including any such loss, damage or the claim attributable to errors in judgment, negligence or gross negligence or other Loan Documents by any action or proceeding wherein a money judgment shall be sought against Borrower or any officer, director, shareholder, partner, member, principal, employee fault of Borrower or any direct or indirect owner of Borrower (provided that the foregoing shall not limit in any manner, the liability of any Guarantor)such Covered Person, except that Lender may bring a foreclosure actionCovered Person shall be liable for any such loss, an action for specific performance damage or claim incurred by reason of Culpable Acts of such Covered Person. A Covered Person shall be fully protected in relying in good faith upon the records of the Company and upon such information, opinions, reports or statements presented to the Company by any Person as to matters the Covered Person reasonably believes are within such other Person’s professional or expert competence and who has been selected with reasonable care by or on behalf of the Company, including information, opinions, reports or statements as to the value and amount of the assets, liabilities, profits, losses or any other appropriate action or proceeding facts pertinent to enable Lender the existence and amount of assets from which distributions to enforce and realize upon its interest under the NoteMembers might properly be paid. IN NO EVENT WILL A COVERED PERSON BE LIABLE TO THE COMPANY OR ANY MEMBER FOR CONSEQUENTIAL, this AgreementINDIRECT, the Security Instrument and the other Loan DocumentsINCIDENTAL, or in the Property SPECIAL, PUNITIVE, OR ANY OTHER NON-DIRECT DAMAGES INCLUDING, WITHOUT LIMITATION, LOST PROFITS OR FUTURE REVENUES, COST OF CAPITAL, LOSS OF BUSINESS REPUTATION OR OPPORTUNITY OR ANY CLAIM OR DEMAND AGAINST THE COMPANY BY ANY OTHER PARTY DUE TO ANY CAUSE WHATSOEVER (or any portion thereofINCLUDING, WITHOUT LIMITATION, THE COVERED PERSON’S OWN NEGLIGENCE OR GROSS NEGLIGENCE), the Rents, or any other collateral given to Lender pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower’s interest in the Property, in the Rents and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Security Instrument and the other Loan Documents, agrees that it shall not sue for, seek or demand any deficiency judgment against Borrower in any such action or proceeding under or by reason of or under or in connection with the Note, this Agreement, the Security Instrument or the other Loan Documents. The provisions of this Section 9.3 shall not, however, (i) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (ii) impair the right of Lender to name Borrower as a party defendant in any action or suit for foreclosure and sale under the Security Instrument; (iii) affect the validity or enforceability of any guaranty, indemnity or similar agreement or undertaking made in connection with the Loan or any of the rights and remedies of Lender thereunder; (iv) impair the right of Lender to obtain the appointment of a receiver; (v) impair the enforcement of any assignment of leases contained in the Security Instrument and any other Loan Documents; or (vi) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted by the Security Instrument (if required by applicable law and provided such deficiency judgment is not enforced personally against Borrower or any officer, director, shareholder, partner, member, principal, employee of Borrower or any direct or indirect owner of Borrower (excluding Guarantor under the Guaranty and Environmental Indemnity, as applicable)) or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against the Property (or any portion thereof)EVEN IF A COVERED PERSON HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Appears in 3 contracts
Samples: Limited Liability Company Agreement (Darling Ingredients Inc.), Limited Liability Company Agreement (Darling Ingredients Inc.), Limited Liability Company Agreement (Mascoma Corp)
Exculpation. (a) 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 Security Instrument 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 officer, director, shareholder, partner, member, principal, employee of Borrower or any direct or indirect owner of Borrower (provided that the foregoing shall not limit in any manner, the liability of any Guarantor)other Person, except that Lender may bring 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 AgreementProperty, the Security Instrument and the other Loan Documents, or in the Property (or any portion thereof), the Rents, Rents or any other collateral given to Lender pursuant to this Agreement and the other Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against the Borrower Parties only to the extent of Borrower’s their interest in the Property, in the Rents and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Security Instrument Note and the other Loan Documents, agrees that it shall not sue xxx for, seek or demand any deficiency judgment against any of the Borrower Parties or any other Person in any such action or proceeding under or by reason of or under or in connection with the Note, this Agreement, the Security Instrument Note or any of the other Loan Documents. The provisions of this Section 9.3 paragraph shall not, however, (i) constitute a waiver, release or impairment of any obligation evidenced or secured by this Agreement, the Note or any of the other Loan Documents; (ii) 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 Security InstrumentMortgage; (iii) affect the validity or enforceability of any guaranty, indemnity or similar agreement or undertaking guaranty made in connection with the Loan or any of the rights and remedies of Lender thereunder; (iv) impair the right of Lender to obtain the appointment of a receiver; (v) impair the enforcement of any assignment the Assignment of leases contained in the Security Instrument Leases and any other Loan DocumentsRents; or (vi) constitute a prohibition against waiver of the right of Lender to seek a deficiency judgment against Borrower in order to fully realize enforce the security granted by the Security Instrument (if required by applicable law liability and provided such deficiency judgment is not enforced personally against Borrower or any officer, director, shareholder, partner, member, principal, employee obligation of Borrower (but not against any members of Borrower (other than Guarantor to the extent provided in the Non-Recourse Guaranty and/or the Partial Payment Guaranty) or any their direct or indirect owner of Borrower (excluding Guarantor under the Guaranty and Environmental Indemnity, as applicable)) constituent members or to commence partners or any other appropriate action Person), by money judgment or proceeding otherwise, to the extent of any loss, damage, cost, expense, liability, claim or other obligation (but excluding any punitive, consequential or speculative damages) incurred by Lender (including attorneys’ fees and costs reasonably incurred) arising out of or in order for Lender to exercise its remedies against connection with the Property (or any portion thereof).following:
Appears in 2 contracts
Samples: Loan Agreement (Maguire Properties Inc), Loan Agreement (Maguire Properties Inc)
Exculpation. (a) Subject to the qualifications below, Lender shall not enforce the liability and obligation of Borrowers (or any of Borrowers’ members, managers partners shareholders, officers, directors or Affiliates, whether direct or indirect, collectively, the “Borrower Parties”) to perform and observe the obligations contained in the Note, this Agreement, the Security Instrument Pledge Agreements or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against Borrower or any officer, director, shareholder, partner, member, principal, employee of Borrower or any direct or indirect owner of Borrower (provided that the foregoing shall not limit in any manner, the liability of any Guarantor)either Borrower, except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender to enforce and realize upon its interest under the Note, this Agreement, the Security Instrument Pledge Agreements and the other Loan Documents, or in any or all of the Property (or any portion thereof), the Rents, Collateral or any other collateral given to Lender pursuant to the Pledge Agreements and the other Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrowers or the Borrower Parties only to the extent of Borrower’s Borrowers’ or the Borrower Parties’ interest in the Property, in the Rents Collateral and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Security Instrument Pledge Agreements, and the other Loan Documents, agrees that it shall not sue xxx for, seek or demand any deficiency judgment against either Borrower or the Borrower Parties 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 Security Instrument Pledge Agreements, or the other Loan Documents. The provisions of this Section 9.3 shall not, however, (ia) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (iib) impair the right of Lender to name Borrower Borrowers as a party defendant defendants in any action or suit for foreclosure and sale under the Security InstrumentPledge Agreements; (iiic) affect the validity or enforceability of any guaranty, indemnity or similar agreement or undertaking guaranty made in connection with the Loan or any of the rights and remedies of Lender thereunder; (ivd) impair the right of Lender to obtain the appointment of a receiver; (v) impair the enforcement of any assignment of leases contained in the Security Instrument and any other Loan Documents; or (vie) constitute a prohibition against Lender to seek seeking a deficiency judgment against Borrower Borrowers in order to fully realize the security granted by the Security Instrument (if required by applicable law and provided such deficiency judgment is not enforced personally against Borrower Pledge Agreements or any officer, director, shareholder, partner, member, principal, employee of Borrower or any direct or indirect owner of Borrower (excluding Guarantor under the Guaranty and Environmental Indemnity, as applicable)) or to commence commencing any other appropriate action or proceeding in order for Lender to exercise its remedies against the Property Properties; or (e) constitute a waiver of the right of Lender to enforce the liability and obligation of Borrowers, by money judgment or otherwise, to the extent of any portion thereof).actual loss, damage, cost, expense, liability, claim or other obligation incurred by Lender (including attorneys’ fees and costs reasonably incurred) arising out of or in connection with the following: 97
Appears in 2 contracts
Samples: Pledge and Security Agreement (MPG Office Trust, Inc.), Pledge and Security Agreement (MPG Office Trust, Inc.)
Exculpation. (a) Subject to the qualifications below, Lender shall not enforce the liability and obligation of Borrowers (or any of Borrowers’ members, managers partners shareholders, officers, directors or Affiliates, whether direct or indirect, collectively, the “Borrower Parties”) to perform and observe the obligations contained in the Note, this Agreement, the Security Instrument Pledge Agreements or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against Borrower or any officer, director, shareholder, partner, member, principal, employee of Borrower or any direct or indirect owner of Borrower (provided that the foregoing shall not limit in any manner, the liability of any Guarantor)either Borrower, except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender to enforce and realize upon its interest under the Note, this Agreement, the Security Instrument Pledge Agreements and the other Loan Documents, or in any or all of the Property (or any portion thereof), the Rents, Collateral or any other collateral given to Lender pursuant to the Pledge Agreements and the other Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrowers or the Borrower Parties only to the extent of Borrower’s Borrowers’ or the Borrower Parties’ interest in the Property, in the Rents Collateral and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Security Instrument Pledge Agreements, and the other Loan Documents, agrees that it shall not sue xxx for, seek or demand any deficiency judgment against either Borrower or the Borrower Parties 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 Security Instrument Pledge Agreements, or the other Loan Documents. The provisions of this Section 9.3 shall not, however, (ia) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (iib) impair the right of Lender to name Borrower Borrowers as a party defendant defendants in any action or suit for foreclosure and sale under the Security InstrumentPledge Agreements; (iiic) affect the validity or enforceability of any guaranty, indemnity or similar agreement or undertaking guaranty made in connection with the Loan or any of the rights and remedies of Lender thereunder; (ivd) impair the right of Lender to obtain the appointment of a receiver; (v) impair the enforcement of any assignment of leases contained in the Security Instrument and any other Loan Documents; or (vie) constitute a prohibition against Lender to seek seeking a deficiency judgment against Borrower Borrowers in order to fully realize the security granted by the Security Instrument (if required by applicable law and provided such deficiency judgment is not enforced personally against Borrower Pledge Agreements or any officer, director, shareholder, partner, member, principal, employee of Borrower or any direct or indirect owner of Borrower (excluding Guarantor under the Guaranty and Environmental Indemnity, as applicable)) or to commence commencing any other appropriate action or proceeding in order for Lender to exercise its remedies against the Property Properties; or (e) constitute a waiver of the right of Lender to enforce the liability and obligation of Borrowers, by money judgment or otherwise, to the extent of any portion thereof).actual loss, damage, cost, expense, liability, claim or other obligation incurred by Lender (including attorneys’ fees and costs reasonably incurred) arising out of or in connection with the following:
Appears in 2 contracts
Samples: Pledge and Security Agreement (MPG Office Trust, Inc.), Pledge and Security Agreement (MPG Office Trust, Inc.)
Exculpation. (a) Subject Notwithstanding anything in the Loan Documents to the contrary, but subject to the qualifications belowhereinbelow set forth, Xxxxxx agrees that (i) Borrower shall be liable upon the indebtedness evidenced hereby and for the other obligations arising under the Loan Documents to the full extent (but only to the extent) of the security therefor, the same being all properties (whether real or personal), rights, estates and interests now or at any time hereafter securing the payment of this Note and/or the other obligations of Borrower under the Loan Documents (collectively, the "Security Property"), (ii) if default occurs in the timely and proper payment of all or any part of such indebtedness evidenced hereby or in the timely and proper performance of the other obligations of Borrower under the Loan Documents, any judicial proceedings brought by Lender against Borrower shall not enforce be limited to the preservation, enforcement and foreclosure, or any thereof, of the liens, security titles, estates, assignments, rights and security interest now or at any time hereafter securing the payment of this Note and/or the other obligations of Borrower under the Loan Documents, and no attachment, execution or other writ of process shall be sought, issued or levied upon any assets, properties or funds of Borrower other than the Security Property except with respect to the liability described below in this section, and obligation (iii) in the event of a foreclosure of such liens, security titles the payment assignments, rights or security interests securing the payment of this Note and/or the other obligations of Borrower to perform and observe under the obligations contained in Loan Documents, no judgment for any deficiency upon the Note, this Agreement, the Security Instrument or the other Loan Documents by any action or proceeding wherein a money judgment indebtedness evidenced hereby shall be sought or obtained by Lender against Borrower or any officerBorrower, director, shareholder, partner, member, principal, employee of Borrower or any direct or indirect owner of Borrower (provided that the foregoing shall not limit in any manner, except with respect to the liability of any Guarantor), except that Lender may bring 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, described below in this Agreement, the Security Instrument and the other Loan Documents, or in the Property (or any portion thereof), the Rents, or any other collateral given to Lender pursuant to the Loan Documentssection; provided, however, that, except as specifically provided hereinnotwithstanding the foregoing provisions of this section, any judgment in any such action or proceeding Borrower shall be enforceable fully and personally liable and subject to legal action (a) for proceeds paid under any insurance policies (or paid as a result of any other claim or cause of action against Borrower only any person or entity) by reason of damage, loss or destruction to all or any portion of the Security Property, to the full extent of Borrower’s interest in the Property, in the Rents and in any other collateral given such proceeds not previously delivered to Lender, and Lenderbut which, by accepting under the Note, this Agreement, terms of the Security Instrument and the other Loan Documents, agrees that it shall should have been delivered to Lender; (b) for proceeds or awards resulting from the condemnation or other taking in lieu of condemnation of all or any portion of the Security Property, or any of them, to the full extent of such proceeds or awards not sue forpreviously delivered to Lender, seek but which, under the term of the Loan Documents, should have been delivered to Lender; (c) for all tenant security deposits or demand other refundable deposits paid to or held by Borrower or any deficiency judgment against Borrower in any such action other person or proceeding under or by reason of or under or entity in connection with leases of all or any portion of the NoteSecurity Property which are not applied in accordance with the terms of the applicable lease or other agreement; (d) for rent and other payments received from tenants under leases of all or any portion of the Security Property paid more than one month in advance; (e) for rents, this Agreementissues, profits and revenues of all or any portion of the Security Property received or applicable to a period after any notice of default from Lender hereunder or under the Loan Documents in the event of any default by Borrower hereunder or thereunder which are not either applied to the ordinary and necessary expenses of owning and operating the Security Property or paid to Lender; (f) for waste committed on the Security Property, Damage to the Security Property at a result of the intentional misconduct or gross negligence of Borrower or any of its principals, officers or general partners, or any agent or employee of any such persons, or any removal of the Security Property in violation of the terms of the Loan Documents, to the full extent of the losses or damages incurred by Xxxxxx on account of such failure, (g) for 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 Security Property which would be superior to the lien or security title of the Security Instrument or the other Loan Documents. The provisions , to the full extent of this Section 9.3 shall notthe amount claimed by any such lien claimant, however(h) for all obligations and indemnities of Borrower under the Loan Documents relating to hazardous or toxic substances or compliance with environmental laws and regulations to the full extent of any losses or damages (including those resulting from diminution in value of any Security Property) incurred by Xxxxxx as a result of the existence of such hazardous or toxic substances or failure to comply with environmental laws or regulations, and (i) constitute for fraud or material misrepresentation by Borrower or any of its principals, officers, or general partners, any guarantor, any indemnitor or any agent, employee or other person authorized or apparently authorized to make statements or representations on behalf of Xxxxxxxx, any principal, officer or partner of Xxxxxxxx, any guarantor or any indemnitor, to the full extent of any losses, damages and expenses of Xxxxxx on account thereof. References herein to particular sections of the Loan Documents shall be deemed references to such sections as affected by other provision of the Loan Documents relating thereto. Nothing contained in this section shall (1) be deemed to be a waiver, release or impairment of the indebtedness evidenced by this Note or the other obligations of Borrower under the Loan Documents or the lien of the Loan documents upon the Security Property, or (2) preclude Lender from foreclosing the Loan Documents in case of any obligation evidenced default or secured by from enforcing any of the Loan Documents; (ii) impair the right other rights of Lender to name Borrower except as a party defendant stated in this section, or (3) limit or impair in any action or suit for foreclosure way whatever the indemnity and sale under the Security Instrument; (iii) affect the validity or enforceability Guaranty Agreement of any guaranty, indemnity or similar agreement or undertaking made even date executed and delivered in connection with the Loan indebtedness evidenced by this Note or release, relieve, reduce, waive or impair in any of the rights and remedies of Lender thereunder; (iv) impair the right of Lender to obtain the appointment of a receiver; (v) impair the enforcement way whatsoever, any obligation of any assignment of leases contained in the Security Instrument and any other Loan Documents; or (vi) constitute a prohibition against Lender party to seek a deficiency judgment against Borrower in order to fully realize the security granted by the Security Instrument (if required by applicable law and provided such deficiency judgment is not enforced personally against Borrower or any officer, director, shareholder, partner, member, principal, employee of Borrower or any direct or indirect owner of Borrower (excluding Guarantor under the Guaranty and Environmental Indemnity, as applicable)) or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against the Property (or any portion thereof)Indemnity Agreement.
Appears in 2 contracts
Samples: Promissory Note (Homes for America Holdings Inc), Promissory Note (Homes for America Holdings Inc)
Exculpation. (a) Subject to None of the qualifications below, Lender shall not enforce the liability and obligation of Borrower to perform and observe the obligations contained in the Note, this AgreementAgents, the Security Instrument Collateral Agent or the other Loan Documents by Arranger nor any of their respective directors, officers, employees or Agents shall be liable to any Revolving Credit Lender for any action taken or proceeding wherein a money judgment shall omitted to be sought against Borrower or any officer, director, shareholder, partner, member, principal, employee of Borrower or any direct or indirect owner of Borrower (provided that the foregoing shall not limit in any manner, the liability of any Guarantor), except that Lender may bring 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 Security Instrument and the other Loan DocumentsRevolving Credit Document, or in connection herewith or therewith, except for its own willful misconduct or gross negligence, nor responsible for any recitals or warranties herein or therein, nor for the Property (effectiveness, enforceability, sufficiency, validity or any portion thereof), the Rents, due execution of this Agreement or any other collateral given to Lender pursuant to Revolving Credit Document, nor for the Loan Documents; providedcreation, howeverattachment, that, except as specifically provided herein, any judgment in any such action perfection or proceeding shall be enforceable against Borrower only to the extent of Borrower’s interest in the Property, in the Rents and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Security Instrument and the other Loan Documents, agrees that it shall not sue for, seek or demand any deficiency judgment against Borrower in any such action or proceeding under or by reason of or under or in connection with the Note, this Agreement, the Security Instrument or the other Loan Documents. The provisions of this Section 9.3 shall not, however, (i) constitute a waiver, release or impairment priority of any obligation evidenced or secured Liens purported to be created by any of the Loan Revolving Credit Documents, or the validity, genuineness, enforceability, existence, value or sufficiency of any collateral security, nor to make any inquiry respecting the performance by the Revolving Credit Borrowers of their obligations hereunder or under any other Revolving Credit Document. Any such inquiry which may be made by any Agent or the Collateral Agent shall not obligate it to make any further inquiry or to take any action. No Agent or the Collateral Agent shall have any duties or responsibilities except those specifically set forth in this Agreement and the other Revolving Credit Documents and shall not by reason of the relationship established herein be a trustee of fiduciary of any other Agent, the Collateral Agent or any Lender. Unless it specifically agrees to do so in writing, no Agent shall be obligated to initiate, conduct or supervise any litigation or collection proceedings, whether in bankruptcy or otherwise, any work-out or post-default negotiations or take any other similar actions; provided, that, at the written request of the Required Revolving Credit Lenders, the Administrative Agent shall be obligated to foreclose upon or set off against the cash collateral deposited with it under clause (iic) impair of Section 3.1 in accordance with Section 5.9. Each Agent and the right Collateral Agent shall be entitled to rely: (a) upon any certification, notice or other communication (including any thereof by telephone, telex, telegram or cable) believed by it to be genuine and correct and to have been signed or sent by or on behalf of Lender the proper Person or Persons; and (b) upon advice and statements of legal counsel, independent accountants and other experts selected by it in good faith. As to name Borrower as a party defendant any matters not expressly provided for by this Agreement or any Revolving Credit Document, each Agent and the Collateral Agent shall in all cases be fully protected in acting, or in refraining from acting, hereunder in accordance with instructions signed by the Required Revolving Credit Lenders; and such instructions of the Required Revolving Credit Lenders and any action taken or suit for foreclosure and sale under the Security Instrument; (iii) affect the validity or enforceability of any guaranty, indemnity or similar agreement or undertaking made in connection with the Loan or any failure to act pursuant thereto shall be binding on all of the rights and remedies of Lender thereunder; (iv) impair the right of Lender to obtain the appointment of a receiver; (v) impair the enforcement of any assignment of leases contained in the Security Instrument and any other Loan Documents; or (vi) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted by the Security Instrument (if required by applicable law and provided such deficiency judgment is not enforced personally against Borrower or any officer, director, shareholder, partner, member, principal, employee of Borrower or any direct or indirect owner of Borrower (excluding Guarantor under the Guaranty and Environmental Indemnity, as applicable)) or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against the Property (or any portion thereof)Revolving Credit Lenders.
Appears in 2 contracts
Samples: Revolving Credit Agreement (Specialty Foods Corp), Revolving Credit Agreement (Specialty Foods Acquisition Corp)
Exculpation. (a) Subject to the qualifications below, Lender shall not enforce the liability and obligation of Borrower to perform and observe the obligations contained in the this Note, this Agreement, the Security Instrument Deed of Trust or in any of the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against Borrower or any officer, director, shareholder, partner, member, principal, employee of Borrower or any direct or indirect owner of Borrower (provided that the foregoing shall not limit in any manner, the liability of any Guarantor)Borrower, except that Lender may bring 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 interests under the this Note, this Agreement, the Security Instrument Deed of Trust and the other Loan Documents, or in the Property (or any portion thereof)Trust Property, the RentsRents (as defined in the Deed of Trust), or any other collateral given to Lender pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower’s interest in the Trust Property, in the Rents and in any other collateral given to Lender, and Lender, by . By accepting the this Note, this Agreement, the Security Instrument Deed of Trust and the other Loan Documents, Xxxxxx agrees that it shall not except as otherwise herein provided, sue for, seek or demand any deficiency judgment or other monetary judgment against Borrower in any such action or proceeding under or by reason of or under or in connection with the this Note, this Agreement, the Security Instrument Deed of Trust or the other Loan Documents. The provisions of this Section 9.3 paragraph shall not, however, (ia) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (iib) impair the right of Lender to name Borrower Xxxxxxxx as a party defendant in any action or suit for foreclosure and sale under the Security InstrumentDeed of Trust; (iiic) affect the validity or enforceability of any guaranty, guaranty or indemnity or similar agreement or undertaking made in connection with the Loan or any of the rights and remedies of the Lender thereunder; (ivd) impair the right of Lender to obtain the appointment of a receiver; (ve) impair the enforcement of any assignment the Assignment of leases contained in the Security Instrument and any other Loan DocumentsLeases; or (vif) constitute a prohibition against waiver of the right of Lender to seek a deficiency enforce the liability and obligation of Xxxxxxxx, by money judgment against Borrower or otherwise, to the extent of, but only to the extent of, any loss, damage, cost, expense, liability, claim or other obligation incurred by Xxxxxx (including attorneys’ fees and costs reasonably incurred) arising out of or in order to fully realize connection with the security granted by the Security Instrument (if required by applicable law and provided such deficiency judgment is not enforced personally against Borrower or any officer, director, shareholder, partner, member, principal, employee of Borrower or any direct or indirect owner of Borrower (excluding Guarantor under the Guaranty and Environmental Indemnity, as applicable)) or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against the Property (or any portion thereof).following:
Appears in 2 contracts
Exculpation. (a) Subject to the qualifications below, Lender shall not enforce the liability and obligation of Borrower to perform and observe the obligations contained in the Note, this Agreement, the Security Instrument 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 Borrower or any principal, director, officer, directoremployee, beneficiary, shareholder, partner, member, principaltrustee, employee agent, or Affiliate of Borrower or any direct legal representatives, successors or indirect owner assigns of Borrower (provided that any of the foregoing shall not limit in any manner(collectively, the liability of any Guarantor“Exculpated Parties”), except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender to enforce and realize upon its interest under the Note, this Agreement, the Security Instrument Instruments and the other Loan Documents, or in the Property Properties (or any portion thereof), the Rents, or any other collateral given to Lender pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower’s interest in the PropertyProperties, in the Rents and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Security Instrument Instruments and the other Loan Documents, agrees that it shall not sue xxx for, seek or demand any deficiency judgment against Borrower or any of the Exculpated Parties in any such action or proceeding under or by reason of or under or in connection with the Note, this Agreement, the Security Instrument Instruments or the other Loan Documents. The provisions of this Section 9.3 shall not, however, (i1) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (ii2) impair the right of Lender to name Borrower as a party defendant in any action or suit for foreclosure and sale under the Security InstrumentInstruments; (iii3) affect the validity or enforceability of any guarantyindemnity, indemnity guaranty or similar agreement or undertaking instrument (including, without limitation, indemnities set forth in Article 12 hereof, Section 11.2 hereof, in the Guaranty and the Environmental Indemnity) made in connection with the Loan or any of the rights and remedies of Lender thereunderthereunder (including, without limitation, Lender’s right to enforce said rights and remedies against Borrower and/or Guarantor (as applicable) personally and without the effect of the exculpatory provisions of this Article 13); (iv4) 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; (v5) impair the enforcement of any the assignment of leases and rents contained in the Security Instrument Instruments and in any other Loan Documents; or (vi6) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted by the Security Instrument (if required by applicable law and provided such deficiency judgment is not enforced personally against Borrower or any officer, director, shareholder, partner, member, principal, employee of Borrower or any direct or indirect owner of Borrower (excluding Guarantor under the Guaranty and Environmental Indemnity, as applicable)) Instruments or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against the Property Properties (or any portion thereof).; or (7) 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 reasonable out-of-pocket Loss incurred by Lender (including out-of-pocket attorneys’ fees and costs reasonably incurred but in all events excluding consequential, punitive and special damages (except to the extent Lender is actually liable for such damages)) arising out of or in connection with the following:
Appears in 2 contracts
Samples: Loan Agreement (Northstar Realty Finance Corp.), Loan Agreement (NorthStar Healthcare Income, Inc.)
Exculpation. (a) Subject to the qualifications below, (i) Lender shall not enforce the liability and obligation of Borrower to perform and observe the obligations contained in the Note, this Agreement, the Security Instrument Mortgage or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against Borrower or any officer, director, shareholder, partner, member, principal, employee of the members of Borrower or any direct or indirect owner partner, shareholder, member, manager, owner, officer, director, trustee or employee in or of Borrower (provided that the foregoing shall not limit in any mannercollectively, the liability of any Guarantor)"Exculpated Parties") or Borrower, except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender to enforce and realize upon its interest under the Note, this Agreement, the Security Instrument Mortgage and the other Loan Documents, or in the Property (or any portion thereof)Property, the Rents, or any other collateral given to Lender pursuant to the Loan Documents; provided, however, that, (ii) except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower’s 's interest in the Property, in the Rents and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Security Instrument Mortgage and the other Loan Documents, agrees that it shall not sue for, seek or demand any deficiency judgment against Borrower or any Exculpated Parties in any such action or proceeding under or by reason of or under or in connection with the Note, this Agreement, the Security Instrument 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 9.3 shall not, however, (ia) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (iib) impair the right of Lender to name Borrower as a party defendant in any action or suit for foreclosure and sale under the Security InstrumentMortgage; (iiic) affect the validity or enforceability of or any guaranty, indemnity or similar agreement or undertaking guaranty made in connection with the Loan (including, without limitation, the Guaranty) or any of the rights and remedies of Lender thereunder, or be taken to prevent recourse against any guarantor (including, without limitation, Metropolitan) under any guaranty made in connection with the Loan (including, without limitation, the Guaranty); (ivd) impair the right of Lender to obtain the appointment of a receiver; (ve) impair the enforcement of any assignment the Assignment of leases contained in the Security Instrument and any other Loan DocumentsLeases; or (vif) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted by the Security Instrument (if required by applicable law and provided such deficiency judgment is not enforced personally against Borrower or any officer, director, shareholder, partner, member, principal, employee of Borrower or any direct or indirect owner of Borrower (excluding Guarantor under the Guaranty and Environmental Indemnity, as applicable)) Mortgage or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against the Property Property; or (g) constitute a waiver of the right of Lender to enforce the liability and obligation of Borrower, by money judgment or otherwise, to the extent of any portion thereof).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:
Appears in 2 contracts
Samples: Loan Agreement (Reckson Operating Partnership Lp), Loan Agreement (Reckson Associates Realty Corp)
Exculpation. (a) Subject to the qualifications below, Lender shall not enforce the liability and obligation of Borrower to perform and observe the obligations contained in the Note, this Agreement, the 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 Borrower or any principal, director, officer, directoremployee, beneficiary, shareholder, partner, member, principaltrustee, employee agent, or Affiliate of Borrower or any direct legal representatives, successors or indirect owner assigns of Borrower (provided that any of the foregoing shall not limit in any manner(collectively, the liability of any Guarantor“Exculpated Parties”), except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender to enforce and realize upon its interest under the Note, this Agreement, the Security Instrument and the other Loan Documents, or in the Property (or any portion thereof)Property, the Rents, or any other collateral given to Lender pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower’s interest in the Property, in the Rents and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Security Instrument and the other Loan Documents, agrees that it shall not sue sxx for, seek or demand any deficiency judgment against Borrower or any of the Exculpated Parties in any such action or proceeding under or by reason of or under or in connection with the Note, this Agreement, the Security Instrument or the other Loan Documents. The provisions of this Section 9.3 shall not, however, (i1) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (ii2) impair the right of Lender to name Borrower as a party defendant in any action or suit for foreclosure and sale under the Security Instrument; (iii3) affect the validity or enforceability of any guarantyindemnity, indemnity guaranty or similar agreement or undertaking instrument (including, without limitation, indemnities set forth in Article 12 hereof, Section 11.2 hereof, in the Guaranty and the Environmental Indemnity) made in connection with the Loan or any of the rights and remedies of Lender thereunderthereunder (including, without limitation, Lender’s right to enforce said rights and remedies against Borrower and/or Guarantor (as applicable) personally and without the effect of the exculpatory provisions of this Article 13); (iv4) 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; (v) impair the enforcement of any assignment of leases contained in the Security Instrument and any other Loan Documents; or (vi7) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted by the Security Instrument (if required by applicable law and provided such deficiency judgment is not enforced personally against Borrower or any officer, director, shareholder, partner, member, principal, employee of Borrower or any direct or indirect owner of Borrower (excluding Guarantor under the Guaranty and Environmental Indemnity, as applicable)) or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against the Property Property; or (8) constitute a waiver of the right of Lender to enforce the liability and obligation of Borrower, by money judgment or otherwise, to the extent of any portion thereof).Loss incurred by Lender (including attorneys’ fees and costs reasonably incurred) arising out of or in connection with the following:
Appears in 2 contracts
Samples: Loan Agreement (Clipper Realty Inc.), Loan Agreement (Clipper Realty Inc.)
Exculpation. (a) Subject to the qualifications below, Lender shall not enforce the liability and obligation of Borrower 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 Security Instrument 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 officer, director, shareholder, partner, member, principal, employee of Borrower or any direct or indirect owner of Borrower (provided that the foregoing shall not limit in any manner, the liability of any Guarantor)other Person, except that Lender may bring 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 AgreementProperty, the Security Instrument and the other Loan Documents, or in the Property (or any portion thereof), the Rents, Rents or any other collateral given to Lender pursuant to this Agreement and the other Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against the Borrower Parties only to the extent of Borrower’s their interest in the Property, in the Rents and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Security Instrument Note and the other Loan Documents, agrees that it shall not sue sxx for, seek or demand any deficiency judgment against any of the Borrower Parties or any other Person in any such action or proceeding under or by reason of or under or in connection with the Note, this Agreement, the Security Instrument Note or any of the other Loan Documents. The provisions of this Section 9.3 paragraph shall not, however, (i) constitute a waiver, release or impairment of any obligation evidenced or secured by this Agreement, the Note or any of the other Loan Documents; (ii) 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 Security InstrumentMortgage; (iii) affect the validity or enforceability of any guaranty, indemnity or similar agreement or undertaking guaranty made in connection with the Loan or any of the rights and remedies of Lender thereunder; (iv) impair the right of Lender to obtain the appointment of a receiver; (v) impair the enforcement of any assignment the Assignment of leases contained in the Security Instrument Leases and any other Loan DocumentsRents; or (vi) constitute a prohibition against waiver of the right of Lender to seek a deficiency judgment against Borrower in order to fully realize enforce the security granted by the Security Instrument (if required by applicable law liability and provided such deficiency judgment is not enforced personally against Borrower or any officer, director, shareholder, partner, member, principal, employee obligation of Borrower (but not against any members of Borrower (other than Guarantor to the extent provided in the Non-Recourse Guaranty) or any their direct or indirect owner of Borrower (excluding Guarantor under the Guaranty and Environmental Indemnity, as applicable)) constituent members or to commence partners or any other appropriate action Person), by money judgment or proceeding otherwise, to the extent of any loss, damage, cost, expense, liability, claim or other obligation (but excluding any punitive, consequential or speculative damages) incurred by Lender (including attorneys’ fees and costs reasonably incurred) arising out of or in order for Lender to exercise its remedies against connection with the Property (or any portion thereof).following:
Appears in 2 contracts
Samples: Loan Agreement (Maguire Properties Inc), Loan Agreement (Maguire Properties Inc)
Exculpation. (a) Subject The General Partner agrees to indemnify the Escrow Agent for, and to hold it harmless against, any loss, liability, or expense incurred without gross negligence or willful misconduct on the part of the Escrow Agent, arising out of this Escrow Agreement, as well as the costs and expenses of defending any claim or liability or of prosecuting any action in the premises. The Escrow Agent shall not be obligated to take any action hereunder which might in its reasonable judgment subject it to any expense or liability unless it shall have been furnished with indemnity acceptable to it. Prior to the qualifications belowTermination Date, Lender Subscription Payments held by the Escrow Agent shall remain the property of the Subscribers making such Payments and shall not enforce be subject to a lien of the liability and obligation of Borrower to perform and observe the obligations contained in the Note, this Agreement, the Security Instrument or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against Borrower or any officer, director, shareholder, partner, member, principal, employee of Borrower or any direct or indirect owner of Borrower (provided that the foregoing shall not limit in any manner, the liability of any Guarantor), except that Lender may bring a foreclosure action, an action for specific performance Escrow Agent or any other appropriate creditors of the Fund or the General Partner. The Escrow Agent shall not be obligated to take any action which it is not expressly directed to take in this Agreement unless and until it shall have received written instruction from the Fund. The Escrow Agent shall be liable only for its own gross negligence or proceeding to enable Lender to enforce willful misconduct and realize upon its interest under shall incur no liability for action in accordance with the Noteterms of this Escrow Agreement or with the terms of any instructions received by it from the General Partner, this Agreement, the Security Instrument and the other Loan Documents, whether or in the Property (or any portion thereof), the Rents, or any other collateral given to Lender pursuant not contrary to the Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower’s interest in the Property, in the Rents and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Security Instrument and the other Loan Documents, agrees that it shall not sue for, seek or demand any deficiency judgment against Borrower in any such action or proceeding under or by reason of or under or in connection with the Note, this Agreement, the Security Instrument or the other Loan Documents. The provisions of this Section 9.3 Agreement or to the agreements between the Fund and the Subscribers. The Escrow Agent may rely upon, and shall notbe protected in acting upon, howeverany resolution, (i) constitute a waivercertificate, release opinion, notice, request, consent, or impairment other paper or document believed by it to be genuine and to have been signed by the proper person or persons. Any notice or instruction from the Fund shall be sufficient if it bears or purports to bear the signature of any obligation evidenced or secured by any one of the Loan Documents; (ii) impair following: Xxxxxxx Xxxxxxxxx and Xxxx X. Xxxx, whose signatures appear hereon, with or without designation of principal or of representative capacity. The Escrow Agent may consult with counsel, and the right opinion of Lender such counsel shall be full and complete protection in respect to name Borrower as a party defendant in any action taken or suit for foreclosure suffered by it hereunder in accordance with such opinion. The Escrow Agent may petition any court of competent jurisdiction to resolve any disagreement relating hereto and sale under the Security Instrument; (iii) affect the validity or enforceability of any guaranty, indemnity or similar agreement or undertaking made in connection with the Loan or any of the may refuse to act until such court has ordered it to act. Such rights and remedies of Lender thereunder; (iv) impair the right of Lender to obtain the appointment of a receiver; (v) impair the enforcement of any assignment of leases contained in the Security Instrument shall be alternative and any other Loan Documents; action taken or (vi) not taken in conformance with an opinion of counsel or court order shall not constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize negligence or misconduct and shall be complete and final acquittance and discharge of the security granted Escrow Agent's responsibilities with respect thereto. Notwithstanding the foregoing, it is understood and agreed by the Security Instrument (if required by applicable law parties that no partner of the General Partner acting in its capacity as such shall have any personal liability under this agreement and provided such deficiency judgment is not enforced personally against Borrower or that any officer, director, shareholder, partner, member, principal, employee of Borrower or any direct or indirect owner of Borrower (excluding Guarantor under the Guaranty and Environmental Indemnity, as applicable)) or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies person asserting a claim against the Property General Partner hereunder shall look solely to the assets of such General Partner (or any portion specifically excluding the personal assets of the partners thereof).
Appears in 2 contracts
Samples: Contributions Escrow Agreement (BCTC v Assignor Corp), Contributions Escrow Agreement (Boston Capital Tax Credit Fund Iv Lp)
Exculpation. (a) Subject to the qualifications below, Lender shall not enforce the liability and obligation of Borrower to perform and observe the obligations contained in the Note, this Agreement, the Security Instrument or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against Borrower or any officer, director, shareholder, partner, member, principal, employee of Borrower or any direct or indirect owner of Borrower (provided that the foregoing shall not limit in any manner, the liability of any Guarantor)Borrower, except that Lender may bring 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 Security Instrument and the other Loan Documents, or in the Property (all or any portion thereof), of the Rents, or any other collateral given to Lender pursuant to the Loan DocumentsCollateral; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower’s interest in the Property, in the Rents and in any other collateral given to LenderCollateral, and Lender, by accepting the Note, this Agreement, the Security Instrument and the other Loan Documents, agrees that it Lender shall not sue xxx for, seek or demand any deficiency judgment against Borrower in any such action or proceeding under or by reason of or under or in connection with the Note, this Agreement, the Security Instrument or the other any Loan DocumentsDocument. The provisions of this Section 9.3 shall not, however, (i) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan DocumentsDocument; (ii) 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 Security InstrumentDocuments; (iii) affect the validity or enforceability of any guaranty, indemnity of the Loan Documents or similar agreement or undertaking any guaranty made in connection with the Loan or any of the rights and remedies of Lender thereunder; (iv) impair the right of Lender to obtain the appointment of a receiver; (v) impair the enforcement of any assignment of leases contained in the Security Instrument and any other Loan Documents; or (vi) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted by the Security Instrument (if required by applicable law and provided such deficiency judgment is not enforced personally against Borrower or any officer, director, shareholder, partner, member, principal, employee of Borrower or any direct or indirect owner of Borrower (excluding Guarantor under the Guaranty and Environmental Indemnity, as applicable)) or to commence any other appropriate action or proceeding in order for Lender to fully realize the security granted by the Pledge or the other Security Documents or to exercise its remedies against all or any portion of the Collateral; or (vi) constitute a waiver of the right of Lender to enforce the liability and obligation of Borrower (but not any of its constituent members, partners, officers, directors or shareholders), 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 being referred to herein as “Borrower’s Recourse Liabilities”): (a) fraud or intentional misrepresentation by Borrower, Sole Member, Owner or Guarantor in connection with obtaining the Loan; (b) intentional waste of the Property (or any portion thereof, or after an Event of Default the removal or disposal of any portion of the Property; (c) any Proceeds paid by reason of any Insured Casualty or any Award received in connection with a Condemnation or other sums or payments attributable to the Property to the extent not applied in accordance with the provisions of the Loan Documents and the Senior Loan Documents (except to the extent that Borrower or Owner did not have the legal right, because of a bankruptcy, receivership or similar judicial proceeding, to direct disbursement of such sums or payments); (d) all Rents of the Property received or collected by or on behalf of Borrower or Owner after an Event of Default and not applied to payment of Principal and interest due under the Note or under the Senior Loan, and to the payment of actual and reasonable operating expenses of the Property, as they become due or payable (except to the extent that such application of such funds is prevented by bankruptcy, receivership, or similar judicial proceeding in which Borrower or Owner is legally prevented from directing the disbursement of such sums); (e) misappropriation (including failure to turn over to Lender on demand following an Event of Default) of tenant security deposits and rents collected in advance; (f) the failure by Borrower or Owner to pay Taxes or Insurance Premiums, provided Borrower shall not be liable to the extent funds to pay such amounts are available in the Tax and Insurance Subaccount pursuant to the Senior Loan Agreement and Senior Lender failed to pay same; (g) the failure to pay transfer fees and charges due Lender under the Loan Documents in connection with any subordinate financing or any transfer of all or any part of the Property or the Collateral, or any interest therein, from Borrower to Borrower’s transferee, or transfer of beneficial interest in Borrower; and (h) the breach of any representation, warranty, covenant or indemnification in any Loan Document concerning Environmental Laws or Hazardous Substances, including Sections 4.21 and 5.10, and clauses (viii) through (xi) of Section 5.30. Notwithstanding anything to the contrary in this Agreement or any of the Loan Documents, (a) Lender shall not be deemed to have waived any right which Lender may have under Section 506(a) , 506(b) , 1111(b) or any other provisions of the U.S. Bankruptcy Code to file a claim for the full amount of the Debt or to require that all collateral shall continue to secure all of the Debt in accordance with the Loan Documents, and (b) Lender’s agreement not to pursue personal liability of Borrower as set forth above SHALL BECOME NULL AND VOID and shall be of no further force and effect, and the Debt shall be fully recourse to Borrower and Guarantor (but not any of Borrower’s constituent members, partners, officers, directors or shareholders) in the event that one or more of the following occurs (each, a “Springing Recourse Event”): (i) an Event of Default described in Section 8.1(d) shall have occurred (solely as a result of a voluntary Transfer), or (ii) a breach of the covenants set forth in Section 5.15, or (iii) Borrower’s voluntary commencement of proceedings to be adjudicated bankrupt or insolvent; Borrower’s consent to the institution of bankruptcy or insolvency proceedings against it; Borrower’s filing of a petition seeking, or consent to, reorganization or relief under any applicable federal or state law relating to bankruptcy or insolvency; Borrower’s consent to the appointment of a receiver, liquidator, assignee, trustee, sequestrator (or other similar official) of Borrower or a substantial part of Borrower’s property; Borrower’s assignment for the benefit of creditors; or the filing of an involuntary petition in bankruptcy or insolvency proceedings against Borrower by any principal of or owner of any interest in Borrower or any affiliate of or party related to Borrower (but excluding any owner or affiliate that indirectly owns or is affiliated with Borrower solely from its ownership of shares in the REIT).
Appears in 2 contracts
Samples: Mezzanine Loan Agreement (KBS Real Estate Investment Trust, Inc.), Mezzanine Loan Agreement (KBS Real Estate Investment Trust, Inc.)
Exculpation. (ag) Subject to Except as otherwise provided herein or in the qualifications belowother Loan Documents, Lender shall not enforce the liability and obligation of Borrower or Borrower Principal, as applicable, to pay, perform and and/or observe the obligations contained herein, in the Note, this Agreement, the Security Instrument or in the other Loan Documents by any action or proceeding against Borrower wherein a money judgment shall be sought against Borrower or any officerBorrower, director, shareholder, partner, member, principal, employee the members/parties of Borrower or any direct Borrower Principal or indirect owner of Borrower its respective members, partners, shareholders, officers, or directors (provided that the foregoing shall not limit in any manner, the liability of any Guarantor“Exculpated Parties”), except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding against Borrower to enable Lender to enforce and realize upon its interest under the Note, this Agreement, the Security Instrument Note, the Mortgage and the other Loan Documents, or and the interest in the Property (or any portion thereof)Property, the Rents, or Rents and any other collateral given to Lender pursuant to created by this Agreement, the Note, the Mortgage and the other Loan Documents; provided, however, that, except as specifically provided herein, that any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower’s interest in the Property, in the Rents and in any other collateral given to Lender, and . Lender, by accepting the Note, this Agreement, the Security Instrument Note, the Mortgage and the other Loan Documents, agrees that it shall not sue not, except as otherwise provided in Sections 15.1(b) and (c) xxx for, seek or demand any deficiency judgment against Borrower the 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 Security Instrument Note, the Mortgage or the other Loan Documents. The provisions of this Section 9.3 15.1 shall not, however, (i) constitute a waiver, release or impairment of any obligation evidenced or secured by any of this Agreement, the Note, the Mortgage or the other Loan Documents; (ii) impair the right of Lender to name Borrower as a party defendant in any action or suit for judicial foreclosure and sale under this Agreement and the Security InstrumentMortgage; (iii) affect the validity or enforceability of any guarantyindemnity (including, indemnity or similar agreement or undertaking without limitation, those contained in Section 12.6 and Article 14 of this Agreement) made in connection with this Agreement, the Note, the Mortgage and the other Loan or any of the rights and remedies of Lender thereunderDocuments; (iv) impair the right of Lender to obtain the appointment of a receiver; (v) impair the enforcement of any the assignment of leases provisions contained in the Security Instrument and any other Loan DocumentsMortgage; or (vi) constitute a prohibition against impair the right of Lender to seek obtain a deficiency judgment against Borrower in order to fully realize or other judgment on the security granted by the Security Instrument (if required by applicable law and provided such deficiency judgment is not enforced personally Note against Borrower if necessary to obtain any Insurance Proceeds or any officerAwards to which Lender would otherwise be entitled under this Agreement; provided, directorhowever, shareholder, partner, member, principal, employee Lender shall only enforce such judgment to the extent of Borrower or any direct or indirect owner of Borrower (excluding Guarantor under the Guaranty and Environmental Indemnity, as applicable)) or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against the Property (or any portion thereof)Insurance Proceeds and/or Awards.
Appears in 2 contracts
Samples: Loan Agreement (Sun Communities Inc), Loan Agreement (Sun Communities Inc)
Exculpation. (a) Subject to the qualifications below, Lender shall not enforce the liability and obligation of Borrower 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 Security Instrument 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 officer, director, shareholder, partner, member, principal, employee of Borrower or any direct or indirect owner of Borrower (provided that the foregoing shall not limit in any manner, the liability of any Guarantor)other Person, except that Lender may bring 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 AgreementProperty, the Security Instrument and the other Loan Documents, or in the Property (or any portion thereof), the Rents, Rents or any other collateral given to Lender pursuant to this Agreement and the other Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against the Borrower Parties only to the extent of Borrower’s their interest in the Property, in the Rents and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Security Instrument Note and the other Loan Documents, agrees that it shall not sue xxx for, seek or demand any deficiency judgment against any of the Borrower Parties or any other Person in any such action or proceeding under or by reason of or under or in connection with the Note, this Agreement, the Security Instrument Note or any of the other Loan Documents. The provisions of this Section 9.3 paragraph shall not, however, (i) constitute a waiver, release or impairment of any obligation evidenced or secured by this Agreement, the Note or any of the other Loan Documents; (ii) 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 Security InstrumentMortgage; (iii) affect the validity or enforceability of any guaranty, indemnity or similar agreement or undertaking guaranty made in connection with the Loan or any of the rights and remedies of Lender thereunder; (iv) impair the right of Lender to obtain the appointment of a receiver; (v) impair the enforcement of any assignment the Assignment of leases contained Leases and Rents executed in the Security Instrument and any other Loan Documentsconnection herewith; or (vi) constitute a prohibition against waiver of the right of Lender to seek a deficiency judgment against Borrower in order to fully realize enforce the security granted by the Security Instrument (if required by applicable law liability and provided such deficiency judgment is not enforced personally against Borrower or any officer, director, shareholder, partner, member, principal, employee obligation of Borrower (but not against any members of Borrower (other than Guarantor to the extent provided in the Non-Recourse Guaranty) or any their direct or indirect owner of Borrower (excluding Guarantor under the Guaranty and Environmental Indemnity, as applicable)) constituent members or to commence partners or any other appropriate action Person), by money judgment or proceeding 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 order for Lender to exercise its remedies against connection with the Property (or any portion thereof).following:
Appears in 2 contracts
Samples: Loan Agreement (Maguire Properties Inc), Loan Agreement (Maguire Properties Inc)
Exculpation. (a) Subject to the qualifications below, Lender shall not enforce the liability and obligation of Borrower or Operating Lessee to perform and observe the obligations contained in the Note, this Agreement, the Security Instrument or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against Borrower or any officer, director, shareholder, partner, member, principal, employee of Borrower or any direct or indirect owner of Borrower (provided that the foregoing shall not limit in any manner, the liability of any Guarantor)Operating Lessee, except that Lender may bring 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 Security Instrument and the other Loan Documents, or in the Property (or any portion thereof)Property, the Rents, or any other collateral Collateral given to Lender pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower and Operating Lessee only to the extent of Borrower’s or Operating Lessee’s interest in the Property, in the Rents and in any other collateral Collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Security Instrument and the other Loan Documents, agrees that it shall not sue xxx for, seek or demand any deficiency judgment against Borrower in any such action or proceeding under or by reason of or under or in connection with the Note, this Agreement, the Security Instrument or the other Loan Documents. The provisions of this Section 9.3 11.3 shall not, however, (i) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (ii) impair the right of Lender to name Borrower as a party defendant in any action or suit for foreclosure and sale under the Security Instrument; (iii) affect the validity or enforceability of any guarantyof the Loan Documents or any guaranty or indemnity (including, indemnity without limitation, the Guaranty and the Environmental Indemnity) or similar agreement or undertaking instrument made in connection with the Loan or any of the rights and remedies of Lender thereunder; (iv) impair the right of Lender to obtain the appointment of a receiver; (v) [intentionally omitted]; (vi) impair the enforcement right of any assignment of leases contained in Lender to enforce the Security Instrument and any other Loan DocumentsEnvironmental Indemnity; or (vivii) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security Collateral granted by any of the Loan Documents, including, without limitation, by the Security Instrument Instrument, or by this Agreement (if required by applicable law and provided such deficiency judgment is not enforced personally against Borrower or any officer, director, shareholder, partner, member, principal, employee of Borrower or any direct or indirect owner of Borrower (excluding Guarantor under including with respect to the Guaranty and Environmental Indemnity, as applicable)Accounts Collateral) or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against the Property Collateral; or (viii) 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 portion thereof).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:
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 Security Instrument or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against Borrower or any officer, director, shareholder, partner, member, principal, employee of Borrower or any direct or indirect owner of Borrower (provided that the foregoing shall not limit in any manner, the liability of any Guarantor), except that Lender may bring 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 Security Instrument and the other Loan Documents, or in the Property (or any portion thereof), the Rents, or any other collateral given to Lender pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower’s interest in the Property, in the Rents and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Security Instrument and the other Loan Documents, agrees that it shall not sue sxx for, seek or demand any deficiency judgment against Borrower in any such action or proceeding under or by reason of or under or in connection with the Note, this Agreement, the Security Instrument or the other Loan Documents. The provisions of this Section 9.3 shall not, however, (i) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (ii) impair the right of Lender to name Borrower as a party defendant in any action or suit for foreclosure and sale under the Security Instrument; (iii) affect the validity or enforceability of any guaranty, indemnity or similar agreement or undertaking made in connection with the Loan or any of the rights and remedies of Lender thereunder; (iv) impair the right of Lender to obtain the appointment of a receiver; (v) impair the enforcement of any assignment of leases contained in the Security Instrument and any other Loan Documents; or (vi) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted by the Security Instrument (if required by applicable law and provided such deficiency judgment is not enforced personally against Borrower or any officer, director, shareholder, partner, member, principal, employee of Borrower or any direct or indirect owner of Borrower (excluding Guarantor under the Guaranty and Environmental Indemnity, as applicable)) or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against the Property (or any portion thereof).
Appears in 1 contract
Exculpation. (a) Subject It is expressly understood and agreed by and between the parties hereto, anything herein to the qualifications belowcontrary notwithstanding, Lender shall that each and all of the representations, warranties, covenants, undertakings, and agreements herein made on the part of any Landlord while in form purporting to be the representations, warranties, covenants, undertakings, and agreements of such Landlord are nevertheless each and every one of them made and intended, not enforce as personal representations, warranties, covenants, undertakings, and agreements by such Landlord or for the liability purpose or with the intention of binding such Landlord personally, but are made and obligation intended for the purpose only of Borrower to perform and observe the obligations contained subjecting such Landlord's interest in the Note, this Agreement, Building to the Security Instrument or terms of the Lease and for no other Loan Documents by any action or proceeding wherein a money judgment shall be sought against Borrower or any officer, director, shareholder, partner, member, principal, employee of Borrower or any direct or indirect owner of Borrower (provided that the foregoing shall not limit in any manner, the purpose whatsoever. The liability of Landlord to Tenant for any Guarantor), except that Lender may bring 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 default by Landlord under the NoteLease or arising in connection herewith or with Landlord's operation, this Agreementmanagement, the Security Instrument and the other Loan Documentsleasing, or in the Property (or any portion thereof)repair, the Rentsrenovation, alteration, or any other collateral given to Lender pursuant matter relating to the Loan Documents; providedBuilding or the Premises, however, that, except as specifically provided herein, shall be limited to the interest of Landlord in the Building (and the rental proceeds thereof). Tenant agrees to look solely to Landlord's interest in the Building (and the rental proceeds thereof) for the recovery of any judgment in against Landlord, and Landlord shall not be personally liable for any such action judgment or proceeding deficiency after execution thereon. The limitations of liability contained in this provision shall be enforceable against Borrower only apply equally and inure to the benefit of Landlord's 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 general or limited 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 the Lease. Notwithstanding the foregoing to the contrary, Landlord shall have personal liability for insured claims, beyond Landlord's interest in the Building (and rental proceeds thereof), to the extent of Borrower’s interest in the Property, in the Rents and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Security Instrument and the other Loan Documents, agrees that it shall not sue for, seek or demand any deficiency judgment against Borrower in any Landlord's liability insurance coverage available for such action or proceeding under or by reason of or under or in connection with the Note, this Agreement, the Security Instrument or the other Loan Documents. The provisions of this Section 9.3 shall not, however, (i) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (ii) impair the right of Lender to name Borrower as a party defendant in any action or suit for foreclosure and sale under the Security Instrument; (iii) affect the validity or enforceability of any guaranty, indemnity or similar agreement or undertaking made in connection with the Loan or any of the rights and remedies of Lender thereunder; (iv) impair the right of Lender to obtain the appointment of a receiver; (v) impair the enforcement of any assignment of leases contained in the Security Instrument and any other Loan Documents; or (vi) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted by the Security Instrument (if required by applicable law and provided such deficiency judgment is not enforced personally against Borrower or any officer, director, shareholder, partner, member, principal, employee of Borrower or any direct or indirect owner of Borrower (excluding Guarantor under the Guaranty and Environmental Indemnity, as applicable)) or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against the Property (or any portion thereof)claims.
Appears in 1 contract
Exculpation. Landlord shall have no personal liability under this Lease; its liability shall be limited to its equity in the Project, and shall not extend to any other property or assets of the Landlord provided that Landlord maintains at least Two Million Dollars ($2,000,000) equity (the "Minimum Equity") in the Project. Notwithstanding the foregoing, in the event Landlord does not maintain the Minimum Equity in the Project, Tenant shall have recourse for Landlord's liability under this Lease to (a) Subject Landlord's equity in the Project, and (b) Landlord's assets or other property up to a maximum amount equal to the qualifications below, Lender shall not enforce the liability and obligation of Borrower to perform and observe the obligations contained Minimum Equity less Landlord's equity in the NoteProject. Notwithstanding anything to the contrary set forth in this Section 29, (i) to the extent Landlord receives insurance or condemnation proceeds in connection with the Premises or Common Areas, and if Landlord is obligated to use such proceeds for the restoration of the Premises and/or Common Areas under the terms of this AgreementLease and fails to so use such proceeds as required by this Lease, Tenant shall have recourse to such proceeds for Landlord's failure to use such proceeds as required by the Security Instrument or terms of this Lease, and (ii) if Landlord draws upon the other Loan Documents by any action or proceeding wherein a money judgment Letter of Credit (as hereinafter defined) in violation of the terms of this Lease, Tenant shall be sought against Borrower or have recourse to the proceeds of such wrongful draw for Landlord's failure to draw upon the Letter of Credit in accordance with the terms of this Lease. In no event shall any officer, director, shareholderemployee, partner, member, principal, employee of Borrower or any direct or indirect owner of Borrower (provided that the foregoing shall not limit in any manner, the liability of any Guarantor), except that Lender may bring 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 Security Instrument and the other Loan Documents, or in the Property (or any portion thereof), the Rents, or any other collateral given to Lender pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower’s interest in the Property, in the Rents and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Security Instrument and the other Loan Documents, agrees that it shall not sue for, seek or demand any deficiency judgment against Borrower in any such action or proceeding under or by reason of or under or in connection with the Note, this Agreement, the Security Instrument or the other Loan Documents. The provisions of this Section 9.3 shall not, however, (i) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (ii) impair the right of Lender to name Borrower as a party defendant in any action or suit for foreclosure and sale under the Security Instrument; (iii) affect the validity or enforceability of any guaranty, indemnity or similar agreement or undertaking made in connection with the Loan or any of the rights and remedies of Lender thereunder; (iv) impair the right of Lender to obtain the appointment of a receiver; (v) impair the enforcement of any assignment of leases contained in the Security Instrument and any other Loan Documents; or (vi) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted by the Security Instrument (if required by applicable law and provided such deficiency judgment is not enforced personally against Borrower or any officer, directoragent, shareholder, partner, member, principal, employee member or beneficiary of Borrower or Landlord be personally liable for any direct or indirect owner of Borrower (excluding Guarantor under the Guaranty and Environmental Indemnity, as applicable)) or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against the Property (or any portion thereof)Landlord's obligations hereunder.
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Exculpation. (a) Subject The Buyer agrees that it does not have and will not have any claims or causes of action against the Seller’s disclosed or undisclosed, direct and indirect affiliates, shareholders, partners, members, officers, directors, employees and trustees, principals, agents, contractors and any successors or assigns of the foregoing (“Seller Parties”), arising out of or in connection with this Agreement or the transactions contemplated hereby. The Buyer agrees to look solely to the qualifications below, Lender shall not enforce the liability and obligation of Borrower to perform and observe the obligations contained in the Note, this Agreement, the Security Instrument or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against Borrower or any officer, director, shareholder, partner, member, principal, employee of Borrower or any direct or indirect owner of Borrower (provided that the foregoing shall not limit in any manner, the liability of any Guarantor), except that Lender may bring 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 Security Instrument Seller and the other Loan Documents, or in the Property (or any portion thereof), the Rents, or any other collateral given to Lender pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent of BorrowerSeller’s interest in the Property, Company and in the Rents Company Subsidiaries or, if the Closing has occurred, the net proceeds of the sale (subject to the limitations contained herein) for the satisfaction of any liability or obligation arising under this Agreement or the transactions contemplated hereby, or for the performance of any of the covenants, warranties or other agreements contained herein, and in further agrees not to xxx or otherwise seek to enforce any personal obligation against any of the Seller’s other assets or properties or any other collateral given Seller Parties (or their assets or properties) with respect to Lender, and Lender, by accepting the Note, this Agreement, the Security Instrument and the other Loan Documents, agrees that it shall not sue for, seek or demand any deficiency judgment against Borrower in any such action or proceeding under or by reason matters arising out of or under or in connection with this Agreement or the Note, this Agreementtransactions contemplated hereby. Without limiting the generality of the foregoing provisions, the Security Instrument Buyer hereby unconditionally and irrevocably waives any and all claims and causes of action of any nature whatsoever it may now or hereafter have against the Seller Parties (other than the Seller and other than with respect to the net proceeds of the sale), and hereby unconditionally and irrevocably releases and discharges such other Seller Parties from any and all liability whatsoever which may now or hereafter accrue in favor of the Buyer against such other Seller Parties (other than with respect to the Deposit, including after any amounts may be released from the escrow), in connection with or arising out of this Agreement or the other Loan Documentstransactions contemplated hereby. The provisions of this Section 9.3 11.1 shall not, however, (i) constitute a waiver, release or impairment survive any termination of any obligation evidenced or secured by any of this Agreement and the Loan Documents; (ii) impair the right of Lender to name Borrower as a party defendant in any action or suit for foreclosure and sale under the Security Instrument; (iii) affect the validity or enforceability of any guaranty, indemnity or similar agreement or undertaking made in connection with the Loan or any of the rights and remedies of Lender thereunder; (iv) impair the right of Lender to obtain the appointment of a receiver; (v) impair the enforcement of any assignment of leases contained in the Security Instrument and any other Loan Documents; or (vi) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted by the Security Instrument (if required by applicable law and provided such deficiency judgment is not enforced personally against Borrower or any officer, director, shareholder, partner, member, principal, employee of Borrower or any direct or indirect owner of Borrower (excluding Guarantor under the Guaranty and Environmental Indemnity, as applicable)) or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against the Property (or any portion thereof)Closing.
Appears in 1 contract
Samples: Share Purchase Agreement (NorthStar Real Estate Income II, Inc.)
Exculpation. (a) 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 Security Instrument 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 officer, director, shareholder, partner, member, principal, employee of Borrower or any direct or indirect owner of Borrower (provided that the foregoing shall not limit in any manner, the liability of any Guarantor)other Person, except that Lender may bring 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 Security Instrument and the other Loan Documents, or in the Property (all or any portion thereof), of the Rents, or any other collateral given to Lender pursuant to the Loan DocumentsCollateral; 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 Rents and in any other collateral given to LenderCollateral, and Lender, by accepting the Note, this Agreement, the Security Instrument Note and the other Loan Documents, agrees that it shall not sue sxx for, seek or demand any deficiency judgment against any of the Borrower Parties or any other Person in any such action or proceeding under or by reason of or under or in connection with the Note, this Agreement, the Security Instrument Note or any of the other Loan Documents. The provisions of this Section 9.3 paragraph shall not, however, (i) constitute a waiver, release or impairment of any obligation evidenced or secured by this Agreement, the Note or any of the other Loan Documents; (ii) 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 Security InstrumentDocuments and the Pledged Securities; (iii) affect the validity or enforceability of any guaranty, indemnity or similar agreement or undertaking guaranty made in connection with the Loan or any of the rights and remedies of Lender thereunder; (iv) impair the right of Lender to obtain the appointment of a receiver; or (v) impair constitute a waiver of the enforcement right of Lender to enforce the liability and obligation of Borrower (but not against any assignment members of leases contained Borrower (other than Guarantor to the extent provided in the Security Instrument and any other Loan Documents; Non-Recourse Guaranty) or (vi) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted by the Security Instrument (if required by applicable law and provided such deficiency judgment is not enforced personally against Borrower or any officer, director, shareholder, partner, member, principal, employee of Borrower or any their direct or indirect owner of Borrower (excluding Guarantor under the Guaranty and Environmental Indemnity, as applicable)) constituent members or to commence partners or any other appropriate action Person), by money judgment or proceeding otherwise, to the extent of any loss, damage, cost, expense, liability, claim or other obligation (but excluding any punitive, consequential or speculative damages) incurred by Lender (including attorneys’ fees and costs reasonably incurred) arising out of or in order for Lender to exercise its remedies against connection with the Property (or any portion thereof).following:
Appears in 1 contract
Samples: Senior Mezzanine Loan Agreement (Maguire Properties Inc)
Exculpation. (a) Subject to the qualifications below, Lender shall not enforce the liability and obligation of Borrower to perform and observe the obligations contained in the Note, this Agreement, the Security Instrument or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against Borrower or any principal, director, officer, directoremployee, beneficiary, shareholder, partner, member, principaltrustee, employee agent, or Affiliate of Borrower or any direct legal representatives, successors or indirect owner assigns of Borrower (provided that any of the foregoing shall not limit in any manner(collectively, the liability of any Guarantor“Exculpated Parties”), except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender to enforce and realize upon its interest under the Note, this Agreement, the Security Instrument and the other Loan Documents, or in the Property (or any portion thereof)Property, the Rents, or any other collateral given to Lender pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower{12282340:5} 114 Xxxxxxxx’s interest in the Property, in the Rents and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Security Instrument and the other Loan Documents, agrees that it shall not sue for, seek or demand any deficiency judgment against Borrower or any of the Exculpated Parties in any such action or proceeding under or by reason of or under or in connection with the Note, this Agreement, the Security Instrument or the other Loan Documents. The provisions of this Section 9.3 shall not, however, (i1) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (ii2) impair the right of Lender to name Borrower as a party defendant in any action or suit for foreclosure and sale under the Security Instrument; (iii3) affect the validity or enforceability of any guaranty, guaranty or indemnity or similar agreement or undertaking made in connection with the Loan (including, without limitation, indemnities set forth in Article 11 hereof, Section 9.2 hereof, in the Guaranty and in the Environmental Indemnity) or any of the rights and remedies of Lender thereunder; (iv4) impair the right of Lender to obtain the appointment of a receiverreceiver or to enforce its rights and remedies provided in Articles 7 and 8 hereof; (v5) impair the enforcement of any assignment of leases contained in the Security Instrument and any other Loan DocumentsInstrument; or (vi6) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted by the Security Instrument (if required by applicable law and provided provided, that, such deficiency judgment is not enforced personally will only be enforceable against Borrower or any officer, director, shareholder, partner, member, principal, employee to the extent of Borrower or any direct or indirect owner of Borrower (excluding Guarantor under its interest in the Guaranty and Environmental Indemnity, as applicable)Property) or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against the Property; or (7) 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 Loss actually incurred by Xxxxxx (including attorneys’ fees and expenses reasonably incurred) arising out of or in connection with the following: (i) fraud or willful misrepresentation by any Borrower Party in connection with the Loan; (ii) the gross negligence or willful misconduct of any Borrower Party; (iii) any litigation or other legal proceeding related to the Debt filed by any Borrower Party or any other action of any Borrower Party 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 unless a court of competent jurisdiction finds that such action is not frivolous, not brought in bad faith, not wholly without merit, and not wholly without basis in fact or law; (iv) material physical waste to the Property caused by the intentional acts or intentional omissions of any Borrower Party and/or the removal or disposal of any portion of the 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 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 Tenant security deposits or Rents collected in {12282340:5} 115 advance or (E) any other monetary collateral for the Loan (including, without limitation, any amounts deposited in the Accounts 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 (except, in the case of Taxes, to the extent that (x) the revenue from the Property is insufficient to pay such amounts or (y) amounts sufficient to pay such Taxes have been deposited with Lender hereunder or with Senior Lender under the Senior Loan Agreement and, in either case, allocated for the payment of such Taxes, and Lender or Senior Lender, as applicable, does not apply the same in payment thereof in violation of the Senior Loan Agreement); (vii) failure to pay Insurance Premiums (except to the extent that (x) the revenue from the Property is insufficient to pay such amounts or (y) amounts sufficient to pay such Insurance Premiums have been deposited with Lender hereunder or with Senior Lender under the Senior Loan Agreement and, in either case, allocated for the payment of such Insurance Premiums, and Lender or Senior Lender, as applicable, does not apply the same in payment thereof in violation of the Senior Loan Agreement, to maintain the Policies in full force and effect and/or to provide Lender evidence of the same, in each case, as expressly provided herein; (viii) any security deposits, advance deposits or any other deposits collected with respect to the Property which are not delivered to Lender or Senior Lender in accordance with the Senior Loan Documents, as applicable, 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 or a Senior Loan Event of Default that gave rise to the requirement that such deposits be delivered; (ix) any tax on the making and/or recording of the Security Instrument, the Note or any of the other Loan Documents or the Senior 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) any forfeiture or seizure of the Property (or any portion thereof and/or interest therein) resulting from a violation or breach of any applicable law; (xi) any violation or breach of any representation, warranty or covenant contained in Sections 3.24 or 4.23 hereof or Exhibit C attached hereto; (xii) any violation or breach of any representation, warranty or covenant contained in Article 6 hereof other than the occurrence of a Prohibited Transfer;
Appears in 1 contract
Exculpation. (a) Subject to Except as otherwise provided herein or in the qualifications belowother Loan Documents, Lender shall not enforce the liability and obligation of Borrower, Master Lessee or Borrower Principal, as applicable, to perform and observe the obligations contained herein or in the Note, this Agreement, the Security Instrument or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against Borrower, Borrower Principal, Master Lessee or any officerof Borrower’s, directorBorrower Principal’s, shareholder, partner, member, principal, employee of Borrower or any direct Master Lessee’s partners or indirect owner of Borrower (provided that the foregoing shall not limit in any manner, the liability of any Guarantor)members, except that Lender may bring 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 Security Instrument Note, the Mortgage and the other Loan Documents, or and the interest in the Property (or any portion thereof)Individual Property, the Rents, or Rents and any other collateral given to Lender pursuant to created by this Agreement, the Note, the Mortgage and the other Loan Documents; provided, however, that, except as specifically provided herein, that any judgment in any such action or proceeding shall be enforceable against Borrower, Master Lessee or Borrower Principal, as applicable, only to the extent of Borrower’s, Master Lessee’s or Borrower Principal’s interest in the related Individual Property, in the Rents and in any other collateral given to Lender, and not otherwise. Lender, by accepting the Note, this Agreement, the Security Instrument Note, the Mortgage and the other Loan Documents, agrees that it shall not sue not, except as otherwise provided in this Section 15.1, xxx for, seek or demand any deficiency judgment against Borrower, Master Lessee, Borrower Principal or any of Borrower’s, Master Lessee’s, or Borrower Principal’s partners or members in any such action or proceeding proceeding, under or by reason of or under or in connection with the Note, this Agreement, the Security Instrument Note, the Mortgage or the other Loan Documents. The provisions of this Section 9.3 15.1 shall not, however, (i) constitute a waiver, release or impairment of any obligation evidenced or secured by any of this Agreement, the Note, the Mortgage or the other Loan Documents; (ii) impair the right of Lender to name Borrower, Master Lessee or Borrower Principal as a party defendant in any action or suit for judicial foreclosure and sale under this Agreement and the Security InstrumentMortgage; (iii) affect the validity or enforceability of any indemnity (including, without limitation, those contained in Section 12,6 and Article 14 of this Agreement), guaranty, indemnity master lease or similar agreement or undertaking instrument made in connection with this Agreement, the Note, the Mortgage and the other Loan or any of the rights and remedies of Lender thereunderDocuments; (iv) impair the right of Lender to obtain the appointment of a receiver; (v) impair the enforcement of any the assignment of leases provisions contained in the Security Instrument and any other Loan DocumentsMortgage; or (vi) constitute a prohibition against impair the right of Lender to seek obtain a deficiency judgment or other judgment on the Note against Borrower, Master Lessee or Borrower in order Principal if necessary to fully realize obtain any Insurance Proceeds or Awards to which Lender would otherwise be entitled under this Agreement; provided however, Lender shall only enforce such judgment to the security granted by extent of the Security Instrument (if required by applicable law and provided such deficiency judgment is not enforced personally against Borrower or any officer, director, shareholder, partner, member, principal, employee of Borrower or any direct or indirect owner of Borrower (excluding Guarantor under the Guaranty and Environmental Indemnity, as applicable)) or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against the Property (or any portion thereof)Insurance Proceeds and/or Awards.
Appears in 1 contract
Exculpation. (a) Subject 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 Security Instrument Note or any of the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against Borrower or any officersuch general partner or their respective assets. Lender, directoron behalf of itself and its successors and assigns, shareholder, hereby waives any and all such personal liability and rights against the assets of Borrower and the general partner, memberincluding the Property; provided, principalhowever, employee that nothing contained herein shall affect or limit Lender’s rights (i) to enforce any of Borrower the obligations under the Note, this Loan Agreement or any direct of the other Loan Document against the Junior B Mezzanine Guarantor or indirect owner of Borrower (provided that the foregoing shall not limit in any manner, the liability of any Guarantor), except that Lender may bring 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 interests under the Note, this Agreement, the Security Instrument Pledge Agreements and the other Loan Documents, or in the Property (or any portion thereof), the Rents, or any other collateral Collateral Obligations given to Lender pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, any judgment (ii) to name Borrower in any such action or proceeding shall be enforceable solely to enforce Lender’s rights and remedies against Borrower only to Junior B Mezzanine Guarantor or the extent of Borrower’s interest in Collateral Providers, including foreclosure and other remedies under the Property, in the Rents and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Security Instrument Pledge Agreement and the other Collateral Obligations; (iii) to seek specific performance of any terms and conditions under the Loan Documents; or (iv) to seek declaratory relief under the Loan Documents; provided, agrees further that it in each of clauses (i), (ii), (iii) and (iv) above, in no event shall not sue forBorrower or its general partner have any personal liability with respect to such actions or proceedings or judgments issued therein, seek in no event shall any assets of Borrower or demand its general partner be available to pay any deficiency judgment against Borrower in any such action 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 Security Instrument or the other Loan Documents. The provisions of this Section 9.3 shall not, however, not (ia) 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; (iib) 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 Security InstrumentPledge Agreements; (iiic) affect the validity or enforceability of any guaranty, indemnity or similar agreement or undertaking guaranty made in connection with the Loan 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 (ivd) impair the right of Lender to obtain the appointment of a receiver; (v) impair receiver with respect to Junior B Mezzanine Guarantor or the enforcement Collateral Providers. The execution of any assignment of leases contained in the Security Instrument and any other Loan Documents; or (vi) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted this Agreement by the Security Instrument (if required by applicable law and provided such deficiency judgment is Junior B Mezzanine Guarantor shall not enforced personally against Borrower or in any officer, director, shareholder, partner, member, principal, employee way increase of Borrower or any direct or indirect owner alter the obligations of Borrower (excluding the Junior B Mezzanine Guarantor under the Guaranty and Environmental Indemnity, as applicable)) or to commence any other appropriate action or proceeding from those obligations set forth in order for Lender to exercise its remedies against the Property (or any portion thereof)Guaranty.
Appears in 1 contract
Samples: Mezzanine Loan Agreement (Thomas Properties Group Inc)
Exculpation. (a) Subject Notwithstanding anything to the contrary contained in this Agreement, the Note, the Mortgages or the other Loan Documents but 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 Security Instrument Mortgages or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against Borrower or any officer, director, shareholder, partner, member, principal, employee of Borrower or any direct or indirect owner of Borrower (provided that the foregoing shall not limit in any manner, the liability of any Guarantor)Borrower, except that Lender may bring 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 Security Instrument Mortgages and the other Loan Documents, or in the Property (or any portion thereof)Properties, the Rents, or any other collateral given to Lender pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower Borrowers only to the extent of each such Borrower’s interest in the PropertyProperties, in the Rents and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Security Instrument Mortgages and the other 105 Loan Documents, agrees that it shall not sue xxx for, seek or demand any deficiency judgment against any Borrower 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 Security Instrument Mortgages or the other Loan Documents. The provisions of this Section 9.3 9.4 shall not, however, (ia) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (iib) impair the right of Lender to name any Borrower as a party defendant in any action or suit for foreclosure and sale under the Security InstrumentMortgages; (iiic) affect the validity or enforceability of or any guaranty, indemnity or similar agreement or undertaking Guaranty made in connection with the Loan or any of the rights and remedies of Lender thereunder; (ivd) impair the right of Lender to obtain the appointment of a receiver; (ve) impair the enforcement of any assignment the Assignments of leases contained in the Security Instrument and any other Loan DocumentsLeases; or (vif) constitute a prohibition against Lender to seek seeking a deficiency judgment against any Borrower in order to fully realize the security granted by the Security Instrument (if required by applicable law and provided such deficiency judgment is not enforced personally against Borrower Mortgages or any officer, director, shareholder, partner, member, principal, employee of Borrower or any direct or indirect owner of Borrower (excluding Guarantor under the Guaranty and Environmental Indemnity, as applicable)) or to commence commencing any other appropriate action or proceeding in order for Lender to exercise its remedies against one or more of the Property Properties; or (g) constitute a waiver of the right of Lender to enforce the liability and obligation of Borrowers, by money judgment or otherwise, to the extent of any portion thereof).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:
Appears in 1 contract
Exculpation. (a) Subject Notwithstanding anything in the Loan Documents to the ----------- contrary, but subject to the qualifications belowhereinbelow set forth, Xxxxxx agrees that (i) Borrower shall be liable upon the indebtedness evidenced hereby and for the other obligations arising under the Loan Documents to the full extent (but only to the extent) of the security therefor, the same being all properties (whether real or personal), rights, estates and interests now or at any time hereafter securing the payment of this Note and/or the other obligations of Borrower under the Loan Documents (collectively, the "Security Property"), (ii) ----------------- if default occurs in the timely and proper payment of all or any part of such indebtedness evidenced hereby or in the timely and proper performance of the other obligations of Borrower under the Loan Documents, any judicial proceedings brought by Lender against Borrower shall not enforce be limited to the preservation, enforcement and foreclosure, or any thereof, of the liens, security titles, estates, assignments, rights and security interests now or at any time hereafter securing the payment of this Note and/or the other obligations of Borrower under the Loan Documents, and confirmation of any sale under power of sale, and no attachment, execution or other writ of process shall be sought, issued or levied upon any assets, properties or funds of Borrower other than the Security Property, except with respect to the liability described below in this section, and obligation (iii) in the event of a foreclosure of such liens, security titles, estates, assignments, rights or security interests securing the payment of this Note and/or the other obligations of Borrower to perform and observe under the obligations contained in Loan Documents, whether by judicial proceedings or exercise of power of sale, no judgment for any deficiency upon the Note, this Agreement, the Security Instrument or the other Loan Documents by any action or proceeding wherein a money judgment indebtedness evidenced hereby shall be sought or obtained by Lender against Borrower or any officerBorrower, director, shareholder, partner, member, principal, employee of Borrower or any direct or indirect owner of Borrower (provided that the foregoing shall not limit in any manner, except with respect to the liability of any Guarantor), except that Lender may bring 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, described below in this Agreement, the Security Instrument and the other Loan Documents, or in the Property (or any portion thereof), the Rents, or any other collateral given to Lender pursuant to the Loan Documentssection; provided, however, that, except as specifically provided hereinnotwithstanding the foregoing provisions of this section, any judgment in any such action or proceeding Borrower shall be enforceable fully and personally liable and subject to legal action (a) for proceeds paid under any insurance policies (or paid as a result of any other claim or cause of action against Borrower only any person or entity) by reason of damage, loss or destruction to all or any portion of the Security Property, to the full extent of Borrower’s interest in the Property, in the Rents and in any other collateral given such proceeds not previously delivered to Lender, and Lenderbut which, by accepting under the Note, this Agreement, the Security Instrument and the other Loan Documents, agrees that it shall not sue for, seek or demand any deficiency judgment against Borrower in any such action or proceeding under or by reason of or under or in connection with the Note, this Agreement, the Security Instrument or the other Loan Documents. The provisions of this Section 9.3 shall not, however, (i) constitute a waiver, release or impairment of any obligation evidenced or secured by any terms of the Loan Documents; , should have been delivered to Lender, (iib) impair for proceeds or awards resulting from the right condemnation or other taking in lieu of Lender to name Borrower as a party defendant in condemnation of all or any action or suit for foreclosure and sale under portion of the Security Instrument; (iii) affect the validity or enforceability of any guarantyProperty, indemnity or similar agreement or undertaking made in connection with the Loan or any of them, to the rights and remedies full extent of Lender thereunder; (iv) impair such proceeds or awards not previously delivered to Lender, but which, under the right terms of Lender to obtain the appointment of a receiver; (v) impair the enforcement of any assignment of leases contained in the Security Instrument and any other Loan Documents; or (vi) constitute a prohibition against Lender , should have been delivered to seek a deficiency judgment against Borrower in order to fully realize the security granted by the Security Instrument (if required by applicable law and provided such deficiency judgment is not enforced personally against Borrower or any officerLender, director, shareholder, partner, member, principal, employee of Borrower or any direct or indirect owner of Borrower (excluding Guarantor under the Guaranty and Environmental Indemnity, as applicable)) or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against the Property (or any portion thereof).---------- PROMISSORY NOTE - Page 4 Initials
Appears in 1 contract
Samples: Nei Webworld Inc
Exculpation. (a) Subject Notwithstanding anything to the qualifications belowcontrary contained in this Note, the Security Instruments or any Other Security Document (but subject to the provisions of subsections (b), (c) and (d) of this Article 11), Lender shall not enforce the liability and obligation of Borrower to perform and observe the obligations contained in the Note, this Agreement, Note or the Security Instrument or the other Loan Documents Instruments by any action or proceeding wherein a money judgment or any deficiency judgment or other judgment establishing any personal liability shall be sought against Borrower or any principal, director, officer, directoremployee, beneficiary, shareholder, partner, member, principaltrustee, employee agent or affiliate of Borrower or any direct person owning, directly or indirect owner indirectly, any legal or beneficial interest in Borrower, or any successors or assigns of Borrower (provided that any of the foregoing shall not limit in any manner(collectively, the liability of any Guarantor"Exculpated Parties"), except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender to enforce and realize upon its interest under the this Note, this Agreement, the Security Instrument Instruments, the Other Security Documents, and the other Loan Documents, or interest in the Property (or any portion thereof)Property, the Rents, or Rents (as defined in the Security Instruments) and any other collateral given to Lender pursuant to the Loan Documentssecure this Note; provided, however, thatsubject to the provisions of subsections (b), except as specifically provided herein(c) and (d) of this Article 11, that any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower’s 's interest in the Property, in the Rents and in any other collateral given to Lender, and Lender to secure this Note. Lender, by accepting the Note, this Agreement, Note and the Security Instrument and the other Loan DocumentsInstruments, agrees that xxxx it shall not not, except as otherwise provided in this Article 11, sue for, seek or demand any deficiency judgment against Borrower or any of the Exculpated Parties, in any such action or proceeding proceeding, under or by reason of or under or in connection with the this Note, this Agreement, the Security Instrument Instruments or the other Loan Other Security Documents. The provisions of this Section 9.3 Article II shall not, however, (i) constitute a waiver, release or impairment of any obligation evidenced or secured by any of this Note, the Loan DocumentsSecurity Instruments or the Other Security Documents delivered to Lender; (ii) impair the right of Lender to name Borrower as a party defendant in any action or suit for judicial foreclosure and sale under the Security InstrumentInstruments; (iii) affect the validity or enforceability of any indemnity, guaranty, indemnity master lease or similar agreement or undertaking instrument made in connection with this Note, the Loan Security Instruments, or any of the rights and remedies of Lender thereunderOther Security Documents; (iv) impair the right of Lender to obtain the appointment of a receiver; (v) impair the enforcement of any assignment the Assignment of leases contained Leases and Rents executed in connection herewith; (vi) impair the right of Lender to enforce the provisions of Section 12.2 of the Security Instrument and any other Loan DocumentsInstruments or of Section 3.12(c) of the Security Instruments; or (vivii) 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 the security granted by obtain any insurance proceeds or condemnation awards to which Lender would otherwise be entitled under the Security Instrument (if required by applicable law and provided Instruments; xxxxxxed however, Lender shall only enforce such deficiency judgment is not enforced personally against Borrower or any officer, director, shareholder, partner, member, principal, employee to the extent of Borrower or any direct or indirect owner of Borrower (excluding Guarantor under the Guaranty and Environmental Indemnity, as applicable)) or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against the Property (or any portion thereof)insurance proceeds and/or condemnation awards.
Appears in 1 contract
Exculpation. (a) 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 Security Instrument 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 officer, director, shareholder, partner, member, principal, employee of Borrower or any direct or indirect owner of Borrower (provided that the foregoing shall not limit in any manner, the liability of any Guarantor)other Person, except that Lender may bring 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 AgreementProperty, the Security Instrument and the other Loan Documents, or in the Property (or any portion thereof), the Rents, Rents or any other collateral given to Lender pursuant to this Agreement and the other Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against the Borrower Parties only to the extent of Borrower’s their interest in the Property, in the Rents and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Security Instrument Note and the other Loan Documents, agrees that it shall not sue xxx for, seek or demand any deficiency judgment against any of the Borrower Parties or any other Person in any such action or proceeding under or by reason of or under or in connection with the Note, this Agreement, the Security Instrument Note or any of the other Loan Documents. The provisions of this Section 9.3 paragraph shall not, however, (i) constitute a waiver, release or impairment of any obligation evidenced or secured by this Agreement, the Note or any of the other Loan Documents; (ii) 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 Security InstrumentMortgage; (iii) affect the validity or enforceability of any guaranty, indemnity or similar agreement or undertaking guaranty made in connection with the Loan or any of the rights and remedies of Lender thereunder; (iv) impair the right of Lender to obtain the appointment of a receiver; (v) impair the enforcement of any assignment the Assignment of leases contained Leases and Rents executed in the Security Instrument and any other Loan Documentsconnection herewith; or (vi) constitute a prohibition against waiver of the right of Lender to seek a deficiency judgment against Borrower in order to fully realize enforce the security granted by the Security Instrument (if required by applicable law liability and provided such deficiency judgment is not enforced personally against Borrower or any officer, director, shareholder, partner, member, principal, employee obligation of Borrower (but not against any members of Borrower (other than Guarantor to the extent provided in the Non-Recourse Guaranty) or any their direct or indirect owner of Borrower (excluding Guarantor under the Guaranty and Environmental Indemnity, as applicable)) constituent members or to commence partners or any other appropriate action Person), by money judgment or proceeding otherwise, to the extent of any loss, damage, cost, expense, liability, claim or other obligation (but excluding any punitive, consequential or speculative damages) incurred by Lender (including attorneys’ fees and costs reasonably incurred) arising out of or in order for Lender to exercise its remedies against connection with the Property (or any portion thereof).following:
Appears in 1 contract
Exculpation. The liability of Landlord or the Landlord Parties to Tenant for any default by Landlord under this Lease or arising in connection herewith or with Landlord's operation, management, leasing, repair, renovation, alteration or any other matter relating to the Project or the Premises shall be limited solely and exclusively to an amount which is equal to the lesser of (a) Subject to the qualifications below, Lender shall not enforce the liability and obligation interest of Borrower to perform and observe the obligations contained Landlord in the NoteProject or (b) the equity interest Landlord would have in the Project if the Project were encumbered by third-party debt in an amount equal to eighty percent (80%) of the value of the Project (as such value is determined by Landlord), this Agreementincluding any rental, the Security Instrument condemnation, sales and insurance proceeds received by Landlord or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against Borrower or any officer, director, shareholder, partner, member, principal, employee of Borrower or any direct or indirect owner of Borrower (provided that the foregoing shall not limit in any manner, the liability of any Guarantor), except that Lender may bring 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 Security Instrument and the other Loan Documents, or in the Property (or any portion thereof), the Rents, or any other collateral given to Lender pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower’s interest in the Property, in the Rents and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Security Instrument and the other Loan Documents, agrees that it shall not sue for, seek or demand any deficiency judgment against Borrower in any such action or proceeding under or by reason of or under or Landlord Parties in connection with the NoteProject, this AgreementBuilding or Premises. No Landlord Parties (other than Landlord) shall have any personal liability therefor, the Security Instrument and Tenant hereby expressly waives and releases such liability on behalf of itself and all persons claiming by, through or the other Loan Documentsunder Tenant. The provisions limitations of liability contained in this Section 9.3 29.13 shall notinure to the benefit of Landlord's and the Landlord Parties' present and future partners, howeverbeneficiaries, 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 (i) constitute if Landlord is a waiverpartnership), release or impairment of any obligation evidenced trustee or secured by any of the Loan Documents; beneficiary (ii) impair the right of Lender to name Borrower as a party defendant in any action or suit for foreclosure and sale under the Security Instrument; (iii) affect the validity or enforceability of any guaranty, indemnity or similar agreement or undertaking made in connection with the Loan if Landlord or any partner of Landlord is a trust), have any liability for the rights performance of Landlord's obligations under this Lease. Notwithstanding any contrary provision herein, neither Landlord nor the Landlord Parties shall be liable under any circumstances for injury or damage to, or interference with, Tenant's business, including but not limited to, loss of profits, loss of rents or other revenues, loss of business opportunity, loss of goodwill or loss of use, in each case, however occurring, or loss to inventory, scientific research, scientific experiments, laboratory animals, products, specimens, samples, and/or scientific, business, accounting and remedies other records of Lender thereunder; (iv) impair every kind and description kept at the right of Lender to obtain the appointment of a receiver; (v) impair the enforcement of any assignment of leases contained in the Security Instrument premises and any other Loan Documents; and all income derived or (vi) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted by the Security Instrument (if required by applicable law and provided such deficiency judgment is not enforced personally against Borrower or any officer, director, shareholder, partner, member, principal, employee of Borrower or any direct or indirect owner of Borrower (excluding Guarantor under the Guaranty and Environmental Indemnity, as applicable)) or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against the Property (or any portion thereof).derivable therefrom.
Appears in 1 contract
Samples: Pulse Biosciences, Inc.
Exculpation. (a) Subject to the qualifications below, Lender shall not enforce the liability and obligation of Borrower to perform and observe the obligations Obligations contained in the Note, this Agreement, the Security Instrument Pledge Agreement or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against Borrower Borrower, or against Owner, any Guarantor, any Affiliates of the foregoing or any officer, director, shareholder, partner, member, principal, employee of Borrower or any their respective direct or indirect owner principals, directors, officers, employees, beneficiaries, shareholders, partners, members, trustees or agents (each, exclusive of Borrower (provided that the foregoing shall not limit in any mannerBorrower, the liability of any Guarantoran “Other Exculpated Party”), except that (1) any Other Exculpated Party that is party to any Loan Document or any other separate written guaranty, indemnity or other agreement given by such Other Exculpated Party in connection with the Loan (including, without limitation, the Subordination of Management Agreement and the Qualified Preferred Equity Recognition Agreement or any other Loan Document to which such Other Exculpated Party is a party) shall remain fully liable therefor and the foregoing provisions shall not operate to limit or impair the liabilities and obligations of such Other Exculpated Party thereunder, and (2) Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender to enforce and realize upon its interest under the Note, this Agreement, the Security Instrument Pledge Agreement and the other Loan Documents, or in the Property (all or any portion thereof), of the Rents, Collateral or any other collateral given to Lender pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower’s interest in the Property, in the Rents Collateral and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Security Instrument Pledge Agreement and the other Loan Documents, agrees that it shall not sue xxx for, seek or demand any deficiency judgment against Borrower any of the Exculpated Parties in any such action or proceeding under or by reason of or under or in connection with the Note, this Agreement, the Security Instrument Pledge Agreement or the other Loan Documents. The provisions of this Section 9.3 10.1 shall not, however, (ia) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (iib) impair the right of Lender to name Borrower as a party defendant in any action or suit for foreclosure and sale under the Security InstrumentPledge Agreement; (iiic) affect the validity or enforceability of any guaranty, indemnity of the Loan Documents or similar agreement or undertaking any guaranty made in connection with the Loan or any of the rights and remedies of Lender thereunder; (ivd) impair the right of Lender to obtain the appointment of a receiver; (ve) impair the enforcement of any assignment of leases contained in the Security Instrument and any other Loan DocumentsEnvironmental Indemnity; or (vif) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted by the Pledge Agreement or the other Security Instrument (if required by applicable law and provided such deficiency judgment is not enforced personally against Borrower or any officer, director, shareholder, partner, member, principal, employee of Borrower or any direct or indirect owner of Borrower (excluding Guarantor under the Guaranty and Environmental Indemnity, as applicable)) Documents or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against the Property (all or any portion thereofof the Collateral; (g) waive or impair the liability of any Other Exculpated Party under any Loan Document or any other separate written guaranty, indemnity or other agreement to which such Other Exculpated Party is a party (including, without limitation, the Subordination of Management Agreement and the Qualified Preferred Equity Recognition Agreement or any other Loan Document to which such Other Exculpated Party is a party).; or (h) constitute a waiver of the right of Lender to enforce the liability and obligation of Borrower, by money judgment or Mezzanine Loan Agreement
Appears in 1 contract
Samples: Mezzanine Loan Agreement (W2007 Grace Acquisition I Inc)
Exculpation. (a) Subject to the qualifications belowExcept as otherwise provided herein, Lender shall not enforce the liability and obligation of Borrower or Maryland Owner to perform and observe the obligations contained herein or in the Note, this Agreement, the Security Instrument or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against Borrower or any officer, director, shareholder, partner, member, principal, employee of Borrower or any direct or indirect owner of Borrower (provided that the foregoing shall not limit in any manner, the liability of any Guarantor)Maryland Owner, except that Lender may bring 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 Security Instrument Note, the Mortgages and the other Loan Documents, or and the interest in the Property (or any portion thereof)Property, the Rents, or Rents and any other collateral given to Lender pursuant to created by this Agreement, the Note, the Mortgages and the other Loan Documents; provided, however, that, except as specifically provided herein, that any judgment in any such action or proceeding shall be enforceable against Borrower or Maryland Owner, only to the extent of Borrower’s their interest in the Property, in the Rents and in any other collateral given to Lender, and . Lender, by accepting the Note, this Agreement, the Security Instrument Note, the Mortgages and the other Loan Documents, agrees that it shall not sue not, except as otherwise provided in this Section 15.1, xxx for, seek or demand any deficiency judgment against Borrower or Maryland Owner in any such action or proceeding proceeding, under or by reason of or under or in connection with the Note, this Agreement, the Security Instrument Note, the Mortgages or the other Loan Documents. The provisions of this Section 9.3 15.1 shall not, however, (i) constitute a waiver, release or impairment of any obligation evidenced or secured by any of this Agreement, the Note, the Mortgages or the other Loan Documents; (ii) impair the right of Lender to name Borrower or Maryland Owner as a party defendant in any action or suit for judicial foreclosure and sale under this Agreement and the Security InstrumentMortgages; (iii) affect the validity or enforceability of any indemnity (including those contained in the Guaranty, Environmental Indemnity, Section 13.6 and Article XIV of this Agreement), guaranty, indemnity master lease or similar agreement or undertaking instrument made in connection with this Agreement, the Note, the Mortgages and the other Loan or any of the rights and remedies of Lender thereunderDocuments; (iv) impair the right of Lender to obtain the appointment of a receiver; (v) impair the enforcement of any the assignment of leases provisions contained in the Security Instrument and any other Loan DocumentsMortgages; or (vi) constitute a prohibition against impair the right of Lender to seek obtain a deficiency judgment against Borrower in order to fully realize or other judgment on the security granted by the Security Instrument (if required by applicable law and provided such deficiency judgment is not enforced personally Note against Borrower or Maryland Owner if necessary to obtain any officerInsurance Proceeds or Awards to which Lender would otherwise be entitled under this Agreement; provided, directorhowever, shareholder, partner, member, principal, employee that Lender shall only enforce such judgment to the extent of Borrower or any direct or indirect owner of Borrower (excluding Guarantor under the Guaranty and Environmental Indemnity, as applicable)) or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against the Property (or any portion thereof)Insurance Proceeds and/or Awards.
Appears in 1 contract
Samples: Mortgage Loan Agreement (Ashford Hospitality Trust Inc)
Exculpation. (a) Subject to 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 Security Instrument or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against Borrower or any officer, director, shareholder, partner, member, principal, employee of Borrower or any direct or indirect owner of Borrower (provided that the foregoing shall not limit in any manner, the liability of any Guarantor), except that Lender may bring 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 Security Instrument and the other Loan Documents, or in the Property (or any portion thereof), the RentsInvestment 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; providedPartnership for (i) any acts or omissions (or alleged acts or omissions) or any error of judgment or for any losses, howeverliabilities, thatdamages, except as specifically provided hereinexpenses or costs (including, without limitation, any judgment in any such action judgment, award, settlement, reasonable attorneys’ fees and other costs or proceeding shall be enforceable against Borrower only to the extent of Borrower’s interest in the Property, in the Rents and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Security Instrument and the other Loan Documents, agrees that it shall not sue for, seek or demand any deficiency judgment against Borrower in any such action or proceeding under or by reason of or under or expenses incurred in connection with the Notedefense of any actual or threatened action, this Agreementproceeding (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 Instrument Partnership’s affairs, except those Indemnified Losses resulting from the willful misconduct, bad faith, fraud, criminal conduct or gross negligence of the other Loan Documents. The provisions Covered Person, or material breach of this Section 9.3 shall notAgreement by the Covered Person (collectively or individually, however“Disabling Conduct”), (i) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (ii) impair any acts or omissions (or alleged acts or omissions) of any broker or agent of the right Partnership or any Covered Person, provided that such broker or agent was selected, engaged and retained in accordance with the standard of Lender care set forth above. Each of the Covered Persons may consult with counsel and accountants with respect to name Borrower as a party defendant the Partnership’s affairs and will be fully protected and justified in any action or suit inaction which is taken in reasonable reliance upon the advice or opinion of such counsel or accountants, provided that such counsel or accountants were selected, engaged and retained in 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 foreclosure and sale under the Security Instrument; (iii) affect the validity exculpation or enforceability indemnification of any guarantyCovered Person for any liability (including liability under U.S. Federal securities laws which, indemnity under certain circumstances, impose liability even on Persons acting in good faith), to the extent (but only to the extent) that such exculpation or similar agreement or undertaking made indemnification would be in connection with violation of applicable law, but shall be construed so as to effectuate these provisions to the Loan or any of the rights and remedies of Lender thereunder; (iv) impair the right of Lender to obtain the appointment of a receiver; (v) impair the enforcement of any assignment of leases contained in the Security Instrument and any other Loan Documents; or (vi) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted fullest extent permitted by the Security Instrument (if required by applicable law and provided such deficiency judgment is not enforced personally against Borrower or any officer, director, shareholder, partner, member, principal, employee of Borrower or any direct or indirect owner of Borrower (excluding Guarantor under the Guaranty and Environmental Indemnity, as applicable)) or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against the Property (or any portion thereof)law.
Appears in 1 contract
Samples: Limited Partnership Agreement (Eminence Capital, Lp)
Exculpation. (a) Subject to Except as otherwise provided herein or in the qualifications belowother Loan Documents, Lender shall not enforce the liability and obligation of Borrower to perform and observe the obligations contained herein or in the Note, this Agreement, the Security Instrument 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 and the Environmental Indemnity), (3) any Affiliate of Borrower, (4) any Person owning, directly or indirectly, any legal or beneficial interest in Borrower or any officer, director, shareholder, Affiliate of Borrower or (5) any direct or indirect limited partner, member, principal, employee officer, beneficiary, trustee, shareholder, Affiliate or director of Borrower or any direct or indirect owner of Borrower Persons described in clauses (provided that 1) through (5) above (collectively, subject to the foregoing shall not limit exceptions in any mannerclauses (i) and (ii) below, the liability of any Guarantor“Exculpated Parties”), except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender to enforce and realize upon its interest under the Note, this Agreement, the Security Instrument Note, the Mortgages and the other Loan Documents, or and the interest in the Property (or any portion thereof)Properties, the Rents, or Rents and any other collateral given to Lender pursuant to created by this Agreement, the Note, the Mortgages and the other Loan Documents; provided, however, that, except as specifically provided herein, that any judgment in any such action or proceeding shall be enforceable against Borrower Borrower, only to the extent of Borrower’s interest in the PropertyProperties, in the Rents and in any other collateral given to Lender, and . Lender, by accepting the Note, this Agreement, the Security Instrument Note, the Mortgages and the other Loan Documents, agrees that it shall not not, except as otherwise provided in this Section 15.1, sue for, seek or demand any deficiency judgment against Borrower any 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 Security Instrument Note, the Mortgages or the other Loan Documents. The provisions of this Section 9.3 15.1 shall not, however, (i) constitute a waiver, release or impairment of any obligation evidenced or secured by any of this Agreement, the Note, the Mortgages or the other Loan Documents; (ii) impair the right of Lender to name Borrower or Operating Lessee as a party defendant in any action or suit for judicial foreclosure and sale under this Agreement and the Security InstrumentMortgages; (iii) affect the validity or enforceability of any indemnity (including, without limitation, those contained in Article 14 of this Agreement and the Environmental Indemnity), guaranty, indemnity master lease or similar agreement or undertaking instrument made in connection with this Agreement, the Note, the Mortgages and the other Loan or any of the rights and remedies of Lender thereunderDocuments; (iv) impair the right of Lender to obtain the appointment of a receiver; (v) impair the enforcement of any the assignment of leases provisions contained in the Security Instrument and any other Loan DocumentsMortgages; or (vi) 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 obtain any Insurance Proceeds or Awards to which Lender would otherwise be entitled under this Agreement; provided, however, Lender shall only enforce such judgment to the security granted by extent of the Security Instrument (if required by applicable law and provided such deficiency judgment is not enforced personally against Borrower or any officer, director, shareholder, partner, member, principal, employee of Borrower or any direct or indirect owner of Borrower (excluding Guarantor under the Guaranty and Environmental Indemnity, as applicable)) or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against the Property (or any portion thereof).Insurance Proceeds and/or Awards. 117
Appears in 1 contract
Exculpation. (a) 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 Security Instrument or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against Borrower any Transaction Party or any officerof their respective officers, directordirectors, shareholdermanagers, partner, member, principal, employee of Borrower shareholders or any direct or indirect owner of Borrower employees (provided that the foregoing shall not limit in any mannercollectively, the liability of any Guarantor“Exculpated Parties”), except that Lender an Agent may bring 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 Security Instrument and the other Loan Documents, or and the interest in the Property (or any portion thereof), the Rents, or any other collateral given to Lender pursuant to the Loan DocumentsCollateral; 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 Rents and in any other collateral given to LenderMortgages, and Lender, by accepting the Note, this Agreement, the Security Instrument and the other Loan Documents, agrees that it shall not sue sxx for, seek or demand any deficiency judgment against Borrower any of the 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 Security Instrument or the other Loan Documents. The provisions of this Section 9.3 10.01 shall not, however, (i) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (ii) 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 Security Instrumentany Mortgage; (iii) affect the validity or enforceability of any guarantyindemnity, indemnity guaranty (including the Guaranty), master lease or similar agreement or undertaking instrument made in connection with the Loan or any of the rights and remedies of Lender thereunderDocuments; (iv) impair the right of Lender the any Agent to obtain the appointment of a receiver; (v) impair the enforcement of any assignment Assignment of leases contained 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 the Security Instrument and this Agreement or in any other Loan DocumentsDocument which is not inconsistent with the terms of this Section 10.01; or (viviii) 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 the security granted by the Security Instrument (if required by applicable law A) preserve or enforce its rights and provided such deficiency judgment is not enforced personally against Borrower or any officer, director, shareholder, partner, member, principal, employee of Borrower or any direct or indirect owner of Borrower (excluding Guarantor under the Guaranty and Environmental Indemnity, as applicable)) or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against the Property Collateral or (B) obtain any Insurance Proceeds or any portion thereof).Awards to which the Secured Parties would otherwise be entitled under the terms of the Loan Documents; provided, however, the Secured Parties shall only enforce such judgment to the extent of the Insurance Proceeds and/or Awards. 136
Appears in 1 contract
Samples: Security Agreement (Hospitality Investors Trust, Inc.)
Exculpation. (a) Subject to the qualifications below, Lender shall Buyer agrees that it does not enforce the liability have and obligation will not have any claims or causes of Borrower to perform and observe the obligations contained in the Note, this Agreement, the Security Instrument action against any disclosed or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against Borrower or any undisclosed officer, director, employee, trustee, shareholder, partner, member, principal, employee parent, subsidiary or other affiliate of Borrower Seller, including, without limitation, Tishman Speyer Properties, L.P. and Goldman, Sachs & Co., or any direct xxx xxficxx, xirector, employee, trustee, shareholder, member, partner or indirect owner of Borrower (provided that the foregoing shall not limit in any manner, the liability principal of any Guarantorsuch parent, subsidiary or other affiliate (collectively, "Seller's Affiliates"), except that Lender may bring a foreclosure action, an action arising out of with this Agreement or the transactions contemplated hereby. Buyer agrees to look solely to Seller and its assets for specific performance the satisfaction of any liability or any other appropriate action obligation arising under this Agreement or proceeding to enable Lender to enforce and realize upon its interest under the Note, this Agreement, the Security Instrument and the other Loan Documentstransactions contemplated hereby, or in for the Property (performance of any of the covenants, warranties or any portion thereof), the Rents, or any other collateral given to Lender pursuant to the Loan Documents; provided, however, that, except as specifically provided agreements contained herein, and further agrees not to sue or otherwise seek to exxxrce any judgment in personal obligation against any such action or proceeding shall be enforceable against Borrower only of Seller's Affiliates with respect to the extent any matters arising out of Borrower’s interest in the Property, in the Rents and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Security Instrument and the other Loan Documents, agrees that it shall not sue for, seek or demand any deficiency judgment against Borrower in any such action or proceeding under or by reason of or under or in connection with the Note, this Agreement, the Security Instrument Agreement or the other Loan Documentstransactions contemplated hereby. The provisions of this Section 9.3 shall not10.10, however, shall not apply to Tishman Speyer/Travelers Real Estate Venture, L.P. and Whitehall Street Real Estate Limited Partnership IX (icollectively, the "Members") constitute a waiver, release or impairment to the extent of any obligation evidenced or secured by the amount any of the Loan Documents; (ii) impair Members has received from the right of Lender to name Borrower as a party defendant in any action or suit for foreclosure and sale under the Security Instrument; (iii) affect the validity or enforceability of any guaranty, indemnity or similar agreement or undertaking made in connection with the Loan or any proceeds of the rights transactions which is the subject of this Agreement, if the remaining funds available to Seller to satisfy the obligations of the Seller pursuant to this Agreement or the transactions contemplated hereby are not at least equal to Five Million Dollars ($5,000,000) or such lower amount of liability or potential liability as the Seller may have under such agreements. The provisions of this Section 10.10 shall survive the termination of this Agreement and remedies the Closing. This Section 10.10 will not apply to the parties to the Parking Easement or the Development Indemnity Agreement to the extent such claim or cause of Lender thereunder; (iv) impair action relates solely to the right of Lender to obtain Parking Easement Agreement or the appointment of a receiver; (v) impair the enforcement of any assignment of leases contained in the Security Instrument and any other Loan Documents; or (vi) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted by the Security Instrument (if required by applicable law and provided such deficiency judgment is not enforced personally against Borrower or any officer, director, shareholder, partner, member, principal, employee of Borrower or any direct or indirect owner of Borrower (excluding Guarantor under the Guaranty and Environmental IndemnityDevelopment Indemnity Agreement, as applicable)) or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against the Property (or any portion thereof).
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 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 Borrower or any principal, director, officer, directoremployee, beneficiary, shareholder, partner, member, principaltrustee, employee agent, or Affiliate of Borrower or any direct legal representatives, successors or indirect owner assigns of Borrower (provided that any of the foregoing shall not limit in any manner(collectively, the liability of any Guarantor"Exculpated Parties"), except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender to enforce and realize upon its interest under the Note, this Agreement, the Security Instrument and the other Loan Documents, or in the Property (or any portion thereof)Property, the Rents, or any other collateral given to Lender pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower’s 's interest in the Property, in the Rents and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Security Instrument and the other Loan Documents, agrees that it shall not sue for, seek or demand any deficiency judgment against Borrower or any of the Exculpated Parties in any such action or proceeding under or by reason of or under or in connection with the Note, this Agreement, the Security Instrument or the other Loan Documents. The provisions of this Section 9.3 shall not, however, (i1) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (ii2) impair the right of Lender to name Borrower as a party defendant in any action or suit for foreclosure and sale under the Security Instrument; (iii3) affect the validity or enforceability of any guaranty, indemnity or similar agreement or undertaking the Guaranty and the Environmental Indemnity made in connection with the Loan or any of the rights and remedies of Lender thereunderthereunder (including, without limitation, Xxxxxx's right to enforce said rights and remedies against Xxxxxxxx and/or Guarantor (as applicable) personally and without the effect of the exculpatory provisions of this Article 13); (iv4) impair the right rights of Lender Xxxxxx to obtain the appointment of a receiver; (v5) impair the enforcement of any LOAN AGREEMENT – Page 112 41458-112/Patuxent Crossing (MD) and Coliseum Marketplace (VA) the assignment of leases and rents contained in the Security Instrument and in any other Loan Documents; or (vi6) intentionally deleted; (7) constitute a prohibition against Lender to seek a deficiency judgment against Borrower (but not Guarantor) in order to fully realize the security granted by the Security Instrument (if required by applicable law to the full extent of Xxxxxxxx's interest in the Property and provided such deficiency judgment is not enforced personally against Borrower or any officer, director, shareholder, partner, member, principal, employee of Borrower or any direct or indirect owner of Borrower (excluding Guarantor under collateral for the Guaranty and Environmental Indemnity, as applicable)) Loan or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against the Property Property; or (8) constitute a waiver of the right of Lender to enforce the liability and obligation of Borrower, by money judgment or otherwise, to the extent of any portion thereof).Loss incurred by Xxxxxx (including attorneys' fees and costs reasonably incurred) arising out of or in connection with the following:
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 Security Instrument Pledge Agreement or the other Loan Documents by any action or proceeding wherein a money judgment or any deficiency judgment or other judgment establishing personal liability shall be sought against Borrower, any other Borrower Party, or any principal, director, officer, directoremployee, beneficiary, shareholder, partner, member, principaltrustee, employee agent, or Affiliate of Borrower or any direct other Borrower Party or indirect owner any legal representatives, successors or assigns of Borrower (provided that any of the foregoing shall not limit in any manner(collectively, the liability of any Guarantor“Exculpated Parties”), except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender to enforce and realize upon its interest under the Note, this Agreement, the Security Instrument Pledge Agreement and the other Loan Documents, or in the Property Property, the Collateral (or any portion thereof), the Rents, or any other collateral given to Lender pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower’s interest in the Property, in the Rents Collateral and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Security Instrument Pledge Agreement and the other Loan Documents, agrees that it shall not sue for, seek or demand any deficiency judgment against Borrower or any of the Exculpated Parties in any such action or proceeding under or by reason of or under or in connection with the Note, this Agreement, the Security Instrument Pledge Agreement or the other Loan Documents. The provisions of this Section 9.3 shall not, however, (i1) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (ii2) impair the right of Lender to name Borrower as a party defendant in any action or suit for foreclosure and sale under the Security InstrumentPledge Agreement; (iii3) affect the validity or enforceability of any guarantyindemnity, indemnity guaranty or similar agreement or undertaking instrument (including, without limitation, indemnities set forth in Article 12 hereof, Section 11.2 hereof, in the Guaranty and the Environmental Indemnity) made in connection with the Loan or any of the rights and remedies of Lender thereunderthereunder (including, without limitation, Xxxxxx’s right to enforce said rights and remedies against Xxxxxxxx and/or Guarantor (as applicable) personally and without the effect of the exculpatory provisions of this Article 13); (iv4) impair the rights of Lender to (A) obtain the appointment of a receiver and/or (B) enforce its rights and remedies provided in Articles 8 and 9 hereof; (5) impair the enforcement of the Pledge Agreement or any other Loan Documents; (6) impair the right of Lender to obtain the appointment enforce Section 4.12(e) of a receiverthis Agreement; (v) impair the enforcement of any assignment of leases contained in the Security Instrument and any other Loan Documents; or (vi7) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted by the Security Instrument (if required by applicable law and provided such deficiency judgment is not enforced personally against Borrower or any officer, director, shareholder, partner, member, principal, employee of Borrower or any direct or indirect owner of Borrower (excluding Guarantor under the Guaranty and Environmental Indemnity, as applicable)) Pledge Agreement or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against the Property (or any portion thereof) and/or the Collateral (or any portion thereof).; or (8) constitute a waiver of the right of Lender to enforce the liability and obligation of Borrower, by money judgment or otherwise, to the extent of any Loss actually incurred by Lender (including reasonable attorneys’ fees and costs reasonably incurred) arising out of or in connection with the following:
Appears in 1 contract
Samples: Mezzanine a Loan Agreement (Industrial Logistics Properties Trust)
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 NoteNotes, this Agreement, the Security Instrument Mortgage or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against Borrower or any officer, director, shareholder, partner, member, principal, employee of Borrower or any direct or indirect owner of Borrower (provided that the foregoing shall not limit in any manner, the liability of any Guarantor)Borrower, except that Lender may bring 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 Security Instrument Mortgage and the other Loan Documents, or in the Property (or any portion thereof)Property, the Rents, the IP or any other collateral given to Lender pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against any Borrower only to the extent of such Borrower’s interest in the its Property, in its Rents, in the Rents IP and in any other collateral given by it to Lender, and Lender, by accepting the NoteNotes, this Agreement, the Security Instrument Mortgage and the other Loan Documents, agrees that it shall not sue xxx for, seek or demand any deficiency judgment against any Borrower 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 Security Instrument Mortgage or the other Loan Documents. The provisions of this Section 9.3 shall not, however, (ia) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (iib) impair the right of Lender to name any Borrower as a party defendant in any action or suit for foreclosure and sale under the Security InstrumentMortgage; (iiic) affect the validity or enforceability of or any guaranty, indemnity or similar agreement or undertaking guaranty 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; (ivd) impair the right of Lender to obtain the appointment of a receiver; (ve) impair the enforcement of any assignment the Assignment of leases contained in the Security Instrument and any other Loan DocumentsLeases; or (vif) constitute a prohibition against Lender to seek seeking a deficiency judgment against any Borrower in order to fully realize the security granted by the Security Instrument (if required by applicable law and provided such deficiency judgment is not enforced personally against Borrower Mortgage or any officer, director, shareholder, partner, member, principal, employee of Borrower or any direct or indirect owner of Borrower (excluding Guarantor under the Guaranty and Environmental Indemnity, as applicable)) or to commence commencing any other appropriate action or proceeding in order for Lender to exercise its remedies against any Property or the Property IP; or (g) constitute a waiver of the right of Lender to enforce the liability and obligation of any Borrower, by money judgment or otherwise, to the extent of any portion thereofactual 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:
Appears in 1 contract
Exculpation. (a) Subject 45. The liability of Mortgagor and General Partner with respect to the qualifications belowpayment of principal and interest under the Note shall be "non-recourse" and, Lender shall not enforce the liability accordingly, Mortgagee's source of satisfaction of said indebtedness and obligation of Borrower to perform Xxxxxxxxx's other obligations hereunder and observe the obligations contained in the Note, this Agreement, the Security Instrument or under the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against Borrower limited to the Property and, for and only during the period of time commencing with the date hereof and continuing up to and including September 5, 1998, the South Property (as such term is defined in the Note) and Mortgagee's receipt of the rents, issues and profits from the Property, and, for and only during the period of time commencing with the date hereof and continuing up to and including September 5, 1998, the South Property, and Mortgagee shall not seek to procure payment out of any other assets of Mortgagor or any officerperson or entity comprising Mortgagor, director, shareholder, partner, member, principal, employee of Borrower or to seek judgment for any direct sums which are or indirect owner of Borrower (provided that the foregoing shall not limit in any manner, the liability of any Guarantor), except that Lender may bring 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 be payable under the Note, this AgreementMortgage or any of the other Loan Documents, as well as any claim or judgment (except as hereafter provided) for any deficiency remaining after foreclosure of this Mortgage. Notwithstanding the Security Instrument above, nothing herein contained shall be deemed to be a release or impairment of the indebtedness evidenced by the Note or the security therefor intended by this Mortgage and the other Loan Documents, or in the Property (be deemed to preclude Mortgagee from exercising its rights to foreclose this Mortgage or to enforce any portion thereof), the Rents, of its other rights or any other collateral given to Lender pursuant to remedies under the Loan Documents; provided. Notwithstanding the foregoing, however, that, except as specifically provided herein, any judgment it is expressly understood and agreed that the aforesaid limitation on liability shall in any such action no way affect or proceeding shall be enforceable against Borrower only apply to the extent of Borrower’s interest in the Property, in the Rents Xxxxxxxxx's and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Security Instrument and the other Loan Documents, agrees that it shall not sue for, seek or demand any deficiency judgment against Borrower in any such action or proceeding under or by reason of or under or in connection with the Note, this Agreement, the Security Instrument or the other Loan Documents. The provisions of this Section 9.3 shall not, however, (i) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (ii) impair the right of Lender to name Borrower as a party defendant in any action or suit General Partner's continued personal liability for foreclosure and sale under the Security Instrument; (iii) affect the validity or enforceability of any guaranty, indemnity or similar agreement or undertaking made in connection with the Loan or any of the rights and remedies of Lender thereunder; (iv) impair the right of Lender to obtain the appointment of a receiver; (v) impair the enforcement of any assignment of leases contained in the Security Instrument and any other Loan Documents; or (vi) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted by the Security Instrument (if required by applicable law and provided such deficiency judgment is not enforced personally against Borrower or any officer, director, shareholder, partner, member, principal, employee of Borrower or any direct or indirect owner of Borrower (excluding Guarantor under the Guaranty and Environmental Indemnity, as applicable)) or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against the Property (or any portion thereof).all sums due to:
Appears in 1 contract
Samples: Trust and Security Agreement (Jones Financial Companies L P)
Exculpation. (a) Subject to the qualifications below, the liabilities and obligations of Borrower under the Note, this Agreement, the Mortgage and the other Loan Documents are and shall be non-recourse, and Lender shall not enforce the liability and obligation of Borrower to perform and observe the obligations contained in the Note, this Agreement, the Security Instrument Mortgage or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against Borrower or any officer, director, shareholder, partner, member, principal, employee of Borrower or any direct or indirect owner of Borrower (provided that the foregoing shall not limit in any manner, the liability of any Guarantor)Borrower, except that Lender may bring 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 Security Instrument Mortgage and the other Loan Documents, or in the Property (or any portion thereof)Property, the Rents, or any other collateral given to Lender pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower’s 's interest in the Property, in the Rents and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Security Instrument Mortgage and the other Loan Documents, agrees that it shall not sue for, seek or demand any deficiency judgment against Borrower Borroxxx in any such action or proceeding under or by reason of or under or in connection with the Note, this Agreement, the Security Instrument Mortgage or the other Loan Documents. The provisions of this Section 9.3 section shall not, however, (ia) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (iib) impair the right of Lender to name Borrower as a party defendant in any action or suit for foreclosure and sale under the Security InstrumentMortgage; (iiic) affect the validity or enforceability of any guaranty, indemnity or similar agreement or undertaking guaranty made in connection with the Loan or any of the rights and remedies of Lender thereunder; (ivd) impair the right of Lender to obtain the appointment of a receiver; (ve) impair the enforcement of any assignment the Assignment of leases contained in the Security Instrument and any other Loan DocumentsLeases; or (vif) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted by the Security Instrument (if required by applicable law and provided such deficiency judgment is not enforced personally against Borrower or any officer, director, shareholder, partner, member, principal, employee of Borrower or any direct or indirect owner of Borrower (excluding Guarantor under the Guaranty and Environmental Indemnity, as applicable)) Mortgage or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against the Property Property; or (g) constitute a waiver of the right of Lender to enforce the liability and obligation of Borrower, by money judgment or otherwise, to the extent of any portion thereof).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:
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 Security Instrument 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 Borrower or any principal, director, officer, directoremployee, beneficiary, shareholder, partner, member, principaltrustee, employee agent, or Affiliate of Borrower or any direct legal representatives, successors or indirect owner assigns of Borrower (provided that any of the foregoing shall not limit in any manner(collectively, the liability of any Guarantor“Exculpated Parties”), except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender to enforce and realize upon its interest under the Note, this Agreement, the Security Instrument Mortgage and the other Loan Documents, or in the Property (or any portion thereof)Property, the Rents, or any other collateral given to Lender pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower’s interest in the Property, in the Rents and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Security Instrument Mortgage and the other Loan Documents, agrees that it shall not sue xxx for, seek or demand any deficiency judgment against Borrower or any of the Exculpated Parties in any such action or proceeding under under, or by reason of or under of, or in connection with with, the Note, this Agreement, the Security Instrument Mortgage or the other Loan Documents. The provisions of this Section 9.3 shall not, however, (i1) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (ii2) impair the right of Lender to name Borrower as a party defendant in any action or suit for foreclosure and sale under the Security InstrumentMortgage; (iii3) affect the validity or enforceability of any guarantyindemnity, indemnity guaranty or similar agreement or undertaking instrument (including, without limitation, indemnities set forth herein, in the Guaranty and the Environmental Indemnity) made in connection with the Loan or any of the rights and remedies of Lender thereunderthereunder (including, without limitation, Lender’s right to enforce said rights and remedies against Borrower and/or Guarantor (as applicable) personally and without the effect of the exculpatory provisions of this Section 10.7); (iv4) impair the right of Lender to obtain the appointment of a receiver; (v5) impair the enforcement of any assignment the Assignment of leases contained in the Security Instrument and any other Loan DocumentsLeases; or (vi6) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted by the Security Instrument (if required by applicable law and provided such deficiency judgment is not enforced personally against Borrower or any officer, director, shareholder, partner, member, principal, employee of Borrower or any direct or indirect owner of Borrower (excluding Guarantor under the Guaranty and Environmental Indemnity, as applicable)) Mortgage or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against the Property Property; (7) impair the right of Lender to enforce Section 7.7 hereof or the other Cash Management Provisions; or (8) constitute a waiver of the right of Lender to enforce the liability and obligation of Borrower, by money judgment or otherwise, to the extent of any portion thereof).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:
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 Security Instrument 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 Borrower or any principal, director, officer, directoremployee, beneficiary, shareholder, partner, member, principaltrustee, employee agent, or affiliate of Borrower or any direct immediate family member, legal representatives, successors or indirect owner assigns of Borrower (provided that any of the foregoing shall not limit in any manner, the liability of any Guarantor(collectively “Exculpated Parties”), except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender to enforce and realize upon its interest under the Note, this Agreement, the Security Instrument Mortgage and the other Loan Documents, or in the Property (or any portion thereof)Property, the Rents, or any other collateral given to Lender pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower’s interest in the Property, in the Rents and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Security Instrument Mortgage and the other Loan Documents, agrees that it shall not sue xxx for, seek or demand any deficiency judgment against Borrower or any of the Exculpated Parties, in any such action or proceeding under or by reason of or under or in connection with the Note, this Agreement, the Security Instrument Mortgage or the other Loan Documents. The provisions of this Section 9.3 11.22 shall not, however, (ia) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (iib) impair the right of Lender to name Borrower as a party defendant in any action or suit for foreclosure and sale of the Property under the Security InstrumentMortgage; (iiic) affect the validity or enforceability of any indemnity, guaranty, indemnity or similar agreement or undertaking instrument made in connection with the Loan or any of the rights and remedies of Lender thereunder; (ivd) impair the right of Lender to obtain the appointment of a receiver; (ve) impair the enforcement of any assignment the Assignment of leases contained in Leases; (f) impair the Security Instrument and any other Loan Documentsright of Lender to enforce the provisions of the Guaranty or the Environmental Indemnity; or (vig) constitute a prohibition against Lender to seek a deficiency judgment against Borrower solely in order to fully realize on any security given by Borrower in connection with the security granted by the Security Instrument (if required by applicable law and provided such deficiency judgment is not enforced personally against Borrower or any officer, director, shareholder, partner, member, principal, employee of Borrower or any direct or indirect owner of Borrower (excluding Guarantor under the Guaranty and Environmental Indemnity, as applicable)) Loan or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against such security; or (h) constitute a waiver of the Property right of Lender to 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 any portion thereof).in connection with the following:
Appears in 1 contract
Samples: Loan Agreement (Pacific Oak Strategic Opportunity REIT II, Inc.)
Exculpation. (a) Subject 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 Security Instrument Pledge Agreement or the other Loan Documents by any action or proceeding wherein a money judgment or any deficiency judgment or other judgment establishing personal liability shall be sought against Borrower or any principal, director, officer, directoremployee, beneficiary, shareholder, partner, member, principalmanager, employee of Borrower trustee, agent, or any direct or indirect owner Affiliate of Borrower (provided that but specifically excluding Guarantor subject to the terms of the Guaranty) or any legal representatives, successors or assigns of any of the foregoing shall not limit in any manner(collectively, the liability of any Guarantor“Exculpated Parties”), except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender to enforce and realize upon its interest under the Note, this Agreement, the Security Instrument Pledge Agreement and the other Loan Documents, or in the Property (or any portion thereof), the Rents, Collateral or any other collateral given to Lender pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower’s interest in the Property, in the Rents Collateral and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Security Instrument Pledge Agreement and the other Loan Documents, agrees that it shall not sue xxx for, seek or demand any deficiency judgment against Borrower or any of the Exculpated Parties in any such action or proceeding under or by reason of or under or in connection with the Note, this Agreement, the Security Instrument Pledge Agreement or the other Loan Documents. The provisions of this Section 9.3 shall not, however, (i1) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (ii2) impair the right of Lender to name Borrower as a party defendant in any action or suit for foreclosure and sale under the Security InstrumentPledge Agreement; (iii3) affect the validity or enforceability of any guaranty, separate written indemnity or similar agreement or undertaking guaranty (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); (iv4) impair the right of Lender to obtain the appointment of a receiver; (v5) impair the enforcement of any assignment of leases contained in the Security Instrument and any other Loan Documentsintentionally omitted; or (vi6) constitute a prohibition against Lender to seek seeking a deficiency judgment against Borrower in order to fully realize the security granted by the Security Instrument Pledge Agreement (if required by applicable law and provided such deficiency judgment is but not enforced personally against to impose personal liability upon Borrower or any officer, director, shareholder, partner, member, principal, employee of Borrower or any direct or indirect owner of Borrower (excluding Guarantor under the Guaranty and Environmental Indemnity, as applicable)contrary to this Section 13.1) or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against the Property Collateral; or (7) 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 portion thereof).Losses incurred by Lender (including attorneys’ fees and costs reasonably incurred) directly arising out of or caused by the following:
Appears in 1 contract
Samples: Mezzanine Loan Agreement (Cole Corporate Income Trust, Inc.)
Exculpation. (a) Subject to the qualifications below, Lender shall not enforce the liability and obligation of any Borrower and/or any Operating Lessee to perform and observe the obligations Obligations contained in the Note, this Agreement, the Security Instrument Mortgages or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against such Borrower or any officer, director, shareholder, partner, member, principal, employee of Borrower or any direct or indirect owner of Borrower (provided that the foregoing shall not limit in any manner, the liability of any Guarantor)such Operating Lessee, except that Lender may bring 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 Security Instrument Mortgages and the other Loan Documents, or in the Property (all or any portion thereof)of the Properties, the Rents, Gross Revenues or any other collateral given to Lender pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against a Borrower or an Operating Lessee only to the extent of such Borrower’s or such Operating Lessee’s interest in the PropertyProperties, in the Rents Gross Revenues and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Security Instrument Mortgages and the other Loan Documents, agrees that it shall not sue sxx for, seek or demand any deficiency judgment against a Borrower or an Operating Lessee in any such action or proceeding under or by reason of or under or in connection with the Note, this Agreement, the Security Instrument Mortgages or the other Loan Documents. The provisions of this Section 9.3 10.1 shall not, however, (ia) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (iib) impair the right of Lender to name Borrower one or more Borrowers or Operating Lessees as a party defendant in any action or suit for foreclosure and sale under the Security Instrumentany Mortgage; (iiic) affect the validity or enforceability of any guaranty, indemnity of the Loan Documents or similar agreement or undertaking any guaranty made in connection with the Loan or any of the rights and remedies of Lender thereunder; (ivd) impair the right of Lender to obtain the appointment of a receiver; (ve) impair the enforcement of any assignment the Assignments of leases contained in Leases; (f) impair the Security Instrument and any other Loan Documentsenforcement of the Environmental Indemnity; or (vig) constitute a prohibition against Lender to seek a deficiency judgment against Borrower all or any of the Borrowers or Operating Lessees in order to fully realize the security granted by the Security Instrument (if required by applicable law and provided such deficiency judgment is not enforced personally against Borrower or any officer, director, shareholder, partner, member, principal, employee of Borrower or any direct or indirect owner of Borrower (excluding Guarantor under the Guaranty and Environmental Indemnity, as applicable)) Mortgage or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against the Property (all or any portion thereof).of the Properties; or (h) constitute a waiver of the right of Lender to enforce the liability and obligation of Borrowers or Operating Lessees by money judgment or otherwise, to the extent of any actual loss, damage, cost, expense, liability, claim or other obligation incurred by Lender (including attorneys’ fees and costs reasonably incurred) (collectively, “Losses”) arising out of or in connection with the following (all such liability and obligation of Borrowers and Operating Lessees for any Losses for or all of the following being referred to herein as “Borrowers’ Recourse Liabilities”):
Appears in 1 contract
Samples: Loan Agreement (American Realty Capital Hospitality Trust, Inc.)
Exculpation. (a) Subject to the qualifications below, Lender shall not enforce the liability and obligation of Borrower to perform and observe the obligations contained in the Note, this Agreement, the Security Instrument Pledge or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against Borrower or any officer, director, shareholder, partner, member, principal, employee of Borrower or any direct or indirect owner of Borrower (provided that the foregoing shall not limit in any manner, the liability of any Guarantor)Borrower, except that Lender may bring 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 Security Instrument Pledge and the other Loan Documents, or in the Property (or any portion thereof), the Rents, Collateral or any other collateral given to Lender pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower’s interest in the Property, in the Rents and in any other collateral given to Lender, Collateral and Lender, by accepting the Note, this Agreement, the Security Instrument Pledge and the other Loan Documents, agrees that it shall not sue xxx for, seek or demand any deficiency judgment against Borrower 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 Security Instrument Pledge or the other Loan Documents. The provisions of this Section 9.3 shall not, however, (ia) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (iib) impair the right of Lender to name Borrower as a party defendant in any action or suit for foreclosure and sale under the Security InstrumentPledge; (iiic) affect the validity or enforceability of or any guaranty, indemnity or similar agreement or undertaking Guaranty made in connection with the Loan or any of the rights and remedies of Lender thereunder; (ivd) impair the right of Lender to obtain the appointment of a receiver; (v) impair the enforcement of any assignment of leases contained in the Security Instrument and any other Loan Documents; or (vie) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted by the Security Instrument (if required by applicable law and provided such deficiency judgment is not enforced personally against Borrower or any officer, director, shareholder, partner, member, principal, employee of Borrower or any direct or indirect owner of Borrower (excluding Guarantor under the Guaranty and Environmental Indemnity, as applicable)) Pledge or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against the Property Collateral; or (f) 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 portion thereof).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:
Appears in 1 contract
Exculpation. (a) Subject 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 Security Instrument 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 Borrower or any officer, director, shareholder, partner, member, principal, employee of Borrower or any direct or indirect owner of Borrower (provided that the foregoing shall not limit in any manner, the liability of any Guarantor), except that Lender may bring 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 Security Instrument fees and the other Loan Documentsexpenses of counsel and experts and their staffs and all expense of document location, or in the Property duplication and shipment) (or any portion thereof)collectively, the Rents, or any other collateral given to Lender pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent "Representative Losses") arising out of Borrower’s interest in the Property, in the Rents and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Security Instrument and the other Loan Documents, agrees that it shall not sue for, seek or demand any deficiency judgment against Borrower in any such action or proceeding under or by reason of or under or in connection with the NoteRepresentative's execution and performance of this Agreement or any other transaction document, this Agreementin 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 Security Instrument 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 other Loan Documents. The provisions of this Section 9.3 shall notRepresentative by the Company Holders, however, any such Representative Losses may be recovered by the Representative from (i) constitute a waiverthe funds in the Representative Reimbursement Amount, release or impairment of any obligation evidenced or secured by any of the Loan Documents; and (ii) impair the right of Lender amounts in the Escrow Fund at such time as remaining amounts would otherwise be distributable to name Borrower the Company Holders; provided, that while this section allows the Representative to be paid from the Representative Reimbursement Amount and the Escrow Fund, this does not relieve the Company Holders from their obligation to promptly pay such Representative Losses as a party defendant in they are suffered or incurred, nor does it prevent the Representative from seeking any action remedies available to it at law or suit for foreclosure and sale under otherwise. In no event will the Security Instrument; (iii) affect the validity or enforceability of any guaranty, indemnity or similar agreement or undertaking made in connection with the Loan or any Representative be required to advance its own funds on behalf of the rights Company Holders or otherwise. The Company Holders acknowledge and remedies agree that the foregoing indemnities will survive the resignation or removal of Lender thereunder; (iv) impair the right Representative or the termination of Lender this Agreement. Notwithstanding the foregoing, no Company Holder shall have any liability with respect to obtain Representative Losses in excess of the appointment of a receiver; (v) impair the enforcement of any assignment of leases contained in the Security Instrument and any other Loan Documents; or (vi) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted Merger Consideration received by the Security Instrument (if required by applicable law and provided such deficiency judgment is not enforced personally against Borrower or any officer, director, shareholder, partner, member, principal, employee of Borrower or any direct or indirect owner of Borrower (excluding Guarantor under the Guaranty and Environmental Indemnity, as applicable)) or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against the Property (or any portion thereof)Company Holder.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Acorda Therapeutics Inc)
Exculpation. (a) 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 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 Restructuring Support Agreement, the Security Instrument or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against Borrower or any officer, director, shareholder, partner, member, principal, employee of Borrower or any direct or indirect owner of Borrower (provided that the foregoing shall not limit in any manner, the liability of any Guarantor), except that Lender may bring a foreclosure action, an action for specific performance ; 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 Security Instrument and approval of the other Loan Documents, Disclosure Statement or in the Property (Confirmation or any portion thereof), the Rents, or any other collateral given to Lender pursuant to the Loan Documentsconsummation of this 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 determined by Final Order of the Bankruptcy Court or proceeding shall be enforceable against Borrower only to the extent of Borrower’s interest in the Property, in the Rents and in any other collateral given court of competent jurisdiction; and/or (ii) the rights of any Person or Entity to Lenderenforce this Plan and the contracts, instruments, releases, indentures, and Lender, by accepting the Note, this Agreement, the Security Instrument other agreements and the other Loan Documents, agrees that it shall not sue for, seek or demand any deficiency judgment against Borrower in any such action or proceeding under or by reason of or documents delivered under or in connection with this Plan or assumed pursuant to this Plan or Final Order of the NoteBankruptcy Court; provided, this Agreementfurther, that each Exculpated Party shall be entitled to rely upon the advice of counsel concerning its respective duties pursuant to, or in connection with, the Security Instrument above referenced documents, actions or inactions. The foregoing exculpation shall be effective as of the Effective Date without further notice to or order of the Bankruptcy Court, act or action under applicable law, regulation, order, or rule or the other Loan Documentsvote, consent, authorization or approval of any Person. Notwithstanding the foregoing, nothing in 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 Action or liabilities they may have against any 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 provisions of this Section 9.3 shall notExculpation will be in addition to, howeverand not in limitation of, (i) constitute a waiverall other releases, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (ii) impair the right of Lender to name Borrower as a party defendant in any action or suit for foreclosure and sale under the Security Instrument; (iii) affect the validity or enforceability of any guarantyindemnities, indemnity or similar agreement or undertaking made in connection with the Loan or any of the rights and remedies of Lender thereunder; (iv) impair the right of Lender to obtain the appointment of a receiver; (v) impair the enforcement of any assignment of leases contained in the Security Instrument exculpations, and any other Loan Documents; or (vi) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted by the Security Instrument (if required by applicable law and provided or rules protecting such deficiency judgment is not enforced personally against Borrower or any officer, director, shareholder, partner, member, principal, employee of Borrower or any direct or indirect owner of Borrower (excluding Guarantor under the Guaranty and Environmental Indemnity, as applicable)) or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against the Property (or any portion thereof)Exculpated Parties from liability.
Appears in 1 contract
Samples: Restructuring Support Agreement (Starry Group Holdings, Inc.)
Exculpation. (a) Subject Notwithstanding anything to the qualifications belowcontrary contained in this Security Instrument or any other document or certificate executed in connection with the Loan or any Securitization (but subject to the exceptions expressly provided herein) none of Borrower, any member of Borrower, any partner, member, shareholder, director, officer, employee or agent of Borrower or of any such member, and any legal representative, heir, estate, successor or assign of any of the foregoing, shall have any personal liability for any payment which is or may be payable hereunder or under any other loan document, or for the performance of any covenants contained in, or for any other claims arising under or with respect hereto or any other loan document, it being understood that all of Borrower's obligations shall be enforceable only against Borrower's interest in the Property, the rents and other collateral given to Lender in accordance herewith. Except as otherwise provided, Lender shall not enforce the liability and obligation of Borrower to perform and observe the obligations contained in the Note, Note or this Agreement, the Security Instrument or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against Borrower or any officer, director, shareholder, partner, member, principal, employee of Borrower or any direct or indirect owner of Borrower (provided that the foregoing shall not limit in any manner, the liability of any Guarantor)Borrower, except that Lender may bring (i) 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 Other Security Instrument Documents, and the other Loan Documents, or interest in the Property (or any portion thereof)Property, the Rents, or Rents and any other collateral given to Lender pursuant to created by this Security Instrument and the Loan Other Security Documents and (ii) an action for injunctive relief enjoining Borrower from violating this Security Instrument, the Other Security Documents; provided, however, that, except as specifically provided herein, that any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower’s 's interest in the Property, in the Rents and in any other collateral given to Lender, and . Lender, by accepting the Note, Note and this Agreement, the Security Instrument and the other Loan DocumentsInstrument, agrees that it shall not not, except as otherwise provided in Section 11.10, sue forxxx, seek or demand any deficiency judgment against Borrower in any such action or proceeding proceeding, under or by reason of or under or in connection with the Note, the Other Security Documents or this Agreement, the Security Instrument or the other Loan Documents. The provisions of this Section 9.3 shall not, however, (i) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (ii) impair the right of Lender to name Borrower as a party defendant in any action or suit for foreclosure and sale under the Security Instrument; (iii) affect the validity or enforceability of any guaranty, indemnity or similar agreement or undertaking made in connection with the Loan or any of the rights and remedies of Lender thereunder; (iv) impair the right of Lender to obtain the appointment of a receiver; (v) impair the enforcement of any assignment of leases contained in the Security Instrument and any other Loan Documents; or (vi) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted by the Security Instrument (if required by applicable law and provided such deficiency judgment is not enforced personally against Borrower or any officer, director, shareholder, partner, member, principal, employee of Borrower or any direct or indirect owner of Borrower (excluding Guarantor under the Guaranty and Environmental Indemnity, as applicable)) or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against the Property (or any portion thereof).
Appears in 1 contract
Samples: And Consolidated Mortgage and Security Agreement (Alexanders Inc)
Exculpation. (a) Subject Notwithstanding anything in the Loan Documents ----------- to the contrary, but subject to the qualifications belowhereinbelow set forth, Xxxxxx agrees that (i) Borrower shall be liable upon the indebtedness evidenced hereby and for the other obligations arising under the Loan Documents to the full extent (but only to the extent) of the security therefor, the same being all properties (whether real or personal), rights, estates and interests now or at any time hereafter securing the payment of this Note and/or the other obligations of Borrower under the Loan Documents (collectively, the "Security -------- Property"), (ii) if default occurs in the timely and proper payment of all or -------- any part of such indebtedness evidenced hereby or in the timely and proper performance of the other obligations of Borrower under the Loan Documents, any judicial proceedings brought by Lender against Borrower shall not enforce be limited to the preservation, enforcement and foreclosure, or any thereof, of the liens, security titles, estates, assignments, rights and security interests now or at any time hereafter securing the payment of this Note and/or the other obligations of Borrower under the Loan Documents, and confirmation of any sale under power of sale, and no attachment, execution or other writ of process shall be sought, issued or levied upon any assets, properties or funds of Borrower other than the Security Property, except with respect to the liability described below in this section, and obligation (iii) in the event of a foreclosure of such liens, security titles, estates, assignments, rights or security interests securing the payment of this Note and/or the other obligations of Borrower to perform and observe under the obligations contained in Loan Documents, whether by judicial proceedings or exercise of power of sale, no judgment for any deficiency upon the Note, this Agreement, the Security Instrument or the other Loan Documents by any action or proceeding wherein a money judgment indebtedness evidenced hereby shall be sought or obtained by Lender against Borrower or any officerBorrower, director, shareholder, partner, member, principal, employee of Borrower or any direct or indirect owner of Borrower (provided that the foregoing shall not limit in any manner, except with respect to the liability of any Guarantor), except that Lender may bring 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, described below in this Agreement, the Security Instrument and the other Loan Documents, or in the Property (or any portion thereof), the Rents, or any other collateral given to Lender pursuant to the Loan Documentssection; provided, however, that, except as specifically provided hereinnotwithstanding the foregoing provisions of this section, any judgment in any such action or proceeding Borrower shall be enforceable fully and personally liable and subject to legal action (a) for proceeds paid under any insurance policies (or paid as a result of any other claim or cause of action against Borrower only any person or entity) by reason of damage, loss or destruction to all or any portion of the Security Property, to the full extent of Borrower’s interest in the Property, in the Rents and in any other collateral given such proceeds not previously delivered to Lender, and Lenderbut which, by accepting under the Note, this Agreement, terms of the Security Instrument and the other Loan Documents, agrees that it shall should have been delivered to Lender, (b) for proceeds or awards resulting ------------- PROMISSORY NOTE - Page 4 Initials from the condemnation or other taking in lieu of condemnation of all or any portion of the Security Property, or any of them, to the full extent of such proceeds or awards not sue forpreviously delivered to Lender, seek but which, under the terms of the Loan Documents, should have been delivered to Lender, (c) for all tenant security deposits or demand other refundable deposits paid to or held by Borrower or any deficiency judgment against Borrower in any such action other person or proceeding under or by reason of or under or entity in connection with leases of all or any portion of the NoteSecurity Property which are not applied in accordance with the terms of the applicable lease or other agreement, this Agreement(d) for rent and other payments received from tenants under leases of all or any portion of the Security Property paid more than one month in advance, (e) for rents, issues, profits and revenues of all or any portion of the Security Property received or applicable to a period after any notice of default from Lender hereunder or under the Loan Documents in the event of any default by Borrower hereunder or thereunder which are not either applied to the ordinary and necessary expenses of owning and operating the Security Property or paid to Lender, (f) for damage to the Security Property as a result of the intentional misconduct or gross negligence of Borrower or any of its principals, officers, managers, members or general partners, or any agent or employee of any such persons, or any removal of the Security Property in violation of the terms of the Loan Documents, to the full extent of the losses or damages incurred by Lender on account of such failure, (g) for 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 Security Property which would be superior to the lien or security title of the Security Instrument or the other Loan Documents. The provisions , to the full extent of this Section 9.3 shall notthe amount claimed by any such lien claimant, however(h) for all obligations and indemnities of Borrower under the Loan Documents relating to hazardous or toxic substances or compliance with environmental laws and regulations to the full extent of any losses or damages (including those resulting from diminution in value of any Security Property) incurred by Lender as a result of the existence of such hazardous or toxic substances or failure to comply with environmental laws or regulations, and (i) constitute for fraud or material misrepresentation by Borrower or any of its principals, officers, managers, members or general partners, any guarantor, any indemnitor or any agent, employee or other person authorized or apparently authorized to make statements or representations on behalf of Xxxxxxxx, any principal, officer, manager, member or partner of Borrower, any guarantor or any indemnitor, to the full extent of any losses, damages and expenses of Lender on account thereof. References herein to particular sections of the Loan Documents shall be deemed references to such sections as affected by other provisions of the Loan Documents relating thereto. Nothing contained in this section shall (i) be deemed to be a waiver, release or impairment of the indebtedness evidenced by this Note or the other obligations of Borrower under the Loan Documents or the lien of the Loan Documents upon the Security Property, or (ii) preclude Lender from foreclosing under the Loan Documents in case of any obligation evidenced default or secured by from enforcing any of the Loan Documents; (ii) impair the right other rights of Lender to name Borrower except as a party defendant stated in any action this section, or suit for foreclosure and sale under the Security Instrument; (iii) affect limit or impair in any way whatsoever either the validity Indemnity and Guaranty Agreement or enforceability the Hazardous Substances Indemnity Agreement (collectively, the "Indemnity Agreement") of any guaranty, indemnity or similar agreement or undertaking made even date executed and delivered in ------------------- connection with the Loan indebtedness evidenced by this Note or release, relieve, reduce, waive or impair in any of the rights and remedies of Lender thereunder; (iv) impair the right of Lender to obtain the appointment of a receiver; (v) impair the enforcement way whatsoever, any obligation of any assignment of leases contained in party to the Security Instrument and any other Loan Documents; or (vi) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted by the Security Instrument (if required by applicable law and provided such deficiency judgment is not enforced personally against Borrower or any officer, director, shareholder, partner, member, principal, employee of Borrower or any direct or indirect owner of Borrower (excluding Guarantor under the Guaranty and Environmental Indemnity, as applicable)) or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against the Property (or any portion thereof).Indemnity Agreement. ------------- PROMISSORY NOTE - Page 5 Initials
Appears in 1 contract
Samples: Nei Webworld 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 Security Instrument or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against Borrower or any officer, director, shareholder, partner, member, principal, employee of Borrower or any direct or indirect owner of Borrower (provided that the foregoing shall not limit in any manner, the liability of any Guarantor)Borrower, except that Lender may bring 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 Security Instrument and the other Loan Documents, or in the Property (all or any portion thereof), of the Rents, or any other collateral given to Lender pursuant to the Loan DocumentsCollateral; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower’s interest in the Property, in the Rents and in any other collateral given to LenderCollateral, and Lender, by accepting the Note, this Agreement, the Security Instrument and the other Loan Documents, agrees that it Lender shall not sue xxx for, seek or demand any deficiency judgment against Borrower in any such action or proceeding under or by reason of or under or in connection with the Note, this Agreement, the Security Instrument or the other any Loan DocumentsDocument. The provisions of this Section 9.3 shall not, however, (i) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan DocumentsDocument; (ii) 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 Security InstrumentDocuments; (iii) affect the validity or enforceability of any guaranty, indemnity of the Loan Documents or similar agreement or undertaking any guaranty made in connection with the Loan or any of the rights and remedies of Lender thereunder; (iv) impair the right of Lender to obtain the appointment of a receiver; (v) impair the enforcement of any assignment of leases contained in the Security Instrument and any other Loan Documents; or (vi) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted by the Security Instrument (if required by applicable law and provided such deficiency judgment is not enforced personally against Borrower or any officer, director, shareholder, partner, member, principal, employee of Borrower or any direct or indirect owner of Borrower (excluding Guarantor under the Guaranty and Environmental Indemnity, as applicable)) or to commence any other appropriate action or proceeding in order for Lender to fully realize the security granted by the Pledge or the other Security Documents or to exercise its remedies against all or any portion of the Collateral; or (vi) constitute a waiver of the right of Lender to enforce the liability and obligation of Borrower (but not any of its constituent members, partners, officers, directors or shareholders), 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 being referred to herein as “Borrower’s Recourse Liabilities”): (a) fraud or intentional misrepresentation by Borrower, Sole Member, Owner or Guarantor in connection with obtaining the Loan; (b) intentional waste of the Property (or any portion thereof, or after an Event of Default the removal or disposal of any portion of the Property; (c) any Proceeds paid by reason of any Insured Casualty or any Award received in connection with a Condemnation or other sums or payments attributable to the Property to the extent not applied in accordance with the provisions of the Loan Documents and the Senior Loan Documents (except to the extent that Borrower or Owner did not have the legal right, because of a bankruptcy, receivership or similar judicial proceeding, to direct disbursement of such sums or payments); (d) all Rents of the Property received or collected by or on behalf of Borrower or Owner after an Event of Default and not applied to payment of Principal and interest due under the Note or under the Senior Loan or otherwise as provided for in the Loan Documents and the Senior Loan Documents, and to the payment of actual and reasonable operating expenses of the Property, as they become due or payable (except to the extent that such application of such funds is prevented by bankruptcy, receivership, or similar judicial proceeding in which Borrower or Owner is legally prevented from directing the disbursement of such sums); (e) misappropriation (including failure to turn over to Lender on demand following an Event of Default) of tenant security deposits and rents collected in advance; (f) the failure by Borrower or Owner to pay Taxes or Insurance Premiums, provided Borrower shall not be liable to the extent funds to pay such amounts are available in the Tax and Insurance Subaccount pursuant to the Senior Loan Agreement and Senior Lender failed to pay same; (g) the failure to pay transfer fees and charges due Lender under the Loan Documents in connection with any subordinate financing or any transfer of all or any part of the Property or the Collateral, or any interest therein, from Borrower to Borrower’s transferee, or transfer of beneficial interest in Borrower; and (h) the breach of any representation, warranty, covenant or indemnification in any Loan Document concerning Environmental Laws or Hazardous Substances, including Sections 4.21 and 5.10, and clauses (viii) through (xi) of Section 5.30. Notwithstanding anything to the contrary in this Agreement or any of the Loan Documents, (a) Lender shall not be deemed to have waived any right which Lender may have under Section 506(a) , 506(b) , 1111(b) or any other provisions of the U.S. Bankruptcy Code to file a claim for the full amount of the Debt or to require that all collateral shall continue to secure all of the Debt in accordance with the Loan Documents, and (b) Lender’s agreement not to pursue personal liability of Borrower as set forth above SHALL BECOME NULL AND VOID and shall be of no further force and effect, and the Debt shall be fully recourse to Borrower and Guarantor (but not any of Borrower’s constituent members, partners, officers, directors or shareholders) in the event that one or more of the following occurs (each, a “Springing Recourse Event”): (i) an Event of Default described in Section 8.1(d) shall have occurred (solely as a result of a voluntary Transfer), or (ii) a breach of the covenants set forth in Section 5.15, or (iii) Borrower’s voluntary commencement of proceedings to be adjudicated bankrupt or insolvent; Borrower’s consent to the institution of bankruptcy or insolvency proceedings against it; Borrower’s filing of a petition seeking, or consent to, reorganization or relief under any applicable federal or state law relating to bankruptcy or insolvency; Borrower’s consent to the appointment of a receiver, liquidator, assignee, trustee, sequestrator (or other similar official) of Borrower or a substantial part of Borrower’s property; Borrower’s assignment for the benefit of creditors; or the filing of an involuntary petition in bankruptcy or insolvency proceedings against Borrower by any principal of or owner of any interest in Borrower or any affiliate of or party related to Borrower (but excluding any owner or affiliate that indirectly owns or is affiliated with Borrower solely from its ownership of shares in the REIT).
Appears in 1 contract
Samples: Mezzanine Loan Agreement (KBS Real Estate Investment Trust, Inc.)
Exculpation. (a) 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 Security Instrument Mortgages or the other Loan Documents by any an action or proceeding wherein a money judgment shall be sought against Borrower Maker or any judgment shall be sought against any director, officer, directoremployee, shareholder, partner, member, principal, employee partner or stockholder of Borrower or any direct or indirect owner of Borrower (provided that the foregoing shall not limit in any manner, the liability of any Guarantor), except that Lender may bring 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 Security Instrument and the other Loan DocumentsMaker, or in its general partners (all of the Property (or any portion thereofforegoing, collectively, "Principals"), the Rents, or any other collateral given to Lender pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower’s interest in the Property, in the Rents and in any other collateral given to Lender, and Lender. Payee, by accepting the this Note, this Agreement, the Security Instrument Mortgages and the other Loan Documents, agrees that it shall not sue for, seek or demand any deficiency judgment against Borrower Maker or any judgment, including a judgment for specific performance, against its Principals or any one or more of 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 Security Instrument 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 9.3 4.04 shall not, however, (ia) 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; (iib) 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 Security InstrumentMortgages to the extent necessary to realize upon any collateral securing this Note; (iii) affect the validity or enforceability of any guaranty, indemnity or similar agreement or undertaking made in connection with the Loan or any of the rights and remedies of Lender thereunder; (ivc) impair the right of Lender Payee to obtain the appointment of a receiver; (vd) impair the enforcement of the Assignments; (e) impair the right of Payee to bring suit with respect to, or Maker's personal liability for, fraud or intentional misrepresentation by Maker or any assignment of leases contained other Person in connection with this Note, the Security Instrument and Mortgages or any other Loan Document; (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 defense, or counterclaim or or-her 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 Defaults; (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 exercise of its remedies in respect of any judgments or other sums due from Maker to Payee other than under the Loan 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 misappropriation with respect to any Cross-collateralized Property during the continuance of an Event of Default or (vi1) constitute a prohibition against Lender impair the right of Payee to seek a deficiency judgment against Borrower bring suit with respect 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 order waste, provided, however, that waste shall not be deemed to fully realize include the security granted by the Security Instrument (if required by applicable law and provided such deficiency judgment is not enforced personally against Borrower non-payment of impositions, mechanics liens, materialmen's liens or any officerother liens arising from work performed on, directoror materials delivered to, shareholder, partner, member, principal, employee of Borrower or any direct or indirect owner of Borrower (excluding Guarantor under the Guaranty and Environmental Indemnity, as applicable)) or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against the Property (or any portion thereof)Cross collateralized Properties.
Appears in 1 contract
Samples: Prime Retail Inc/Bd/
Exculpation. (a) Subject to the qualifications belowset forth in this Section 9.3, Lender shall not enforce the liability and obligation of Borrower or Operating Lessee to perform and observe the obligations contained in the Note, this Agreement, the Security Instrument Mortgage or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against Borrower or any officer, director, shareholder, partner, member, principal, employee of Borrower or any direct or indirect owner of Borrower (provided that the foregoing shall not limit in any manner, the liability of any Guarantor)Operating Lessee, except that Lender may bring 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 Security Instrument Mortgage and the other Loan Documents, or in the Property (or any portion thereof)Property, the IP Collateral, the Rents, or any other collateral given to Lender pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower or Operating Lessee only to the extent of Borrower’s or Operating Lessee’s interest in the Property, in the Rents Rents, in the IP Collateral and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Security Instrument Mortgage and the other Loan Documents, agrees that it shall not sue xxx for, seek or demand any deficiency judgment against Borrower in any such action or proceeding under or by reason of or under or in connection with the Note, this Agreement, the Security Instrument Mortgage or the other Loan Documents. The provisions of this Section 9.3 shall not, however, (i) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (ii) impair the right of Lender to name Borrower or Operating Lessee as a party defendant in any action or suit for foreclosure and sale under the Mortgage or the IP Security InstrumentAgreement; (iii) affect the validity or enforceability of or any guaranty, indemnity or similar agreement or undertaking guaranty made in connection with the Loan or any of the rights and remedies of Lender thereunder; (iv) impair the right of Lender to obtain the appointment of a receiver; (v) impair the enforcement of any assignment of leases contained in the Security Instrument and any other Loan DocumentsMortgage; or (vi) constitute a prohibition against Lender to seek a deficiency judgment against Borrower or Operating Lessee in order to fully realize the security granted by the Mortgage or the IP Security Instrument (if required by applicable law and provided such deficiency judgment is not enforced personally against Borrower or any officer, director, shareholder, partner, member, principal, employee of Borrower or any direct or indirect owner of Borrower (excluding Guarantor under the Guaranty and Environmental Indemnity, as applicable)) Agreement or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against the Property (or any portion thereof).IP Collateral;
Appears in 1 contract
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 Security Instrument Mortgage or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against Borrower or any officer, director, shareholder, partner, member, principal, employee of Borrower or any direct or indirect owner of Borrower (provided that the foregoing shall not limit in any manner, the liability of any Guarantor)Borrower, except that Lender may bring 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 Security Instrument Mortgage and the other Loan Documents, or in the Property (or any portion thereof), the Rents, or any other collateral Collateral given to Lender pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against any Borrower only to the extent of such Borrower’s interest in the Property, in the Rents and in any other collateral given to LenderCollateral, and Lender, by accepting the Note, this Agreement, the Security Instrument Mortgage and the other Loan Documents, agrees that it shall not sue xxx for, seek or demand any deficiency judgment against any Borrower 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 Security Instrument Mortgage or the other Loan Documents. The provisions of this Section 9.3 8.1 shall not, however, (ia) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (iib) impair the right of Lender to name any Borrower as a party defendant in any action or suit for foreclosure and sale under the Security InstrumentMortgage; (iii) affect the validity or enforceability of any guaranty, indemnity or similar agreement or undertaking made in connection with the Loan or any of the rights and remedies of Lender thereunder; (ivc) impair the right of Lender to obtain the appointment of a receiver; (v) impair the enforcement of any assignment of leases contained in the Security Instrument and any other Loan Documents; or (vid) constitute a prohibition against Lender to seek seeking a deficiency judgment against any Borrower in order to fully realize the security granted by the Security Instrument (if required by applicable law and provided such deficiency judgment is not enforced personally against Borrower Mortgage or any officer, director, shareholder, partner, member, principal, employee of Borrower or any direct or indirect owner of Borrower (excluding Guarantor under the Guaranty and Environmental Indemnity, as applicable)) or to commence commencing any other appropriate action or proceeding in order for Lender to exercise its remedies against the Property Collateral. Notwithstanding anything to the contrary in this Agreement or any other Loan Document, 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 the Collateral or to which the Collateral 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 portion thereof)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. (a) Subject to the qualifications below, Lender shall not enforce the liability and obligation of Borrower to perform and observe the obligations Obligations contained in the Note, this Agreement, the Security Instrument Pledge Agreement or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against Borrower Borrower, or against Owner, any Guarantor, any Affiliates of the foregoing or any officer, director, shareholder, partner, member, principal, employee of Borrower or any their respective direct or indirect owner principals, directors, officers, employees, beneficiaries, shareholders, partners, members, trustees or agents (each, exclusive of Borrower (provided that the foregoing shall not limit in any mannerBorrower, the liability of any Guarantoran “Other Exculpated Party”), except that (1) any Other Exculpated Party that is party to any Loan Document or any other separate written guaranty, indemnity or other agreement given by such Other Exculpated Party in connection with the Loan (including, without limitation, the Subordination of Management Agreement and the Qualified Preferred Equity Recognition Agreement or any other Loan Document to which such Other Exculpated Party is a party) shall remain fully liable therefor and the foregoing provisions shall not operate to limit or impair the liabilities and obligations of such Other Exculpated Party thereunder, and (2) Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender to enforce and realize upon its interest under the Note, this Agreement, the Security Instrument Pledge Agreement and the other Loan Documents, or in the Property (all or any portion thereof), of the Rents, Collateral or any other collateral given to Lender pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower’s interest in the Property, in the Rents Collateral and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Security Instrument Pledge Agreement and the other Loan Documents, agrees that it shall not sue xxx for, seek or demand any deficiency judgment against Borrower any of the Exculpated Parties in any such action or proceeding under or by reason of or under or in connection with the Note, this Agreement, the Security Instrument Pledge Agreement or the other Loan Documents. The provisions of this Section 9.3 10.1 shall not, however, (i) constitute a)consdtute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (iib) impair the right of Lender to name Borrower as a party defendant in any action or suit for foreclosure and sale under the Security InstrumentPledge Agreement; (iiic) affect the validity or enforceability of any guaranty, indemnity of the Loan Documents or similar agreement or undertaking any guaranty made in connection with the Loan or any of the rights and remedies of Lender thereunder; (ivd) impair the right of Lender to obtain the appointment of a receiver; (ve) impair the enforcement of any assignment of leases contained in the Security Instrument and any other Loan DocumentsEnvironmental Indemnity; or (vif) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted by the Pledge Agreement or the other Security Instrument (if required by applicable law and provided such deficiency judgment is not enforced personally against Borrower or any officer, director, shareholder, partner, member, principal, employee of Borrower or any direct or indirect owner of Borrower (excluding Guarantor under the Guaranty and Environmental Indemnity, as applicable)) Documents or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against the Property (all or any portion thereofof the Collateral; (g) waive or impair the liability of any Other Exculpated Party under any Loan Document or any other separate written guaranty, indemnity or other agreement to which such Other Exculpated Party is a party (including, without limitation, the Subordination of Management Agreement and the Qualified Preferred Equity Recognition Agreement or any other Loan Document to which such Other Exculpated Party is a party).; 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 actual loss, damage, out-of-pocket cost or expense, liability, claim or other obligation incurred by Lender (including reasonable outside attorneys’ fees and costs reasonably incurred) arising out of or in connection with the following (all such liability and obligation of Borrower for any or all of the following being referred to herein as “Borrower’s Recourse Liabilities”):
Appears in 1 contract
Samples: Mezzanine Loan Agreement (American Realty Capital Hospitality Trust, Inc.)
Exculpation. (a) Subject to the qualifications below, Lender shall not enforce the liability and obligation of Borrower or 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 Security Instrument 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 officer, director, shareholder, partner, member, principal, employee of Borrower or any direct or indirect owner of Borrower (provided that the foregoing shall not limit in any manner, the liability of any Guarantor)other Person, except that Lender may bring 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 Security Instrument and the other Loan Documents, or in the Property (all or any portion thereof), of the Rents, or any other collateral given to Lender pursuant to the Loan DocumentsCollateral; 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 Rents and in any other collateral given to LenderCollateral, and Lender, by accepting the Note, this Agreement, the Security Instrument Note and the other Loan Documents, agrees that it shall not sue xxx for, seek or demand any deficiency judgment against any of the Borrower Parties or any other Person in any such action or proceeding under or by reason of or under or in connection with the Note, this Agreement, the Security Instrument Note or any of the other Loan Documents. The provisions of this Section 9.3 paragraph shall not, however, (i) constitute a waiver, release or impairment of any obligation evidenced or secured by this Agreement, the Note or any of the other Loan Documents; (ii) 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 Security InstrumentDocuments and the Pledged Securities; (iii) affect the validity or enforceability of any guaranty, indemnity or similar agreement or undertaking guaranty made in connection with the Loan or any of the rights and remedies of Lender thereunder; (iv) impair the right of Lender to obtain the appointment of a receiver; or (v) impair constitute a waiver of the enforcement right of Lender to enforce the liability and obligation of Borrower (but not against any assignment members of leases contained Borrower (other than Guarantor to the extent provided in the Security Instrument and any other Loan Documents; Non-Recourse Guaranty) or (vi) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted by the Security Instrument (if required by applicable law and provided such deficiency judgment is not enforced personally against Borrower or any officer, director, shareholder, partner, member, principal, employee of Borrower or any their direct or indirect owner of Borrower (excluding Guarantor under the Guaranty and Environmental Indemnity, as applicable)) constituent members or to commence partners or any other appropriate action Person), by money judgment or proceeding otherwise, to the extent of any loss, damage, cost, expense, liability, claim or other obligation (but excluding any punitive, consequential or speculative damages) incurred by Lender (including attorneys’ fees and costs reasonably incurred) arising out of or in order for Lender to exercise its remedies against connection with the Property (or any portion thereof).following:
Appears in 1 contract
Samples: Junior Mezzanine Loan Agreement (Maguire Properties Inc)
Exculpation. (a) 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 Security Instrument Note, the Mortgages or the other Loan Documents by any an action or proceeding wherein a money judgment shall be sought against any Borrower or any judgment shall be sought against any director, officer, director, shareholderemployee, partner, member, principal, employee of Borrower member or any direct or indirect owner of Borrower (provided that the foregoing shall not limit in any manner, the liability stockholder of any Guarantor), except that Lender may bring 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 Security Instrument and the other Loan DocumentsBorrower, or in its general partners (all of the Property (or any portion thereofforegoing, collectively, "Principals"), the Rents, or any other collateral given to . Lender pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower’s interest in the Property, in the Rents and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Security Instrument and the other Loan Documents, hereby agrees that it shall not sue for, seek or demand any deficiency judgment against Borrower any Borrowxx or any judgment, including a judgment for specific performance, against its Principals or any one or more of them in any such action or proceeding proceeding, under or by reason of or under or in connection with the Note, this Agreement, the Security Instrument 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 9.3 9.4 shall not, however, (ia) 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; (iib) 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 Security InstrumentMortgages to the extent necessary to realize upon any collateral securing the Note; (iii) affect the validity or enforceability of any guaranty, indemnity or similar agreement or undertaking made in connection with the Loan or any of the rights and remedies of Lender thereunder; (ivc) impair the right of Lender to obtain the appointment of a receiver; (vd) impair the enforcement of the Assignment of Leases; (e) impair the right of Lender to bring suit with respect to, or any assignment Borrower's personal liability for, fraud or intentional misrepresentation by any Borrower or any other Person in connection with this Agreement, the Note, the Mortgages or any other Loan Document; (f) impair the right of leases contained in Lender to bring suit with respect to, or any Borrower's personal liability for, any Borrower's misappropriation of tenant security deposits or Rents; (g) impair the Security Instrument and right of Lender to obtain, or any Borrower's personal liability for any Borrower's misapplication or misappropriation of insurance proceeds or condemnation awards due to Lender under the Mortgages or the other Loan Documents; (h) impair the right of Lender to enforce, or any Borrower's personal liability for, the breach of any provision in that certain Environmental and Hazardous Substance Indemnification Agreement of even date herewith given by Borrowers to Lender concerning environmental laws, hazardous substances and asbestos and any indemnification of Lender with respect thereto in such document, whether before or after payment in full of the 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 to Lender other than under the Loan Documents; (k) impair the right of Lender to bring suit with respect to, or 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; (l) impair the right of Lender to bring suit with respect to, or any Borrower's personal liability for, losses, damages or liabilities suffered by Lender arising from any acts or omissions by any Borrower that resulted in waste, provided, however, that waste shall not be deemed to include the non-payment of 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 (vim) constitute a prohibition against impair the right of Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted by the Security Instrument (if required by applicable law and provided such deficiency judgment is not enforced personally against bring suit with respect to, or any personal liability of any Borrower or any officerother Person for, director, shareholder, partner, member, principal, employee any obligation of any Borrower or any direct or indirect owner of Borrower (excluding Guarantor other Person under the Guaranty and Environmental Indemnity, as applicable)) or to commence any other appropriate action or proceeding Securitization Indemnification Agreement described in order for Lender to exercise its remedies against the Property (or any portion thereof)Section 9.2.
Appears in 1 contract
Samples: Loan Agreement (Prime Retail Lp)
Exculpation. (a) Subject to the qualifications below, Lender shall not enforce the liability and obligation of Borrower to perform and observe the obligations contained in the Note, this Agreement, the Security Instrument or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against Borrower or any officer, director, shareholder, partner, member, principal, employee of Borrower or any direct or indirect owner of Borrower (provided that the foregoing shall not limit in any manner, the liability of any Guarantor)Borrower, except that Lender may bring 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 Security Instrument and the other Loan Documents, or in the Property (or any portion thereof)Property, the Rents, Rents or any other collateral given to Lender pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower’s interest in the Property, in the Rents and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Security Instrument and the other Loan Documents, agrees that it Lender shall not sue xxx for, seek or demand any deficiency judgment against Borrower in any such action or proceeding under or by reason of or under or in connection with the Note, this Agreement, the Security Instrument or the other any Loan DocumentsDocument. The provisions of this Section 9.3 shall not, however, (i) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan DocumentsDocument; (ii) impair the right of Lender to name Borrower as a party defendant in any action or suit for foreclosure and sale under the Security InstrumentMortgage to the extent required by applicable law or regulation; (iii) affect the validity or enforceability of any guaranty, indemnity of the Loan Documents or similar agreement or undertaking any guaranty made in connection with the Loan or any of the rights and remedies of Lender thereunder; (iv) impair the right of Lender to obtain the appointment of a receiver; (v) impair the enforcement of any assignment the Assignment of leases contained in the Security Instrument and any other Loan DocumentsLeases; or (vi) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted by the Security Instrument (if required by applicable law and provided such deficiency judgment is not enforced personally against Borrower or any officer, director, shareholder, partner, member, principal, employee of Borrower or any direct or indirect owner of Borrower (excluding Guarantor under the Guaranty and Environmental Indemnity, as applicable)) or to commence any other appropriate action or proceeding in order for Lender to fully realize the security granted by the Mortgage or to exercise its remedies against the Property; or (vii) 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 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 being referred to herein as “Borrower’s Recourse Liabilities”): (a) fraud or intentional misrepresentation by Borrower, or Guarantor in connection with obtaining the Loan; (b) waste of the Property (or any portion thereof).thereof by Borrower; (c) any Proceeds paid by reason of any Insured Casualty or any Award received in connection with a Condemnation or other sums or payments attributable to the Property not applied in accordance with the provisions of the Loan Documents (except to the extent that Borrower did not have the legal right, because of a bankruptcy, receivership or similar judicial proceeding, to direct disbursement of such sums
Appears in 1 contract
Exculpation. No Independent Manager, Manager, Officer, Member, Affiliate of a Member, any of their respective officers, directors, employees or managers or any liquidating trustee or fiduciary of the Company (aeach a “Covered Person”) Subject shall be liable to the qualifications belowCompany or any Member under any theory of law, Lender shall not enforce including tort, contract or otherwise (INCLUDING A COVERED PERSON’S OWN NEGLIGENCE OR GROSS NEGLIGENCE) for any loss, damage or claim incurred by reason of any act or omission by such Covered Person in good faith on behalf of the liability Company and obligation in a manner reasonably believed to be within the scope of Borrower to perform and observe the obligations contained in the Note, authority conferred on such Covered Person by this Agreement, the Security Instrument including any such loss, damage or the claim attributable to errors in judgment, negligence or other Loan Documents by any action or proceeding wherein a money judgment shall be sought against Borrower or any officer, director, shareholder, partner, member, principal, employee fault of Borrower or any direct or indirect owner of Borrower (provided that the foregoing shall not limit in any manner, the liability of any Guarantor)such Covered Person, except that Lender may bring a foreclosure actionCovered Person shall be liable for any such loss, an action for specific performance damage or claim incurred by reason of Culpable Acts of such Covered Person. A Covered Person shall be fully protected in relying in good faith upon the records of the Company and upon such information, opinions, reports or statements presented to the Company by any Person as to matters the Covered Person reasonably believes are within such other Person’s professional or expert competence and who has been selected with reasonable care by or on behalf of the Company, including information, opinions, reports or statements as to the value and amount of the assets, liabilities, profits, losses or any other appropriate action or proceeding facts pertinent to enable Lender the existence and amount of assets from which distributions to enforce and realize upon its interest under the NoteMembers might properly be paid. IN NO EVENT WILL A COVERED PERSON BE LIABLE TO THE COMPANY OR ANY MEMBER FOR CONSEQUENTIAL, this AgreementINDIRECT, the Security Instrument and the other Loan DocumentsINCIDENTAL, or in the Property SPECIAL, PUNITIVE, OR ANY OTHER NON-DIRECT DAMAGES INCLUDING, WITHOUT LIMITATION, LOST PROFITS OR FUTURE REVENUES, COST OF CAPITAL, LOSS OF BUSINESS REPUTATION OR OPPORTUNITY OR ANY CLAIM OR DEMAND AGAINST THE COMPANY BY ANY OTHER PARTY DUE TO ANY CAUSE WHATSOEVER (or any portion thereofINCLUDING, WITHOUT LIMITATION, THE COVERED PERSON’S OWN NEGLIGENCE OR GROSS NEGLIGENCE), the Rents, or any other collateral given to Lender pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower’s interest in the Property, in the Rents and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Security Instrument and the other Loan Documents, agrees that it shall not sue for, seek or demand any deficiency judgment against Borrower in any such action or proceeding under or by reason of or under or in connection with the Note, this Agreement, the Security Instrument or the other Loan Documents. The provisions of this Section 9.3 shall not, however, (i) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (ii) impair the right of Lender to name Borrower as a party defendant in any action or suit for foreclosure and sale under the Security Instrument; (iii) affect the validity or enforceability of any guaranty, indemnity or similar agreement or undertaking made in connection with the Loan or any of the rights and remedies of Lender thereunder; (iv) impair the right of Lender to obtain the appointment of a receiver; (v) impair the enforcement of any assignment of leases contained in the Security Instrument and any other Loan Documents; or (vi) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted by the Security Instrument (if required by applicable law and provided such deficiency judgment is not enforced personally against Borrower or any officer, director, shareholder, partner, member, principal, employee of Borrower or any direct or indirect owner of Borrower (excluding Guarantor under the Guaranty and Environmental Indemnity, as applicable)) or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against the Property (or any portion thereof)EVEN IF A COVERED PERSON HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Appears in 1 contract
Samples: Limited Liability Company Agreement (Darling International Inc)
Exculpation. (a) 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 Security Instrument 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 officer, director, shareholder, partner, member, principal, employee of Borrower or any direct or indirect owner of Borrower (provided that the foregoing shall not limit in any manner, the liability of any Guarantor)other Person, except that Lender may bring 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 AgreementProperty, the Security Instrument and the other Loan Documents, or in the Property (or any portion thereof), the Rents, Rents or any other collateral given to Lender pursuant to this Agreement and the other Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against the Borrower Parties only to the extent of Borrower’s their interest in the Property, in the Rents and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Security Instrument Note and the other Loan Documents, agrees that it shall not sue xxx for, seek or demand any deficiency judgment against any of the Borrower Parties or any other Person in any such action or proceeding under or by reason of or under or in connection with the Note, this Agreement, the Security Instrument Note or any of the other Loan Documents. The provisions of this Section 9.3 paragraph shall not, however, (i) constitute a waiver, release or impairment of any obligation evidenced or secured by this Agreement, the Note or any of the other Loan Documents; (ii) 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 Security InstrumentMortgage; (iii) affect the validity or enforceability of any guaranty, indemnity or similar agreement or undertaking guaranty made in connection with the Loan or any of the rights and remedies of Lender thereunder; (iv) impair the right of Lender to obtain the appointment of a receiver; (v) impair the enforcement of any assignment the Assignment of leases contained Leases and Rents executed in the Security Instrument and any other Loan Documentsconnection herewith; or (vi) 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 the security granted by the Security Instrument any members of Borrowers (if required by applicable law and provided such deficiency judgment is not enforced personally against Borrower other than Guarantor) or any officer, director, shareholder, partner, member, principal, employee of Borrower or any their direct or indirect owner of Borrower (excluding Guarantor under the Guaranty and Environmental Indemnity, as applicable)) constituent members or to commence partners or any other appropriate action Person), by money judgment or proceeding 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 order for Lender to exercise its remedies against connection with the Property (or any portion thereof).following:
Appears in 1 contract
Exculpation. (a) Subject to Except as otherwise provided herein or in the qualifications belowother Loan Documents, Lender shall not enforce the liability and obligation of Borrower or Borrower Principal, as applicable, to pay, perform and and/or observe the obligations contained herein, in the Note, this Agreement, the Security Instrument or in the other Loan Documents by any action or proceeding against Borrower wherein a money judgment shall be sought against Borrower or any officerBorrower, director, shareholder, partner, member, principal, employee the members/parties of Borrower or any direct Borrower Principal or indirect owner of Borrower its respective members, partners, shareholders, officers, or directors (provided that the foregoing shall not limit in any manner, the liability of any Guarantor“Exculpated Parties”), except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding against Borrower to enable Lender to enforce and realize upon its interest under the Note, this Agreement, the Security Instrument Note, the Mortgage and the other Loan Documents, or and the interest in the Property (or any portion thereof)Property, the Rents, or Rents and any other collateral given to Lender pursuant to created by this Agreement, the Note, the Mortgage and the other Loan Documents; provided, however, that, except as specifically provided herein, that any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower’s interest in the Property, in the Rents and in any other collateral given to Lender, and . Lender, by accepting the Note, this Agreement, the Security Instrument Note, the Mortgage and the other Loan Documents, agrees that it shall not sue not, except as otherwise provided in Section 15.1(b) and (c) sxx for, seek or demand any deficiency judgment against Borrower the 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 Security Instrument Note, the Mortgage or the other Loan Documents. The provisions of this Section 9.3 15.1 shall not, however, (i) constitute a waiver, release or impairment of any obligation evidenced or secured by any of this Agreement, the Note, the Mortgage or the other Loan Documents; (ii) impair the right of Lender to name Borrower as a party defendant in any action or suit for judicial foreclosure and sale under this Agreement and the Security InstrumentMortgage; (iii) affect the validity or enforceability of any guarantyindemnity (including, indemnity or similar agreement or undertaking without limitation, those contained in Section 12.6 and Article 14 of this Agreement) made in connection with this Agreement, the Note, the Mortgage and the other Loan or any of the rights and remedies of Lender thereunderDocuments; (iv) impair the right of Lender to obtain the appointment of a receiver; (v) impair the enforcement of any the assignment of leases provisions contained in the Security Instrument and any other Loan DocumentsMortgage; or (vi) constitute a prohibition against impair the right of Lender to seek obtain a deficiency judgment against Borrower in order to fully realize or other judgment on the security granted by the Security Instrument (if required by applicable law and provided such deficiency judgment is not enforced personally Note against Borrower if necessary to obtain any Insurance Proceeds or any officerAwards to which Lender would otherwise be entitled under this Agreement; provided, directorhowever, shareholder, partner, member, principal, employee Lender shall only enforce such judgment to the extent of Borrower or any direct or indirect owner of Borrower (excluding Guarantor under the Guaranty and Environmental Indemnity, as applicable)) or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against the Property (or any portion thereof)Insurance Proceeds and/or Awards.
Appears in 1 contract
Samples: Loan Agreement (Sun Communities Inc)
Exculpation. Notwithstanding anything contained herein to the contrary, no Indemnified Party shall be liable to Borrower or any other Person for Indemnified Amounts awarded against or incurred by Borrower, its Affiliates, and all successors, transferees, participants and assigns, and all officers, directors, shareholders, controlling persons, employees and agents of any of the foregoing (each a "Borrower Party"), arising out of or relating to the Transaction Documents, the funding of any Loan, except for its or their own gross negligence or willful misconduct in performing or failing to perform its or their own obligations hereunder or thereunder. In no event, however, shall the Indemnified Parties be liable: (a) Subject for Indemnified Amounts awarded against or incurred by any Borrower Party arising out of or relating to the qualifications belowTransaction Documents, Lender existing at the time the first of such Indemnified Amounts arose; or (b) for any indirect, special, punitive, exemplary or consequential damages arising out of or relating to the Transaction Documents. THE FOREGOING EXCULPATION SHALL EXTEND TO EACH INDEMNIFIED PARTY NOTWITHSTANDING THE SOLE OR CONCURRENT NEGLIGENCE OF EVERY KIND OR CHARACTER WHATSOEVER, WHETHER ACTIVE OR PASSIVE, WHETHER AN AFFIRMATIVE ACT OR AN OMISSION, INCLUDING ALL TYPES OF NEGLIGENT CONDUCT IDENTIFIED IN THE RESTATEMENT (SECOND) OF TORTS OF ONE OR MORE OF THE PERSONS SO EXCULPATED OR BY REASON OF STRICT LIABILITY IMPOSED WITHOUT FAULT ON ANY ONE OR MORE OF SUCH PERSONS. To the extent that an arbitrator chosen in accordance with Section 9.11 shall not enforce the liability and obligation have determined that any Indemnified Party committed an act of Borrower to perform and observe the obligations contained in the Notegross negligence or wilful misconduct, this Agreement, the Security Instrument or the other Loan Documents by any action or proceeding wherein a money judgment contractual exculpation shall be sought against Borrower or any officer, director, shareholder, partner, member, principal, employee of Borrower or any direct or indirect owner of Borrower (provided that the foregoing continue but shall not limit in any manner, the liability of any Guarantor), except that Lender may bring 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 Security Instrument and the other Loan Documents, or in the Property (or any portion thereof), the Rents, or any other collateral given to Lender pursuant only extend to the Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower only portion of the claim that is deemed to the extent of Borrower’s interest in the Property, in the Rents and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Security Instrument and the other Loan Documents, agrees that it shall not sue for, seek or demand any deficiency judgment against Borrower in any such action or proceeding under or have occurred by reason of events other than the gross negligence or under or in connection with the Note, this Agreement, the Security Instrument or the other Loan Documents. The provisions wilful misconduct of this Section 9.3 shall not, however, (i) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (ii) impair the right of Lender to name Borrower as a party defendant in any action or suit for foreclosure and sale under the Security Instrument; (iii) affect the validity or enforceability of any guaranty, indemnity or similar agreement or undertaking made in connection with the Loan or any of the rights and remedies of Lender thereunder; (iv) impair the right of Lender to obtain the appointment of a receiver; (v) impair the enforcement of any assignment of leases contained in the Security Instrument and any other Loan Documents; or (vi) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted by the Security Instrument (if required by applicable law and provided such deficiency judgment is not enforced personally against Borrower or any officer, director, shareholder, partner, member, principal, employee of Borrower or any direct or indirect owner of Borrower (excluding Guarantor under the Guaranty and Environmental Indemnity, as applicable)) or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against the Property (or any portion thereof)Indemnified Party.
Appears in 1 contract
Samples: Loan and Security Agreement (Oak Tree Medical Systems Inc)
Exculpation. (a) Subject to Purchaser agrees that it does not have and will not have any claims or causes of action against the qualifications belowSeller Knowledge Individual or any disclosed or undisclosed officer, Lender shall not enforce the liability and obligation director, employee, trustee, shareholder, member, manager, partner, principal, parent, subsidiary or other affiliate of Borrower to perform and observe the obligations contained in the NoteSeller, this Agreement, the Security Instrument or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against Borrower or any officer, director, employee, trustee, shareholder, partner, member, principal, employee of Borrower partner or any direct or indirect owner of Borrower (provided that the foregoing shall not limit in any manner, the liability principal of any Guarantorsuch parent, subsidiary or other affiliate (collectively, “Seller's Affiliates”), except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender to enforce and realize upon its interest under the Note, this Agreement, the Security Instrument and the other Loan Documents, or in the Property (or any portion thereof), the Rents, or any other collateral given to Lender pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent arising out of Borrower’s interest in the Property, in the Rents and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Security Instrument and the other Loan Documents, agrees that it shall not sue for, seek or demand any deficiency judgment against Borrower in any such action or proceeding under or by reason of or under or in connection with the Note, this Agreement, the Security Instrument Agreement or the transactions contemplated hereby. Purchaser agrees to look solely to Seller and its assets for the satisfaction of any liability or obligation arising under this Agreement or the transactions contemplated hereby, or for the performance of any of the covenants, warranties or other Loan Documentsagreements contained herein, and further agrees not to xxx or otherwise seek to enforce any personal obligation against any of Seller's Affiliates with respect to any matters arising out of or in connection with this Agreement or the transactions contemplated hereby. Without limiting the generality of the foregoing provisions of this Section 15.19, Purchaser hereby unconditionally and irrevocably waives any and all claims and causes of action of any nature whatsoever it may now or hereafter have against Seller's Affiliates, and hereby unconditionally and irrevocably releases and discharges Seller’s Affiliates from any and all liability whatsoever which may now or hereafter accrue in favor of Purchaser against Seller’s Affiliates, in connection with or arising out of this Agreement or the transactions contemplated hereby. The provisions of this Section 9.3 15.19 shall not, however, (i) constitute a waiver, release or impairment survive the termination of any obligation evidenced or secured by any of this Agreement and the Loan Documents; (ii) impair the right of Lender to name Borrower as a party defendant in any action or suit for foreclosure and sale under the Security Instrument; (iii) affect the validity or enforceability of any guaranty, indemnity or similar agreement or undertaking made in connection with the Loan or any of the rights and remedies of Lender thereunder; (iv) impair the right of Lender to obtain the appointment of a receiver; (v) impair the enforcement of any assignment of leases contained in the Security Instrument and any other Loan Documents; or (vi) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted by the Security Instrument (if required by applicable law and provided such deficiency judgment is not enforced personally against Borrower or any officer, director, shareholder, partner, member, principal, employee of Borrower or any direct or indirect owner of Borrower (excluding Guarantor under the Guaranty and Environmental Indemnity, as applicable)) or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against the Property (or any portion thereof).Closing. [Signature Page Follows] 29914974 v6
Appears in 1 contract
Samples: Purchase and Sale Agreement (CNL Growth Properties, Inc.)
Exculpation. (ai) Subject to 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 Notes (or otherwise) be a trustee for any Secured Party or have any fiduciary obligation to any Secured Party 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 Secured Party for any action taken or omitted to be taken by it under this Agreement and obligation the 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 Security Instrument Notes or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against Borrower or any officer, director, shareholder, partner, member, principal, employee of Borrower or any direct or indirect owner of Borrower (provided that the foregoing shall not limit in any manner, the liability of any Guarantor), except that Lender may bring 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 Security Instrument and the other Loan Documents, or in the Property (or any portion thereof), the Rents, or any other collateral given to Lender pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower’s interest in the Property, in the Rents and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Security Instrument and the other Loan Documents, agrees that it shall not sue for, seek or demand any deficiency judgment against Borrower in any such action or proceeding under or by reason of or under or agreement delivered in connection with therewith, nor for the Notecreation, this Agreement, the Security Instrument perfection or the other Loan Documents. The provisions of this Section 9.3 shall not, however, (i) constitute a waiver, release or impairment priority of any obligation evidenced or secured by security interests purported to be created under any of the Loan Documents; (ii) impair Notes or the right validity, genuineness, enforceability, existence, value or sufficiency of Lender any Collateral or Pledged Shares, nor shall the Collateral Agent or any Related Parties be obligated to name make any inquiry respecting the performance by Borrower as a party defendant of its obligations hereunder or thereunder or in any action other agreement delivered in connection therewith. Any such inquiry by the Collateral Agent shall not obligate it to make any further inquiry or suit to take any action. The Collateral Agent shall be 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 foreclosure and sale under the Security Instrument; (iii) affect the validity negligence or enforceability misconduct of any guaranty, indemnity such agents or similar agreement or undertaking made in connection attorneys-in-fact selected by it with the Loan or any of the rights and remedies of Lender thereunder; (iv) impair the right of Lender to obtain the appointment of a receiver; (v) impair the enforcement of any assignment of leases contained in the Security Instrument and any other Loan Documents; or (vi) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted by the Security Instrument (if required by applicable law and provided such deficiency judgment is not enforced personally against Borrower or any officer, director, shareholder, partner, member, principal, employee of Borrower or any direct or indirect owner of Borrower (excluding Guarantor under the Guaranty and Environmental Indemnity, as applicable)) or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against the Property (or any portion thereof)reasonable care.
Appears in 1 contract
Samples: Intercreditor and Collateral Agent Agreement (Quantumsphere, Inc.)
Exculpation. (a) Subject to the qualifications below, Lender shall Buyer agrees that it does not enforce the liability have and obligation will not have any claims or causes of Borrower to perform and observe the obligations contained in the Note, this Agreement, the Security Instrument action against any disclosed or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against Borrower or any undisclosed officer, director, employee, trustee, shareholder, partner, member, principal, employee parent, subsidiary or other affiliate of Borrower Seller (herein "Seller's Affiliates") or against any direct disclosed or indirect owner of Borrower (provided that the foregoing shall not limit in any manner, the liability of any Guarantor), except that Lender may bring 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 Security Instrument and the other Loan Documents, or in the Property (or any portion thereof), the Rents, or any other collateral given to Lender pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower’s interest in the Property, in the Rents and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Security Instrument and the other Loan Documents, agrees that it shall not sue for, seek or demand any deficiency judgment against Borrower in any such action or proceeding under or by reason of or under or in connection with the Note, this Agreement, the Security Instrument or the other Loan Documents. The provisions of this Section 9.3 shall not, however, (i) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (ii) impair the right of Lender to name Borrower as a party defendant in any action or suit for foreclosure and sale under the Security Instrument; (iii) affect the validity or enforceability of any guaranty, indemnity or similar agreement or undertaking made in connection with the Loan or any of the rights and remedies of Lender thereunder; (iv) impair the right of Lender to obtain the appointment of a receiver; (v) impair the enforcement of any assignment of leases contained in the Security Instrument and any other Loan Documents; or (vi) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted by the Security Instrument (if required by applicable law and provided such deficiency judgment is not enforced personally against Borrower or any undisclosed officer, director, employee, trustee, shareholder, partner, member, principal, employee parent, subsidiary or other affiliate of Borrower WHTS, including, without limitation, Tishman Speyer Properties, L.P. and Xxxxxxx, Xxxxx & Co., or any direct officer, director, employee, trustee, shareholder, member, partner or indirect owner principal of Borrower any such parent, subsidiary or other affiliate (excluding Guarantor collectively, "WHTS' Affiliates"), arising out of with this Agreement, the Closing Certificates, or the transactions contemplated hereby. Buyer agrees to look solely to Seller and its assets and to WHTS and its assets for the satisfaction of any liability or obligation arising under this Agreement, the Guaranty 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 Closing Documents, and Environmental Indemnityfurther agrees not to xxx 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 Closing Documents, or the transactions contemplated hereby. The provisions of this Section 10.11, 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 ($5,000,000) or such lower amount of liability or potential liability as Seller may have under such agreements. In addition, the provisions of 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 Members has received from the proceeds of the transactions which is the subject of the WHTS Agreement, if the remaining funds available to WHTS to satisfy the obligations of WHTS to Buyer pursuant to this Agreement, the Closing Documents and the WHTS Agreement are not at least equal to Five Million Dollars ($5,000,000) or such lower amount of liability or potential liability as WHTS may have under such agreements. The provisions of this Section 10.11 shall survive the termination of this Agreement and the Closing Date. This Section 10.11 will not apply to the parties to the Parking Easement or the Development Indemnity Agreement to the extent such claim or cause of action relates solely to the Parking Easement Agreement or the Development Indemnity Agreement, as applicable)) or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against the Property (or any portion thereof).
Appears in 1 contract
Exculpation. (a) Subject to Except as otherwise provided herein or in the qualifications belowother Loan Documents, Lender shall not enforce the liability and obligation of Borrower to perform and observe the obligations contained herein or in the Note, this Agreement, the Security Instrument 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 and the Environmental Indemnity), (3) any Affiliate of Borrower, (4) any Person owning, directly or indirectly, any legal or beneficial interest in Borrower or any officer, director, shareholder, Affiliate of Borrower or (5) any direct or indirect limited partner, member, principal, employee officer, beneficiary, trustee, shareholder, Affiliate or director of Borrower or any direct or indirect owner of Borrower Persons described in clauses (provided that 1) through (5) above (collectively, subject to the foregoing shall not limit exceptions in any mannerclauses (i) and (ii) below, the liability of any Guarantor“Exculpated Parties”), except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender to enforce and realize upon its interest under the Note, this Agreement, the Security Instrument Note, the Mortgages and the other Loan Documents, or and the interest in the Property (or any portion thereof)Properties, the Rents, or Rents and any other collateral given to Lender pursuant to created by this Agreement, the Note, the Mortgages and the other Loan Documents; provided, however, that, except as specifically provided herein, that any judgment in any such action or proceeding shall be enforceable against Borrower Borrower, only to the extent of Borrower’s interest in the PropertyProperties, in the Rents and in any other collateral given to Lender, and . Lender, by accepting the Note, this Agreement, the Security Instrument Note, the Mortgages and the other Loan Documents, agrees that it shall not sue not, except as otherwise provided in this Section 15.1, xxx for, seek or demand any deficiency judgment against Borrower any 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 Security Instrument Note, the Mortgages or the other Loan Documents. The provisions of this Section 9.3 15.1 shall not, however, (i) constitute a waiver, release or impairment of any obligation evidenced or secured by any of this Agreement, the Note, the Mortgages or the other Loan Documents; (ii) impair the right of Lender to name Borrower or Operating Lessee as a party defendant in any action or suit for judicial foreclosure and sale under this Agreement and the Security InstrumentMortgages; (iii) affect the validity or enforceability of any indemnity (including, without limitation, those contained in Article 14 of this Agreement and the Environmental Indemnity), guaranty, indemnity master lease or similar agreement or undertaking instrument made in connection with this Agreement, the Note, the Mortgages and the other Loan or any of the rights and remedies of Lender thereunderDocuments; (iv) impair the right of Lender to obtain the appointment of a receiver; (v) impair the enforcement of any the assignment of leases provisions contained in the Security Instrument and any other Loan DocumentsMortgages; or (vi) 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 obtain any Insurance Proceeds or Awards to which Lender would otherwise be entitled under this Agreement; provided, however, Lender shall only enforce such judgment to the security granted by extent of the Security Instrument (if required by applicable law and provided such deficiency judgment is not enforced personally against Borrower or any officer, director, shareholder, partner, member, principal, employee of Borrower or any direct or indirect owner of Borrower (excluding Guarantor under the Guaranty and Environmental Indemnity, as applicable)) or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against the Property (or any portion thereof).Insurance Proceeds and/or Awards. 128
Appears in 1 contract
Exculpation. (a) Subject Effective as of the Effective Date and to the qualifications belowfullest extent authorized by applicable law, Lender no Exculpated Party shall not enforce have or incur, and each Exculpated Party is hereby released and exculpated from, any Exculpated Claim or any obligation, Cause of Action, or liability for any Exculpated Claim; provided that each Exculpated Party shall be entitled to rely upon the liability and obligation advice of Borrower to perform and observe the obligations contained counsel concerning his, her or its duties pursuant to, or in the Note, this Agreementconnection with, the Security Instrument or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against Borrower Plan or any officerother related document, directorinstrument, shareholderor agreement; provided, partnerfurther, member, principal, employee of Borrower or any direct or indirect owner of Borrower (provided that the foregoing “Exculpation” shall not limit in any manner, have no effect on the liability of any Guarantor), except that Lender may bring 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 Security Instrument and the other Loan Documents, or in the Property (or any portion thereof), the Rents, or any other collateral given to Lender pursuant Exculpated Party to the Loan Documentsextent determined in a Final Order to have resulted from actual fraud, gross negligence or willful misconduct of such Exculpated Party; provided, howeverfurther, that, except as specifically provided herein, any judgment in any such action or proceeding that the foregoing “Exculpation” shall be enforceable deemed to include any and all claims and Causes of Action arising before the Effective Date which may be asserted against Borrower only to the extent of Borrower’s interest in the Propertyany Exculpated Party or their respective predecessors, successors and assigns, and current and former shareholders, affiliates, subsidiaries, principals, employees, agents, officers, directors, managers, trustees, partners, members, professionals, representatives, advisors, attorneys, financial advisors, accountants, investment bankers, and consultants, in the Rents and each case in their capacity as such, at any other collateral given to Lendertime, and Lenderincluding (without limitation) arising from, by accepting the Noterelated to, this Agreement, the Security Instrument and the other Loan Documents, agrees that it shall not sue for, seek or demand any deficiency judgment against Borrower in any such action or proceeding under or by reason of or under or in connection with any prepetition debt purchases or exchanges by the Note, this Agreement, the Security Instrument or the other Loan DocumentsPrepetition Secured Parties. The Exculpated Parties have, and upon Confirmation shall be deemed to have, participated in good faith and in compliance with the applicable provisions of this Section 9.3 the Bankruptcy Code with regard to the solicitation of acceptances and rejections of the Plan and the making of distributions pursuant to the Plan and, therefore, are not and shall not, however, (i) constitute a waiver, release or impairment not be 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; (ii) impair Plan or such distributions made pursuant to the right of Lender to name Borrower as a party defendant in any action or suit for foreclosure and sale under the Security Instrument; (iii) affect the validity or enforceability of any guaranty, indemnity or similar agreement or undertaking made in connection with the Loan or any of the rights and remedies of Lender thereunder; (iv) impair the right of Lender to obtain the appointment of a receiver; (v) impair the enforcement of any assignment of leases contained in the Security Instrument and any other Loan Documents; or (vi) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted by the Security Instrument (if required by applicable law and provided such deficiency judgment is not enforced personally against Borrower or any officer, director, shareholder, partner, member, principal, employee of Borrower or any direct or indirect owner of Borrower (excluding Guarantor under the Guaranty and Environmental Indemnity, as applicable)) or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against the Property (or any portion thereof)Plan.
Appears in 1 contract
Samples: Restructuring Support Agreement (DENVER PARENT Corp)
Exculpation. (a) 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 Security Instrument or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against Borrower or any officer, director, shareholder, partner, member, principal, employee of Borrower or any direct or indirect owner of Borrower (provided that the foregoing shall not limit in any manner, the liability of any Guarantor), except that Lender may bring 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 Security Instrument and approval of the other Loan Documents, Disclosure Statement or in the Property (Confirmation or any portion thereof), the Rents, or any other collateral given to Lender pursuant to the Loan Documentsconsummation of this 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 determined by Final Order of the Bankruptcy Court or proceeding shall be enforceable against Borrower only to the extent of Borrower’s interest in the Property, in the Rents and in any other collateral given court of competent jurisdiction; and/or (ii) the rights of any Person or Entity to Lenderenforce this Plan and the contracts, instruments, releases, indentures, and Lender, by accepting the Note, this Agreement, the Security Instrument other agreements and the other Loan Documents, agrees that it shall not sue for, seek or demand any deficiency judgment against Borrower in any such action or proceeding under or by reason of or documents delivered under or in connection with this Plan or assumed pursuant to this Plan or Final Order of the NoteBankruptcy Court; provided, this Agreementfurther, that each Exculpated Party shall be entitled to rely upon the advice of counsel concerning its respective duties pursuant to, or in connection with, the Security Instrument above referenced documents, actions or inactions. The foregoing exculpation shall be effective as of the Effective Date without further notice to or order of the Bankruptcy Court, act or action under applicable law, regulation, order, or rule or the other Loan Documentsvote, consent, authorization or approval of any Person. Notwithstanding the foregoing, nothing in 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 Action or liabilities they may have against any 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 provisions of this Section 9.3 shall notExculpation will be in addition to, howeverand not in limitation of, (i) constitute a waiverall other releases, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (ii) impair the right of Lender to name Borrower as a party defendant in any action or suit for foreclosure and sale under the Security Instrument; (iii) affect the validity or enforceability of any guarantyindemnities, indemnity or similar agreement or undertaking made in connection with the Loan or any of the rights and remedies of Lender thereunder; (iv) impair the right of Lender to obtain the appointment of a receiver; (v) impair the enforcement of any assignment of leases contained in the Security Instrument exculpations, and any other Loan Documents; or (vi) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted by the Security Instrument (if required by applicable law and provided or rules protecting such deficiency judgment is not enforced personally against Borrower or any officer, director, shareholder, partner, member, principal, employee of Borrower or any direct or indirect owner of Borrower (excluding Guarantor under the Guaranty and Environmental Indemnity, as applicable)) or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against the Property (or any portion thereof)Exculpated Parties from liability.
Appears in 1 contract
Samples: Restructuring Support Agreement (Starry Group Holdings, Inc.)
Exculpation. The Administrative Agent shall have no duties or obligations except those expressly set forth herein. Without limiting the generality of the foregoing neither the Administrative Agent nor any of the Administrative Agent’s directors, 135 officers, employees or agents (ai) Subject 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 that 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 the Administrative Agent or any of the Administrative Agent’s Affiliates, (iv) shall be liable for any action taken by the Administrative 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 Security Instrument or the other Loan Documents by for any action taken or proceeding wherein a money judgment shall omitted to be sought against Borrower or any officer, director, shareholder, partner, member, principal, employee of Borrower or any direct or indirect owner of Borrower (provided that the foregoing shall not limit in any manner, the liability of any Guarantor), except that Lender may bring 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 Security Instrument and the other Loan DocumentsDocument, or in connection herewith or therewith, except for the Property Administrative Agent’s own bad faith, willful misconduct or gross negligence, (vii) shall be responsible for any recitals or any portion thereof)warranties herein or therein, nor for the Rentseffectiveness, enforceability, validity or due execution of this Agreement or any other collateral given to Lender pursuant to the Loan Documents; 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 Rents and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Security Instrument and the other Loan Documents, agrees that it shall not sue for, seek perfection or demand any deficiency judgment against Borrower in any such action or proceeding under or by reason of or under or in connection with the Note, this Agreement, the Security Instrument or the other Loan Documents. The provisions of this Section 9.3 shall not, however, (i) constitute a waiver, release or impairment priority of any obligation evidenced or secured Liens purported to be created by any of the Loan Documents; , (iiix) 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 Security Instrument; (iii) affect the validity or enforceability sufficiency of any guaranty, indemnity collateral security or similar agreement or undertaking made in connection with (x) shall have any duty to make any inquiry respecting the Loan performance by Greektown Holdings or any of the rights and remedies its Subsidiaries of Lender thereunder; (iv) impair the right of Lender to obtain the appointment of a receiver; (v) impair the enforcement of any assignment of leases contained in the Security Instrument and its obligations hereunder or under any other Loan Documents; or (vi) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted Document. Any inquiry which may be made by the Security Instrument (if required Administrative Agent shall not obligate the Administrative Agent to make any further inquiry or take any action. The Administrative Agent shall be entitled to rely upon advice of counsel concerning legal matters and upon any notice, consent, certificate, statement or writing which the Administrative Agent believes to be genuine and to have been presented by applicable law and provided such deficiency judgment is not enforced personally against Borrower or any officer, director, shareholder, partner, member, principal, employee of Borrower or any direct or indirect owner of Borrower (excluding Guarantor under the Guaranty and Environmental Indemnity, as applicable)) or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against the Property (or any portion thereof)a proper Person.
Appears in 1 contract
Exculpation. (a) Subject to the qualifications below, ----------- Lender shall not seek to enforce or enforce the liability and obligation of Borrower to perform and observe the obligations contained in the Note, this Agreement, the Security Instrument Mortgage or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against Borrower (or any officermember, shareholder, partner or other owner of Borrower, or any separate account contract holder, beneficial owner, advisor, consultant, manager, fiduciary, director, shareholder, partner, member, principal, officer or employee of Borrower or any direct or indirect owner of Borrower (provided that the foregoing shall not limit in any manner, the liability of any Guarantorforegoing), except that Lender may bring 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 Security Instrument Mortgage and the other Loan Documents, or in the Property (or any portion thereof)Mortgaged Property, the Rents, or any other collateral given to Lender pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower’s 's interest in the Mortgaged Property, in the Rents and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Security Instrument Mortgage and the other Loan Documents, agrees that it shall not sue xxx for, seek or demand any deficiency judgment against Borrower in any such action or proceeding under or by reason of or under or in connection with the Note, this Agreement, the Security Instrument Mortgage or the other Loan Documents. The provisions of this Section 9.3 shall not, however, (ia) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (iib) 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 Security InstrumentMortgage; (iiic) affect the validity or enforceability of or any guaranty, guaranty or indemnity or similar agreement or undertaking of Borrower made in connection with the Loan or any of the rights and remedies of Lender thereunder; (ivd) impair the right of Lender to obtain the appointment of a receiver; (ve) impair the enforcement of any the assignment of leases contained set forth in the Security Instrument and any other Loan DocumentsMortgage; or (vif) 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 or otherwise, to the extent of any loss, damage, cost, expense, liability or other obligation incurred by Lender (including attorneys' fees and costs reasonably incurred) arising out of or in order connection with (but only to fully realize the security granted by extent of) the Security Instrument (if required by applicable law and provided such deficiency judgment is not enforced personally against Borrower or any officer, director, shareholder, partner, member, principal, employee of Borrower or any direct or indirect owner of Borrower (excluding Guarantor under the Guaranty and Environmental Indemnity, as applicable)) or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against the Property (or any portion thereof).following:
Appears in 1 contract
Samples: Loan Agreement (Desert Springs Marriott Limited Partnership)
Exculpation. (aq) 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 Security Instrument 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, (4) any Person owning, directly or indirectly, any legal or beneficial interest in Borrower or any officer, director, shareholder, Affiliate of Borrower or (5) any direct or indirect limited partner, member, principal, employee officer, beneficiary, trustee, advisor, employee, agent, shareholder, Affiliate or director of Borrower or any direct or indirect owner of Borrower Persons described in clauses (provided that 1) through (5) above (collectively, subject to the foregoing shall not limit exceptions in any mannerclauses (i) and (ii) below, the liability of any Guarantor“Exculpated Parties”), except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender to enforce and realize upon its interest under the Note, this Agreement, the Security Instrument Note, the Mortgages and the other Loan Documents, or and the interest in the Property (or any portion thereof)Properties, the Rents, or Rents and any other collateral given to Lender pursuant to created by this Agreement, the Note, the Mortgages and the other Loan Documents; provided, however, that, except as specifically provided herein, that any judgment in any such action or proceeding shall be enforceable against Borrower Borrower, only to the extent of Borrower’s interest in the PropertyProperties, in the Rents and in any other collateral given to Lender, and . Lender, by accepting the Note, this Agreement, the Security Instrument Note, the Mortgages and the other Loan Documents, agrees that it shall not sue not, except as otherwise provided in this Section 15.1, xxx for, seek or demand any deficiency judgment against Borrower any 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 Security Instrument Note, the Mortgages or the other Loan Documents. The provisions of this Section 9.3 15.1 shall not, however, (i) constitute a waiver, release or impairment of any obligation evidenced or secured by any of this Agreement, the Note, the Mortgages or the other Loan Documents; (ii) impair the right of Lender to name (A) Borrower or Operating Lessee as a party defendant in any action or suit for judicial foreclosure and sale under this Agreement and the Mortgages or (B) HHSD as a party defendant in any action or suit for foreclosure and sale under the Security InstrumentOperating Lease Pledge Agreement; (iii) affect the validity or enforceability of any indemnity (including, without limitation, those contained in Article 14 of this Agreement and the Environmental Indemnity), guaranty, indemnity master lease or similar agreement or undertaking instrument made in connection with this Agreement, the Note, the Mortgages and the other Loan or any of the rights and remedies of Lender thereunderDocuments; (iv) impair the right of Lender to obtain the appointment of a receiver; (v) impair the enforcement of any the assignment of leases provisions contained in the Security Instrument and any other Loan DocumentsMortgages; or (vi) 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 the security granted by the Security Instrument (if required by applicable law and provided such deficiency judgment is not enforced personally against Borrower obtain any Insurance Proceeds or any officer, director, shareholder, partner, member, principal, employee of Borrower or any direct or indirect owner of Borrower (excluding Guarantor under the Guaranty and Environmental Indemnity, as applicable)) or Awards to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against the Property (or any portion thereof).which Lender
Appears in 1 contract
Exculpation. This Lease is executed by LaSalle Bank and Trust Company of Chicago (a) Subject to the qualifications below, Lender shall not enforce the liability and obligation of Borrower to perform and observe the obligations contained in the Note, this Agreement, the Security Instrument or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against Borrower or any officer, director, shareholder, partner, member, principal, employee of Borrower or any direct or indirect owner of Borrower (provided that the foregoing shall not limit in any manner, the liability of any Guarantor“LB”), except that Lender may bring 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 Security Instrument and the other Loan Documents, or in the Property (or any portion thereof), the Rents, or any other collateral given to Lender pursuant to the Loan Documents; provided, however, that, except not 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 Rents 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 Lenderperform any covenant, either express or implied, herein contained, or to keep, preserve or sequester any property of said Trust, and Lenderthat all personal liability of said Trustee or beneficiaries of every sort, if any, is hereby expressly waived by accepting said Tenant, and by every person now or hereafter claiming any right or security hereunder; and that so far as the Notesaid Trustee or beneficiaries or any successor or assign of the 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 under this AgreementLease, the Security Instrument and the other Loan Documents, agrees that it shall not sue assumes no responsibility for, seek (1) the management or demand any deficiency judgment against Borrower in any control of such action property, (2) the upkeep, inspection, maintenance or proceeding under or by reason repair of or under or in connection with such property, (3) the Note, this Agreement, the Security Instrument collection of rents or the other Loan Documentsrental of such property, or (4) the conduct of any business which is carried on upon such premises. The It is further agreed by the parties hereto that whenever and wherever the provisions of this Section 9.3 shall not, however, (i) constitute a waiver, release or impairment of Lease contain any obligation evidenced or secured by any of the Loan Documents; (ii) impair reference to the right of Lender the Tenant to name Borrower as a party defendant be indemnified, saved harmless, or reimbursed by Landlord, for any costs, claims, loss, fines, penalties, damages or expenses of any nature, including without limitation, attorneys’ fees, arising in any action way out of the execution of this instrument or suit the relationship of Tenant/Landlord under this instrument, then such obligation, if any, on the part of the Landlord shall be construed to be only a right of reimbursement in favor of Tenant out of the trust estate held under Trust No. 123103-06, from time to time, so far as the same may reach; and in no case shall any claim of liability or right of reimbursement be asserted against LB individually, or said beneficiaries individually, all such personal liability, if any, being hereby expressly waived; and this agreement shall extend to and inure for foreclosure the benefit of the parties hereto, their respective successors and sale assigns, and all parties claiming by, through and under the Security Instrument; (iii) affect the validity or enforceability them. In event of any guarantyquestion of apparent or claimed liability or obligation resting upon the said trustee or said beneficiaries, indemnity or similar agreement or undertaking made in connection with the Loan or any of the rights and remedies of Lender thereunder; (iv) impair the right of Lender to obtain the appointment of a receiver; (v) impair the enforcement of any assignment of leases contained in the Security Instrument and any other Loan Documents; or (vi) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted by the Security Instrument (if required by applicable law and provided such deficiency judgment is not enforced personally against Borrower or any officer, director, shareholder, partner, member, principal, employee of Borrower or any direct or indirect owner of Borrower (excluding Guarantor under the Guaranty and Environmental Indemnity, as applicable)) or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against the Property (or any portion thereof)these exculpatory provisions shall be controlling.
Appears in 1 contract
Samples: Midway Business Center (Home Products International Inc)
Exculpation. (a) Subject to the qualifications belowbelow and except for the obligation of Guarantor as set forth in the Guaranty, Lender shall not enforce the liability and obligation of Borrower to perform and observe the obligations contained in the Note, this Agreement, the Security Instrument Mortgages or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against Borrower or Borrower, Principal, any officermember, directormanager, partner, shareholder, partner, member, principal, employee officer or director of Borrower or any direct its constituent partners or indirect owner of Borrower members (provided that the foregoing shall not limit in any manner, the liability of any Guarantor“Exculpated Parties”), except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender to enforce and realize upon its interest under the Note, this Agreement, the Security Instrument Mortgages and the other Loan Documents, or in the Property (or any portion thereof)Properties, the Rents, or any other collateral given to Lender pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower’s interest in the PropertyProperties, in the Rents and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Security Instrument Mortgages and the other Loan Documents, agrees that it shall not sue sxx for, seek or demand any deficiency judgment against Borrower or 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 Security Instrument Mortgages or the other Loan Documents. The provisions of this Section 9.3 shall not, however, (ia) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (iib) impair the right of Lender to name Borrower as a party defendant in any action or suit for foreclosure and sale under the Security InstrumentMortgages; (iiic) affect the validity or enforceability of or any guaranty, indemnity or similar agreement or undertaking guaranty made in connection with the Loan or any of the rights and remedies of Lender thereunder; (ivd) impair the right of Lender to obtain the appointment of a receiver; (ve) impair the enforcement of any assignment of leases contained in the Security Instrument and any other Loan DocumentsMortgages; or (vif) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted by the Security Instrument (if required by applicable law and provided such deficiency judgment is not enforced personally against Borrower or any officer, director, shareholder, partner, member, principal, employee of Borrower or any direct or indirect owner of Borrower (excluding Guarantor under the Guaranty and Environmental Indemnity, as applicable)) Mortgages or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against the Property Properties; or (g) constitute a waiver of the right of Lender to enforce the liability and obligation of Borrower, by money judgment or otherwise, to the extent of any portion thereof).loss, damage, cost, expense, liability, claim or other obligation incurred by Lender (including reasonable attorneys’ fees and expenses reasonably incurred) arising out of or in connection with the following:
Appears in 1 contract
Samples: Loan Agreement (Sun Communities Inc)
Exculpation. (a) 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 Security Instrument 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 officer, director, shareholder, partner, member, principal, employee of Borrower or any direct or indirect owner of Borrower (provided that the foregoing shall not limit in any manner, the liability of any Guarantor)other Person, except that Lender may bring 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 AgreementProperty, the Security Instrument and the other Loan Documents, or in the Property (or any portion thereof), the Rents, Rents or any other collateral given to Lender pursuant to this Agreement and the other Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against the Borrower Parties only to the extent of Borrower’s their interest in the Property, in the Rents and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Security Instrument Note and the other Loan Documents, agrees that it shall not sue xxx for, seek or demand any deficiency judgment against any of the Borrower Parties or any other Person in any such action or proceeding under or by reason of or under or in connection with the Note, this Agreement, the Security Instrument Note or any of the other Loan Documents. The provisions of this Section 9.3 paragraph shall not, however, (i) constitute a waiver, release or impairment of any obligation evidenced or secured by this Agreement, the Note or any of the other Loan Documents; (ii) 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 Security InstrumentMortgage; (iii) affect the validity or enforceability of any guaranty, indemnity or similar agreement or undertaking guaranty made in connection with the Loan or any of the rights and remedies of Lender thereunder; (iv) impair the right of Lender to obtain the appointment of a receiver; (v) impair the enforcement of any assignment the Assignment of leases contained Leases and Rents executed in the Security Instrument and any other Loan Documentsconnection herewith; or (vi) constitute a prohibition against waiver of the right of Lender to seek a deficiency judgment against Borrower in order to fully realize enforce the security granted by the Security Instrument (if required by applicable law liability and provided such deficiency judgment is not enforced personally against Borrower or any officer, director, shareholder, partner, member, principal, employee obligation of Borrower (but not against any members of Borrower (other than Guarantor to the extent provided in the Non-Recourse Guaranty) or any their direct or indirect owner of Borrower (excluding Guarantor under the Guaranty and Environmental Indemnity, as applicable)) constituent members or to commence partners or any other appropriate action Person), by money judgment or proceeding 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 order for Lender to exercise its remedies against connection with the Property (or any portion thereof).following:
Appears in 1 contract
Exculpation. (ai) Subject to The Collateral Agent shall have no duties or responsibilities except those expressly set forth in this Agreement and the qualifications belowNotes, Lender and the Collateral Agent shall not enforce the liability and obligation of Borrower to perform and observe the obligations contained in the Note, this Agreement, the Security Instrument or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against Borrower or any officer, director, shareholder, partner, member, principal, employee of Borrower or any direct or indirect owner of Borrower (provided that the foregoing shall not limit in any manner, the liability of any Guarantor), except that Lender may bring 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 Security Instrument and the other Loan Documents, or in the Property (or any portion thereof), the Rents, or any other collateral given to Lender pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower’s interest in the Property, in the Rents and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Security Instrument and the other Loan Documents, agrees that it shall not sue for, seek or demand any deficiency judgment against Borrower in any such action or proceeding under or by reason of or under or in connection with the Note, this Agreement, the Security Instrument or the other Loan Documents. The provisions of this Section 9.3 shall not, however, (i) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (ii) impair the right of Lender to name Borrower as a party defendant in any action or suit for foreclosure and sale under the Security Instrument; (iii) affect the validity or enforceability of any guaranty, indemnity or similar agreement or undertaking made in connection with the Loan Agreement or any of the rights Notes (or otherwise) be a trustee for any Secured Party or have any fiduciary obligation to any Secured Party 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 Secured Party for any action taken or omitted to be taken by it under this Agreement and remedies of Lender thereunder; (iv) impair the right of Lender to obtain 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 appointment of a receiver; (v) impair 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 enforcement effectiveness, enforceability, validity or due execution of any assignment of leases contained this Agreement and the Notes or in the Security Instrument and any other Loan Documents; agreement delivered in connection therewith, nor for the creation, perfection or (vi) constitute a prohibition against Lender priority of any Security Interests purported to seek a deficiency judgment against Borrower in order be created under any of the 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 fully realize make any inquiry respecting the security granted performance by the Security Instrument (if required Company of its obligations hereunder or thereunder or in any other agreement delivered in connection therewith. Any such inquiry by applicable law and provided such deficiency judgment is the Collateral Agent shall not enforced personally against Borrower or obligate it to make any officer, director, shareholder, partner, member, principal, employee of Borrower or any direct or indirect owner of Borrower (excluding Guarantor under the Guaranty and Environmental Indemnity, as applicable)) further inquiry or to commence take any other appropriate action action. The Collateral Agent shall be entitled to rely upon advice of counsel concerning legal matters and upon any notice, consent, certificate, statement, or proceeding in order writing which they believe to be genuine and to have been presented by a proper Person. The Collateral Agent shall not be responsible for Lender to exercise its remedies against the Property (negligence or misconduct of any portion thereof)such agents or attorneys-in-fact selected by it with reasonable care.
Appears in 1 contract
Samples: Collateral Agency Agreement (Eroomsystem Technologies Inc)
Exculpation. (a) Subject 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 Senior 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 Security Instrument Note or any of the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against Borrower or any officersuch general partner or their respective assets. Lender, directoron behalf of itself and its successors and assigns, shareholder, hereby waives any and all such personal liability and rights against the assets of Borrower and the general partner, memberincluding the Property; provided, principalhowever, employee that nothing contained herein shall affect or limit Lender’s rights (i) to enforce any of Borrower the obligations under the Note, this Loan Agreement or any direct of the other Loan Document against the Senior Mezzanine Guarantor or indirect owner of Borrower (provided that the foregoing shall not limit in any manner, the liability of any Guarantor), except that Lender may bring 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 interests under the Note, this Agreement, the Security Instrument Pledge Agreements and the other Loan Documents, or in the Property (or any portion thereof), the Rents, or any other collateral Collateral Obligations given to Lender pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, any judgment (ii) to name Borrower in any such action or proceeding shall be enforceable solely to enforce Lender’s rights and remedies against Borrower only to Senior Mezzanine Guarantor or the extent of Borrower’s interest in Collateral Providers, including foreclosure and other remedies under the Property, in the Rents and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Security Instrument Pledge Agreement and the other Collateral Obligations; (iii) to seek specific performance of any terms and conditions under the Loan Documents; or (iv) to seek declaratory relief under the Loan Documents; provided, agrees further that it in each of clauses (i), (ii), (iii) and (iv) above, in no event shall not sue forBorrower or its general partner have any personal liability with respect to such actions or proceedings or judgments issued therein, seek in no event shall any assets of Borrower or demand its general partner be available to pay any deficiency judgment against Borrower in any such action 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 Security Instrument or the other Loan Documents. The provisions of this Section 9.3 shall not, however, not (ia) constitute a waiver, release or impairment of any obligation of Senior Mezzanine Guarantor or the Collateral Providers evidenced or secured by any of the Loan Documents; (iib) 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 Security InstrumentPledge Agreements; (iiic) affect the validity or enforceability of any guaranty, indemnity or similar agreement or undertaking guaranty made in connection with the Loan 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 (ivd) impair the right of Lender to obtain the appointment of a receiver; (v) impair receiver with respect to Senior Mezzanine Guarantor or the enforcement Collateral Providers. The execution of any assignment of leases contained in the Security Instrument and any other Loan Documents; or (vi) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted this Agreement by the Security Instrument (if required by applicable law and provided such deficiency judgment is Senior Mezzanine Guarantor shall not enforced personally against Borrower or in any officer, director, shareholder, partner, member, principal, employee way increase of Borrower or any direct or indirect owner alter the obligations of Borrower (excluding the Senior Mezzanine Guarantor under the Guaranty and Environmental Indemnity, as applicable)) or to commence any other appropriate action or proceeding from those obligations set forth in order for Lender to exercise its remedies against the Property (or any portion thereof)Guaranty.
Appears in 1 contract
Samples: Senior Mezzanine Loan Agreement (Thomas Properties Group Inc)
Exculpation. (a) Subject 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 Security Instrument 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 Senior Interest Holder, nor any of their agents, officers, directors, shareholders, managers, members, partners or proceeding wherein a money judgment principals (disclosed or undisclosed) shall be sought against Borrower liable to Tenant or any officerTenant’s agents, directoremployees, shareholdercontractors, partner, member, principal, employee of Borrower invitees or any direct or indirect owner of Borrower (provided that the foregoing shall not limit in any manner, the liability of any Guarantor), except that Lender may bring 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 Security Instrument 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 (or any portion thereof), the Rents, 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 Documentsreasonable use of the Premises for the purposes herein permitted will be brought upon or be 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 Senior Interest Holder and their respective agents shall not be liable for any loss or damage to any person or property even if due to the negligence of Landlord or any Senior Interest Holder or their agents. Any employee to whom any property shall be entrusted by or on behalf of Tenant shall be deemed to be acting as Tenant’s agent with respect to such property and neither Landlord nor any Senior Interest Holder nor their respective agents or employees shall be liable for any loss of or damage to any such action property by theft or proceeding shall be enforceable against Borrower only to the extent of Borrower’s interest in the Property, in the Rents and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Security Instrument and the other Loan Documents, agrees that it shall not sue for, seek or demand any deficiency judgment against Borrower in any such action or proceeding under or by reason of or under or in connection with the Note, this Agreement, the Security Instrument or the other Loan Documents. The provisions of this Section 9.3 shall not, however, (i) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (ii) impair the right of Lender to name Borrower as a party defendant in any action or suit for foreclosure and sale under the Security Instrument; (iii) affect the validity or enforceability of any guaranty, indemnity or similar agreement or undertaking made in connection with the Loan or any of the rights and remedies of Lender thereunder; (iv) impair the right of Lender to obtain the appointment of a receiver; (v) impair the enforcement of any assignment of leases contained in the Security Instrument and any other Loan Documents; or (vi) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted by the Security Instrument (if required by applicable law and provided such deficiency judgment is not enforced personally against Borrower or any officer, director, shareholder, partner, member, principal, employee of Borrower or any direct or indirect owner of Borrower (excluding Guarantor under the Guaranty and Environmental Indemnity, as applicable)) or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against the Property (or any portion thereof)otherwise.
Appears in 1 contract
Samples: MF Global Ltd.
Exculpation. (a) Subject to the qualifications below, Lender shall not enforce the liability and obligation of Borrower to perform and observe the obligations contained in the Note, this Agreement, the Security Instrument or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against Borrower or any officer, director, shareholder, partner, member, principal, employee of Borrower or any direct or indirect owner of Borrower (provided that the foregoing shall not limit in any manner, the liability of any Guarantor)Borrower, except that Lender may bring 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 Security Instrument and the other Loan Documents, or in the Property (all or any portion thereof), of the Rents, or any other collateral given to Lender pursuant to the Loan DocumentsCollateral; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower’s interest in the Property, in the Rents and in any other collateral given to LenderCollateral, and Lender, by accepting the Note, this Agreement, the Security Instrument and the other Loan Documents, agrees that it Lender shall not sue xxx for, seek or demand any deficiency judgment against Borrower in any such action or proceeding under or by reason of or under or in connection with the Note, this Agreement, the Security Instrument or the other any Loan DocumentsDocument. The provisions of this Section 9.3 shall not, however, (i) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan DocumentsDocument; (ii) 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 Security InstrumentDocuments; (iii) affect the validity or enforceability of any guaranty, indemnity of the Loan Documents or similar agreement or undertaking any guaranty made in connection with the Loan or any of the rights and remedies of Lender thereunder; (iv) impair the right of Lender to obtain the appointment of a receiver; (v) impair the enforcement of any assignment of leases contained in the Security Instrument and any other Loan Documents; or (vi) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted by the Security Instrument (if required by applicable law and provided such deficiency judgment is not enforced personally against Borrower or any officer, director, shareholder, partner, member, principal, employee of Borrower or any direct or indirect owner of Borrower (excluding Guarantor under the Guaranty and Environmental Indemnity, as applicable)) or to commence any other appropriate action or proceeding in order for Lender to fully realize the security granted by the Pledge or the other Security Documents or to exercise its remedies against all or any portion of the Collateral; or (vi) constitute a waiver of the right of Lender to enforce the liability and obligation of Borrower (but not any of its constituent members, partners, officers, directors or shareholders), 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 being referred to herein as “Borrower’s Recourse Liabilities”): (a) fraud or intentional misrepresentation by Borrower, Sole Member, Owner or Guarantor in connection with obtaining the Loan; (b) intentional waste of the Property (or any portion thereof, or after an Event of Default the removal or disposal of any portion of the Property; (c) any Proceeds paid by reason of any Insured Casualty or any Award received in connection with a Condemnation or other sums or payments attributable to the Property to the extent not applied in accordance with the provisions of the Loan Documents and the Senior Loan Documents (except to the extent that Borrower or Owner did not have the legal right, because of a bankruptcy, receivership or similar judicial proceeding, to direct disbursement of such sums or payments); (d) all Rents of the Property received or collected by or on behalf of Borrower or Owner after an Event of Default and not applied to payment of Principal and interest due under the Note, and to the payment of actual and reasonable operating expenses of the Property, as they become due or payable (except to the extent that such application of such funds is prevented by bankruptcy, receivership, or similar judicial proceeding in which Borrower or Owner is legally prevented from directing the disbursement of such sums); (e) misappropriation (including failure to turn over to Lender on demand following an Event of Default) of tenant security deposits and rents collected in advance; (f) the failure by Borrower or Owner to pay Taxes or Insurance Premiums, provided Borrower shall not be liable to the extent funds to pay such amounts are available in the Tax and Insurance Subaccount pursuant to the Senior Loan Agreement and Senior Lender failed to pay same; (g) the failure to pay transfer fees and charges due Lender under the Loan Documents in connection with any subordinate financing or any transfer of all or any part of the Property or the Collateral, or any interest therein, from Borrower to Borrower’s transferee, or transfer of beneficial interest in Borrower; and (h) the breach of any representation, warranty, covenant or indemnification in any Loan Document concerning Environmental Laws or Hazardous Substances, including Sections 4.21 and 5.10, and clauses (viii) through (xi) of Section 5.30. Notwithstanding anything to the contrary in this Agreement or any of the Loan Documents, (a) Lender shall not be deemed to have waived any right which Lender may have under Section 506(a) , 506(b) , 1111(b) or any other provisions of the U.S. Bankruptcy Code to file a claim for the full amount of the Debt or to require that all collateral shall continue to secure all of the Debt in accordance with the Loan Documents, and (b) Lender’s agreement not to pursue personal liability of Borrower as set forth above SHALL BECOME NULL AND VOID and shall be of no further force and effect, and the Debt shall be fully recourse to Borrower and Guarantor (but not any of Borrower’s constituent members, partners, officers, directors or shareholders) in the event that one or more of the following occurs (each, a “Springing Recourse Event”): (i) an Event of Default described in Section 8.1(d) shall have occurred (solely as a result of a voluntary Transfer) or (ii) a breach of the covenants set forth in Section 5.15, or (iii) Borrower’s voluntary commencement of proceedings to be adjudicated bankrupt or insolvent; Borrower’s consent to the institution of bankruptcy or insolvency proceedings against it; Borrower’s filing of a petition seeking, or consent to, reorganization or relief under any applicable federal or state law relating to bankruptcy or insolvency; Borrower’s consent to the appointment of a receiver, liquidator, assignee, trustee, sequestrator (or other similar official) of Borrower or a substantial part of Borrower’s property; Borrower’s assignment for the benefit of creditors; or the filing of an involuntary petition in bankruptcy or insolvency proceedings against Borrower by any principal of or owner of any interest in Borrower or any affiliate of or party related to Borrower (but excluding any owner or affiliate that indirectly owns or is affiliated with Borrower solely from its ownership of shares in the REIT).
Appears in 1 contract
Samples: Mezzanine Loan Agreement (KBS Real Estate Investment Trust, Inc.)
Exculpation. (a) 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 Security Instrument or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against Borrower Agreement or any officer, director, shareholder, partner, member, principal, employee of Borrower or any direct or indirect owner of Borrower (provided that the foregoing shall not limit in any manner, the liability of any Guarantor), except that Lender may bring 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 Security Instrument and the other Loan Documents, the Agent shall not have any duties or in the Property (or any portion thereof)responsibilities, the Rentsexcept those expressly set forth herein, or any 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 collateral given Loan Document or otherwise exist against the Agent. Neither the Agent nor any of its directors, officers, employees or agents (collectively, the "Related Parties") shall be liable to Lender pursuant any --------------- Bank for any action taken or omitted to the be taken by it under this Agreement or any other Loan Documents; providedDocument, however, thator in connection herewith or therewith, except as specifically provided hereinfor its own willful misconduct or gross negligence, nor shall the Agent or any judgment in of the Related Parties be responsible for any such action recitals or proceeding 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 enforceable against Borrower only entitled to the extent rely upon advice of Borrower’s interest counsel concerning legal matters and upon any notice, consent, certificate, statement, or writing which it believes to be genuine and to have been presented by a proper Person. The Agent shall in the Propertyall cases be fully protected in acting, or in the Rents and in any other collateral given to Lenderrefraining from acting, and Lender, by accepting the Note, under this Agreement, the Security Instrument Agreement and the other Loan DocumentsDocuments in accordance with a request of the Required Banks (or, agrees that it to the extent this Agreement requires a higher percentage, such higher percentage), and such request and any action taken or failure to act pursuant thereto shall not sue for, seek or demand any deficiency judgment against Borrower in any such action or proceeding under or by reason be binding upon all the Banks and all future holders of or under or in connection with the Note, this Agreement, the Security Instrument or the other Loan DocumentsObligations. The provisions of this Section 9.3 Agent shall not, however, (i) constitute a waiver, release be fully justified in failing or impairment of any obligation evidenced or secured by any of the Loan Documents; (ii) impair the right of Lender refusing to name Borrower as a party defendant in take any action under this Agreement or suit for foreclosure and sale under the Security Instrument; (iii) affect the validity or enforceability of any guaranty, indemnity or similar agreement or undertaking made in connection with the Loan or any of the rights and remedies of Lender thereunder; (iv) impair the right of Lender to obtain the appointment of a receiver; (v) impair the enforcement of any assignment of leases contained in the Security Instrument and any other Loan Documents; Document unless it shall first receive such advice or concurrence of the Required Banks (vior, to the extent this Agreement requires a higher percentage, such higher percentage) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted by the Security Instrument (if required by applicable law and provided such deficiency judgment is not enforced personally against Borrower or any officer, director, shareholder, partner, member, principal, employee of Borrower or any direct or indirect owner of Borrower (excluding Guarantor under the Guaranty and Environmental Indemnity, as applicable)) or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against the Property (or any portion thereof)it deems appropriate.
Appears in 1 contract
Samples: Credit Agreement (View Tech 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 NoteNotes, this Agreement, the Security Instrument Mortgage or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against Borrower or any officer, director, shareholder, partner, member, principal, employee of Borrower or any direct or indirect owner of Borrower (provided that the foregoing shall not limit in any manner, the liability of any Guarantor)Borrower, except that Lender may bring 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 Security Instrument Mortgage and the other Loan Documents, or in the Property (or any portion thereof)Property, the Rents, the IP or any other collateral given to Lender pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against any Borrower only to the extent of such Borrower’s interest in the its Property, in its Rents, in the Rents IP and in any other collateral given by it to Lender, and Lender, by accepting the NoteNotes, this Agreement, the Security Instrument Mortgage and the other Loan Documents, agrees that it shall not sue xxx for, seek or demand any deficiency judgment against any Borrower 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 Security Instrument Mortgage or the other Loan Documents. The provisions of this Section 9.3 9.4 shall not, however, (ia) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (iib) impair the right of Lender to name any Borrower as a party defendant in any action or suit for foreclosure and sale under the Security InstrumentMortgage; (iiic) affect the validity or enforceability of or any guaranty, indemnity or similar agreement or undertaking guaranty made in connection with the Loan Loan, including, without limitation, the Non-Recourse Guaranty, or any of the rights and remedies of Lender thereunder; (ivd) impair the right of Lender to obtain the appointment of a receiver; (ve) impair the enforcement of any assignment the Assignment of leases contained in the Security Instrument and any other Loan DocumentsLeases; or (vif) constitute a prohibition against Lender to seek seeking a deficiency judgment against any Borrower in order to fully realize the security granted by the Security Instrument (if required by applicable law and provided such deficiency judgment is not enforced personally against Borrower Mortgage or any officer, director, shareholder, partner, member, principal, employee of Borrower or any direct or indirect owner of Borrower (excluding Guarantor under the Guaranty and Environmental Indemnity, as applicable)) or to commence commencing any other appropriate action or proceeding in order for Lender to exercise its remedies against any Property or the Property IP; or (g) constitute a waiver of the right of Lender to enforce the liability and obligation of any Borrower, by money judgment or otherwise, to the extent of any actual loss, 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 any portion thereof).failures to act) which occur on or after the Closing Date:
Appears in 1 contract
Samples: Loan Agreement (Bref Hr, LLC)
Exculpation. (a) Subject to the qualifications belowset forth in this Section 9.3, Lender shall not enforce the liability and obligation of any Individual Borrower or Individual Operating Lessee to perform and observe the its respective obligations contained in the Note, Note (as to Borrower) or this Agreement, the Security Instrument Agreement or the any other Loan Documents Document to which it is a party by any action or proceeding wherein a money judgment shall be sought against any Individual Borrower or any officer, director, shareholder, partner, member, principal, employee of Borrower or any direct or indirect owner of Borrower (provided that the foregoing shall not limit in any manner, the liability of any Guarantor)Individual Operating Lessee, except that Lender may bring 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 Security Instrument Mortgages and the other Loan Documents, or in the Property (or any portion thereof)Properties, the Rents, or any other collateral given to Lender pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against any Individual Borrower or Individual Operating Lessee only to the extent of such Individual Borrower’s or Individual Operating Lessee’s interest in the applicable Individual Property, in the Rents and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Security Instrument Mortgages and the other Loan Documents, agrees that it shall not sue xxx for, seek or demand any deficiency judgment against any Individual Borrower or Individual Operating Lessee in any such action or proceeding under or by reason of or under or in connection with the Note, this Agreement, the Security Instrument Mortgages or the other Loan Documents. The provisions of this Section 9.3 shall not, however, (i) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (ii) impair the right of Lender to name any Individual Borrower or Individual Operating Lessee as a party defendant in any action or suit for foreclosure and sale under any of the Security InstrumentMortgages; (iii) affect the validity or enforceability of or any guaranty, indemnity or similar agreement or undertaking guaranty made in connection with the Loan or any of the rights and remedies of Lender thereunder; (iv) impair the right of Lender to obtain the appointment of a receiver; (v) impair the enforcement of any assignment of leases contained in any of the Security Instrument and any other Loan DocumentsMortgages; or (vi) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted by each of the Security Instrument (if required by applicable law and provided such deficiency judgment is not enforced personally against Borrower or any officer, director, shareholder, partner, member, principal, employee of Borrower or any direct or indirect owner of Borrower (excluding Guarantor under the Guaranty and Environmental Indemnity, as applicable)) Mortgages or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against any or all of the Property (or any portion thereof)Properties.
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 Security Instrument or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against Borrower or any officer, director, shareholder, partner, member, principal, employee of Borrower or any direct or indirect owner of Borrower (provided that the foregoing shall not limit in any manner, the liability of any Guarantor)Borrower, except that Lender may bring 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 Security Instrument and the other Loan Documents, or in the Property (all or any portion thereof), of the Rents, or any other collateral given to Lender pursuant to the Loan DocumentsCollateral; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower’s interest in the Property, in the Rents and in any other collateral given to LenderCollateral, and Lender, by accepting the Note, this Agreement, the Security Instrument and the other Loan Documents, agrees that it Lender shall not sue xxx for, seek or demand any deficiency judgment against Borrower in any such action or proceeding under or by reason of or under or in connection with the Note, this Agreement, the Security Instrument or the other any Loan DocumentsDocument. The provisions of this Section 9.3 shall not, however, (i) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan DocumentsDocument; (ii) 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 Security InstrumentDocuments; (iii) affect the validity or enforceability of any guaranty, indemnity of the Loan Documents or similar agreement or undertaking any guaranty made in connection with the Loan or any of the rights and remedies of Lender thereunder; (iv) impair the right of Lender to obtain the appointment of a receiver; (v) impair the enforcement of any assignment of leases contained in the Security Instrument and any other Loan Documents; or (vi) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted by the Security Instrument (if required by applicable law and provided such deficiency judgment is not enforced personally against Borrower or any officer, director, shareholder, partner, member, principal, employee of Borrower or any direct or indirect owner of Borrower (excluding Guarantor under the Guaranty and Environmental Indemnity, as applicable)) or to commence any other appropriate action or proceeding in order for Lender to fully realize the security granted by the Pledge or the other Security Documents or to exercise its remedies against the Property (all or any portion thereof).of the Collateral; or (vi) 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 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 being referred to herein as “Borrower’s Recourse Liabilities”):
Appears in 1 contract
Exculpation. (a) Subject 45. The liability of Mortgagor and General Partner with respect to the qualifications belowpayment of principal and interest under the Note shall be "non-recourse" and, Lender shall not enforce the liability accordingly, Mortgagee's source of satisfaction of said indebtedness and obligation of Borrower to perform Xxxxxxxxx's other obligations hereunder and observe the obligations contained in the Note, this Agreement, the Security Instrument or under the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against Borrower limited to the Property and, for and only during the period of time commencing with the date hereof and continuing up to and including September 5, 1998, the North Property (as such term is defined in the Note) and Mortgagee's receipt of the rents, issues and profits from the Property, and until September 5, 1998, the North Property, and Mortgagee shall not seek to procure payment out of any other assets of Mortgagor or any officerperson or entity comprising Mortgagor, director, shareholder, partner, member, principal, employee of Borrower or to seek judgment for any direct sums which are or indirect owner of Borrower (provided that the foregoing shall not limit in any manner, the liability of any Guarantor), except that Lender may bring 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 be payable under the Note, this AgreementMortgage or any of the other Loan Documents, as V:\106\10670\EDSO2.NTE well as any claim or judgment (except as hereafter provided) for any deficiency remaining after foreclosure of this Mortgage. Notwithstanding the Security Instrument above, nothing herein contained shall be deemed to be a release or impairment of the indebtedness evidenced by the Note or the security therefor intended by this Mortgage and the other Loan Documents, or in the Property (be deemed to preclude Mortgagee from exercising its rights to foreclose this Mortgage or to enforce any portion thereof), the Rents, of its other rights or any other collateral given to Lender pursuant to remedies under the Loan Documents; provided. Notwithstanding the foregoing, however, that, except as specifically provided herein, any judgment it is expressly understood and agreed that the aforesaid limitation on liability shall in any such action no way affect or proceeding shall be enforceable against Borrower only apply to the extent of Borrower’s interest in the Property, in the Rents Xxxxxxxxx's and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Security Instrument and the other Loan Documents, agrees that it shall not sue for, seek or demand any deficiency judgment against Borrower in any such action or proceeding under or by reason of or under or in connection with the Note, this Agreement, the Security Instrument or the other Loan Documents. The provisions of this Section 9.3 shall not, however, (i) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (ii) impair the right of Lender to name Borrower as a party defendant in any action or suit General Partner's continued personal liability for foreclosure and sale under the Security Instrument; (iii) affect the validity or enforceability of any guaranty, indemnity or similar agreement or undertaking made in connection with the Loan or any of the rights and remedies of Lender thereunder; (iv) impair the right of Lender to obtain the appointment of a receiver; (v) impair the enforcement of any assignment of leases contained in the Security Instrument and any other Loan Documents; or (vi) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted by the Security Instrument (if required by applicable law and provided such deficiency judgment is not enforced personally against Borrower or any officer, director, shareholder, partner, member, principal, employee of Borrower or any direct or indirect owner of Borrower (excluding Guarantor under the Guaranty and Environmental Indemnity, as applicable)) or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against the Property (or any portion thereof).all sums due to:
Appears in 1 contract
Samples: Trust and Security Agreement (Jones Financial Companies L P)
Exculpation. (a) Subject Notwithstanding anything to the qualifications belowcontrary contained in the Loan Documents (as hereinafter defined), Lender shall not enforce the liability and obligation of the Borrower to perform and observe and make good the obligations contained in the Note, this Agreement, the Security Instrument or the other Loan Documents and to pay the Loan in accordance with the provisions of the Note and this Mortgage shall not be enforced by any action or proceeding wherein a damages or any money judgment or any deficiency judgment or any judgment establishing any personal obligation or liability shall be sought sought, collected or otherwise obtained against the Borrower or against any officerpast, director, shareholderpresent or future member, partner, memberofficer, principaldirector or shareholder of the Borrower, employee of Borrower or any direct or indirect owner of Borrower (provided that the foregoing shall not limit in any manneras applicable, the liability of any Guarantor), except that Lender may bring 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 Security Instrument and the other Loan Documents, or in the Property (or Lender for itself and its successors and assigns irrevocably waives any portion thereof), the Rents, or any other collateral given and all right to Lender pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower’s interest in the Property, in the Rents and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Security Instrument and the other Loan Documents, agrees that it shall not sue for, seek or demand any deficiency such damages, money judgment, defixxxncy judgment or personal judgment against the Borrower in or against any such action past, present or proceeding future member, partner, officer, director or shareholder of the Borrower, as applicable, under or by reason of or in connection with the Loan Documents and agrees to look solely to the security and collateral held under or in connection with the Note, Loan Documents for the enforcement of such liability and obligation of the Borrower. Nothing contained in this Agreement, the Security Instrument or the other Loan Documents. The provisions of this Section 9.3 Paragraph 5.21 shall not, however, be construed (i) constitute a waiveras preventing the Lender from naming the Borrower or any past, release present or impairment of any obligation evidenced future member, partner, officer, director or secured by any shareholder of the Loan Documents; (ii) impair the right of Lender to name Borrower Borrower, as a party defendant applicable, in any action or suit for foreclosure proceeding brought by the Lender to enforce and sale to realize upon the security and collateral provided under the Security Instrument; (iii) affect the validity or enforceability of any guaranty, indemnity or similar agreement or undertaking made in connection with the Loan Documents so long as no judgment, order, decree or other relief in the nature of a personal or deficiency judgment or otherwise establishing any personal obligation shall be asked for, taken, entered or enforced against the Borrower or against any past, present or future member, partner, officer, director or shareholder of the Borrower, as applicable, in any such action or proceeding, or (ii) as modifying, qualifying or affecting in any manner whatsoever the lien and security interests created by this Mortgage and the other Loan Documents or the enforcement thereof by the Lender, or (iii) as modifying, qualifying or affecting in any manner whatsoever the personal recourse undertakings, obligations and liabilities of the Borrower under Paragraph 3.23 of this Mortgage entitled "Hazardous Waste," or (iv) as modifying, qualifying or affecting in any manner whatsoever the personal recourse undertakings, obligations and liabilities of Borrower under the Environmental Indemnity Agreement of even date herewith made by Borrower for the benefit of Lender, or (v) as modifying, qualifying or affecting in any manner whatsoever the personal recourse liability of the Borrower for any claim arising out of any of the following actions of the Borrower: (a) fraud or intentional misrepresentation by the Borrower or any of the rights and remedies of Lender thereunder; its Affiliates (iv) impair the right of Lender to obtain the appointment of a receiver; (v) impair the enforcement of any assignment of leases contained as such term is defined in the Security Instrument Loan Agreement) in connection with the execution and any delivery of the Note or other Loan Documents; , (b) misapplication of security deposits under the Ground Lease, (c) collection of Rents (as such term is defined in the Assignment of Leases and Rents) under the Ground Lease more than one month in advance, (d) misapplication of casualty insurance proceeds or condemnation awards or Purchase Option sale proceeds under the Ground Lease, or (vie) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize for any breach of Sections 5.10 or 6.11 of the security granted by the Security Instrument (if required by applicable law and provided such deficiency judgment is not enforced personally against Borrower or any officer, director, shareholder, partner, member, principal, employee of Borrower or any direct or indirect owner of Borrower (excluding Guarantor under the Guaranty and Environmental Indemnity, as applicable)) or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against the Property (or any portion thereof).Loan Agreement. 38
Appears in 1 contract
Samples: Mortgage, Security Agreement and Fixture Financing Statement (Alexanders Inc)
Exculpation. (a) 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 Security Instrument 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 officerobligation, directorcovenant, shareholderagreement, partnerrepresentation, memberwarranty, principalpromise or other matter whatsoever shall be had against Borrower, employee 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 direct claim or indirect owner of obligation arising thereunder against, Borrower, Borrower (provided that the foregoing shall not limit in any manner, the liability Partners or out of any Guarantor)assets of the Borrower Partners. Notwithstanding the foregoing, except that Lender may bring 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 Security Instrument Mortgage and the other Loan Documents, Documents or in the Property (or any portion thereof)Property, the Rents, or any other collateral given to Lender pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower only with respect to the extent of Borrower’s interest in the Property, in the Rents and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Security Instrument Mortgage and the other Loan Documents, agrees that it shall not sue xxx for, seek or demand any deficiency judgment or other personal recourse against Borrower in any such action or proceeding under or by reason of or under or in connection with the Note, this Agreement, the Security Instrument Mortgage or the other Loan Documents. The In addition, the provisions of this Section 9.3 shall not, however, (ia) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (iib) 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 Security InstrumentMortgage; (iiic) affect the validity or enforceability of any guaranty, indemnity the Indemnity Agreement or similar agreement the Environmental Indemnity or undertaking made in connection with the Loan or impair any of the rights and remedies of Lender against any Person liable thereunder; (ivd) impair the right of Lender to obtain the appointment of a receiver; (ve) impair the enforcement of any assignment the Assignment of leases contained in the Security Instrument and any other Loan DocumentsLeases; or (vif) 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 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 order to fully realize connection with the security granted by the Security Instrument (if required by applicable law and provided such deficiency judgment is not enforced personally against Borrower or any officer, director, shareholder, partner, member, principal, employee of Borrower or any direct or indirect owner of Borrower (excluding Guarantor under the Guaranty and Environmental Indemnity, as applicable)) or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against the Property (or any portion thereof).following:
Appears in 1 contract
Samples: Loan Agreement (Taubman Centers Inc)
Exculpation. (a) Subject to the qualifications below, Mezzanine Lender shall not enforce the liability and obligation of Borrower Borrowers to perform and observe the obligations Obligations contained in the NoteMezzanine Notes, this Agreement, the Security Instrument Pledges or the other Mezzanine Loan Documents by any action or proceeding wherein a money judgment shall be sought against Borrower Borrowers (or any officer, director, shareholder, partner, member, principal, employee of Borrower them) or any direct their members or indirect owner of Borrower (provided that the foregoing shall not limit in any manner, the liability of any Guarantor)managers, except that Mezzanine Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Mezzanine Lender to enforce and realize upon its interest under the NoteMezzanine Notes, this Agreement, the Security Instrument Pledges and the other Mezzanine Loan Documents, or in the Property (or any portion thereof), the Rents, Collateral or any other collateral given to Mezzanine Lender pursuant to the Mezzanine Loan Documents; providedPROVIDED, howeverHOWEVER, 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 's respective interest in the Property, in the Rents Collateral and in any other collateral given to Mezzanine Lender, and Mezzanine Lender, by accepting the NoteMezzanine Notes, this Agreement, the Security Instrument Pledges and the other Mezzanine Loan Documents, agrees that it shall not sue xxx for, seek or demand any deficiency judgment against Borrower Borrowers (or any of them) or their members or managers in any such action or proceeding under or by reason of or under or in connection with the NoteMezzanine Notes, this Agreement, the Security Instrument Pledges or the other Mezzanine Loan Documents. The provisions of this Section 9.3 shall not, however, (ia) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Mezzanine Loan Documents; (iib) impair the right of Mezzanine Lender to name Borrower Borrowers (or any of them) as a party defendant in any action or suit for foreclosure and sale under the Security InstrumentPledges or the other Mezzanine Loan Documents; (iiic) affect the validity or enforceability of any guaranty, indemnity of the Mezzanine Loan Documents or similar agreement or undertaking any guaranty made in 398 connection with the Mezzanine Loan or any of the rights and remedies of Mezzanine Lender thereunder; (ivd) impair the right of Mezzanine Lender to obtain the appointment of a receiver; (v) impair the enforcement of any assignment of leases contained in the Security Instrument and any other Loan Documents; or (vie) constitute a prohibition against Mezzanine Lender to seek a deficiency judgment against Borrower Borrowers (or any of them) in order to fully realize the security granted by the Security Instrument (if required by applicable law and provided such deficiency judgment is not enforced personally against Borrower or any officer, director, shareholder, partner, member, principal, employee of Borrower or any direct or indirect owner of Borrower (excluding Guarantor under the Guaranty and Environmental Indemnity, as applicable)) Pledges or to commence any other appropriate action or proceeding in order for Mezzanine Lender to exercise its remedies against the Property Collateral; or (f) constitute a waiver of the right of Mezzanine Lender to enforce the liability and obligation of Borrowers (or any portion thereofof them)., by money judgment or otherwise, to the extent of any loss, damage, cost, expense, liability, claim or other obligation actually incurred by Mezzanine Lender (which shall be exclusive of any cancellation rights) (including attorneys' fees and costs reasonably incurred) arising out of or in connection with the following:
Appears in 1 contract
Samples: Mezzanine Loan Agreement (Horizon Group Properties Inc)
Exculpation. Notwithstanding anything to the contrary in this Lease, and except with respect to the Security Deposit or as may be explicitly agreed in writing after the date hereof, it is expressly understood and agreed that Tenant is a limited liability company and (a) Subject Tenant shall be personally liable for the payment and performance of the duties, responsibilities, liabilities and obligations of Tenant under this Lease to the qualifications belowextent (but only to the extent) of the assets of Tenant (specifically excluding the assets of any of the past, Lender shall not enforce the liability and obligation present or future members of Borrower to perform and observe the obligations contained in the Note, this Agreement, the Security Instrument or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against Borrower Tenant or any officerpast, directorpresent or future shareholder of any corporate member of Tenant, except for any such member’s or shareholder, partner, member, principal, employee of Borrower or any direct or indirect owner of Borrower (provided that the foregoing shall not limit ’s interest in any manner, the liability then undistributed assets of any Guarantor), except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender to enforce Tenant and realize upon its interest under the Note, this Agreement, the Security Instrument and the other Loan Documents, or in the Property (or any portion sales proceeds thereof), (b) none of the Rentspast, present or future members of Tenant or past, present or future shareholders of any of the corporate members of Tenant shall be personally liable for the payment or performance of any such duties, responsibilities, liabilities or obligations, (c) no past, present or future member of Tenant or past, present or future shareholders of any corporate member of Tenant shall be named as a party in any suit or other collateral given judicial proceeding of any kind or nature whatsoever brought against Tenant with respect to Lender pursuant this Lease, except to the Loan Documents; providedextent necessary to secure jurisdiction of Tenant, however, that, except as specifically provided herein, any judgment in and any such action suit or other judicial proceeding shall be enforceable against Borrower only limited to the extent enforcement of Borrowerthe rights of Landlord with respect to the then undistributed assets (and sales proceeds thereof) of Tenant, and (d) no attachment, execution or other write of process shall be sought, issued or levied upon any assets, property or funds of any of the past, present or future members of Tenant or past, present or future shareholder of any corporate member of Tenant, except for any such member’s or shareholder’s interest in any then undistributed assets (and sales proceeds thereof) of Tenant. For the Property, in the Rents and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Security Instrument and the other Loan Documents, agrees that it shall not sue for, seek or demand any deficiency judgment against Borrower in any such action or proceeding under or by reason of or under or in connection with the Note, this Agreement, the Security Instrument or the other Loan Documents. The provisions purposes of this Section 9.3 shall notSection, however, (i) constitute a waiver, release or impairment no portion of the assets of any obligation evidenced or secured employee benefit plans maintained by any of Tenant for the Loan Documents; (ii) impair the right of Lender to name Borrower as a party defendant in any action or suit for foreclosure and sale under the Security Instrument; (iii) affect the validity or enforceability benefit of any guarantypresent, indemnity future or similar agreement former members or undertaking made in connection with the Loan or any employees of the rights and remedies Tenant shall be deemed to be assets of Lender thereunder; (iv) impair the right of Lender to obtain the appointment of a receiver; (v) impair the enforcement of any assignment of leases contained in the Security Instrument and any other Loan Documents; or (vi) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted by the Security Instrument (if required by applicable law and provided such deficiency judgment is not enforced personally against Borrower or any officer, director, shareholder, partner, member, principal, employee of Borrower or any direct or indirect owner of Borrower (excluding Guarantor under the Guaranty and Environmental Indemnity, as applicable)) or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against the Property (or any portion thereof)Tenant.
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 The Plan will contain an exculpation provision substantially in the Noteform of the following: Exculpation. No Exculpated Party shall have or incur, this and each Exculpated Party is hereby released and exculpated from any Claim, obligation, Cause of Action or liability for any Claim in connection with or arising out of the formulation, preparation, dissemination, or negotiation of the Restructuring Support Agreement or the Genco Working Capital Facility, or any contract, instrument, release, or other agreement or document created or entered into in connection with the Restructuring Support Agreement, the Security Instrument Exchange Offers, the Consent Solicitations, the Plan, the Chapter 11 Case, the filing of the Chapter 11 Case, 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 by any action or proceeding wherein a money judgment shall be sought against Borrower or any officer, director, shareholder, partner, member, principal, employee distribution of Borrower or any direct or indirect owner of Borrower (provided that property under the foregoing shall not limit in any manner, the liability of any Guarantor), except that Lender may bring a foreclosure action, an action for specific performance Plan or any other appropriate action or proceeding to enable Lender to enforce and realize upon its interest under the Note, this Agreement, the Security Instrument and the other Loan Documentsrelated agreement, or in the Property (upon any other act or any portion thereof)omission, the Rentstransaction, agreement, event, or any other collateral given to Lender pursuant occurrence taking place on or before the Effective Date related or relating to the Loan Documentsforegoing, except for 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 with respect to the foregoing; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding that the foregoing exculpation shall be enforceable against Borrower only not apply to the extent Unreleased Dynegy Claims. The Debtor, the Reorganized Debtor, Dynegy and the Consenting Noteholders (and each of Borrower’s interest in the Propertytheir respective affiliates, in the Rents and in any other collateral given to Lenderagents, directors, officers, employees, advisors, and Lenderattorneys) have participated in compliance with the applicable provisions of the Bankruptcy Code with regard to the solicitation and distribution of the Securities pursuant to the Plan, by accepting the Noteand, this Agreementtherefore, the Security Instrument are not, and the other Loan Documents, agrees that it on account of such distributions shall not sue forbe, seek or demand liable at any deficiency judgment against Borrower in any such action or proceeding under or by reason of or under or in connection with time for the Note, this Agreement, the Security Instrument or the other Loan Documents. The provisions of this Section 9.3 shall not, however, (i) constitute a waiver, release or impairment violation of any obligation evidenced applicable law, rule, or secured by any regulation governing the solicitation of acceptances or rejections of the Loan Documents; (ii) impair Plan or such distributions made pursuant to the right Plan, including the issuance of Lender to name Borrower as a party defendant in any action or suit for foreclosure and sale under the Security Instrument; (iii) affect the validity or enforceability of any guaranty, indemnity or similar agreement or undertaking made in connection with the Loan or any of the rights and remedies of Lender securities thereunder; (iv) impair the right of Lender to obtain the appointment of a receiver; (v) impair the enforcement of any assignment of leases contained in the Security Instrument and any other Loan Documents; or (vi) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted by the Security Instrument (if required by applicable law and provided such deficiency judgment is not enforced personally against Borrower or any officer, director, shareholder, partner, member, principal, employee of Borrower or any direct or indirect owner of Borrower (excluding Guarantor under the Guaranty and Environmental Indemnity, as applicable)) or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against the Property (or any portion thereof).
Appears in 1 contract
Samples: Restructuring Support Agreement (Illinois Power Generating Co)
Exculpation. (a) 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 Security Instrument or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against Borrower any Transaction Party or any officerof their respective officers, directordirectors, shareholdermanagers, partner, member, principal, employee of Borrower shareholders or any direct or indirect owner of Borrower employees (provided that the foregoing shall not limit in any mannercollectively, the liability of any Guarantor“Exculpated Parties”), except that Lender the Administrative Agent may bring 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 Security Instrument and the other Loan Documents, or and the interest in the Property (or any portion thereof), the Rents, or any other collateral given to Lender pursuant to the Loan DocumentsCollateral; 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 Rents and in any other collateral given to LenderMortgages, and Lender, by accepting the Note, this Agreement, the Security Instrument and the other Loan Documents, agrees that it shall not sue sxx for, seek or demand any deficiency judgment against Borrower any of the 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 Security Instrument or the other Loan Documents. The provisions of this Section 9.3 10.01 shall not, however, (i) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (ii) 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 Security Instrumentany Mortgage; (iii) affect the validity or enforceability of any guarantyindemnity, indemnity guaranty (including the Guaranty), master lease or similar agreement or undertaking instrument made in connection with the Loan or any of the rights and remedies of Lender thereunderDocuments; (iv) impair the right of Lender the Administrative Agent to obtain the appointment of a receiver; (v) impair the enforcement of any assignment Assignment of leases contained 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 the Security Instrument and this Agreement or in any other Loan DocumentsDocument which is not inconsistent with the terms of this Section 10.01; or (viviii) 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 the security granted by the Security Instrument (if required by applicable law A) preserve or enforce its rights and provided such deficiency judgment is not enforced personally against Borrower or any officer, director, shareholder, partner, member, principal, employee of Borrower or any direct or indirect owner of Borrower (excluding Guarantor under the Guaranty and Environmental Indemnity, as applicable)) or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against the Property Collateral or (B) obtain any insurance proceeds or any portion thereof).condemnation awards to which the Secured Parties would otherwise be entitled under the terms of the Loan Documents; provided, however, the Secured Parties shall only enforce such judgment to the extent of the insurance proceeds and/or condemnation awards. 119
Appears in 1 contract
Samples: Term Loan Agreement (American Realty Capital Hospitality Trust, Inc.)
Exculpation. (a) Subject The liability of Borrower with respect to the qualifications belowpayment of principal and interest hereunder shall be "non-recourse" and, Lender shall not enforce the liability accordingly, Lendxx'x xource of satisfaction of said indebtedness and obligation of Borrower to perform Borrxxxx'x xther obligations hereunder and observe the obligations contained in the Note, this Agreement, the Security Instrument or under the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against Borrower limited to the Property and Lendxx'x xeceipt of the rents, issues and profits from the Property and any other security or collateral now or hereafter held by Lendxx xxx Lender shall not seek to procure payment out of any other assets of Borrower, or any officerperson or entity comprising Borrower, director, shareholder, partner, member, principal, employee nor to seek judgment (except as hereinafter provided) for any sums which are or may be payable under this Note or under any of Borrower or any direct or indirect owner of Borrower (provided that the foregoing shall not limit in any manner, the liability of any Guarantor), except that Lender may bring 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 Security Instrument and the other Loan Documents, or in the Property for any claim or judgment (or any portion thereof), the Rents, or any other collateral given to Lender pursuant to the Loan Documents; provided, however, that, except as specifically provided hereinhereinafter provided) for any deficiency remaining after foreclosure of the Security Deed. Notwithstanding the foregoing, any judgment in any such action or proceeding nothing herein contained shall be enforceable against Borrower only deemed to the extent of Borrower’s interest in the Property, in the Rents and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Security Instrument and the other Loan Documents, agrees that it shall not sue for, seek or demand any deficiency judgment against Borrower in any such action or proceeding under or by reason of or under or in connection with the Note, this Agreement, the Security Instrument or the other Loan Documents. The provisions of this Section 9.3 shall not, however, (i) constitute be a waiver, release or impairment of any obligation the indebtedness evidenced by this Note or secured the security therefor intended by the other Loan Documents or be deemed to preclude Lender from exercising its rights to foreclose the Security Deed or to enforce any of its other rights or remedies under the Loan Documents; , including but not limited to that certain Guaranty (iithe "Guaranty") impair of even date herewith from Robexxx Xxxlty Investors, Inc. to Lender. Notwithstanding the right of Lender foregoing, it is expressly understood and agreed that the aforesaid limitation on liability shall in no way affect or apply to name Borrower as a party defendant in any action or suit Borrxxxx'x xnd Borrxxxx'x xeneral partner's continued personal liability for foreclosure and sale under the Security Instrument; (iii) affect the validity or enforceability of any guaranty, indemnity or similar agreement or undertaking made in connection with the Loan or any of the rights and remedies of Lender thereunder; (iv) impair the right of Lender to obtain the appointment of a receiver; (v) impair the enforcement of any assignment of leases contained in the Security Instrument and any other Loan Documents; or (vi) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted by the Security Instrument (if required by applicable law and provided such deficiency judgment is not enforced personally against Borrower or any officer, director, shareholder, partner, member, principal, employee of Borrower or any direct or indirect owner of Borrower (excluding Guarantor under the Guaranty and Environmental Indemnity, as applicable)) or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against the Property (or any portion thereof).all sums due to:
Appears in 1 contract
Samples: Roberts Realty Investors 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 Security Instrument or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against Borrower or any officerits Affiliates, director, shareholder, partner, member, principal, employee of Borrower principals or any direct or indirect owner of Borrower (provided that the foregoing shall not limit in any manner, the liability of any Guarantor)shareholders, except that Lender may bring 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 Security Instrument and the other Loan Documents, or in the Property (or any portion thereof)Property, the Rents, the Insurance Proceeds, the Condemnation Proceeds or any other collateral given to Lender pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower’s interest in the Property, in the Rents Rents, the Insurance Proceeds, the Condemnation Proceeds and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Security Instrument and the other Loan Documents, Xxxxxx agrees that it shall not sue for, seek or demand any deficiency judgment against Borrower in any such action or proceeding under or by reason of or under or in connection with the Note, this Agreement, the Security Instrument or the other any Loan DocumentsDocument. The provisions of this Section 9.3 17 shall not, however, (ia) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan DocumentsDocument; (iib) impair the right of Lender to name Borrower as a party defendant in any action or suit for foreclosure and sale under the Security InstrumentMortgage; (iiic) affect the validity or enforceability of any guaranty, of the Loan Documents or any guaranty or indemnity or similar agreement or undertaking made in connection with the Loan or any of the rights and remedies of the Lender thereunder; (ivd) impair the right of Lender to obtain the appointment of a receiver; (ve) impair the enforcement of any assignment of leases contained in the Security Instrument and any other Loan DocumentsMortgage; or (vif) constitute a prohibition against prohibit Lender to seek from seeking a deficiency judgment against Borrower in order to fully realize the security granted by the Security Instrument (if required by applicable law and provided such deficiency judgment is not enforced personally against Borrower or any officer, director, shareholder, partner, member, principal, employee of Borrower or any direct or indirect owner of Borrower (excluding Guarantor under the Guaranty and Environmental Indemnity, as applicable)) Mortgage or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against all of the Property Property; or (g) constitute a waiver of the right of Lender to enforce the liability and obligation of Borrower by money judgment or otherwise, to the extent of any portion thereof).Losses incurred by Lender arising out of or in connection with the following (each, a “Recourse Liability” and collectively, the “Recourse Liabilities”):
Appears in 1 contract
Samples: Plymouth Industrial REIT Inc.
Exculpation. To the fullest extent permitted by applicable law, the GUC Trust Administrator Parties shall be and hereby are exculpated by all Persons, including holders of General Unsecured Claims, Units and Residual Wind-Down Claims and other parties-in-interest, from any and all claims, causes of action and other assertions of liability arising out of the discharge of their respective powers and duties conferred by the Plan, the Confirmation Order, this Trust Agreement or any Order of the Bankruptcy Court entered pursuant to or in furtherance of the Plan, or applicable law or otherwise (a) Subject including, without limitation, any claims, causes of action and other assertions of liabilities arising out of or related to the qualifications below, Lender shall not enforce Residual Wind-Down Expenses and the liability and obligation wind-down of Borrower to perform and observe the obligations contained in the Note, this Agreement, the Security Instrument or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against Borrower or any officer, director, shareholder, partner, member, principal, employee of Borrower or any direct or indirect owner of Borrower (provided that the foregoing shall not limit in any manner, the liability of any GuarantorDebtors’ affairs), except for actions or omissions to act that Lender may bring are determined by Final Order of the Bankruptcy Court to have arisen out of the willful misconduct (including, but not limited to, conduct that results in a foreclosure actionpersonal profit at the expense of the GUC Trust), an gross negligence, fraud, malpractice, criminal conduct, unauthorized use of confidential information that causes damages, breach of fiduciary duty (to the extent applicable), or ultra vxxxx acts of such GUC Trust Administrator Party. No holder of a General Unsecured Claim or other party-in-interest will have or be permitted to pursue any claim or cause of action against the GUC Trust Administrator Parties or the GUC Trust, for specific performance or any other appropriate action or proceeding to enable Lender to enforce making payments and realize upon its interest under distributions in accordance with the Note, this AgreementPlan, the Security Instrument and Confirmation Order or this Trust Agreement or for implementing the other Loan Documentsprovisions thereof. Any action taken or omitted to be taken with the express approval of the Bankruptcy Court will conclusively be deemed not to constitute willful misconduct, gross negligence, fraud, malpractice, criminal conduct, unauthorized use of confidential information that causes damages, breach of fiduciary duty, or in the Property (or any portion thereof), the Rents, or any other collateral given to Lender pursuant to the Loan Documentsultra vxxxx acts; provided, however, that, except as specifically provided herein, that notwithstanding any judgment in any such action or proceeding shall be enforceable against Borrower only provision herein to the extent of Borrower’s interest in the Property, in the Rents and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreementcontrary, the Security Instrument and the other Loan Documents, agrees that it GUC Trust Administrator shall not sue forbe obligated to comply with a direction of the GUC Trust Monitor, seek whether or demand any deficiency judgment against Borrower not express, which would result in any such action or proceeding under or by reason a change to the distribution provisions of or under or in connection with the Note, this AgreementPlan, the Security Instrument Confirmation Order or the other Loan Documents. The provisions of this Section 9.3 shall not, however, (i) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (ii) impair the right of Lender to name Borrower as a party defendant in any action or suit for foreclosure and sale under the Security Instrument; (iii) affect the validity or enforceability of any guaranty, indemnity or similar agreement or undertaking made in connection with the Loan or any of the rights and remedies of Lender thereunder; (iv) impair the right of Lender to obtain the appointment of a receiver; (v) impair the enforcement of any assignment of leases contained in the Security Instrument and any other Loan Documents; or (vi) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted by the Security Instrument (if required by applicable law and provided such deficiency judgment is not enforced personally against Borrower or any officer, director, shareholder, partner, member, principal, employee of Borrower or any direct or indirect owner of Borrower (excluding Guarantor under the Guaranty and Environmental Indemnity, as applicable)) or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against the Property (or any portion thereof)Trust Agreement.
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 Security Instrument Mortgage or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against Borrower or any officer, director, shareholder, partner, member, principal, employee of the Borrower or any direct or indirect owner members, partners or shareholders of Borrower (provided that or the foregoing shall not limit in any manneremployees, the liability agents, directors or officers of any Guarantor)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 Security Instrument Mortgage and the other Loan Documents, or in the Property (or any portion thereof)Property, the RentsBusiness Income, or any other collateral given to Lender pursuant to the Loan DocumentsDocuments 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 Rents and Business Income in any other collateral given to LenderLender or any other assets of Borrower, and Lender, by accepting the Note, this Agreement, the Security Instrument Mortgage and the other Loan Documents, agrees that it shall not sue xxx 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 Security Instrument Mortgage or the other Loan Documents. The provisions of this Section 9.3 shall not, however, : (ia) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (iib) impair the right of Lender to name Borrower as a party defendant in any action or suit for foreclosure and sale under the Security InstrumentMortgage; (iiic) affect the validity or enforceability of any guaranty, guaranty or indemnity or similar agreement or undertaking made in connection with the Loan (including, without limitation, the Guaranty) or any of the rights and remedies of Lender thereunder; (ivd) impair the right of Lender to obtain the appointment of a receiver; (ve) impair the enforcement of any assignment the Assignment of leases contained in the Security Instrument and any other Loan DocumentsLeases; or (vif) 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 Security Instrument (if required by applicable law and provided such deficiency judgment is not enforced personally against Borrower Mortgage) or any officer, director, shareholder, partner, member, principal, employee other assets of Borrower or any direct or indirect owner of Borrower (excluding Guarantor under the Guaranty and Environmental Indemnity, as applicable)) 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 portion thereofother assets of Borrower).
Appears in 1 contract
Exculpation. The 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 any of the Seller’s direct or indirect Affiliates or any of the Seller’s or its Affiliates’ respective direct or indirect shareholders, members, partners, trustees, directors, principals, officers, employees, agents or contractors or any successors or assigns of any of the foregoing Persons (collectively, the “Seller Parties”). The Buyer agrees to look (a) Subject prior to the qualifications belowClosing, Lender shall not enforce solely to the liability and obligation of Borrower to perform and observe the obligations contained in the Note, this Agreement, the Security Instrument or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against Borrower or any officer, director, shareholder, partner, member, principal, employee of Borrower or any direct or indirect owner of Borrower (provided that the foregoing shall not limit in any manner, the liability of any Guarantor), except that Lender may bring 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 Security Instrument Seller and the other Loan Documents, or in the Property (or any portion thereof), the Rents, or any other collateral given to Lender pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent of BorrowerSeller’s interest in the Property, in the Rents and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Security Instrument Company and the Company Subsidiaries and (b) after the Closing, solely to the net proceeds of the sale (subject to the limitations contained herein) for the satisfaction of any liability or obligation of the Seller or the Company arising under this Agreement or the transactions contemplated hereby, or for the performance by the Seller or the Company of any of the covenants or other Loan Documents, agreements contained herein and the Buyer further agrees that it shall not sue for, to xxx or otherwise seek to enforce any personal obligation against any of the Seller’s other assets or demand properties or any deficiency judgment against Borrower in of the other Seller Parties (or their assets or properties) with respect to any such action or proceeding under or by reason matters arising out of or under or in connection with this Agreement or the Note, this Agreementtransactions contemplated hereby. Without limiting the generality of the foregoing provisions, the Security Instrument Buyer hereby unconditionally and irrevocably waives any and all claims and causes of action of any nature whatsoever that the Buyer may now or hereafter have against and hereby unconditionally and irrevocably releases and discharges from any and all liability whatsoever, the Seller Parties, other Loan Documents. The provisions than the Seller and the Company to the extent provided for in the second sentence of this Section 9.3 shall not10.1 (Exculpation), however, (i) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (ii) impair the right of Lender to name Borrower as a party defendant in any action or suit for foreclosure and sale under the Security Instrument; (iii) affect the validity or enforceability of any guaranty, indemnity or similar agreement or undertaking made in connection with or arising out of this Agreement or the Loan transactions contemplated hereby. Notwithstanding the foregoing, nothing in this Section 10.1 (Exculpation) shall limit or any otherwise affect the Buyer’s rights to seek recovery from the guarantor pursuant to the terms of the rights and remedies of Lender thereunder; (iv) impair the right of Lender to obtain the appointment of a receiver; (v) impair the enforcement of any assignment of leases contained in the Security Instrument and any other Loan Documents; or (vi) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted by the Security Instrument (if required by applicable law and provided such deficiency judgment is not enforced personally against Borrower or any officer, director, shareholder, partner, member, principal, employee of Borrower or any direct or indirect owner of Borrower (excluding Guarantor under the Guaranty and Environmental Indemnity, as applicable)) or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against the Property (or any portion thereof)Limited Guaranty.
Appears in 1 contract
Samples: Stock Purchase Agreement (Rexford Industrial 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 Security Instrument Pledge Agreement or the other Loan Documents by any action or proceeding wherein a money judgment or any deficiency judgment or other judgment establishing personal liability shall be sought against Borrower, any other Borrower Party, or any principal, director, officer, directoremployee, beneficiary, shareholder, partner, member, principaltrustee, employee agent, or Affiliate of Borrower or any direct other Borrower Party or indirect owner any legal representatives, successors or assigns of Borrower (provided that any of the foregoing shall not limit in any manner(collectively, the liability of any Guarantor“Exculpated Parties”), except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender to enforce and realize upon its interest under the Note, this Agreement, the Security Instrument Pledge Agreement and the other Loan Documents, or in the Property Property, the Collateral (or any portion thereof), the Rents, or any other collateral given to Lender pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower’s interest in the Property, in the Rents Collateral and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Security Instrument Pledge Agreement and the other Loan Documents, agrees that it shall not sue for, seek or demand any deficiency judgment against Borrower or any of the Exculpated Parties in any such action or proceeding under or by reason of or under or in connection with the Note, this Agreement, the Security Instrument Pledge Agreement or the other Loan Documents. The provisions of this Section 9.3 shall not, however, (i1) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (ii2) impair the right of Lender to name Borrower as a party defendant in any action or suit for foreclosure and sale under the Security InstrumentPledge Agreement; (iii3) affect the validity or enforceability of any guarantyindemnity, indemnity guaranty or similar agreement or undertaking instrument (including, without limitation, indemnities set forth in Article 12 hereof, Section 11.2 hereof, in the Guaranty, the Payment Guaranty and the Environmental Indemnity) made in connection with the Loan or any of the rights and remedies of Lender thereunderthereunder (including, without limitation, Lxxxxx’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); (iv4) impair the rights of Lxxxxx to (A) obtain the appointment of a receiver and/or (B) enforce its rights and remedies provided in Articles 8 and 9 hereof; (5) impair the enforcement of the Pledge Agreement or any other Loan Documents; (6) impair the right of Lender to obtain the appointment enforce Section 4.12(e) of a receiverthis Agreement; (v) impair the enforcement of any assignment of leases contained in the Security Instrument and any other Loan Documents; or (vi7) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted by the Security Instrument (if required by applicable law and provided such deficiency judgment is not enforced personally against Borrower or any officer, director, shareholder, partner, member, principal, employee of Borrower or any direct or indirect owner of Borrower (excluding Guarantor under the Guaranty and Environmental Indemnity, as applicable)) Pledge Agreement or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against the Property (or any portion thereof) and/or the Collateral (or any portion thereof).; or (8) constitute a waiver of the right of Lender to enforce the liability and obligation of Borrower, by money judgment or otherwise, to the extent of any Loss actually incurred by Lxxxxx (including reasonable attorneys’ fees and costs reasonably incurred) arising out of or in connection with the following:
Appears in 1 contract
Samples: Mezzanine Loan Agreement (Industrial Logistics Properties Trust)
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 NoteNotes, this Agreement, the Security Instrument Mortgage or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against Borrower or any officer, director, shareholder, partner, member, principal, employee of Borrower or any direct or indirect owner of Borrower (provided that the foregoing shall not limit in any manner, the liability of any Guarantor)Borrower, except that Lender may bring 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 Security Instrument Mortgage and the other Loan Documents, or in the Property (or any portion thereof)Property, the Rents, the IP or any other collateral given to Lender pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against any Borrower only to the extent of such Borrower’s interest in the its Property, in its Rents, in the Rents IP and in any other collateral given by it to Lender, and Lender, by accepting the NoteNotes, this Agreement, the Security Instrument Mortgage and the other Loan Documents, agrees that it shall not sue xxx for, seek or demand any deficiency judgment against any Borrower 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 Security Instrument Mortgage or the other Loan Documents. The provisions of this Section 9.3 9.4 shall not, however, (ia) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (iib) impair the right of Lender to name any Borrower as a party defendant in any action or suit for foreclosure and sale under the Security InstrumentMortgage; (iiic) affect the validity or enforceability of or any guaranty, indemnity or similar agreement or undertaking guaranty 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; (ivd) impair the right of Lender to obtain the appointment of a receiver; (ve) impair the enforcement of any assignment the Assignment of leases contained in the Security Instrument and any other Loan DocumentsLeases; or (vif) constitute a prohibition against Lender to seek seeking a deficiency judgment against any Borrower in order to fully realize the security granted by the Security Instrument (if required by applicable law and provided such deficiency judgment is not enforced personally against Borrower Mortgage or any officer, director, shareholder, partner, member, principal, employee of Borrower or any direct or indirect owner of Borrower (excluding Guarantor under the Guaranty and Environmental Indemnity, as applicable)) or to commence commencing any other appropriate action or proceeding in order for Lender to exercise its remedies against any Property or the Property IP; or (g) constitute a waiver of the right of Lender to enforce the liability and obligation of any Borrower, by money judgment or otherwise, to the extent of any portion thereofactual 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:
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 Obligations contained in the Note, this Agreement, the Security Instrument or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against Borrower or any officer, director, shareholder, partner, member, principal, employee of Borrower or any direct or indirect owner of Borrower (provided that the foregoing shall not limit in any manner, the liability of any Guarantor)Borrower, except that Lender may bring 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 Security Instrument and the other Loan Documents, or in the Property (or any portion thereof), the Rents, or any other collateral given to Lender pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower’s interest in the Property, in the Rents Property and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Security Instrument and the other Loan Documents, agrees that it shall not sue xxx for, seek or demand any deficiency judgment against Borrower in any such action or proceeding under or by reason of or under or in connection with the Note, this Agreement, the Security Instrument or the other Loan Documents. The Except for the limitation on Lender’s remedies as provided herein, the provisions of this Section 9.3 11.22 shall not, however, (ia) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (iib) impair the right of Lender to name Borrower as a party defendant in any action or suit for foreclosure and sale under the Security Instrument; (iiic) affect the validity or enforceability of any guaranty, indemnity of the Loan Documents or similar agreement or undertaking any guaranty made in connection with the Loan or any of the rights and remedies of Lender thereunderLoan; (ivd) impair the right of Lender to obtain the appointment of a receiver; (ve) impair the enforcement of any assignment the Assignment of leases contained in the Security Instrument and any other Loan DocumentsLeases; or (vif) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted by the Security Instrument (if required by applicable law and provided such deficiency judgment is not enforced personally against Borrower or any officer, director, shareholder, partner, member, principal, employee of Borrower or any direct or indirect owner of Borrower (excluding Guarantor under the Guaranty and Environmental Indemnity, as applicable)) Mortgage or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against the Property Property; or (g) constitute a waiver of the right of Lender to enforce the liability and obligation of Borrower, by money judgment or otherwise, to the extent of any portion thereof).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 being referred to herein as “Borrower’s Recourse Liabilities”):
Appears in 1 contract
