Common use of CARVEOUT OBLIGATIONS Clause in Contracts

CARVEOUT OBLIGATIONS. The “Carveout Obligations” are (a) the obligation to repay any portion of the Indebtedness evidenced by this Note that arises because the Lender has advanced funds or incurred expenses in respect of any of the “Carveouts” (as defined below), (b) the obligation to repay the entire Indebtedness evidenced by this Note, if the Lender’s exculpation of the Borrower from personal liability under this Section has become void as set forth below, (c) the obligation to indemnify the Lender in respect of its actual damages suffered in connection with any of the Carveouts, and (d) the obligation to defend and hold the Lender harmless from and against any claims, judgments, causes of action or proceedings arising from any of the Carveouts. The “Carveouts” are: (i) fraud or material written misrepresentation; (ii) waste of the Property (which shall include damage, destruction or disrepair of the Real Property caused by a willful act or grossly negligent omission of the Borrower, but shall exclude ordinary wear and tear in the absence of gross negligence); (iii) misappropriation of tenant security deposits (including proceeds of tenant letters of credit), Insurance Proceeds or Condemnation Proceeds; (iv) failure to pay property taxes, assessments or other lienable Impositions; (v) failure to pay to the Lender all Rents, income and profits (including any rent collected more than one month in advance, or any rent for the last month of the lease term, under any Lease in force at the time of Default), net of reasonable and customary operating expenses, received in respect of a period when the Loan is in Default; (vi) removal from the Real Property of Fixtures or Personal Property, unless replaced in a commercially reasonable manner; (vii) the out-of-pocket expenses of enforcing the Loan Documents following Default, not including expenses incurred after the Borrower has agreed in writing to transfer the Real Property to the Lender by the Lender’s choice of either an uncontested foreclosure or delivery of a deed in lieu of foreclosure; (viii) terminating or amending a Lease in violation of the Loan Documents; and (ix) any liability of the Borrower under the Environmental Indemnity Agreement. The Lender’s exculpation of the Borrower from personal liability for the repayment of the Indebtedness evidenced by this Note shall be void without Notice if the Borrower (A) voluntarily transfers or creates any voluntary lien on the Property in violation of the Mortgage, or (B) files a voluntary petition for reorganization under Title 11 of the United States Code (or under any other present or future law, domestic or foreign, relating to bankruptcy, insolvency, reorganization proceedings or otherwise similarly affecting the rights of creditors), and has not offered, prior to the filing, to enter into the Lender’s choice of either an agreement to permit an uncontested foreclosure, or an agreement to deliver a deed in lieu of foreclosure within sixty (60) days of the Lender’s acceptance of the offer. After the Lender accepts such an offer, default by the Borrower in fulfilling the terms of the accepted offer shall trigger personal liability for the entire Indebtedness. No such offer shall be conditioned on any payment by the Lender, on the release of any Obligor from any Obligation, or on any other concession.

CARVEOUT OBLIGATIONS. The “Carveout Obligations” are (a) the obligation to repay any portion of the Indebtedness evidenced by this Note that arises because the Lender has advanced funds or incurred expenses in respect of any of the “Carveouts” (as defined below), (b) the obligation to repay the entire Indebtedness evidenced by this Note, if the Lender’s exculpation of the Borrower from personal liability under this Section has become void as set forth below, (c) the obligation to indemnify the Lender in respect of its actual damages suffered in connection with any of the Carveouts, and (d) the obligation to defend and hold the Lender harmless from and against any claims, judgments, causes of action or proceedings arising from any of the Carveouts. The “Carveouts” are: (i) fraud or material written misrepresentation; (ii) waste of the Property (which shall include damage, destruction or disrepair of the Real Property caused by a willful act or grossly negligent omission of the Borrower, but shall exclude ordinary wear and tear in the absence of gross negligence); (iii) misappropriation of tenant security deposits (including proceeds of tenant letters of credit), Insurance Proceeds or Condemnation Proceeds; (iv) failure to pay property taxes, assessments or other lienable Impositions; (v) failure to pay to the Lender all Rents, income and profits (including any rent collected more than one month in advance, or any rent for the last month of the lease term, under any Lease in force at the time of Default), net of reasonable and customary operating expenses, received in respect of a period when the Loan is in Default; (vi) removal from the Real Property of Fixtures or Personal Property, unless replaced in a commercially reasonable manner; (vii) the out-of-pocket expenses of enforcing the Loan Documents following Default, not including expenses incurred after the Borrower has agreed in writing to transfer the Real Property to the Lender by the Lender’s choice of either an uncontested foreclosure or delivery of a deed in lieu of foreclosure; (viii) terminating or amending a Lease in violation of the Loan Documents; and (ix) any liability of the Borrower under the Environmental Indemnity Agreement. The Lender’s exculpation of the Borrower from personal liability for the repayment of the Indebtedness evidenced by this Note shall be void without Notice if the Borrower (A) voluntarily transfers or creates any voluntary lien on the Property in violation of the MortgageDeed of Trust, or (B) files a voluntary petition for reorganization under Title 11 of the United States Code (or under any other present or future law, domestic or foreign, relating to bankruptcy, insolvency, reorganization proceedings or otherwise similarly affecting the rights of creditors), and has not offered, prior to the filing, to enter into the Lender’s choice of either an agreement to permit an uncontested foreclosure, or an agreement to deliver a deed in lieu of foreclosure within sixty (60) days of the Lender’s acceptance of the offer. After the Lender accepts such an offer, default by the Borrower in fulfilling the terms of the accepted offer shall trigger personal liability for the entire Indebtedness. No such offer shall be conditioned on any payment by the Lender, on the release of any Obligor from any Obligation, or on any other concession.

CARVEOUT OBLIGATIONS. The “Carveout Obligations” are (a) the obligation to repay any portion of the Indebtedness evidenced by this Note that arises because the Lender has advanced funds or incurred expenses in respect of any of the “Carveouts” (as defined below), (b) the obligation to repay the entire Indebtedness evidenced by this Note, if the Lender’s exculpation of the Borrower from personal liability under this Section has become void as set forth below, (c) the obligation to indemnify the Lender in respect of its actual damages suffered in connection with any of the Carveouts, and (d) the obligation to defend and hold the Lender harmless from and against any claims, judgments, causes of action or proceedings arising from any of the Carveouts. The “Carveouts” are: (ia) fraud or material written intentional misrepresentation; (iib) waste gross negligence or willful misconduct; (c) the breach of any representation, warranty, covenant or indemnification provision in the Environmental Indemnity Agreement or in any other Loan Document concerning environmental laws, hazardous substances and asbestos and any indemnification obligations with respect thereto; (d) the removal or disposal of any portion of the Property after an event of default; Secured Promissory Note U-Store-It Self Storage Warehouse Portfolio AEGON Loan No. 89255 (which shall include damagee) the misapplication or conversion (but only to the extent of such misapplication or conversion) of (i) any Insurance Proceeds, destruction (ii) any Condemnation Proceeds, or disrepair (iii) any Rents following a Default; (f) failure to pay taxes, charges for labor or materials or other charges that can create liens on any portion of the Real Property caused by properties; (g) any security deposits, advance deposits or any other deposits which are not delivered to Lender upon a willful act foreclosure or grossly negligent omission action in lieu thereof, except to the extent any such security deposits were applied in accordance with the terms and conditions of any of the Borrower, but shall exclude ordinary wear and tear Leases prior to the occurrence of a Default that gave rise to such foreclosure or action in the absence of gross negligencelieu thereof; (h) failure to maintain status as a special purpose entity (as required under Section 6.5 herein); (iiii) misappropriation failure to permit on-site inspection of tenant security deposits (including proceeds of tenant letters of credit), Insurance Proceeds or Condemnation Proceedsthe Property; (ivj) failure to pay property taxes, assessments or other lienable Impositions; provide financial information (v) failure to pay to the Lender all Rents, income and profits (including any rent collected more than one month in advance, or any rent for the last month of the lease term, as required under any Lease in force at the time of DefaultSection 6.22 herein), net of reasonable and customary operating expenses, received in respect of a period when the Loan is in Default; (vi) removal from the Real Property of Fixtures or Personal Property, unless replaced in a commercially reasonable manner; (vii) the out-of-pocket expenses of enforcing the Loan Documents following Default, not including expenses incurred after the Borrower has agreed in writing to transfer the Real Property to the Lender by the Lender’s choice of either an uncontested foreclosure or delivery of a deed in lieu of foreclosure; (viii) terminating or amending a Lease in violation of the Loan Documents; and (ixk) any liability failure to appoint a new property manager upon the request of the Borrower under the Environmental Indemnity AgreementLender after a Default. The Lender’s exculpation of the Borrower from personal liability for the repayment of the Indebtedness evidenced by this Note shall be void without Notice if with respect to any of the Borrower following: (Ai) voluntarily transfers failure to obtain Lxxxxx’s prior written consent to any subordinate financing or creates any other voluntary lien on encumbering the Property in violation of the Mortgagethis Deed of Trust; (ii) failure to obtain Lxxxxx’s prior written consent to any assignment, transfer, or conveyance of the Property in violation of this Deed of Trust; or (Biii) files if the Property or any part thereof shall become an asset in a voluntary bankruptcy or insolvency proceeding as a result of any petition for bankruptcy, reorganization under Title 11 of the United States Code (or under any other present or future arrangement pursuant to federal bankruptcy law, domestic or foreignany similar federal or state law, relating to bankruptcy, insolvency, reorganization proceedings filed by or otherwise similarly affecting the rights collusively arranged by Borrower or any affiliates of creditors), and has not offered, prior to the filing, to enter into the Lender’s choice of either an agreement to permit an uncontested foreclosure, or an agreement to deliver a deed in lieu of foreclosure within sixty (60) days of the Lender’s acceptance of the offer. After the Lender accepts such an offer, default by the Borrower in fulfilling the terms of the accepted offer shall trigger personal liability for the entire Indebtedness. No such offer shall be conditioned on any payment by the Lender, on the release of any Obligor from any Obligation, or on any other concessionBorrower.

CARVEOUT OBLIGATIONS. The “Carveout Obligations” are (a) the obligation to repay any portion of the Indebtedness indebtedness evidenced by this Note that arises because the Lender has advanced funds or incurred expenses in respect of from any of the “Carveouts” (as defined below), (b) the obligation to repay the entire Indebtedness indebtedness evidenced by this Note, if the Lender’s exculpation of the Borrower from personal liability under this Section has become void as set forth forfh below, (c) the obligation to indemnify the Lender in respect of its actual damages suffered in connection with any of the Carveouts, and (d) the obligation to defend and hold the Lender harmless from and against any claims, judgments, causes of action or proceedings arising from any of the Carveouts. The “Carveouts” are: (i) fraud or material written misrepresentation; (ii) waste of the Property (which shall include damage, destruction or disrepair of the Real Property caused by a willful act or grossly negligent omission of the Borrower, but shall exclude ordinary wear and tear in the absence of gross negligence); (iii) misappropriation of tenant security deposits (including proceeds of tenant letters of credit), Insurance Proceeds or Condemnation Proceeds; (iv) failure to pay property taxes, assessments or other lienable Impositions; (v) failure to pay to the Lender all Rents, income and profits (including any rent collected more than one month in advance, or any rent for the last month of the lease term, under any Lease in force at the time of Default), net of reasonable and customary operating expenses, received in respect of a period when the Loan is in Default; (vi) removal from &om the Real Property of Fixtures fixtures or Personal Property, unless replaced in a commercially reasonable manner; (vii) the out-of-pocket expenses of enforcing the Loan Documents following following. Default, not including expenses incurred after the Borrower has agreed in writing to transfer the Real Property to the Lender by the Lender’s choice of either an uncontested foreclosure or delivery of a deed in lieu of foreclosure; (viii) terminating or amending a Lease other than in violation the ordinary course of the Loan Documentsbusiness; and (ix) any liability of the Borrower under the Environmental Indemnity Agreement. The Lender’s exculpation of the Borrower from personal liability for the repayment of the Indebtedness evidenced by this Note shall be void without Notice if the Borrower (A) voluntarily transfers or creates any voluntary lien on the Property in violation of the Mortgagethis Deed of Trust, or (B) files a voluntary petition for reorganization under Title 11 of the United States Code (or under any other present or future law, domestic or foreign, relating to bankruptcy, insolvency, reorganization proceedings or otherwise similarly affecting the rights of creditors), and has not offered, prior to the filing, to enter into the Lender’s choice of either an agreement to permit an uncontested foreclosure, or an agreement to deliver a deed in lieu of foreclosure within sixty (60) days of the Lender’s acceptance of the offer. After the Lender accepts such an offer, default by the Borrower in fulfilling the terms of the accepted offer shall trigger personal liability for the entire Indebtedness. No such offer shall be conditioned on any payment by the Lender, on the release of any Obligor from any Obligation, or on any other concession.

CARVEOUT OBLIGATIONS. The “Carveout Obligations” are (a) the obligation to repay any portion of the Indebtedness evidenced by this Note that arises because the Lender has advanced funds or incurred expenses in respect of any of the “Carveouts” (as defined below), (b) the obligation to repay the entire Indebtedness evidenced by this Note, if the Lender’s exculpation of the Borrower from personal liability under this Section has become void as set forth below, (c) the obligation to indemnify the Lender in respect of its actual damages suffered in connection with any of the Carveouts, and (d) the obligation to defend and hold the Lender harmless from and against any claims, judgments, causes of action or proceedings arising from any of the Carveouts. The “Carveouts” are: (ia) fraud Fraud or material written misrepresentation;. (iib) waste Waste of the Property (which shall include damage, destruction or disrepair of the Real Property caused by a willful act or grossly negligent omission of the Borrower, but shall exclude ordinary wear and tear in the absence of gross negligence);. (iiic) misappropriation Misappropriation of tenant security deposits (including proceeds of tenant letters of credit), Insurance Proceeds or Condemnation Proceeds;. (ivd) failure Failure to turn over to the Lender all tenant security deposits and tenant letters of credit required to be held by the Borrower under the terms of the Leases on or prior to the date on which the Lender receives title to the Real Property following the foreclosure of its lien or by delivery of the deed in lieu of foreclosure. (e) Failure to pay property taxes, assessments or other lienable Impositions;Impositions to the taxing authority prior to the date when payment becomes delinquent or to the Lender to the extent such impositions have accrued on the date the Lender receives title to the Real Property following the foreclosure of its lien or by delivery of the deed in lieu of foreclosure. (vf) Failure to maintain insurance coverage in accordance with the Loan Documents, provided that any coverage furnished by a Key Tenant (or any other Person) will not impair, alter or diminish the insurance requirements under the Loan Documents and will not modify this subpart (f), or failure to pay insurance proceeds to the Lender in accordance with the Loan Documents, even if a Key Lease provides otherwise. (g) The cost to the Lender of the forced placement of insurance, as permitted under the Loan Documents. Preston Royal Village, Dallas, Texas AEGON Loan No. 10512155 (h) Failure to pay to the Lender all Termination Payments, that are required to be paid to Lender pursuant to the Loan Documents. (i) Failure to pay to the Lender all Rents, income and profits (including any rent collected more than one month in advance, or any rent for the last month of the lease term, under any Lease in force at the time of Default)profits, net of reasonable and customary operating expenses, received in respect of a period when the Loan is in Default;. (vij) removal from the Real Property of Fixtures or Personal Property, unless replaced in a commercially The reasonable manner; (vii) the out-of-pocket expenses of enforcing the Loan Documents following Default, not including expenses incurred after the Borrower Lender has agreed in writing to transfer the Real Property to the Lender by the Lender’s choice of either an uncontested foreclosure or delivery of received a deed in lieu of foreclosure;Qualified Offer. (viiik) Executing, terminating or amending a Lease in violation of the Loan Documents; and. (ixl) any Any liability of the Borrower under the Environmental Indemnity Agreement. (m) Loss or damage suffered by the Lender as a result of: (i) Lender’s inability to perform an obligation under a Lease without breaching the Lease, or its inability to exercise a right under a Lease, in either case to the extent resulting from any reference made by the Lease to the “Shopping Center” to the extent “Shopping Center” includes the Leasehold Shopping Center Parcel; (ii) the exercise by a tenant of a right under a Lease that the tenant would have been unable to exercise but for any reference made by the Lease to the “Shopping Center” to the extent “Shopping Center” includes the Leasehold Shopping Center Parcel, or (iii) the performance by Lender of an obligation under a Lease that the Lender would not have been required to perform, but for any reference made by the Lease to the “Shopping Center” to the extent “Shopping Center” includes the Leasehold Shopping Center Parcel. The Lender’s exculpation of the Borrower from personal liability for the repayment of the Indebtedness evidenced by this Note shall be void without Notice if the Borrower (A) voluntarily transfers or creates any voluntary grants a lien on the Property in violation of the MortgageDeed of Trust, or (B) files a voluntary petition for reorganization under Title 11 of the United States Code (or under any other present or future law, domestic or foreign, relating to bankruptcy, insolvency, reorganization proceedings or otherwise similarly affecting the rights of creditors), and has not offered, made a Qualified Offer prior to the filing, to enter into the Lender’s choice of either an agreement to permit an uncontested foreclosure, or an agreement to deliver a deed in lieu of foreclosure within sixty (60) days of the Lender’s acceptance of the offer. After the Lender accepts such an offera Qualified Offer, default by the Borrower in fulfilling the terms of the accepted offer shall trigger personal liability for the entire Indebtedness. No such offer shall be conditioned on any payment by the Lender, on the release of any Obligor from any Obligation, or on any other concession.