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, Borrower’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 Lender’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, (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 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, BorrowerBxxxxxxx’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 LenderLxxxxx’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 contrary, Borrower shall be fully and personally liable for, and hereby agrees to protect, indemnify, release and hold harmless Lender for for, from and against any Losses incurred by Lender and arising from or related to any of the Losses it incurs due to: following: (ia) fraud proceeds paid under any insurance policies (or intentionalpaid as a result of any other claim or cause of action against any person or entity) by reason of damage, material misrepresentation by Borrowerloss or destruction to all or any portion of the Property, SCOLPto the full extent of such proceeds not previously delivered to Lender, but which, under the terms of the Loan Documents, should have been delivered to Lender; (b) proceeds or awards resulting from the condemnation or other taking in lieu of condemnation of all or any portion of the Property, or any of their agentsthem, principalsto the full extent of such proceeds or awards not previously delivered to Lender, officers or employeesbut which, under the terms of the Loan Documents, should have been delivered to Lender; (iic) Borrower’s misapplication or misappropriation of insurance proceeds, condemnation awards, or all tenant security deposits, if, and deposits or other refundable deposits paid to the extent or held by Borrower or its agents have any other person or entity in connection with leases of all or any portion of 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) Property which are not applied towards either in accordance with the Monthly Payment terms of the applicable lease or the ordinary other agreement; (d) rent and necessary operating expenses other payments received from tenants under leases of all or any portion of the Property paid more than one (1) month in advance and Borrower has provided Lender with evidence of same in a form acceptable not applied to Lenderamounts payable under the Note, or (z) are paid to Lender, (iv) so long as Borrower has possession and control of the Property, Borrower’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 Lender’s lien on the Property or other liens established reserves required under the Loan Documents, or otherwise paid to the extent funds are available from the operation Lender; (e) rents, issues, profits and revenues of all or any portion of the Property for such purposereceived or applicable to a period after the occurrence or, and during the continuance of, any event of default hereunder or under the other Loan Documents which are not either applied to amounts payable under the Note, reserves required under the Loan Documents, or from escrow deposits made otherwise paid to Lender for such purpose Lender; (regardless of whether Lender uses such funds to pay such Taxes or other liens), (vf) damage to the Property arising from (y) as a result of the intentional misconduct or gross negligence of Borroweror material waste to or of the Property by, SCOLP, Borrower or any of their its principals, officers, agents general partners, managers, trustees, beneficial owners or employeesmembers, or (z) any agent or employee of any such persons, or any removal of the Property in violation of the terms of the Loan Documents, to the full extent of the losses or damages actually incurred by Lender on account of such damage or removal; (vig) Borrower’s failure to pay (or deposit into reserves held by Lender funds sufficient to pay), any taxes, assessments, mechanic’s liens, materialmen’s liens or other claims which could create liens on all or any portion of the Property, which would be superior to the lien or security title of this Security Instrument or the other Indemnitor’s Loan Documents, to the full extent of the amount claimed by any such lien claimant; (h) all obligations and indemnities of Borrower under the Loan Documents relating to (i) accessibility laws, rules, and regulations, or (ii) hazardous or toxic substances or compliance with environmental laws and regulations to the full extent of any losses or damages (including, without limitation, those resulting from diminution in value of the Property or any portion thereof) incurred by Lender as a result of the existence of such hazardous or toxic substances or failure to comply with environmental laws, rules or regulations; (i) fraud or material misrepresentation by Borrower, or any of its principals, officers, directors, general partners, trustees, beneficial owners, members, or any guarantor, any indemnitor or any agent, employee or other person authorized or apparently authorized to make statements or representations on behalf of Borrower, any principal, officer, director, general partner, trustee, beneficial owner or member of Borrower, or any guarantor or any indemnitor, in each case, to the provisions full extent of any losses, damages and expenses of Lender on account thereof (including, without limitation, attorneys’ fees and expenses); (j) Borrower’s failure (directly or through its agents, employees, officers, directors, general partners, members, trustees, beneficial owners, principals or any guarantor, any indemnitor or any agent, employee or officer of any such persons) to permit on-site inspections of the Environmental Indemnity; Property as required pursuant to the Loan Documents, which failure is not cured within five (vii5) days of written notice thereof to Borrower; (k) failure by the nonpayment Borrower, its principals, officers, directors, general partners, members, trustees, beneficial owners or any guarantor, any indemnitor or any agent, employee or officer of any documentary stamp tax such persons, to provide financial information as required pursuant to the Loan Documents upon request, which failure is not cured within five (5) days following written notice to Borrower; (l) forfeiture of the Property or intangible tax due on the Assigned Noteany part thereof pursuant to applicable legal requirements that results from or otherwise occurs in connection with conduct or purported conduct of criminal activity by Borrower, the Assigned Mortgageany guarantor or indemnitor, the Note or any of their respective agents, employees, officers, directors, general partners, members, trustees, beneficial owners, or principals; (m) any amounts paid under leases containing early lease termination options or otherwise paid in consideration of an early termination and/or surrender of any lease and not delivered to Lender to be held in accordance with this Security Instrument; or (n) the costs incurred in recovering any amounts described in this Section 13.3, including without limitation, attorneys’ fees and expenses.

EXCEPTIONS TO EXCULPATION. Notwithstanding the provisions of this Article Section 15.1 to the contrary, Borrower Borrower, Guarantor 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, it 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) the misapplication or misappropriation of Rents received by Borrower’s ; (c) the misapplication or misappropriation of tenant security deposits or Rents collected in advance; (d) the misapplication or misappropriation of insurance proceeds, proceeds or 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; (iiie) Rents received any fees or commissions paid by Borrower after the occurrence and during the continuance of an Event of DefaultDefault to any principal, provided that such Rents (y) are not applied towards either the Monthly Payment affiliate 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, Borrower’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 Lender’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 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 Property or the security interest in the Property; (vig) Borrower’s any failure by Borrower or any other Indemnitor’s failure Indemnitor to comply with the terms and provisions of the Environmental Indemnity; (viih) any failure by Borrower or the nonpayment SPE Member to comply, or to have complied since their inception, with the terms and provisions of Section 4.3 hereof; (i) all fees and expenses of Lender pursuant to Section 19.2 hereof; or (j) any documentary stamp tax sale, conveyance, mortgage, grant, bargain, encumbrance, pledge, assignment or intangible tax due on transfer of the Assigned NoteProperty or any part thereof, within the Assigned Mortgagemeaning of Article 8 hereof, without the Note or this Security Instrumentprior written consent of Lender.

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, Borrower’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 Lender’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, (vi) Borrower’s such Hazardous Material 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 Indemnity; (vii) Operating Expenses, all amounts due under the nonpayment of any documentary stamp tax or intangible tax due on the Assigned NoteRelated Mortgage Notes, this Agreement, the Assigned MortgageMortgages, and the Note or this Security Instrumentother 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 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, Borrower’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 Lender’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, (vi) Borrower’s such Hazardous Materials 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 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 InstrumentMortgages.