Common use of Enforcement Rights Clause in Contracts

Enforcement Rights. Subject to the requirements set forth in Section 5(b) of Annex I to the Declaration as of the date hereof, the holders of Capital Securities shall have the voting rights set forth in Section 5(b) of such Annex I, and, subject to the requirements set forth in Section 6(c) of such Annex I, the holders of Common Securities shall have the voting rights set forth in Section 6(c) of such Annex I, which provisions are incorporated by reference in and made a part of this First Supplemental Indenture as if set forth in full herein. If the Property Trustee fails to enforce its rights under the Debentures, a holder of Capital Securities, to the fullest extent permitted by law, may institute a legal proceeding directly against the Company to enforce the Property Trustee's rights under the Debentures without first instituting any legal proceeding against the Property Trustee or any other Person. Notwithstanding the foregoing, if a Declaration Event of Default has occurred and is continuing and such event is attributable to the failure of the Company to pay principal of or interest on the Debentures on the date such principal or interest is otherwise payable (or in the case of redemption, on the Redemption Date), then the registered holder of the Capital Securities may (and the Company hereby acknowledges that a registered holder of Capital Securities may) directly institute a proceeding for enforcement of payment to such holder of the principal of or interest on the Debentures having a principal amount equal to the aggregate liquidation amount of the Capital Securities of such holder (a "Direct Action") on or after the respective due date specified in or pursuant to the Debentures or the Indenture. Notwithstanding any payments made to such holder of Capital Securities by the Company in connection with a Direct Action, the Company shall remain obligated to pay the principal of and interest on such Debentures, and the Company shall be subrogated to the rights of such holder of Capital Securities under the Declaration to the extent of any payment made by the Company to such holder of Capital Securities in such Direct Action. Except as provided in this Section 2.6, the holders of Capital Securities will not be able to exercise any other remedy available to the holders of the Debentures.

Enforcement Rights. Subject to the requirements set forth Any indemnification provided for in Section 5(b) of Annex I to the Declaration as Sections 1.1, 1.2 or 1.3 shall be made no later than 60 days after receipt of the date hereof, the holders written request of Capital Securities shall have the voting rights set forth in Section 5(b) of such Annex I, and, subject to the requirements set forth in Section 6(c) of such Annex I, the holders of Common Securities shall have the voting rights set forth in Section 6(c) of such Annex I, which provisions are incorporated by reference in and made a part of this First Supplemental Indenture as if set forth in full hereinIndemnitee. If a claim or request under this Agreement, under any statute, or under any provision of the Property Trustee fails to enforce Corporation's Articles of Incorporation or Bylaws providing for indemnification is not paid by the Corporation, or on its rights under behalf, within 60 days after written request for payment thereof has been received by the DebenturesCorporation, a holder of Capital SecuritiesIndemnitee may, to the fullest extent permitted by lawbut need not, may institute a legal proceeding directly at any time thereafter bring suit against the Company Corporation to enforce recover the Property Trustee's rights under the Debentures without first instituting any legal proceeding against the Property Trustee or any other Person. Notwithstanding the foregoing, if a Declaration Event of Default has occurred and is continuing and such event is attributable to the failure of the Company to pay principal of or interest on the Debentures on the date such principal or interest is otherwise payable (or in the case of redemption, on the Redemption Date), then the registered holder of the Capital Securities may (and the Company hereby acknowledges that a registered holder of Capital Securities may) directly institute a proceeding for enforcement of payment to such holder of the principal of or interest on the Debentures having a principal amount equal to the aggregate liquidation unpaid amount of the Capital Securities claim or request, and subject to Section 13, Indemnitee shall also be entitled to be paid for the expenses (including attorneys' fees) of bringing such holder action. It shall be a defense to any such action (other than an action brought to enforce a "Direct Action") on or after the respective due date specified in or pursuant to the Debentures or the Indenture. Notwithstanding any payments made to such holder of Capital Securities by the Company claim for expenses incurred in connection with a Direct Actionany action, suit or proceeding in advance of its final disposition) that Indemnitee has not met the standards of conduct which make it permissible under applicable law for the Corporation to indemnify Indemnitee for the amount claimed, but the burden of proving such defense shall be on the Corporation, and Indemnitee shall be entitled to receive interim payments of expenses pursuant to Section 3.1 unless and until such defense may be finally adjudicated by court order or judgment for which no further right of appeal exists. The parties hereto intend that if the Corporation contests Indemnitee's right to indemnification, the Company question of Indemnitee's right to indemnification shall remain obligated to pay be a decision for the principal of and interest on such Debenturescourt, and no presumption regarding whether the Company shall be subrogated to the rights applicable standard has been met will arise based on any determination or lack of determination of such holder of Capital Securities under the Declaration to the extent of any payment made by the Company to such holder Corporation (including its Board of Capital Securities in such Direct Action. Except as provided in this Section 2.6Directors (the "Board") or any subgroup thereof, the holders of Capital Securities will not be able to exercise any other remedy available to the holders of the Debenturesindependent legal counsel or its shareholders).

Enforcement Rights. Subject The holders of a majority in liquidation amount of the Trust Preferred Securities will have the right to direct the time, method and place of conducting any proceeding for any remedy available to the requirements set forth in Section 5(b) Institutional Trustee or to direct the exercise of Annex I any trust or power conferred upon the Institutional Trustee under the Declaration, including the right to direct the Declaration Institutional Trustee to exercise the remedies available to it as a Holder of the date hereof, the holders of Capital Securities shall have the voting rights set forth in Section 5(b) of such Annex I, and, subject to the requirements set forth in Section 6(c) of such Annex I, the holders of Common Securities shall have the voting rights set forth in Section 6(c) of such Annex I, which provisions are incorporated by reference in and made a part of this First Supplemental Indenture as if set forth in full hereinConvertible Debentures. If the Property Institutional Trustee fails to enforce its rights under the Convertible Debentures, a holder of Capital Trust Preferred Securities, to the fullest extent permitted by law, may institute a legal proceeding directly against the Company to enforce the Property Institutional Trustee's rights under the Convertible Debentures without first instituting any legal proceeding against the Property Institutional Trustee or any other Personperson or entity. Notwithstanding the foregoing, if a Declaration an Event of Default has occurred and is continuing and such event is attributable to the failure of the Company to pay interest or principal of or interest on the Convertible Debentures on the date such interest or principal or interest is otherwise payable (or in the case of redemption, on the Redemption Dateredemption date), then the registered holder of the Capital Trust Preferred Securities may (and the Company hereby acknowledges that a registered holder of Capital Securities may) directly institute a proceeding for enforcement of payment to such holder of the principal of or interest on the Convertible Debentures having a principal amount equal to the aggregate liquidation amount of the Capital Trust Preferred Securities of such holder (a "Direct Action") on or after the respective due date specified in or pursuant to the Debentures or the IndentureConvertible Debentures. Notwithstanding any payments made to such holder of Capital Securities by the Company in In connection with a such Direct Action, the Company shall remain obligated to pay the principal of and interest on such Debentures, and the Company shall will be subrogated to the rights of such holder of Capital Trust Preferred Securities under the Declaration to the extent of any payment made by the Company to such holder of Capital Trust Preferred Securities in such Direct Action. Except as provided in this Section 2.6, the The holders of Capital Trust Preferred Securities will not be able to exercise any other remedy available to the holders of the Convertible Debentures.

Enforcement Rights. Subject Each of the Indenture Trustee and Xxxxxxx hereby agree that (a) until the Issuer’s Obligations shall have been paid in full in cash, Xxxxxxx shall not take any Enforcement Action (as defined below) with respect to the requirements set forth Issuer Guaranty and (b) until the MBC Obligations shall have been paid in Section 5(b) of Annex I full in cash and all commitments to lend under the Credit Agreement have irrevocable terminated, the Indenture Trustee shall not take any Enforcement Action with respect to the Declaration as MBC Guaranty, provided, however, that prior to the payment in full in cash of the date hereofMBC Obligations, the holders Indenture Trustee shall be permitted to demand payment under the MBC Guaranty to the extent necessary for the Indenture Trustee to exercise its rights and remedies under the Pledge Agreement to foreclose on its security interest in the Pledged Collateral, it being understood and agreed that until the payment in full in cash of Capital Securities the MBC Obligations and the irrevocable termination of Xxxxxxx’x commitments to lend under the Credit Agreement, the Indenture Trustee and the Noteholders shall have no recourse to Manhattan Bridge other than the voting rights set forth in Section 5(b) Pledged Collateral. For purposes of such Annex Ithis Agreement, and, subject to the requirements set forth in Section 6(c) of such Annex I“Enforcement Action” means, the holders commencement or prosecution of Common Securities shall have enforcement of any of the voting rights set forth in Section 6(c) of such Annex I, which provisions are incorporated by reference in and made a part of this First Supplemental Indenture as if set forth in full herein. If the Property Trustee fails to enforce its rights remedies under the DebenturesIssuer Guaranty or the MBC Guaranty, a holder of Capital Securitiesas applicable, to the fullest extent permitted by or applicable law, may institute a legal proceeding directly against the Company to enforce exercise of any rights of set-off or recoupment, and the Property Trustee's exercise of any rights or remedies under the Debentures without first instituting any legal proceeding against the Property Trustee United States Bankruptcy Code or any other Person. Notwithstanding liquidation, conservatorship, bankruptcy, assignment for the foregoingbenefit of creditors, if a Declaration Event of Default has occurred and is continuing and such event is attributable to the failure moratorium, rearrangement, receivership, insolvency, reorganization, or similar debtor relief laws of the Company United States or other applicable jurisdictions from time to pay principal of or interest on the Debentures on the date such principal or interest is otherwise payable (or time in the case of redemption, on the Redemption Date), then the registered holder of the Capital Securities may (effect and the Company hereby acknowledges that a registered holder of Capital Securities may) directly institute a proceeding for enforcement of payment to such holder of the principal of or interest on the Debentures having a principal amount equal to the aggregate liquidation amount of the Capital Securities of such holder (a "Direct Action") on or after the respective due date specified in or pursuant to the Debentures or the Indenture. Notwithstanding any payments made to such holder of Capital Securities by the Company in connection with a Direct Action, the Company shall remain obligated to pay the principal of and interest on such Debentures, and the Company shall be subrogated to affecting the rights of such holder creditors generally (collectively, the “Debtor Relief Laws”). For purposes of Capital Securities this Agreement, “MBC Obligations” shall mean all Loans and other indebtedness and liabilities under the Declaration Credit Agreement, including all principal, interest accruing thereon, charges, expenses and fees thereunder (including all interest, charges, expenses and fees accruing after commencement of any case, proceeding or other action relating to the extent bankruptcy, insolvency or reorganization of any payment made by obligor thereunder), it being agreed that the Company foregoing shall continue to constitute MBC Obligations notwithstanding the fact that such holder of Capital Securities in MBC Obligations or any claim for such Direct Action. Except as provided in this Section 2.6MBC Obligations is subordinated, the holders of Capital Securities will not be able to exercise any avoided or disallowed under applicable Debtor Relief Laws or other remedy available to the holders of the Debenturesapplicable law.

Enforcement Rights. Subject Notwithstanding anything to the requirements set forth contrary contained herein or in any other Credit Document, the authority to enforce rights and remedies hereunder and under the other Credit Documents against the Loan Parties or any of them shall be vested exclusively in, and all actions and proceedings at law in connection with such enforcement shall be instituted and maintained exclusively by, the Administrative Agent (or its authorized designee, including the Collateral Agent as its mortgagee trustee) in accordance with Article VIII for the benefit of the Secured Parties; provided that, the foregoing shall not prohibit (a) the Administrative Agent or the Collateral Agent from exercising on its own behalf the rights and remedies that inure to its benefit (solely in its capacity as Administrative Agent or Collateral Agent, as applicable) hereunder and under the other Credit Documents, (b) any Lender from exercising setoff rights in accordance with Section 5(b11.6 or (c) any Lender from filing proofs of Annex I claim or appearing and filing pleadings on its own behalf during the pendency of a proceeding relative to any Loan Party under any law relating to bankruptcy, insolvency or reorganization or relief of debtors. In addition to any other rights and remedies granted to the Declaration as Administrative Agent, the Collateral Agent and the Lenders in the Credit Documents, the Administrative Agent and the Collateral Agent, on behalf of the date hereofSecured Parties, may exercise all rights and remedies of a secured party under the New York Uniform Commercial Code or any other applicable law. Without limiting the generality of the foregoing, the holders Collateral Agent, without demand of Capital Securities performance or other demand, presentment, protest, advertisement or notice of any kind (except any notice required by law referred to below) to or upon any Loan Party or any other Person (all and each of which demands, defenses, advertisements and notices are hereby waived), may in such circumstances forthwith collect, receive, appropriate and realize upon the Collateral, or any part thereof, or consent to the use by the Loan Party of any cash collateral arising in respect of the Collateral on such terms as the Collateral Agent deems reasonable, and/or may forthwith sell, lease, assign give an option or options to purchase or otherwise dispose of and deliver, or acquire by credit bid on behalf of the Lenders, the Collateral or any part thereof (or contract to do any of the foregoing), in one or more parcels at public or private sale or sales, at any exchange, broker’s board or office of the Collateral Agent or any Lender or elsewhere, upon such terms and conditions as it may deem advisable and at such prices as it may deem best, for cash or on credit or for future delivery, all without assumption of any credit risk. The Collateral Agent or any Lender shall have the voting rights set forth in Section 5(b) of right upon any such Annex Ipublic sale or sales, and, subject to the requirements set forth in Section 6(c) of such Annex I, the holders of Common Securities shall have the voting rights set forth in Section 6(c) of such Annex I, which provisions are incorporated by reference in and made a part of this First Supplemental Indenture as if set forth in full herein. If the Property Trustee fails to enforce its rights under the Debentures, a holder of Capital Securities, to the fullest extent permitted by law, may institute a legal proceeding directly against upon any such private sale or sales, to purchase the Company to enforce the Property Trustee's rights under the Debentures without first instituting any legal proceeding against the Property Trustee whole or any other Personpart of the Collateral so sold, free of any right or equity of redemption in any Loan Party, which right or equity is hereby waived and released. Notwithstanding Each Loan Party further agrees, at the foregoingCollateral Agent’s request, if a Declaration Event of Default has occurred to assemble the Collateral and is continuing and such event is attributable make it available to the failure Collateral Agent at places which the Collateral Agent shall reasonably select, whether at such Loan Party’s premises or elsewhere. The Collateral Agent shall apply the net proceeds of any action taken by it pursuant to this Article VIII, after deducting all reasonable costs and expenses of every kind incurred in connection therewith or incidental to the care or safekeeping of any of the Company to pay principal of or interest on the Debentures on the date such principal or interest is otherwise payable (Collateral or in the case of redemption, on the Redemption Date), then the registered holder of the Capital Securities may (and the Company hereby acknowledges that a registered holder of Capital Securities may) directly institute a proceeding for enforcement of payment to such holder of the principal of or interest on the Debentures having a principal amount equal any other way relating to the aggregate liquidation amount of the Capital Securities of such holder (a "Direct Action") on Collateral or after the respective due date specified in or pursuant to the Debentures or the Indenture. Notwithstanding any payments made to such holder of Capital Securities by the Company in connection with a Direct Action, the Company shall remain obligated to pay the principal of and interest on such Debentures, and the Company shall be subrogated to the rights of such holder the Administrative Agent, the Collateral Agent and the Lenders hereunder, including reasonable attorneys’ fees and disbursements, to the payment in whole or in part of Capital Securities the obligations of the Loan Parties under the Declaration Credit Documents, in such order as the Collateral Agent may elect, and only after such application and after the payment by the Collateral Agent of any other amount required by any provision of law, including Section 9-615(a)(3) of the New York UCC, need the Collateral Agent account for the surplus, if any, to any Loan Party. To the extent permitted by applicable law, each Loan Party waives all claims, damages and demands it may acquire against the Administrative Agent, the Collateral Agent or any Lender arising out of the exercise by them of any payment made rights hereunder. If any notice of a proposed sale or other disposition of Collateral shall be required by the Company to law, such holder of Capital Securities in notice shall be deemed reasonable and proper if given at least ten (10) days before such Direct Action. Except as provided in this Section 2.6, the holders of Capital Securities will not be able to exercise any sale or other remedy available to the holders of the Debenturesdisposition.

Enforcement Rights. Subject The holders of a majority in liquidation amount of the Trust Preferred Securities will have the right to direct the time, method and place of conducting any proceeding for any remedy available to the requirements set forth in Section 5(b) of Annex I Institutional Trustee or exercising any trust or power conferred upon the Institutional Trustee under the Declaration, including the right to direct the Declaration Institutional Trustee to exercise the remedies available to it as a Holder of the date hereof, the holders of Capital Securities shall have the voting rights set forth in Section 5(b) of such Annex I, and, subject to the requirements set forth in Section 6(c) of such Annex I, the holders of Common Securities shall have the voting rights set forth in Section 6(c) of such Annex I, which provisions are incorporated by reference in and made a part of this First Supplemental Indenture as if set forth in full hereinConvertible Debentures. If the Property Institutional Trustee fails to enforce its rights under the Convertible Debentures, a holder of Capital Trust Preferred Securities, to the fullest extent permitted by law, may institute a legal proceeding directly against the Company to enforce the Property Institutional Trustee's rights under the Convertible Debentures without first instituting any legal proceeding against the Property Institutional Trustee or any other PersonPerson or entity. Notwithstanding the foregoing, if a Declaration Event of Default has occurred and is continuing and such event is attributable to the failure of the Company to pay interest or principal of or interest on the Convertible Debentures on the date such interest or principal or interest is otherwise payable (or in the case of redemption, on the Redemption Dateredemption date), then the registered holder of the Capital Trust Preferred Securities may (and the Company hereby acknowledges that a registered holder of Capital Securities may) directly institute a proceeding for enforcement of payment to such holder of the principal of or interest on the Convertible Debentures having a principal amount equal to the aggregate liquidation amount of the Capital Trust Preferred Securities of such holder (a "Direct Action") on or after the respective due date specified in or pursuant to the Debentures or the IndentureConvertible Debentures. Notwithstanding any payments made to such holder of Capital Securities by the Company in In connection with a such Direct Action, the Company shall remain obligated to pay the principal of and or interest on such Convertible Debentures, and the Company shall be subrogated to the rights of such holder of Capital Trust Preferred Securities under the Declaration to the extent of any payment made by the Company to such holder of Capital Trust Preferred Securities in such Direct Action. Except as provided in this Section 2.6, the The holders of Capital Trust Preferred Securities will not be able to exercise any other remedy available to the holders of the Convertible Debentures.

Enforcement Rights. Subject to the requirements set forth in Section 5(b6(b) of Annex I to the Declaration as of the date hereof, the holders of Capital Trust Preferred Securities shall have the voting rights set forth in Section 5(b6(b) of such Annex I, and, subject to the requirements set forth in Section 6(c7(c) of such Annex I, the holders of Common Securities shall have the voting rights set forth in Section 6(c7(c) of such Annex I, which provisions are incorporated by reference in and made a part of this First Supplemental Indenture as if set forth in full herein. If the Property Institutional Trustee fails to enforce its rights under the Convertible Debentures, a holder of Capital Trust Preferred Securities, to the fullest extent permitted by law, may institute a legal proceeding directly against the Company to enforce the Property Institutional Trustee's rights under the Convertible Debentures without first instituting any legal proceeding against the Property Institutional Trustee or any other Person. Notwithstanding the foregoing, if a Declaration Event of Default or Event of Default with respect to the Convertible Debentures has occurred and is continuing and such event is attributable to the failure of the Company to pay principal of of, or premium, if any, or interest on the Convertible Debentures on the date such principal principal, premium or interest is otherwise payable (or in the case of redemption, on the Redemption Date), then the registered holder of the Capital Trust Preferred Securities may (and the Company hereby acknowledges that a registered holder of Capital Trust Preferred Securities may) directly institute a proceeding for enforcement of payment to such holder of the principal of of, or premium, if any, or interest on the Convertible Debentures having a principal amount equal to the aggregate liquidation amount of the Capital Trust Preferred Securities of such holder (a "Direct Action") on or after the respective due date specified in or pursuant to the Convertible Debentures or the Indenture. Notwithstanding any payments made to such holder of Capital Trust Preferred Securities by the Company in connection with a Direct Action, the Company shall remain obligated to pay the principal of of, and premium, if any, and interest on such Convertible Debentures, and the Company shall be subrogated to the rights of such holder of Capital Trust Preferred Securities under the Declaration to the extent of any payment made by the Company to such holder of Capital Trust Preferred Securities in such Direct Action. Except as provided in this Section 2.6, the holders of Capital Trust Preferred Securities will not be able to exercise any other remedy available to the holders of the Convertible Debentures.

Enforcement Rights. Subject The holders of a majority in liquidation amount of the Trust Preferred Securities will have the right to direct the time, method and place of conducting any proceeding for any remedy available to the requirements set forth in Section 5(b) of Annex I Property Trustee or exercising any trust or power conferred upon the Property Trustee under the Declaration, including the right to direct the Declaration Property Trustee to exercise the remedies available to it as a Holder of the date hereof, the holders of Capital Securities shall have the voting rights set forth in Section 5(b) of such Annex I, and, subject to the requirements set forth in Section 6(c) of such Annex I, the holders of Common Securities shall have the voting rights set forth in Section 6(c) of such Annex I, which provisions are incorporated by reference in and made a part of this First Supplemental Indenture as if set forth in full hereinConvertible Debentures. If the Property Trustee fails to enforce its rights under the Convertible Debentures, a holder of Capital Trust Preferred Securities, to the fullest extent permitted by law, may institute a legal proceeding directly against the Company to enforce the Property Trustee's rights under the Convertible Debentures without first instituting any legal proceeding against the Property Trustee or any other PersonPerson or entity. Notwithstanding the foregoing, if a Declaration Event of Default has occurred and is continuing and such event is attributable to the failure of the Company to pay interest or principal of or interest on the Convertible Debentures on the date such interest or principal or interest is otherwise payable (or in the case of redemption, on the Redemption Dateredemption date), then the registered holder of the Capital Trust Preferred Securities may (and the Company hereby acknowledges that a registered holder of Capital Securities may) directly institute a proceeding for enforcement of payment to such holder of the principal of or interest on the Convertible Debentures having a principal amount equal to the aggregate liquidation amount of the Capital Trust Preferred Securities of such holder (a "Direct Action") on or after the respective due date specified in or pursuant to the Debentures or the IndentureConvertible Debentures. Notwithstanding any payments made to such holder of Capital Securities by the Company in In connection with a such Direct Action, the Company shall remain obligated to pay the principal of and or interest on such Convertible Debentures, and the Company shall be subrogated to the rights of such holder of Capital Trust Preferred Securities under the Declaration to the extent of any payment made by the Company to such holder of Capital Trust Preferred Securities in such Direct Action. Except as provided in this Section 2.6, the The holders of Capital Trust Preferred Securities will not be able to exercise any other remedy available to the holders of the Convertible Debentures.

Enforcement Rights. Subject to Borrower acknowledges and agrees that during the requirements set forth in Section 5(b) continuance of Annex I to an Event of Default, and whether or not Lender, is the Declaration as absolute owner of the date hereofNote Collateral, the holders of Capital Securities Lender shall have the voting right, but not the obligation, to exercise and enforce, in its name or otherwise, any or all rights set forth and remedies of Borrower under the Xxxxxxxxxx Loan Documents and the Shortfall Loan Documents to the exclusion of Borrower, including the right to inspect the Real Property, to receive information and documents, to declare due the Shortfall Note and the Xxxxxxxxxx Note as and when provided under the Shortfall Loan Documents and the Xxxxxxxxxx Loan Documents, to grant or withhold approvals, and to exercise discretion with respect to any matter as and when provided under the Xxxxxxxxxx Loan Documents and the Shortfall Loan Documents. During the continuance of an Event of Default, Borrower shall not exercise or attempt to exercise any such right or remedy except with the written consent of Lender (which may be given or withheld in Section 5(bLender’s sole and absolute discretion) and only in strict accordance with the instructions of such Annex ILender, and, subject to the requirements set forth in Section 6(c) of such Annex Iif Lender so requires, the holders of Common Securities shall have Shortfall Loan Documents and/or the voting rights set forth in Section 6(c) of Xxxxxxxxxx Loan Documents may be reassigned to Borrower for such Annex I, which provisions are incorporated by reference in and made a part of this First Supplemental Indenture as if set forth in full hereinpurpose. If Lender shall reassign the Property Trustee fails Shortfall Loan Documents or the Xxxxxxxxxx Loan Documents to Borrower for the purpose of permitting the exercise by Borrower of the right of foreclosure or power of sale thereunder, or the exercise of other rights and remedies thereunder, such reassignment shall be in such form and substance as shall be acceptable to Lender in its sole and absolute discretion. During the continuance of an Event of Default, Lender may, at its option, enforce its rights or conduct any action for foreclosure under the DebenturesShortfall Loan Documents or the Xxxxxxxxxx Loan Documents in its name or otherwise, a holder and Borrower specifically consents to any foreclosure (including non judicial foreclosure) under any or all of Capital Securities, to the fullest extent permitted by law, may institute a legal proceeding directly against Shortfall Loan Documents and/or the Company to enforce the Property Trustee's rights under the Debentures without first instituting any legal proceeding against the Property Trustee Xxxxxxxxxx Loan Documents or any other Personaction taken by Lender even though such action may release CIC or Xxxxxxxxxx or any other obligor under the Collateral from personal liability with respect to any of the Shortfall Loan Documents or Xxxxxxxxxx Loan Documents. Upon the exercise by Lender of any such remedies, any amount bid by Lender at any sale of the Real Property owned by CIC or any of the other collateral for the Shortfall Note or any sale of the interest of Xxxxxxxxxx in the Venture or any of the other collateral for the Xxxxxxxxxx Note may, at the option of Lender, be deemed to be a credit bid by Lender of the indebtedness evidenced by the Shortfall Note or the Xxxxxxxxxx Note, as applicable or either or both of them, and the indebtedness evidenced by the Loan; Lender shall be entitled to setoff the amount of any such bid against any such indebtedness, all at the election of Lender, in its sole and absolute discretion; and any or all proceeds of the Xxxxxxxxxx Note or the Shortfall Note may be applied against the indebtedness evidenced by the Loan in such order as Lender shall elect in its sole and absolute discretion, and Lender shall hold any property obtained by Lender at any such sale free and clear of any interest or claims of Borrower, regardless of whether Lender shall have exercised any remedy under this Agreement with respect to any of the Shortfall Loan Documents or Xxxxxxxxxx Loan Documents, or shall have sold any of the Shortfall Loan Documents or Xxxxxxxxxx Loan Documents or obtained absolute title thereto pursuant to its rights and remedies under the California Commercial Code or otherwise. Notwithstanding the foregoing, if a Declaration Event of Default has occurred and is continuing and such event is attributable to the failure of the Company to pay principal of or interest on the Debentures on the date such principal or interest is otherwise payable (or in the case event Lender shall become the owner of redemptionany property securing the Shortfall Note or the Xxxxxxxxxx Note at any such sale, any amount bid by Lender, on the Redemption Date)behalf of Lenders, then the registered holder of the Capital Securities may (and the Company hereby acknowledges that a registered holder of Capital Securities may) directly institute a proceeding for enforcement of payment to at any such holder of the principal of or interest on the Debentures having a principal amount equal to the aggregate liquidation amount of the Capital Securities of such holder (a "Direct Action") on or after the respective due date specified in or pursuant to the Debentures or the Indenture. Notwithstanding any payments made to such holder of Capital Securities by the Company in connection with a Direct Action, the Company shall remain obligated to pay the principal of and interest on such Debentures, and the Company sale shall be subrogated credited against the Indebtedness; and nothing contained herein shall be deemed to the rights of such holder of Capital Securities under the Declaration to the extent be a waiver by Borrower of any payment made by the Company interest it may have under applicable law to any excess proceeds of any such holder of Capital Securities in such Direct Action. Except as provided in this Section 2.6, the holders of Capital Securities will not be able to exercise any other remedy available to the holders of the Debenturessale.