Common use of EXCEPTIONS TO EXCULPATION Clause in Contracts

EXCEPTIONS TO EXCULPATION. Notwithstanding the provisions of this Article to the contrary, Borrower shall be personally liable to Lender for the Losses it incurs due to: (i) fraud or intentional, material misrepresentation by Borrower, SCOLP, or any of their agents, principals, officers or employees, (ii) Borrower’s misapplication or misappropriation of insurance proceeds, condemnation awards, or tenant security deposits, if, and to the extent Borrower or its agents have the right and ability to control the disbursement of such proceeds, awards or deposit; (iii) Rents received by Borrower after the occurrence of an Event of Default, provided that such Rents (y) are not applied towards either the Monthly Payment or the ordinary and necessary operating expenses of the Property and Borrower has provided Lender with evidence of same in a form acceptable to Lender, or (z) are paid to Lender, (iv) so long as Borrower has possession and control of the Property, Bxxxxxxx’s failure to pay (except to the extent that sums sufficient to pay such amounts have been deposited in escrow with Lender pursuant to the terms of this Security Instrument) Taxes or other liens with priority over Lxxxxx’s lien on the Property or other liens established under the Loan Documents, to the extent funds are available from the operation of the Property for such purpose, or from escrow deposits made to Lender for such purpose (regardless of whether Lender uses such funds to pay such Taxes or other liens), (v) damage to the Property arising from (y) the intentional misconduct or gross negligence of Borrower, SCOLP, or any of their principals, officers, agents or employees, or (z) any removal of the Property in violation of the Loan Documents, or (vi) Borrower’s or any other Indemnitor’s failure to comply with the provisions of the Environmental Indemnity.

EXCEPTIONS TO EXCULPATION. Notwithstanding the provisions of this Article to the contrary, Borrower shall be personally liable to Lender for the Losses it incurs due to: (i) fraud or intentional, material misrepresentation by Borrower, SCOLP, or any of their agents, principals, officers or employees, (ii) Borrower’s misapplication or misappropriation of insurance proceeds, condemnation awards, or tenant security deposits, if, and to the extent Borrower or its agents have the right and ability to control the disbursement of such proceeds, awards or deposit; (iii) Rents received by Borrower after the occurrence of an Event of Default, provided that such Rents (y) are not applied towards either the Monthly Payment or the ordinary and necessary operating expenses of the Property and Borrower has provided Lender with evidence of same in a form acceptable to Lender, or (z) are paid to Lender, (iv) so long as Borrower has possession and control of the Property, BxxxxxxxBorrower’s failure to pay (except to the extent that sums sufficient to pay such amounts have been deposited in escrow with Lender pursuant to the terms of this Security Instrument) Taxes or other liens with priority over LxxxxxLender’s lien on the Property or other liens established under the Loan Documents, to the extent funds are available from the operation of the Property for such purpose, or from escrow deposits made to Lender for such purpose (regardless of whether Lender uses such funds to pay such Taxes or other liens), (v) damage to the Property arising from (y) the intentional misconduct or gross negligence of Borrower, SCOLP, or any of their principals, officers, agents or employees, or (z) any removal of the Property in violation of the Loan Documents, or (vi) Borrower’s or any other Indemnitor’s failure to comply with the provisions of the Environmental Indemnity; (vii) the nonpayment of any documentary stamp tax or intangible tax due on the Assigned Note, the Assigned Mortgage, the Note or this Security Instrument.

EXCEPTIONS TO EXCULPATION. Notwithstanding the provisions of this Article to the contrarysubsection 4.14.1, Borrower Owner, General Partner and Operating Partnership shall be personally liable on a joint and several basis in the amount of any actual loss, damage or cost (including attorneys' fees and expenses) incurred by Fannie Mae, Servicer or any other "indemnified party" under section 4.5 resulting from or relating to Lender for the Losses it incurs due to: (ia) fraud or intentional, material intentional misrepresentation by BorrowerOwner, SCOLPGeneral Partner or Operating Partnership, or any of their agentsOwner's, principals, officers General Partner's or Operating Partnership's agents or employees, (ii) Borrower’s misapplication or misappropriation of insurance proceedsin connection with obtaining the Mortgage Loans evidenced by the Related Mortgage Notes, condemnation awardsobtaining the credit enhancement evidenced by the Related Fannie Mae Collateral Agreements, or tenant in complying with any of Owner's Obligations, (b) Insurance Proceeds, Condemnation Proceeds, security deposits, if, deposits from tenants and to the extent Borrower other sums or its agents have the right and ability to control the disbursement of such proceeds, awards or deposit; (iii) Rents payments received by Borrower after or on behalf of Owner in its capacity as owner of the occurrence of an Event of Default, provided that such Rents (y) are Properties and not applied towards either in accordance with the Monthly Payment or the ordinary and necessary operating expenses provisions of the Property and Borrower has provided Lender with evidence of same in a form acceptable to Lender, or (z) are paid to Lender, (iv) so long as Borrower has possession and control of the Property, Bxxxxxxx’s failure to pay Mortgages (except to the extent that Owner did not have the legal right, because of a bankruptcy, receivership or similar judicial proceeding, to direct disbursement of such sums sufficient to pay such amounts have been deposited in escrow with Lender pursuant to the terms of this Security Instrumentor payments), (c) Taxes or other liens with priority over Lxxxxx’s lien on the Property or other liens established under the Loan Documents, all Rents and Profits (except to the extent funds are available from that Owner did not have the operation legal right, because of a bankruptcy, receivership or similar judicial proceeding, to direct the disbursement of such sums) received by or on behalf of Owner in its capacity as owner of the Properties and not applied first (i) to the payment of the Operating Expenses as such Operating Expenses become due and payable, and then (ii) to the payment of principal and interest due under the Related Mortgage Notes, any other sums due under the Mortgages or any other Mortgage Document and any other Obligations then due and owning to Fannie Mae under this Agreement, (d) Owner's failure to deposit all Gross Cash Flow into the Property for Accounts as required accordance with the Lock-Box Agreement (except to the extent that Owner did not have the legal right because of a bankruptcy, receivership or similar judicial proceeding to deposit such purpose, or from escrow deposits made to Lender for such purpose (regardless of whether Lender uses such funds to pay such Taxes or other lienssums), (ve) damage Owner's failure following an Event of Default to deliver to Fannie Mae on demand all Rents and Profits and security deposits (except to the Property arising from extent that Owner did not have the legal right because of a bankruptcy, receivership or similar judicial proceeding to direct disbursement of such sums), (yf) Owner's failure following an Event of Default to deliver to Fannie Mae on demand, all books and records relating to the intentional misconduct or gross negligence of BorrowerProperties, SCOLP, or any of their principals, officers, agents or employees(g) Owner's indemnification obligations set forth in section 4.5, or (zh) Hazardous Material or compliance with Hazardous Materials Laws to the full extent of any removal losses or damages (including those resulting from diminution in value of any Property) incurred by Fannie Mae as a result of the Property in violation existence of the Loan Documents, such Hazardous Materials or (vi) Borrower’s or any other Indemnitor’s failure to comply with Hazardous Materials Laws or the provisions obligations of Owner with respect to Hazardous Materials as set forth in the Environmental IndemnityMortgages.

EXCEPTIONS TO EXCULPATION. Notwithstanding the provisions of this Article to the contrary, Borrower shall be personally liable to Lender for the Losses it incurs due to: (i) fraud or intentional, material intentional misrepresentation by Borrower, SCOLP, Borrower or any other person or entity in connection with the execution and the delivery of their agentsthe Note, principals, officers this Security Instrument or employees, the Other Security Documents; (ii) Borrower’s 's misapplication or misappropriation of insurance proceeds, condemnation awards, or tenant security deposits, if, and to the extent Borrower or its agents have the right and ability to control the disbursement of such proceeds, awards or deposit; (iii) Rents received by Borrower after the occurrence of an Event of Default, provided that such ; (iii) Borrower's misappropriation of tenant security deposits or Rents (y) are not applied towards either the Monthly Payment or the ordinary and necessary operating expenses of the Property and Borrower has provided Lender with evidence of same collected in a form acceptable to Lender, or (z) are paid to Lender, advance; (iv) so long as Borrower has possession and control the misapplication or the misappropriation of the Property, Bxxxxxxx’s insurance proceeds or condemnation awards; (v) Borrower's failure to pay Taxes, Other Charges (except to the extent that sums sufficient to pay such amounts have been deposited in escrow with Lender pursuant to the terms of this Security Instrument) Taxes ), charges for labor or materials or other charges that can create liens with priority over Lxxxxx’s lien on the Property (unless properly bonded); (vi) Borrower's failure to return or other liens established under the Loan Documents, to the extent funds are available reimburse Lender for all Personal Property taken from the operation Property by or on behalf of Borrower and not replaced with Personal Property of the Property for such purposesame utility and of the same or greater value; (vii) any act of actual waste or arson by Borrower, any principal, affiliate, member or from escrow deposits made general partner thereof or by any Indemnitor or Guarantor; (viii) any fees or commissions paid by Borrower to Lender for such purpose (regardless of whether Lender uses such funds to pay such Taxes any principal, affiliate, member or other liens), (v) damage to the Property arising from (y) the intentional misconduct or gross negligence general partner of Borrower, SCOLP, Indemnitor or any of their principals, officers, agents or employees, or (z) any removal of the Property Guarantor in violation of the Loan Documents, or (vi) Borrower’s or any other Indemnitor’s failure to comply with the provisions terms of the Environmental Indemnity.Note, this Security Instrument or the Other Security

EXCEPTIONS TO EXCULPATION. Notwithstanding the provisions of this Article 15.1 to the contrary, Borrower and Indemnitor shall be personally liable to Lender on a joint and several basis for the Losses it Lender incurs due to: (ia) fraud or intentional, material intentional misrepresentation by Borrower, SCOLP, Borrower or any other person or entity in connection with the execution and the delivery of their agentsthe Note, principals, officers this Security Instrument or employees, the Other Security Documents; (iib) Borrower’s 's misapplication or misappropriation of insurance proceeds, condemnation awards, or tenant security deposits, if, and to the extent Borrower or its agents have the right and ability to control the disbursement of such proceeds, awards or deposit; (iii) Rents received by Borrower after the occurrence and during the continuance of an Event of Default, provided that such ; (c) Borrower's misapplication or misappropriation of tenant security deposits or Rents collected in advance; (y) are not applied towards either the Monthly Payment or the ordinary and necessary operating expenses of the Property and Borrower has provided Lender with evidence of same in a form acceptable to Lender, or (z) are paid to Lender, (iv) so long as Borrower has possession and control of the Property, Bxxxxxxx’s failure to pay (except to the extent that sums sufficient to pay such amounts have been deposited in escrow with Lender pursuant to the terms of this Security Instrument) Taxes or other liens with priority over Lxxxxx’s lien on the Property or other liens established under the Loan Documents, to the extent funds are available from the operation of the Property for such purpose, or from escrow deposits made to Lender for such purpose (regardless of whether Lender uses such funds to pay such Taxes or other liens), (v) damage to the Property arising from (yd) the intentional misconduct misapplication or gross negligence misappropriation of insurance proceeds or condemnation awards after the occurrence and during the continuance of an Event of Default; (e) any fees or commissions paid by Borrower after the occurrence and during the continuance of an Event of Default to any principal, affiliate or general partner of Borrower, SCOLP, Indemnitor or any of their principals, officers, agents or employees, or (z) any removal of the Property Guarantor in violation of the Loan terms of the Note, this Security Instrument or the Other Security Documents; (f) gross negligence, or criminal acts perpetrated by it resulting in forfeiture, seizure or loss of any portion of the security; (vig) Borrower’s any failure by Borrower or any other Indemnitor’s failure Indemnitor to comply with the terms and provisions of Section 13.4 hereof or of the Environmental Indemnity; (h) any failure by Borrower or any general partner or the SPE Member of Borrower to comply with the terms and provisions of Section 4.3 hereof; (i) all fees and expenses of Lender pursuant to Section 19.2(b) hereof; (j) any sale, conveyance, mortgage, grant, bargain, encumbrance, pledge, assignment or transfer of the Property or any part thereof, within the meaning of Article 8 hereof, without the prior written consent of Lender; (k) any incorrect statement in the Survey Affidavit (without regard to any "knowledge" qualification therein, whether express or implied); (l) failure of Borrower to pay all or any portion of a deductible between $10,000 and $25,000 for any property insurance policy required by Section 3(a)(i) hereof, or (m) with respect to the Letter of Credit in favor of Lender posted by either Borrower or an affiliate of Borrower pursuant to the Letter of Credit Agreement of even date herewith, failure of the applicant to pay, pursuant to Section 1(b) of the Letter of Credit Agreement, all fees and costs of the issuing bank arising from any transfer of the Letter of Credit by Lender to its successors and assigns.

EXCEPTIONS TO EXCULPATION. Notwithstanding the provisions of this Article to the contrarysection 3.11(a), Borrower Owner, General Partner and each Guarantor shall be personally liable to Lender for on a joint and several basis in the Losses it incurs due to: amount of any loss, damage or cost (iincluding reasonable attorneys' fees and expenses) resulting from (1) fraud or intentional, material misrepresentation by BorrowerOwner, SCOLPGeneral Partner or any Guarantor, or Owner's, General Partner's or any of their agents, principals, officers Guarantor's agents or employees, (ii) Borrower’s misapplication or misappropriation of insurance proceedsin connection with obtaining the Mortgage Loans evidenced by the Related Mortgage Notes, condemnation awardsobtaining the credit enhancement evidenced by the Related Xxxxxx Xxx Pass-Through Certificates, or tenant in complying with any of Owner's Obligations, (2) Insurance Proceeds, Condemnation Proceeds, security deposits, if, deposits from tenants and to the extent Borrower other sums or its agents have the right and ability to control the disbursement of such proceeds, awards or deposit; (iii) Rents payments received by Borrower after or on behalf of Owner in its capacity as owner of the occurrence of an Event of Default, provided that such Rents (y) are Properties and not applied towards either in accordance with the Monthly Payment or the ordinary and necessary operating expenses provisions of the Property and Borrower has provided Lender with evidence of same in a form acceptable to Lender, or (z) are paid to Lender, (iv) so long as Borrower has possession and control of the Property, Bxxxxxxx’s failure to pay Mortgages (except to the extent that Owner did not have the legal right, because of a bankruptcy, receivership or similar judicial proceeding, to direct disbursement of such sums sufficient to pay such amounts have been deposited in escrow with Lender pursuant to the terms of this Security Instrumentor payments), (3) Taxes or other liens with priority over Lxxxxx’s lien on the Property or other liens established under the Loan Documents, all Rents and Profits (except to the extent funds are available from that Owner did not have the operation legal right, because of a bankruptcy, receivership or similar judicial proceeding, to direct the disbursement of such sums) received by or on behalf of Owner in its capacity as owner of the Properties and not applied first (a) to the payment of the Operating Expenses as such Operating Expenses become due and payable, and then (b) to the payment of principal and interest due under the Related Mortgage Notes, any other sums due under the Mortgages or any other Mortgage Document and any other Obligations then due and owning to Xxxxxx Mae under this Agreement, (4) Owner's failure to deposit all Gross Cash Flow into the Property for Accounts as required in accordance with the Cash Management Agreement (except to the extent that Owner did not have the legal right because of a bankruptcy, receivership or similar judicial proceeding to deposit such purpose, or from escrow deposits made to Lender for such purpose (regardless of whether Lender uses such funds to pay such Taxes or other lienssums), (v5) damage Owner's failure following an Event of Default to deliver to Xxxxxx Xxx on demand all Rents and Profits and security deposits (except to the Property arising from extent that Owner did not have the legal right because of a bankruptcy, receivership or similar judicial proceeding to direct disbursement of such sums), (y6) Owner's failure following an Event of Default to deliver to Xxxxxx Mae on demand all books and records relating to the intentional misconduct or gross negligence of BorrowerProperties, SCOLP, or any of their principals, officers, agents or employees(7) Owner's indemnification obligations set forth in section 3.4(a) and in section 2.5(b), or (z8) or relating to Hazardous Material or compliance with Hazardous Materials Laws to the full extent of any losses or damages (including those resulting from diminution in value of any Property) any removal incurred by Xxxxxx Xxx as a result of the Property in violation existence of the Loan Documents, such Hazardous Material or (vi) Borrower’s or any other Indemnitor’s failure to comply with Hazardous Materials Laws or the provisions obligations of Owner with respect to Hazardous Materials as set forth in the Mortgages. Notwithstanding the foregoing, Owner, General Partner and each Guarantor shall have no liability for Rents and Profits which were distributed in any fiscal year, provided that Owner paid all of the Environmental IndemnityOperating Expenses, all amounts due under the Related Mortgage Notes, this Agreement, the Mortgages, and the other Transaction Documents and all other debt service relating to the Properties and Owner for that fiscal year.

EXCEPTIONS TO EXCULPATION. Notwithstanding the provisions of this Article to the contrary, Borrower shall be personally liable to Lender for the Losses it incurs due to: (i) fraud or intentional, material intentional misrepresentation by Borrower, SCOLP, Borrower or any other person or entity in connection with the execution and the delivery of their agentsthe Note, principals, officers this Security Instrument or employees, the Other Security Documents; (ii) Borrower’s 's misapplication or misappropriation of insurance proceeds, condemnation awards, or tenant security deposits, if, and to the extent Borrower or its agents have the right and ability to control the disbursement of such proceeds, awards or deposit; (iii) Rents received by Borrower after the occurrence of an Event of Default, provided that such ; (iii) Borrower's misappropriation of tenant security deposits or Rents (y) are not applied towards either the Monthly Payment or the ordinary and necessary operating expenses of the Property and Borrower has provided Lender with evidence of same collected in a form acceptable to Lender, or (z) are paid to Lender, advance; (iv) so long as Borrower has possession and control the misapplication or the misappropriation of the Property, Bxxxxxxx’s insurance proceeds or condemnation awards; (v) Borrower's failure to pay Taxes, Other Charges (except to the extent that sums sufficient to pay such amounts have been deposited in escrow with Lender pursuant to the terms of this Security Instrument) Taxes ), charges for labor or materials or other charges that can create liens with priority over Lxxxxx’s lien on the Property (unless properly bonded); (vi) Borrower's failure to return or other liens established under the Loan Documents, to the extent funds are available reimburse Lender for all Personal Property taken from the operation Property by or on behalf of Borrower and not replaced with Personal Property of the Property for such purposesame utility and of the same or greater value; (vii) any act of actual waste or arson by Borrower, any principal, affiliate, member or from escrow deposits made general partner thereof or by any Indemnitor or Guarantor; (viii) any fees or commissions paid by Borrower to Lender for such purpose (regardless of whether Lender uses such funds to pay such Taxes any principal, affiliate, member or other liens), (v) damage to the Property arising from (y) the intentional misconduct or gross negligence general partner of Borrower, SCOLP, Indemnitor or any of their principals, officers, agents or employees, or (z) any removal of the Property Guarantor in violation of the Loan terms of the Note, this Security Instrument or the Other Security Documents, ; or (viix) Borrower’s or any other Indemnitor’s 's failure to comply with the provisions of the Environmental IndemnitySections 4.2, 7.1, 12.1 and 12.2 of this Security Instrument.

EXCEPTIONS TO EXCULPATION. Notwithstanding the provisions of this Article 15 to the contrary, Borrower shall be personally liable to Lender for the Losses it incurs due to: (i) fraud or intentional, material misrepresentation by Borrower, SCOLP, Borrower or any other person or entity in connection with the execution and the delivery of their agentsthe Note, principals, officers this Security Instrument or employees, the Other Security Documents; (ii) Borrower’s misapplication 's gross negligence or misappropriation of insurance proceeds, condemnation awards, or tenant security deposits, if, and willful misconduct with respect to the extent Borrower or its agents have management and operation of the right and ability to control the disbursement of such proceeds, awards or depositProperty and/or Borrower's financial affairs; (iii) Rents received by Borrower Borrower's removal or disposal of any Personal Property after the occurrence of an Event of Default, provided that such Rents (y) are not applied towards either the Monthly Payment or the ordinary and necessary operating expenses of the Property and Borrower has provided Lender with evidence of same in a form acceptable to Lender, or (z) are paid to Lender, ; (iv) so long as Borrower has possession and control of the Property, Bxxxxxxx’s Borrower's failure to pay Taxes, Insurance Premiums, Other Charges (except to the extent that sums sufficient to pay such amounts have been deposited in escrow with Lender pursuant to the terms of this Security Instrument) Taxes Instrument and/or the Lockbox Agreement), charges for labor or materials or other charges that can create liens with priority over Lxxxxx’s lien on the Property or other liens established under the Loan Documents, to the extent funds are available from the operation of the Property for such purpose, or from escrow deposits made to Lender for such purpose (regardless of whether Lender uses such funds to pay such Taxes or other liens), Property; (v) damage to Borrower or Guarantor or any party acting at the Property arising from behest of Borrower or Guarantor challenges the validity or enforceability of the Note, this Security Instrument or Other Security Documents and/or Borrower or Guarantor or any party acting at the behest of Borrower or Guarantor asserts defenses (yother than (A) the intentional misconduct or gross negligence defense of Borrowerpayment in full of the Obligations, SCOLP, or any provided that no other Event of their principals, officers, agents or employeesDefault has occurred and is continuing, or (zB) any removal a defense made in good faith as to the improper exercise of Lender's remedies under the Note, this Security Instrument or the Other Security Documents, provided that no Event of Default has occurred and is continuing at the time of Lender's exercise of such remedies) to the validity or enforceability of the Property in violation of the Loan Note, this Security Instrument or Other Security Documents, in each case solely for the purpose of delaying, hindering or impairing Lender's rights and remedies under the Note, this Security Instrument or Other Security Documents; (vi) Borrower’s Borrower or any other Indemnitor’s party acting at Borrower's behest misapplies or misappropriates Rents, tenant security deposits, insurance proceeds or condemnation awards; or (vii) Borrower's failure to comply with the provisions of the Environmental IndemnitySections 3.3, 3.9, 4.2, 4.3, 12.1, 12.2, 13.1, 13.2, 13.3, 13.4 or 13.5 of this Security Instrument.