Exculpation. (a) Subject to the qualifications below, Lender shall not enforce the liability and obligation of Borrower to perform and observe the obligations contained in the Note, this Agreement, the Pledge Agreement or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against Borrower, except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender and each Noteholder to enforce and realize upon its interest under the Note, this Agreement, the Pledge Agreement and the other Loan Documents, or in the Collateral, or any other collateral given to Lender pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower’s interest in the Collateral and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Pledge Agreement and the other Loan Documents, agrees that it shall not xxx for, seek or demand any deficiency judgment against Borrower in any such action or proceeding under, or by reason of, or in connection with, the Note, this Agreement, the Pledge Agreement or the other Loan Documents. The provisions of this Section shall not, however, (a) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (b) impair the right of Lender to name Borrower as a party defendant in any action or suit for foreclosure and sale under the Pledge Agreement; (c) affect the validity or enforceability of or any Guaranty made in connection with the Loan or any of the rights and remedies of Lender thereunder; (d) impair the right of Lender to obtain the appointment of a receiver; (e) intentionally omitted; (f) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted by the Pledge Agreement or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against all of the Collateral; or (g) constitute a waiver of the right of Lender to enforce the liability and obligation of Borrower, by money judgment or otherwise, to the extent of any actual loss, damage, cost, expense, liability, claim or other obligation incurred by Lender (including attorneys’ fees and costs reasonably incurred) arising out of or in connection with the following:
Appears in 9 contracts
Samples: Fourth Mezzanine Loan Agreement (Harrahs Entertainment Inc), Third Mezzanine Loan Agreement (Harrahs Entertainment Inc), Seventh Mezzanine Loan Agreement (Harrahs Entertainment Inc)
Exculpation. (a) Subject to the qualifications below, Lender shall not enforce the liability and obligation of Borrower to perform and observe the obligations contained in the Note, this Agreement, the Pledge Agreement or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against Borrower, except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender and each Noteholder to enforce and realize upon its interest under the Note, this Agreement, the Pledge Agreement and the other Loan Documents, or in the Collateral, or any other collateral Collateral given to Lender pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower’s interest in the Collateral and in any other collateral given to Lender, and each Lender, by accepting the Note, this Agreement, the Pledge Agreement and the other Loan Documents, agrees that it shall not xxx for, seek or demand any deficiency judgment against Borrower in any such action or proceeding under, or by reason of, or in connection with, the Note, this Agreement, the Pledge Agreement or the other Loan Documents. The provisions of this Section 9.2 shall not, however, (a) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (b) impair the right of Lender to name Borrower as a party defendant in any action or suit for foreclosure and sale under the Pledge Agreement; (c) affect the validity or enforceability of or any Guaranty made in connection with the Loan or any of the rights and remedies of Lender thereunder; (d) impair the right of Lender to obtain the appointment of a receiver; (e) intentionally omitted; (f) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted by the Pledge Agreement or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against all of the Collateral; or (g) constitute a waiver of the right of Lender to enforce the liability and obligation of Borrower, by money judgment or otherwise, to the extent of any actual loss, damage, cost, expense, liability, claim or other obligation incurred by or on behalf of Lender (including attorneys’ fees and costs reasonably incurred) arising out of or in connection with the following:
Appears in 9 contracts
Samples: Second Amended And (Harrahs Entertainment Inc), First Mezzanine Loan Agreement (Harrahs Entertainment Inc), Sixth Mezzanine Loan Agreement (Harrahs Entertainment Inc)
Exculpation. (a) Subject to the qualifications belowThe Escrow Agent and its designees, Lender and their respective partners, employees, attorneys and agents, shall not enforce incur any liability whatsoever for the liability and obligation investment or disposition of Borrower to perform and observe the obligations contained in the Note, this Agreement, the Pledge Agreement funds or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against Borrower, except that Lender may bring a foreclosure action, an action for specific performance or taking of any other appropriate action or proceeding to enable Lender in accordance with the terms and each Noteholder to enforce and realize upon its interest under the Note, this Agreement, the Pledge Agreement and the other Loan Documents, or in the Collateral, or any other collateral given to Lender pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower’s interest in the Collateral and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Pledge Agreement and the other Loan Documents, agrees that it shall not xxx for, seek or demand any deficiency judgment against Borrower in any such action or proceeding under, or by reason of, or in connection with, the Note, this Agreement, the Pledge Agreement or the other Loan Documents. The provisions of this Section shall notEscrow Agreement, howeverfor any mistake or error in judgment, (a) constitute a waiverfor compliance with any applicable law or any attachment, release order or impairment other directive of any obligation evidenced court or secured other authority (irrespective of any conflicting term or provision of this Escrow Agreement), or for any act or omission of any other person selected with reasonable care and engaged by any of the Loan Documents; (b) impair the right of Lender to name Borrower as a party defendant in any action or suit for foreclosure and sale under the Pledge Agreement; (c) affect the validity or enforceability of or any Guaranty made Escrow Agent in connection with this Escrow Agreement (other than for such Escrow Agent's or such person's own acts or omissions breaching a duty owed to the Loan claimant under this Escrow Agreement and amounting to gross negligence or any willful misconduct as finally determined pursuant to applicable law by a governmental authority having jurisdiction); and each of the rights Company and remedies of Lender thereunder; (d) impair the right of Lender to obtain Purchasers hereby waive any and all claims and actions whatsoever against the appointment of a receiver; (e) intentionally omitted; (f) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted by the Pledge Agreement or to commence any other appropriate action or proceeding in order for Lender to exercise Escrow Agent and its remedies against all of the Collateral; or (g) constitute a waiver of the right of Lender to enforce the liability designees, and obligation of Borrowertheir respective partners, by money judgment or otherwiseemployees, to the extent of any actual lossattorneys and agents, damage, cost, expense, liability, claim or other obligation incurred by Lender (including attorneys’ fees and costs reasonably incurred) arising out of or in connection with related directly or indirectly to any and all of the following:foregoing acts, omissions and circumstances. Furthermore, the Escrow Agent and its designees, and their respective partners, employees, attorneys and agents, shall not incur any liability (other than for a person's own acts or omissions breaching a duty owed to the claimant under this Escrow Agreement and amounting to willful misconduct as finally determined pursuant to applicable law by a governmental authority having jurisdiction) for other acts and omissions arising out of or related directly or indirectly to this Escrow Agreement or the Escrow Amount; and each of the Company and the Purchasers hereby expressly waive any and all claims and actions (other than those attributable to a person's own acts or omissions breaching a duty owed to the claimant and amounting to gross negligence or willful misconduct as finally determined pursuant to applicable law by a governmental authority having jurisdiction) against the Escrow Agent and its designees, and their respective partners, employees, attorneys and agents, arising out of or related directly or indirectly to any and all of the foregoing acts, omissions and circumstances. The Escrow Agent's designees excludes the Purchasers for purposes hereof.
Appears in 8 contracts
Samples: Escrow Agreement (Aquatic Cellulose International Corp), Escrow Agreement (Aquatic Cellulose International Corp), Escrow Agreement (Vertex Interactive Inc)
Exculpation. (a) Subject to Except as otherwise provided herein, in the qualifications belowPledge Agreement or in the other Loan Documents, Lender shall not enforce the liability and obligation of Borrower Pledgor to perform and observe the obligations contained in the Note, this Agreement, the Note or the Pledge Agreement or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against BorrowerPledgor, except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender and each Noteholder to enforce and realize upon its interest under this Agreement, the Note, the Pledge Agreement, the other Loan Documents, and the Collateral, and any other collateral given to Lender created by this Agreement, the Note, the Pledge Agreement and the other Loan Documents, or in the Collateral, or any other collateral given to Lender pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, that any judgment in any such action or proceeding shall be enforceable against Borrower Pledgor only to the extent of BorrowerPledgor’s interest in the Collateral and in any other collateral given to Lender, and . Lender, by accepting the Note, this Agreement, the Pledge Agreement Note and the other Loan DocumentsPledge Agreement, agrees that it shall not not, except as otherwise provided herein or in the Pledge Agreement, xxx for, seek or demand any deficiency judgment against Borrower Pledgor in any such action or proceeding underproceeding, under or by reason of, of or under or in connection withwith this Agreement, the Note, this Agreement, the Pledge Agreement or the other Loan Documents. The provisions of this Section shall not, however, (ai) constitute a waiver, release or impairment of any obligation evidenced or secured by any of this Agreement, the Note, the Pledge Agreement or the other Loan Documents; (bii) impair the right of Lender to name Borrower Pledgor as a party defendant in any action or suit for judicial foreclosure and sale under the Pledge Agreement; (ciii) affect the validity or enforceability of any indemnity (including, without limitation, the Environmental Indemnity), guaranty (including, without limitation, the Guaranty), master lease or any Guaranty similar instrument made in connection with this Agreement, the Note, the Pledge Agreement, or the other Loan or any of the rights and remedies of Lender thereunderDocuments; (div) impair the right of Lender to obtain the appointment of a receiver; (ev) intentionally omitted; (f) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted by the Pledge Agreement or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against all of the Collateral; or (g) constitute a waiver of impair the right of Lender to enforce Sections 4.1.9, 4.1.29, 5.1.9 and 5.2.8 hereof; or (vi) impair the liability and obligation right of Borrower, by money Lender to obtain a deficiency judgment or otherwiseother judgment on the Note against Pledgor if necessary to (A) preserve or enforce its rights and remedies against the Collateral or (B) obtain any Insurance Proceeds or Awards to which Lender would otherwise be entitled under the terms of this Agreement or the Pledge Agreement; provided however, Lender shall only enforce such judgment to the extent of any actual loss, damage, cost, expense, liability, claim or other obligation incurred by Lender (including attorneys’ fees and costs reasonably incurred) arising out of or in connection with the following:Insurance Proceeds and/or Awards.
Appears in 6 contracts
Samples: Mezzanine a Loan Agreement (KBS Real Estate Investment Trust, Inc.), Mezzanine a Loan Agreement (KBS Real Estate Investment Trust, Inc.), Mezzanine a Loan Agreement (KBS Real Estate Investment Trust, Inc.)
Exculpation. (a) Subject to Except as otherwise provided herein or in the qualifications belowother Loan Documents, Lender shall not enforce the liability and obligation of Borrower or Borrower Principal, as applicable, to perform and observe the obligations contained herein or in the Note, this Agreement, the Pledge Agreement or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against BorrowerBorrower or Borrower Principal, except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender and each Noteholder to enforce and realize upon its interest under the Note, this Agreement, the Pledge Agreement Note, the Mortgage and the other Loan Documents, or and the interest in the CollateralProperty, or the Rents and any other collateral given to Lender pursuant to created by this Agreement, the Note, the Mortgage and the other Loan Documents; provided, however, that, except as specifically provided herein, that any judgment in any such action or proceeding shall be enforceable against Borrower or Borrower Principal, as applicable, only to the extent of Borrower’s or Borrower Principal’s interest in the Collateral Property, in the Rents and in any other collateral given to Lender, and . Lender, by accepting the Note, this Agreement, the Pledge Agreement Note, the Mortgage and the other Loan Documents, agrees that it shall not not, except as otherwise provided in this Section 15.1, xxx for, seek or demand any deficiency judgment against Borrower or Borrower Principal in any such action or proceeding underproceeding, under or by reason of, of or under or in connection withwith this Agreement, the Note, this Agreement, the Pledge Agreement Mortgage or the other Loan Documents. The provisions of this Section 15.1 shall not, however, (ai) constitute a waiver, release or impairment of any obligation evidenced or secured by any of this Agreement, the Note, the Mortgage or the other Loan Documents; (bii) impair the right of Lender to name Borrower or Borrower Principal as a party defendant in any action or suit for judicial foreclosure and sale under this Agreement and the Pledge AgreementMortgage; (ciii) affect the validity or enforceability of any indemnity (including, without limitation, the Environmental Indemnity, Section 13.5 and Article 14 of this Agreement), guaranty, master lease or any Guaranty similar instrument made in connection with this Agreement, the Note, the Mortgage and the other Loan or any of the rights and remedies of Lender thereunderDocuments; (div) impair the right of Lender to obtain the appointment of a receiver; (ev) intentionally omitted; (f) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize impair the security granted by the Pledge Agreement or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against all enforcement of the Collateralassignment of leases provisions contained in the Mortgage; or (gvi) constitute a waiver of impair the right of Lender to enforce the liability and obligation of Borrower, by money obtain a deficiency judgment or otherwiseother judgment on the Note against Borrower or Borrower Principal if necessary to obtain any Insurance Proceeds or Awards to which Lender would otherwise be entitled under this Agreement; provided however, Lender shall only enforce such judgment to the extent of any actual loss, damage, cost, expense, liability, claim or other obligation incurred by Lender (including attorneys’ fees and costs reasonably incurred) arising out of or in connection with the following:Insurance Proceeds and/or Awards.
Appears in 6 contracts
Samples: Work Letter Agreement (MPG Office Trust, Inc.), Loan Agreement (Maguire Properties Inc), Loan Agreement (Maguire Properties Inc)
Exculpation. (a) Subject to the qualifications below, Lender shall not enforce terms of the liability next succeeding paragraph and obligation of Borrower notwithstanding anything to perform and observe the obligations contrary otherwise contained in the Note, but without in any way releasing, impairing or otherwise affecting this Agreement, the Pledge Agreement Note or any of the other Loan Documents by (including without limitation any action guaranties or proceeding wherein a money judgment shall be sought against indemnification agreements), or the validity hereof or thereof, or the lien of the Mortgage, it is agreed that Lender’s source of satisfaction of the Indebtedness (as that term is defined in the Note) and Borrower, except that Lender may bring a foreclosure action, an action for specific performance or any ’s other appropriate action or proceeding to enable Lender obligations hereunder and each Noteholder to enforce and realize upon its interest under the NoteLoan Documents is limited to (a) the Property and proceeds thereof, this Agreement(b) rents, income, issues, proceeds and profits arising out of the Pledge Agreement Property, and (c) any separate guaranty or indemnification agreements guarantying or indemnifying Lender with respect to the other payment of any amounts due hereunder and under the Loan Documents, or in the Collateral, or any other collateral given to Lender pursuant to Documents and/or Borrower’s performance hereunder and under the Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding that nothing herein contained shall be enforceable against Borrower only deemed to the extent of Borrower’s interest in the Collateral and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Pledge Agreement and the other Loan Documents, agrees that it shall not xxx for, seek or demand any deficiency judgment against Borrower in any such action or proceeding under, or by reason of, or in connection with, the Note, this Agreement, the Pledge Agreement or the other Loan Documents. The provisions of this Section shall not, however, (a) constitute be a waiver, release or impairment of said Indebtedness or the security therefor intended by the Mortgage, or be deemed to preclude Lender from foreclosing the Mortgage or from enforcing any obligation evidenced of Lender’s rights or secured by remedies in law or in equity thereunder, or in any way or manner affecting Lender’s rights and privileges under any of the Loan Documents; (b) impair the right of Lender to name Borrower as a party defendant in Documents or any action separate guaranty or suit for foreclosure and sale indemnification agreements guarantying Borrower’s payment and/or performance hereunder and/or under the Pledge Agreement; (c) affect the validity or enforceability of or any Guaranty made in connection with the Loan or any of the rights and remedies of Lender thereunder; (d) impair the right of Lender to obtain the appointment of a receiver; (e) intentionally omitted; (f) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted by the Pledge Agreement or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against all of the Collateral; or (g) constitute a waiver of the right of Lender to enforce the liability and obligation of BorrowerDocuments. NOTWITHSTANDING THE FOREGOING LIMITATION OF LIABILITY PROVISION, by money judgment or otherwiseOR ANYTHING IN THE NOTE TO THE CONTRARY, to the extent of any actual lossBORROWER SHALL PAY, damage, cost, expense, liability, claim or other obligation incurred by Lender (including attorneys’ fees and costs reasonably incurred) arising out of or in connection with the followingAND THERE SHALL AT NO TIME BE ANY LIMITATION ON BORROWER’S PERSONAL LIABILITY FOR THE PAYMENT TO LENDER OF:
Appears in 6 contracts
Samples: Loan Agreement (Industrial Income Trust Inc.), Loan Agreement (Industrial Income Trust Inc.), Loan Agreement (Industrial Income Trust Inc.)
Exculpation. (a) Subject to the qualifications below, Lender shall not enforce the liability and obligation of Borrower to perform and observe the obligations contained in the Note, this Agreement, the Pledge Agreement Mortgage or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against Borrower, except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender and each Noteholder to enforce and realize upon its interest under the Note, this Agreement, the Pledge Agreement Mortgage and the other Loan Documents, or in the CollateralProperty, the Rents, or any other collateral given to Lender pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower’s interest in the Collateral Property, in the Rents and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Pledge Agreement Mortgage and the other Loan Documents, agrees that it shall not xxx for, seek or demand any deficiency judgment against Borrower in any such action or proceeding under, under or by reason of, of or under or in connection with, with the Note, this Agreement, the Pledge Agreement Mortgage or the other Loan Documents. The provisions of this Section shall not, however, (a) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (b) impair the right of Lender to name Borrower as a party defendant in any action or suit for foreclosure and sale under the Pledge AgreementMortgage; (c) affect the validity or enforceability of or any Guaranty guaranty made in connection with the Loan or any of the rights and remedies of Lender thereunder; (d) impair the right of Lender to obtain the appointment of a receiver; (e) intentionally omittedimpair the enforcement of any assignment of leases contained in the Mortgage; (f) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted by the Pledge Agreement Mortgage or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against all of the CollateralProperty; or (g) constitute a waiver of the right of Lender to enforce the liability and obligation of Borrower, by money judgment or otherwise, to the extent of any actual loss, damage, cost, expense, liability, claim or other obligation incurred by Lender (including attorneys’ fees and costs expenses reasonably incurred) arising out of or in connection with the following:
Appears in 5 contracts
Samples: Loan Agreement (TNP Strategic Retail Trust, Inc.), Loan Agreement (TNP Strategic Retail Trust, Inc.), Loan Agreement (Global Income Trust, Inc.)
Exculpation. (a) Subject Agent and its officers, directors, employees and agents will be liable to any Bank only for the qualifications below, Lender shall not enforce the liability and obligation performance of Borrower to perform and observe the their express obligations contained in the Note, under this Agreement, the Pledge Agreement or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against Borrower, except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender and each Noteholder to enforce and realize upon its interest under the Note, this Agreement, the Pledge Agreement and the other Loan DocumentsDocuments and for their own gross negligence or willful misconduct in the performance of any action taken or omitted in connection therewith. If any apportionment or distribution of payments made by Agent in good faith is subsequently determined to have been made in error, Agent will not be liable therefor, but the sole recourse of any Bank to whom payment was due but not made will be to recover from other Banks any payment in excess of the amount to which they are determined to be entitled (and such other Banks hereby agree to return to such Bank any such erroneous payments received by them). The Agent shall use its best efforts to assist the Banks in determining when any such excess payment has been made and in facilitating the recovery thereof. In performing its functions and duties hereunder, Agent will exercise the same care which it would in dealing with loans for its own account. Agent will not be responsible to any Bank for the truth or completeness of any recitals, statements, representations or warranties herein, the execution, effectiveness, genuineness, validity, enforceability, collectability, or in the Collateral, sufficiency of this Agreement or any other collateral given to Lender pursuant to Loan Document or the Loan Documents; providedtransactions contemplated thereby, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent financial condition of Borrower’s interest in . Agent will not be required to make any inquiry concerning either the Collateral and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Pledge Agreement and the other Loan Documents, agrees that it shall not xxx for, seek performance or demand any deficiency judgment against Borrower in any such action or proceeding under, or by reason of, or in connection with, the Note, this Agreement, the Pledge Agreement or the other Loan Documents. The provisions observance of this Section shall not, however, (a) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the terms, provisions or conditions of this Agreement or any other Loan Documents; (b) impair Document, the right financial condition of Lender Borrower, or the existence or possible existence of any Event of Default. Agent at any time may request instructions from the Requisite Banks with respect to name Borrower as a party defendant in any action, inaction, failure or approval which, by the terms of this Agreement or any other Loan Document, Agent is permitted or required to take or to grant, and if such instructions are promptly requested, Agent may refrain from taking any action or suit for foreclosure withhold any approval and sale under may refrain from any action or withhold any approval until it has received such instructions from the Pledge Agreement; (c) affect the validity Requisite Banks. No Bank will have any right of action whatsoever against Agent as a result of Agent acting or enforceability of or any Guaranty made refraining from acting in connection accordance with the Loan or any instructions of the rights and remedies of Lender thereunder; (d) impair the right of Lender to obtain the appointment of a receiver; (e) intentionally omitted; (f) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted by the Pledge Agreement Requisite Banks or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against all of the Collateral; or (g) constitute a waiver of Banks, as the right of Lender to enforce the liability and obligation of Borrower, by money judgment or otherwise, to the extent of any actual loss, damage, cost, expense, liability, claim or other obligation incurred by Lender (including attorneys’ fees and costs reasonably incurred) arising out of or in connection with the following:case may require.
Appears in 5 contracts
Samples: Credit Agreement (Mueller Industries Inc), Credit Agreement (Mueller Industries Inc), Credit Agreement (Mueller Industries Inc)
Exculpation. (a) Subject Effective as of the Effective Date, to the qualifications belowfullest extent permissible under applicable law and without affecting or limiting either of the Debtor Release or Third-Party Release, Lender shall not enforce the liability and obligation of Borrower to perform and observe the obligations contained except as otherwise specifically provided in the NotePlan, this each Debtor, each Reorganized Debtor, each New Property Entity, each Estate, and each Exculpated Party is hereby released and exculpated from any claim, obligation, Cause of Action, or liability for any prepetition or postpetition action taken or omitted to be taken in connection with, or related to formulating, negotiating, soliciting, preparing, disseminating, confirming, administering, or implementing the Plan, or consummating the Plan (including the Restructuring Support Agreements), the Xxxxxx Agreement, the Pledge Agreement Disclosure Statement, the New Governance Documents, the Restructuring Transactions, and/or the Separation Structure or selling or issuing the New Debt, the New Interests, the New CEC Convertible Notes, the New CEC Common Equity, and/or any other Security to be offered, issued, or distributed in connection with the Plan, the Chapter 11 Cases, or any contract, instrument, release, or other agreement or document created or entered into in connection with the Plan (including, for the avoidance of doubt, providing any legal opinion requested by any Entity regarding any transaction, contract, instrument, document, or other agreement contemplated by the Plan or the other Loan Documents reliance by any action Exculpated Party on the Plan or proceeding wherein a money judgment shall be sought against Borrower, except that Lender may bring a foreclosure action, an action for specific performance the Confirmation Order in lieu of such legal opinion) or any other appropriate action prepetition or proceeding postpetition act taken or omitted to enable Lender and each Noteholder to enforce and realize upon its interest under be taken in connection with or in contemplation of the Noterestructuring of the Debtors, this Agreementexcept for actual fraud, the Pledge Agreement and the other Loan Documentswillful misconduct, or gross negligence in connection with the CollateralPlan or the Chapter 11 Cases following the Petition Date, or any other collateral given to Lender pursuant each solely to the Loan Documentsextent as determined by a Final Order of a court of competent jurisdiction; provided, however, that, except as specifically provided herein, any judgment that in any all respects such action or proceeding Entities shall be enforceable against Borrower only entitled to reasonably rely upon the advice of counsel with respect to their duties and responsibilities pursuant to the extent Plan. Each of Borrower’s interest the Debtors, the Reorganized Debtors, the New Property Entities, the Estates, and each Exculpated Party has, and upon completion of the Plan shall be deemed to have, participated in good faith and in compliance with the applicable laws with regard to the restructuring of Claims and Interests in the Collateral Chapter 11 Cases and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Pledge Agreement and the other Loan Documents, agrees that it shall not xxx for, seek or demand any deficiency judgment against Borrower in any such action or proceeding under, or by reason of, or in connection with, the Note, this Agreement, the Pledge Agreement or the other Loan Documents. The provisions of this Section shall not, however, (a) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (b) impair the right of Lender to name Borrower as a party defendant in any action or suit for foreclosure and sale under the Pledge Agreement; (c) affect the validity or enforceability of or any Guaranty made in connection with the Loan Restructuring Transactions, the negotiation, formulation, or preparation of the Restructuring Documents or related agreements, instruments, or other documents pursuant to the Plan, and the solicitation and distribution of the Plan and, therefore, is not, and on account of such distributions shall not be, liable at any time for the violation of any applicable law, rule, or regulation governing the solicitation of acceptances or rejections of the Plan or such distributions made pursuant to the Plan. Notwithstanding the foregoing, the Exculpation shall not release any obligation or liability of any party under the Plan or any of the rights and remedies of Lender thereunder; (d) impair the right of Lender to obtain the appointment of a receiver; (e) intentionally omitted; (f) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted by the Pledge Agreement document, instrument, or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against all of the Collateral; or (g) constitute a waiver of the right of Lender to enforce the liability and obligation of Borrower, by money judgment or otherwise, to the extent of any actual loss, damage, cost, expense, liability, claim or other obligation incurred by Lender agreement (including attorneys’ fees and costs reasonably incurredthose set forth in the Plan Supplement) arising out of or in connection with executed to implement the following:Plan.
Appears in 4 contracts
Samples: Call Right Agreement (CAESARS ENTERTAINMENT Corp), Indenture (CAESARS ENTERTAINMENT Corp), Agreement (CAESARS ENTERTAINMENT Corp)
Exculpation. (a) Subject to the qualifications below, Lender shall not enforce the liability and obligation of Borrower to perform and observe the obligations contained in the Note, this Agreement, the Pledge Agreement or the other Loan Documents by any action or proceeding wherein a money judgment or any deficiency judgment or other judgment establishing personal liability shall be sought against BorrowerBorrower or any principal, director, officer, employee, beneficiary, shareholder, partner, member, trustee, agent, or Affiliate of Borrower or any legal representatives, successors or assigns of any of the foregoing (collectively, the “Exculpated Parties”), except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender and each Noteholder to enforce and realize upon its interest under the Note, this Agreement, the Pledge Agreement and the other Loan Documents, or in the Collateral, Collateral (or any portion thereof) or any other collateral given to Lender pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower’s interest in the Collateral and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Pledge Agreement and the other Loan Documents, agrees that it shall not xxx forsue xxx, seek or demand any deficiency judgment against Borrower or any of the Exculpated Parties in any such action or proceeding under, under or by reason of, of or under or in connection with, with the Note, this Agreement, the Pledge Agreement or the other Loan Documents. The provisions of this Section shall not, however, (a1) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (b2) impair the right of Lender to name Borrower as a party defendant in any action or suit for foreclosure and sale under the Pledge Agreement; (c3) affect the validity or enforceability of any indemnity, guaranty or any similar instrument (including, without limitation, indemnities set forth in Article 12 hereof, Section 11.2 hereof, in the Guaranty and the Environmental Indemnity) made in connection with the Loan or any of the rights and remedies of Lender thereunderthereunder (including, without limitation, Lender’s right to enforce said rights and remedies against Borrower and/or Guarantor (as applicable) personally and without the effect of the exculpatory provisions of this Article 13); (d4) impair the right rights of Lender to (A) obtain the appointment of a receiverreceiver and/or (B) enforce its security interest in the Accounts as provided in Articles 8 and 9 hereof; (e5) intentionally omittedimpair the enforcement of the Pledge Agreement; (f6) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted by the Pledge Agreement or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against all of the CollateralCollateral (or any portion thereof); or (g7) constitute a waiver of the right of Lender to enforce the liability and obligation of Borrower, by money judgment or otherwise, to the extent of any actual loss, damage, cost, expense, liability, claim or other obligation reasonable out-of-pocket Loss incurred by Lender (including out-of-pocket attorneys’ fees and costs reasonably incurredincurred but in all events excluding consequential, punitive and special damages (except to the extent Lender is actually liable for such damages)) arising out of or in connection with the following:
Appears in 4 contracts
Samples: Mezzanine a Loan Agreement (NorthStar Healthcare Income, Inc.), Mezzanine C Loan Agreement (Northstar Realty Finance Corp.), Mezzanine C Loan Agreement (NorthStar Healthcare Income, Inc.)
Exculpation. To the fullest extent permitted by applicable law, the GUC Trust Administrator Parties shall be and hereby are exculpated by all Persons, including holders of General Unsecured Claims, Units and Residual Wind-Down Claims and other parties-in-interest, from any and all claims, causes of action and other assertions of liability arising out of the discharge of their respective powers and duties conferred by the Plan, the Confirmation Order, this Trust Agreement or any Order of the Bankruptcy Court entered pursuant to or in furtherance of the Plan, or applicable law or otherwise (a) Subject including, without limitation, any claims, causes of action and other assertions of liabilities arising out of or related to the qualifications belowResidual Wind-Down Expenses and the wind-down of the Debtors’ affairs), Lender shall except for actions or omissions to act that are determined by Final Order of the Bankruptcy Court to have arisen out of the willful misconduct (including, but not enforce limited to, conduct that results in a personal profit at the liability expense of the GUC Trust), gross negligence, fraud, malpractice, criminal conduct, unauthorized use of confidential information that causes damages, breach of fiduciary duty (to the extent applicable), or ultra xxxxx acts of such GUC Trust Administrator Party. No holder of a General Unsecured Claim or other party-in-interest will have or be permitted to pursue any claim or cause of action against the GUC Trust Administrator Parties or the GUC Trust, for making payments and obligation of Borrower to perform and observe distributions in accordance with the obligations contained in the Note, this AgreementPlan, the Pledge Confirmation Order or this Trust Agreement or for implementing the other Loan Documents by any provisions thereof. Any action taken or proceeding wherein a money judgment shall omitted to be sought against Borrowertaken with the express approval of the Bankruptcy Court will conclusively be deemed not to constitute willful misconduct, except gross negligence, fraud, malpractice, criminal conduct, unauthorized use of confidential information that Lender may bring a foreclosure actioncauses damages, an action for specific performance or any other appropriate action or proceeding to enable Lender and each Noteholder to enforce and realize upon its interest under the Note, this Agreement, the Pledge Agreement and the other Loan Documentsbreach of fiduciary duty, or in the Collateral, or any other collateral given to Lender pursuant to the Loan Documentsultra xxxxx acts; provided, however, that, except as specifically provided herein, that notwithstanding any judgment in any such action or proceeding shall be enforceable against Borrower only provision herein to the extent of Borrower’s interest in the Collateral and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreementcontrary, the Pledge Agreement and the other Loan Documents, agrees that it GUC Trust Administrator shall not xxx forbe obligated to comply with a direction of the GUC Trust Monitor, seek whether or demand any deficiency judgment against Borrower not express, which would result in any such action or proceeding under, or by reason of, or in connection witha change to the distribution provisions of the Plan, the Note, Confirmation Order or this Trust Agreement, the Pledge Agreement or the other Loan Documents. The provisions of this Section shall not, however, (a) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (b) impair the right of Lender to name Borrower as a party defendant in any action or suit for foreclosure and sale under the Pledge Agreement; (c) affect the validity or enforceability of or any Guaranty made in connection with the Loan or any of the rights and remedies of Lender thereunder; (d) impair the right of Lender to obtain the appointment of a receiver; (e) intentionally omitted; (f) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted by the Pledge Agreement or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against all of the Collateral; or (g) constitute a waiver of the right of Lender to enforce the liability and obligation of Borrower, by money judgment or otherwise, to the extent of any actual loss, damage, cost, expense, liability, claim or other obligation incurred by Lender (including attorneys’ fees and costs reasonably incurred) arising out of or in connection with the following:.
Appears in 4 contracts
Samples: Guc Trust Agreement (Motors Liquidation Co), Guc Trust Agreement (Motors Liquidation Co), Company Guc Trust Agreement
Exculpation. (a) Subject to the qualifications below, Lender shall not enforce the liability and obligation of Borrower to perform and observe the obligations contained in the Note, this Agreement, the Pledge Agreement Mortgage or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against Borrower, except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender and each Noteholder to enforce and realize upon its interest under the Note, this Agreement, the Pledge Agreement Mortgage and the other Loan Documents, or in the CollateralProperty, the Rents, or any other collateral given to Lender pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower’s interest in the Collateral Property, in the Rents and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Pledge Agreement Mortgage and the other Loan Documents, agrees that it shall not xxx for, seek or demand any deficiency judgment against Borrower in any such action or proceeding under, under or by reason of, of or under or in connection with, with the Note, this Agreement, the Pledge Agreement Mortgage or the other Loan Documents. The provisions of this Section shall not, however, (a) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (b) impair the right of Lender to name Borrower as a party defendant in any action or suit for foreclosure and sale under the Pledge AgreementMortgage; (c) affect the validity or enforceability of or any Guaranty guaranty made in connection with the Loan or any of the rights and remedies of Lender thereunder; (d) impair the right of Lender to obtain the appointment of a receiver; (e) intentionally omittedimpair the enforcement of the Assignment of Leases; (f) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize on any security given by Borrower in connection with the security granted by the Pledge Agreement Loan or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against all of the Collateralsuch security which, in any event, shall only be enforced against such security; or (g) constitute a waiver of the right of Lender to enforce the liability and obligation of Borrower, by money judgment or otherwise, to the extent of any actual loss, damage, cost, expense, liability, claim or other obligation incurred by Lender (including attorneys’ fees and costs reasonably incurred) arising out of or in connection with any of the following:
Appears in 4 contracts
Samples: Loan Agreement (Americold Realty Trust), Loan Agreement (Americold Realty Trust), Loan Agreement (Americold Realty Trust)
Exculpation. (a) Subject to the qualifications below, Lender shall not enforce the liability and obligation of Borrower to perform and observe the obligations contained in the Note, this Agreement, the Pledge Agreement Security Instrument or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against Borrower, except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender and each Noteholder to enforce and realize upon its interest under the Note, this Agreement, the Pledge Agreement Security Instrument and the other Loan Documents, or in the CollateralProperty (or any portion thereof), the Rents, or any other collateral given to Lender pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower’s interest in the Collateral Property, in the Rents and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Pledge Agreement Security Instrument and the other Loan Documents, agrees that it shall not xxx for, seek or demand any deficiency judgment against Borrower in any such action or proceeding under, under or by reason of, of or under or in connection with, with the Note, this Agreement, the Pledge Agreement Security Instrument or the other Loan Documents. The provisions of this Section shall not, however, (ai) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (bii) impair the right of Lender to name Borrower as a party defendant in any action or suit for foreclosure and sale under the Pledge AgreementSecurity Instrument; (ciii) affect the validity or enforceability of or any Guaranty guaranty made in connection with the Loan or any of the rights and remedies of Lender thereunder; (div) impair the right of Lender to obtain the appointment of a receiver; (ev) intentionally omittedimpair the enforcement of any assignment of leases contained in the Security Instrument; or (fvi) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted by the Pledge Agreement Security Instrument or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against all of the Collateral; Property (or (g) constitute a waiver of the right of Lender to enforce the liability and obligation of Borrower, by money judgment or otherwise, to the extent of any actual loss, damage, cost, expense, liability, claim or other obligation incurred by Lender (including attorneys’ fees and costs reasonably incurred) arising out of or in connection with the following:portion thereof).
Appears in 4 contracts
Samples: Loan Agreement (Strategic Storage Trust, Inc.), Loan Agreement (Gladstone Commercial Corp), Loan Agreement (TNP Strategic Retail Trust, Inc.)
Exculpation. Subject to the terms of the next succeeding paragraph and notwithstanding anything to the contrary otherwise contained in this Guaranty, but without in any way releasing, impairing or otherwise affecting this Guaranty or any of the Loan Documents (including without limitation any guaranties or indemnification agreements) or those certain Environmental Indemnification Agreements to which Borrower or any Guarantor is a party, or the validity hereof or thereof, or the lien of the Mortgage or of any Guarantor Second Mortgage, it is agreed that, with respect to each Guarantor, Lender’s source of satisfaction of the Guaranteed Obligations and the other obligations of each Guarantor hereunder is limited to (a) Subject to the qualifications below, Lender shall not enforce the liability and obligation “Premises” of Borrower to perform and observe the obligations contained such Guarantor (as defined in the NoteGuarantor Second Mortgage executed by such Guarantor; such “Premises” is sometimes referred to in this Section 1.8 as the “Guarantor Premises”) and proceeds thereof, this Agreementand (b) rents, income, issues, proceeds and profits arising out of the Pledge Agreement or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against Borrower, except Guarantor Premises of such Guarantor after an Event of Default (as that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender and each Noteholder to enforce and realize upon its interest under the Note, this Agreement, the Pledge Agreement and the other Loan Documents, or in the Collateral, or any other collateral given to Lender pursuant to the Loan Documentsterm is hereafter defined); provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding that nothing herein contained shall be enforceable against Borrower only deemed to the extent of Borrower’s interest in the Collateral and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Pledge Agreement and the other Loan Documents, agrees that it shall not xxx for, seek or demand any deficiency judgment against Borrower in any such action or proceeding under, or by reason of, or in connection with, the Note, this Agreement, the Pledge Agreement or the other Loan Documents. The provisions of this Section shall not, however, (a) constitute be a waiver, release or impairment of the Guaranteed Obligations or the security therefor intended by the Guarantor Second Mortgages, or be deemed to preclude Lender from foreclosing one or more of the Guarantor Second Mortgages or from enforcing any obligation evidenced of Lender’s rights or secured by remedies in law or in equity thereunder, or in any way or manner affecting Lender’s rights and privileges under any of the Loan Documents; (b) impair the right of Lender to name Borrower as a party defendant in any action or suit for foreclosure and sale under the Pledge Agreement; (c) affect the validity or enforceability of Documents or any Guaranty made in connection with separate guaranty or indemnification agreements guarantying the Loan or any of the rights and remedies of Lender thereunder; (d) impair the right of Lender to obtain the appointment of a receiver; (e) intentionally omitted; (f) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted by the Pledge Agreement or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against all of the Collateral; or (g) constitute a waiver of the right of Lender to enforce the liability and obligation of BorrowerGuaranteed Obligations. PROVIDED, by money judgment or otherwiseHOWEVER, to the extent of any actual lossNOTWITHSTANDING ANYTHING IN THIS GUARANTY TO THE CONTRARY, damageEACH GUARANTOR SHALL PAY, cost, expense, liability, claim or other obligation incurred by Lender (including attorneys’ fees and costs reasonably incurred) arising out of or in connection with the followingAND THERE SHALL AT NO TIME BE ANY LIMITATION ON ANY GUARANTOR’S PERSONAL LIABILITY FOR THE PAYMENT TO LENDER OF:
Appears in 4 contracts
Samples: Limited Guaranty (Hartman Short Term Income Properties XX, Inc.), Limited Guaranty (Hartman Short Term Income Properties XX, Inc.), Limited Guaranty (Hartman Short Term Income Properties XX, Inc.)
Exculpation. (a) Subject to the qualifications belowThe Escrow Agent and its designees, Lender and their respective partners, employees, attorneys and agents, shall not enforce incur any liability whatsoever for the liability and obligation investment or disposition of Borrower to perform and observe the obligations contained in the Note, this Agreement, the Pledge Agreement funds or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against Borrower, except that Lender may bring a foreclosure action, an action for specific performance or taking of any other appropriate action or proceeding to enable Lender in accordance with the terms and each Noteholder to enforce and realize upon its interest under the Note, this Agreement, the Pledge Agreement and the other Loan Documents, or in the Collateral, or any other collateral given to Lender pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower’s interest in the Collateral and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Pledge Agreement and the other Loan Documents, agrees that it shall not xxx for, seek or demand any deficiency judgment against Borrower in any such action or proceeding under, or by reason of, or in connection with, the Note, this Agreement, the Pledge Agreement or the other Loan Documents. The provisions of this Section shall notEscrow Agreement, howeverfor any mistake or error in judgment, (a) constitute a waiverfor compliance with any applicable law or any attachment, release order or impairment other directive of any obligation evidenced court or secured other authority (irrespective of any conflicting term or provision of this Escrow Agreement), or for any act or omission of any other person selected with reasonable care and engaged by any of the Loan Documents; (b) impair the right of Lender to name Borrower as a party defendant in any action or suit for foreclosure and sale under the Pledge Agreement; (c) affect the validity or enforceability of or any Guaranty made Escrow Agent in connection with this Escrow Agreement (other than for such Escrow Agent’s or such person’s own acts or omissions breaching a duty owed to the Loan claimant under this Escrow Agreement and amounting to gross negligence or any willful misconduct as finally determined pursuant to applicable law by a governmental authority having jurisdiction); and each of the rights Company and remedies of Lender thereunder; (d) impair the right of Lender to obtain Purchasers hereby waive any and all claims and actions whatsoever against the appointment of a receiver; (e) intentionally omitted; (f) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted by the Pledge Agreement or to commence any other appropriate action or proceeding in order for Lender to exercise Escrow Agent and its remedies against all of the Collateral; or (g) constitute a waiver of the right of Lender to enforce the liability designees, and obligation of Borrowertheir respective partners, by money judgment or otherwiseemployees, to the extent of any actual lossattorneys and agents, damage, cost, expense, liability, claim or other obligation incurred by Lender (including attorneys’ fees and costs reasonably incurred) arising out of or in connection with related directly or indirectly to any and all of the following:foregoing acts, omissions and circumstances. Furthermore, the Escrow Agent and its designees, and their respective partners, employees, attorneys and agents, shall not incur any liability (other than for a person’s own acts or omissions breaching a duty owed to the claimant under this Escrow Agreement and amounting to willful misconduct as finally determined pursuant to applicable law by a governmental authority having jurisdiction) for other acts and omissions arising out of or related directly or indirectly to this Escrow Agreement or the Escrow Amount; and each of the Company and the Purchasers hereby expressly waive any and all claims and actions (other than those attributable to a person’s own acts or omissions breaching a duty owed to the claimant and amounting to gross negligence or willful misconduct as finally determined pursuant to applicable law by a governmental authority having jurisdiction) against the Escrow Agent and its designees, and their respective partners, employees, attorneys and agents, arising out of or related directly or indirectly to any and all of the foregoing acts, omissions and circumstances. The Escrow Agent’s designees excludes the Purchasers for purposes hereof.
Appears in 4 contracts
Samples: Escrow Agreement (IGIA, Inc.), Escrow Agreement (IGIA, Inc.), Escrow Agreement (IGIA, Inc.)
Exculpation. (a) Subject to the qualifications belowbelow and except as set forth in the Guaranty and Environmental Indemnity, Lender neither Agent nor Lenders shall not enforce the liability and obligation of the Borrower or any holder of a direct or indirect interest in ESBA or any supervisor of either party comprising Borrower or Controlling either party comprising Borrower to perform and observe the obligations Obligations contained in the Note, this Agreement, the Pledge Agreement Mortgage or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against Borrowera Credit Party, except that Lender Agent may bring a foreclosure action, terminate the Ground Lease, Operating Lease and Observatory Lease, bring an action for specific performance or any other appropriate action or proceeding to enable Lender and each Noteholder Agent to enforce and realize upon its interest under the Note, this Agreement, the Pledge Agreement Mortgage and the other Loan Documents, or in the CollateralProperty, the Rents or any other collateral given to Lender Agent and/or Lenders pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower’s interest in the Property, in the Rents, in the Cash Collateral and in any other collateral given to LenderAgent and/or Lenders, and LenderLenders, by accepting the Note, this Agreement, the Pledge Agreement Mortgage and the other Loan Documents, agrees that it shall not xxx for, seek or demand any deficiency judgment against Borrower in any such action or proceeding under, under or by reason of, of or under or in connection with, with the Note, this Agreement, the Pledge Agreement Mortgage or the other Loan Documents; provided, further, that, subject to the terms and provisions of the Sublease as the same is amended, modified or supplemented after the date hereof with the consent of Agent, nothing herein shall constitute an acknowledgement by any party hereto that Operating Company or Observatory Tenant is liable for all or any portion of the Loans or other Obligations of Borrower. The provisions of this Section shall not, however, (a) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (b) impair the right of Lender Agent or Lenders to name Borrower any Credit Party as a party defendant in any action or suit for foreclosure and sale under the Pledge AgreementMortgage and termination of the Operating Lease and Observatory Lease; (c) affect the validity or enforceability of any guaranty or any Guaranty indemnification agreement made in connection with the Loan or any of the rights and remedies of Lender Agent or Lenders thereunder; (d) impair the right of Lender Agent or Lenders to obtain the appointment of a receiver; (e) intentionally omittedimpair the enforcement of the Assignment of Leases; (f) constitute a prohibition against Lender Agent or Lenders to seek a deficiency judgment against Borrower in order to fully realize on any security given by Borrower in connection with the security granted by the Pledge Agreement Loan or to commence any other appropriate action or proceeding in order for Lender Agent or Lenders to exercise its remedies against all of the Collateralsuch security; or (g) constitute a waiver of the right of Lender Agent or Lenders to enforce the liability and obligation of BorrowerBorrower or Guarantor, by money judgment or otherwise, to the extent of any actual loss, damage, cost, expense, liability, claim or other obligation incurred by Agent and/or any Lender (including reasonable attorneys’ fees and costs reasonably incurred) arising out of or in connection with the following:
Appears in 4 contracts
Samples: Loan Agreement, Loan Agreement (Empire State Realty Trust, Inc.), Loan Agreement (Empire State Building Associates L.L.C.)
Exculpation. (a) Subject to the qualifications below, Lender shall not enforce the liability and obligation of Borrower to perform and observe the obligations contained in the Note, this Agreement, the Pledge Agreement Mortgage or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against Borrower, except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender and each Noteholder to enforce and realize upon its interest under the Note, this Agreement, the Pledge Agreement Mortgage and the other Loan Documents, or in the CollateralProperty, the Rents, or any other collateral given to Lender pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower’s interest in the Collateral Property, in the Rents and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Pledge Agreement Mortgage and the other Loan Documents, agrees that it shall not xxx for, seek or demand any deficiency judgment against Borrower in any such action or proceeding under, under or by reason of, of or under or in connection with, with the Note, this Agreement, the Pledge Agreement Mortgage or the other Loan Documents. The provisions of this Section shall not, however, (a) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (b) impair the right of Lender to name Borrower as a party defendant in any action or suit for foreclosure and sale under the Pledge AgreementMortgage; (c) affect the validity or enforceability of or any Guaranty guaranty made in connection with the Loan or any of the rights and remedies of Lender thereunder; (d) impair the right of Lender to obtain the appointment of a receiver; (e) intentionally omittedimpair the enforcement of any assignment of leases contained in the Mortgage; (f) constitute a prohibition against Lender to seek a deficiency judgment against Borrower (but not Guarantor) in order to fully realize the security granted by the Pledge Agreement Mortgage or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against all of the CollateralProperty; or (g) constitute a waiver of the right of Lender to enforce the liability and obligation of Borrower, by money judgment or otherwise, to the extent of any actual loss, damage, cost, expense, liability, claim or other obligation incurred by Lender (including attorneys’ fees and costs expenses reasonably incurred) arising out of or in connection with the following:
Appears in 4 contracts
Samples: Loan Agreement (Inland Diversified Real Estate Trust, Inc.), Loan Agreement (Inland Diversified Real Estate Trust, Inc.), Loan Agreement (Inland Diversified Real Estate Trust, Inc.)
Exculpation. (a) Subject to the qualifications belowExcept as otherwise provided herein, Lender shall not enforce the liability and obligation of Borrower to perform and observe the obligations contained herein or in the Note, this Agreement, the Pledge Agreement or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against Borrower, except that Lender may bring a foreclosure actionan action under the New York UCC, an action for specific performance or any other appropriate action or proceeding to enable Lender and each Noteholder to enforce and realize upon its interest under this Agreement, the Note, this Agreement, the Pledge Agreement and the other Loan Documents, or and the interest in the Collateral, or Collateral and any other collateral given to Lender pursuant to created by this Agreement, the Note, the Pledge Agreement and the other Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower’s interest in the Collateral and in any other collateral given to Lender, and . Lender, by accepting this Agreement, the Note, this Agreement, the Pledge Agreement and the other Loan Documents, agrees that it shall not not, except as otherwise provided in this Section 15.1, xxx for, seek or demand any deficiency judgment against Borrower in any such action or proceeding underproceeding, under or by reason of, of or under or in connection withwith this Agreement, the Note, this Agreement, the Pledge Agreement or the other Loan Documents. The provisions of this Section 15.1 shall not, however, (ai) constitute a waiver, release or impairment of any obligation evidenced or secured by any of this Agreement, the Note, the Pledge Agreement or the other Loan Documents; (bii) impair the right of Lender to name Borrower as a party defendant in any action or suit for judicial foreclosure and sale under this Agreement and the Pledge Agreement; (ciii) affect the validity or enforceability of any indemnity (including those contained in the Guaranty, Environmental Indemnity, Section 13.6 and Article XIV of this Agreement), guaranty, master lease or any Guaranty similar instrument made in connection with this Agreement, the Note, the Pledge Agreement and the other Loan or any of the rights and remedies of Lender thereunderDocuments; (div) impair the right of Lender to obtain the appointment of a receiver; (ev) intentionally omitted; (f) constitute a prohibition against Lender to seek a deficiency judgment against Borrower impair the enforcement of the assignment of leases provisions contained in order to fully realize the security granted by the Pledge Agreement or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against all of the CollateralAgreement; or (gvi) constitute a waiver of impair the right of Lender to enforce the liability and obligation of Borrower, by money obtain a deficiency judgment or otherwiseother judgment on the Note against Borrower if necessary to obtain any Insurance Proceeds or Awards to which Lender would otherwise be entitled under this Agreement; provided however, Lender shall only enforce such judgment to the extent of any actual loss, damage, cost, expense, liability, claim or other obligation incurred by Lender (including attorneys’ fees and costs reasonably incurred) arising out of or in connection with the following:Insurance Proceeds and/or Awards.
Appears in 4 contracts
Samples: Letter Agreement (Ashford Hospitality Trust Inc), Letter Agreement (Ashford Hospitality Trust Inc), Management Agreement (Ashford Hospitality Trust Inc)
Exculpation. (a) Subject to Effective as of the qualifications belowEffective Date, Lender shall not enforce without affecting or limiting either the liability Debtor Release or the Third-Party Release, and obligation of Borrower to perform and observe the obligations contained except as otherwise specifically provided in the NotePlan, this Agreementno Exculpated Party shall have or incur liability for, the Pledge Agreement or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against Borrower, except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender and each Noteholder to enforce Exculpated Party is released and realize upon its interest under the Note, this Agreement, the Pledge Agreement and the other Loan Documents, or in the Collateral, or any other collateral given to Lender pursuant to the Loan Documents; provided, however, that, except as specifically provided hereinexculpated from, any judgment in Cause of Action for any such action Claim related to any act or proceeding shall be enforceable against Borrower only to the extent of Borrower’s interest in the Collateral and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Pledge Agreement and the other Loan Documents, agrees that it shall not xxx for, seek or demand any deficiency judgment against Borrower in any such action or proceeding under, or by reason of, or omission in connection with, relating to, or arising out of, the NoteChapter 11 Cases, this the formulation, preparation, dissemination, negotiation, entry into, or filing of, as applicable, the Merger Agreement, the Pledge Agreement or TSA and related prepetition transactions, the other Loan Documents. The provisions of this Section shall notDisclosure Statement, howeverthe Plan, (a) constitute a waiverthe Plan Supplement, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (b) impair the right of Lender to name Borrower as a party defendant in any action or suit for foreclosure and sale under the Pledge Agreement; (c) affect the validity or enforceability of or any Guaranty made Restructuring Transaction, contract, instrument, release, or other agreement or document created or entered into in connection with the Loan Merger Agreement, the TSA, the Definitive Documents, the Disclosure Statement, the Plan, the Plan Supplement, the Chapter 11 Cases, the filing of the Chapter 11 Cases, the pursuit of Confirmation, the pursuit of consummation, the administration and implementation of the Plan, including the issuance, distribution or conversion of securities pursuant to the Merger Agreement, the Plan, or the distribution of property under the Plan or any other related agreement, or upon any other related act or omission, transaction, agreement, event, or other occurrence taking place on or before the Effective Date, except for Claims related to any act or omission that is determined in a Final Order by a court of competent jurisdiction to have constituted actual fraud, willful misconduct, or gross negligence, but in all respects such Entities shall be entitled to reasonably rely upon the advice of counsel with respect to their duties and responsibilities pursuant to the Plan. The Exculpated Parties and other parties set forth above have, and upon confirmation of the rights Plan shall be deemed to have, participated in good faith and remedies in compliance with the applicable laws with regard to the solicitation of Lender thereunder; (d) impair votes and distribution of consideration pursuant to the right Plan and, therefore, are not, and on account of Lender to obtain such distributions shall not be, liable at any time for the appointment violation of a receiver; (e) intentionally omitted; (f) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize any applicable law, rule, or regulation governing the security granted by the Pledge Agreement solicitation of acceptances or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against all rejections of the Collateral; Plan or (g) constitute a waiver of the right of Lender to enforce the liability and obligation of Borrower, by money judgment or otherwise, such distributions made pursuant to the extent of any actual loss, damage, cost, expense, liability, claim or other obligation incurred by Lender (including attorneys’ fees and costs reasonably incurred) arising out of or in connection with the following:Plan.
Appears in 4 contracts
Samples: Registration Rights Agreement (Bonanza Creek Energy, Inc.), Voting and Support Agreement (HighPoint Resources Corp), Voting and Support Agreement (Bonanza Creek Energy, Inc.)
Exculpation. (a) Subject to Except as otherwise provided herein or in the qualifications belowother Loan Documents, Lender shall not enforce the liability and obligation of Borrower to perform and observe the obligations contained herein or in the Note, this Agreement, the Pledge Agreement or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against (1) Borrower (except as set forth in this Section 15.1 and the Environmental Indemnity), (2) Guarantor (except as set forth in the Guaranty and the Environmental Indemnity), (3) any Affiliate of Borrower, (4) any Person owning, directly or indirectly, any legal or beneficial interest in Borrower or any Affiliate of Borrower or (5) any direct or indirect limited partner, member, principal, officer, beneficiary, trustee, shareholder, Affiliate or director of any Persons described in clauses (1) through (5) above (collectively, subject to the exceptions in clauses (i) and (ii) below, the “Exculpated Parties”), except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender and each Noteholder to enforce and realize upon its interest under the Note, this Agreement, the Note, the Pledge Agreement Agreements and the other Loan Documents, or and the interest in the Collateral, or Collateral and any other collateral given to Lender pursuant to created by this Agreement, the Note, the Pledge Agreements and the other Loan Documents; provided, however, that, except as specifically provided herein, that any judgment in any such action or proceeding shall be enforceable against Borrower Borrower, only to the extent of Borrower’s interest in the Collateral and in any other collateral given to Lender, and . Lender, by accepting the Note, this Agreement, the Note, the Pledge Agreement Agreements and the other Loan Documents, agrees that it shall not not, except as otherwise provided in this Section 15.1, xxx for, seek or demand any deficiency judgment against Borrower any Exculpated Party in any such action or proceeding underproceeding, under or by reason of, of or under or in connection withwith this Agreement, the Note, this Agreement, the Pledge Agreement Agreements or the other Loan Documents. The provisions of this Section 15.1 shall not, however, (ai) constitute a waiver, release or impairment of any obligation evidenced or secured by any of this Agreement, the Note, the Pledge Agreements or the other Loan Documents; (bii) impair the right of Lender to name Borrower or Ashford Keys Senior Operating Lessee as a party defendant in any action or suit for judicial foreclosure and sale under this Agreement and the Pledge AgreementAgreements; (ciii) affect the validity or enforceability of any indemnity (including, without limitation, those contained in Article 14 of this Agreement and the Environmental Indemnity), guaranty, master lease or any Guaranty similar instrument made in connection with this Agreement, the Note, the Pledge Agreements and the other Loan or any of the rights and remedies of Lender thereunderDocuments; (div) impair the right of Lender to obtain the appointment of a receiver; (ev) intentionally omitted; (f) constitute a prohibition against Lender to seek a deficiency judgment against Borrower impair the enforcement of the provisions contained in order to fully realize the security granted by the Pledge Agreement or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against all of the CollateralAgreements; or (gvi) constitute a waiver of impair the right of Lender to enforce the liability and obligation of Borrower, by money obtain a deficiency judgment or otherwiseother judgment on the Note against Borrower if necessary to obtain any Net Liquidation Proceeds After Debt Service to which Lender would otherwise be entitled under this Agreement; provided, however, Lender shall only enforce such judgment to the extent of any actual loss, damage, cost, expense, liability, claim or other obligation incurred by Lender (including attorneys’ fees and costs reasonably incurred) arising out of or in connection with the following:Insurance Proceeds and/or Awards.
Appears in 4 contracts
Samples: Senior Mezzanine Loan Agreement (Ashford Hospitality Trust Inc), Senior Mezzanine Loan Agreement (Ashford Hospitality Trust Inc), Senior Mezzanine Loan Agreement (Ashford Hospitality Trust Inc)
Exculpation. (a) Subject Except as otherwise set forth in this Section 8.14 and Section 4.2 to the qualifications belowcontrary, Lender shall not enforce the liability and obligation of any Borrower or Operating Lessee to perform and observe the obligations contained in the Note, this Agreement, the Pledge Agreement Note, any Mortgage or any of the other Loan Documents executed and delivered by any action Borrower or proceeding wherein a money judgment shall be sought against Borrower, Operating Lessee except that Lender may pursue any power of sale, bring a foreclosure action, an action for specific performance performance, action for money judgment, or any other appropriate action or proceeding (including, without limitation, to enable obtain a deficiency judgment) against any or all Borrowers, or Operating Lessee or any other Person solely for the purpose of enabling Lender and each Noteholder to enforce and realize upon its interest under (a) any Collateral, and (b) any Rents to the Noteextent (x) received by any Borrower or any Manager (or any of their affiliates), this Agreementafter the occurrence of an Event of Default or (y) distributed to any Borrower, the Pledge Agreement and the other Loan DocumentsOperating Lessee or any Manager, or in the Collateraltheir respective shareholders, or partners or members, as applicable, or affiliates during or with respect to any period for which Lender did not receive the full amounts it was entitled to receive as prepayments of the Loan pursuant to Section 2.6(b) (all Rents covered by clauses (x) and (y) being hereinafter referred to as the “Recourse Distributions”) and (c)) any other collateral given to Lender pursuant to under the Loan DocumentsDocuments ((a), (b), and (c) collectively, the “Default Collateral”); provided, however, that, except as specifically provided herein, that any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower’s interest in the Collateral and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Pledge Agreement and the other Loan Documents, agrees that it shall not xxx for, seek or demand any deficiency judgment against Borrower in any such action or proceeding under, or by reason of, or in connection with, the Note, this Agreement, the Pledge Agreement or the other Loan DocumentsDefault Collateral. The provisions of this Section 8.14 shall not, however, (a) constitute a waiver, release impair the validity of the Indebtedness evidenced by the Loan Documents or impairment in any way affect or impair the Liens of any obligation evidenced Mortgage or secured by any of the other Loan DocumentsDocuments or the right of Lender to foreclose any Mortgage following an Event of Default; (b) impair the right of Lender to name Borrower any Person as a party defendant in any action or suit for judicial foreclosure and sale under the Pledge Agreementany Mortgage; (c) affect the validity or enforceability of the Note, any Mortgage or any Guaranty made in connection with the other Loan or any of the rights and remedies of Lender thereunderDocuments; (d) impair the right of Lender to obtain the appointment of a receiver; (e) intentionally omittedimpair the right of Lender to bring suit for and recover against any Person any damages, losses, expenses, liabilities or costs resulting from fraud, willful misrepresentation, waste of all or any portion of any Individual Property, or wrongful removal or disposal of all or any portion of any Individual Property by any Person in connection with this Agreement, the Note, any Mortgage or the other Loan Documents; (f) constitute a prohibition against impair the right of Lender to seek a deficiency judgment against Borrower in order to fully realize obtain the security granted Recourse Distributions received by the Pledge Agreement or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against all of the CollateralPerson; or (g) constitute a waiver impair the right of Lender to bring suit for and recover against any Person with respect to any misappropriation of security deposits or Rents collected more than one (1) month in advance; (h) impair the right of Lender to obtain Insurance Proceeds or Condemnation Proceeds due to Lender pursuant to any Mortgage; (i) impair the right of Lender to enforce the liability provisions of Sections 4.1(V) or 5.1(D) through 5.1(G), inclusive of this Agreement, Section 2.8 of each Mortgage or the Environmental Indemnity even after repayment in full by any Borrower of the Indebtedness; (j) prevent or in any way hinder Lender from exercising, or constitute a defense, or counterclaim, or other basis for relief in respect of the exercise of, any other remedy against any or all of the Collateral securing the Note as provided in the Loan Documents; (k) impair the right of Lender to bring suit for and obligation recover against any person with respect to any misapplication of Borrowerany funds (including, without limitation, insurance proceeds and condemnation proceeds); (l) impair the right of Lender to xxx for, seek or demand a deficiency judgment against any Person solely for the purpose of foreclosing on any Collateral or any part thereof, or realizing upon the Default Collateral, or (m) impair the right of Lender to bring suit for and recover against any Person any damages, losses, expenses, liabilities or costs in the event that Borrower or any Operating Lessee shall take any action of any kind or nature whatsoever, either directly or indirectly to oppose, impede, obstruct, challenge, hinder, frustrate, enjoin or otherwise interfere with (A) Lender’s termination of any Operating Lease with any Operating Lessee, (B) Lender or the party acquiring any Individual Property following the occurrence of a foreclosure or deed in lieu thereof (in full substitution of the applicable Operating Lessee) being deemed the “Owner” under the Management Agreement, (C) the execution, delivery or effectiveness of a new Management Agreement directly between Lender or the party acquiring any Individual Property following a foreclosure or deed in lieu thereof and applicable Manager or (D) any payment or other transfer by money any Manager of funds which would otherwise be paid to any Operating Lessee under any Operating Lease directly to Lender or the party acquiring any Individual Property following the occurrence of a foreclosure or deed in lieu thereof, in each case after or as a result of any automatic termination of the applicable Operating Lease or of Lender exercising its right to terminate the Operating Lease, in each case pursuant to the applicable Subordination, Attornment and Security Agreement and this Agreement, or shall, either directly or indirectly, cause or permit any other person to take any action which, if taken by such Operating Lessee would constitute an event described in this Section 8.14(m); provided, however, that any deficiency judgment or otherwise, referred to in this Section 8.14(m) shall be enforceable only to the extent of any actual lossof the Default Collateral. The preceding provisions of this Section 8.14 shall be inapplicable to any Person if (i) any petition for bankruptcy, reorganization or arrangement pursuant to federal or state law against any Borrower or Operating Lessee shall be filed by any Borrower, Operating Lessee, or any Affiliate of any Borrower or Operating Lessee, (ii) if an involuntary bankruptcy or other insolvency proceeding is commenced against any Borrower or Operating Lessee (by a party other than Lender) but only if such Borrower has consented or acquiesced to such proceeding or if Borrower, Operating Lessee or any Affiliate of Borrower or Operating Lessee has acted in concert with, colluded or conspired with the party to cause the filing thereof or has consented to or acquiesced thereto, (iii) if any Borrower or Operating Lessee shall institute any proceeding for the dissolution or liquidation of any Borrower or Operating Lessee, (iv) if any Borrower or Operating Lessee shall make an assignment for the benefit of creditors, (v) if any Borrower or Operating Lessee shall breach any representation, warranty or covenant in Section 4.1(C) (such that such breach was considered by a court as a factor in the court’s finding for a consolidation of the assets of a Borrower or Operating Lessee with the assets of another person or entity or as a result thereof Lender suffers any material damage, cost, liability or expense; provided, liabilityhowever, claim that in the absence of an actual consolidation, recourse may be had against Borrower or other obligation incurred Operating Lessee only to the extent of losses for such breach), 4.1(V), 4.1(AA), 5.1(T) (such that such breach was considered by Lender (including attorneys’ fees and costs reasonably incurred) arising out a court as a factor in the court’s finding for a consolidation of the assets of a Borrower or in connection Operating Lessee with the following:assets of another person or entity or as a result thereof Lender suffers any material damage, cost, liability or expense; provided, however, that in the absence of an actual consolidation, recourse may be had against Borrower or Operating Lessee only to the extent of losses for such breach) or 5.1(X), (v) if any Borrower or Operating Lessee allows any Transfer to occur in violation of Section 6.1(B) hereof or otherwise fails to obtain Lender’s prior written consent to any Transfer to the extent any consent is required in the Loan Documents, (vi) any Borrower or Operating Lessee interferes with Lender’s exercise of any of its rights or remedies hereunder or (vii) if any Borrower or Operating Lessee breaches any representation or warranty contained in Section 4.1(S).
Appears in 4 contracts
Samples: Loan Agreement (Ashford Hospitality Trust Inc), Loan Agreement (Ashford Hospitality Trust Inc), Loan Agreement (Ashford Hospitality Trust Inc)
Exculpation. (a) Subject to the qualifications below, Lender shall not enforce the liability and obligation of Borrower (or any of Borrower’s members, managers, partners, shareholders, officers, directors or Affiliates, whether director or indirect, collectively, the “Borrower Parties”) to perform and observe the obligations contained in the Note, this Agreement, the Pledge Agreement or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against Borrower, except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender and each Noteholder to enforce and realize upon its interest under the Note, this Agreement, the Pledge Agreement and the other Loan Documents, or in the Collateral, Collateral or any other collateral given to Lender pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower’s interest in the Collateral and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Pledge Agreement and the other Loan Documents, agrees for itself and its successors and assigns that it and its successors and assigns shall not xxx for, seek or demand any deficiency judgment against Borrower in any such action or proceeding under, or by reason of, or in connection with, the Note, this Agreement, the Pledge Agreement or the other Loan Documents. The provisions of this Section shall not, however, (a) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (b) impair the right of Lender to name Borrower as a party defendant in any action or suit for foreclosure and sale under the Pledge Agreement; (c) affect the validity or enforceability of or any Guaranty guaranty made in connection with the Loan or any of the rights and remedies of Lender thereunder; (d) impair the right of Lender to obtain the appointment of a receiver; (e) intentionally omittedimpair the enforcement of the Pledge Agreement; (f) constitute a prohibition against Lender to seek seeking a deficiency judgment against Borrower in order to fully realize the security granted by the Pledge Agreement or to commence commencing any other appropriate action or proceeding in order for Lender to exercise its remedies against all of the Collateral; or (g) constitute a waiver of the right of Lender to enforce the liability and obligation of BorrowerBorrower under the terms of this Agreement, by money judgment or otherwise, to the extent of any actual out of pocket loss, damage, cost, expense, liability, claim or other obligation suffered or incurred by Lender (including attorneys’ fees and costs reasonably incurred) arising out of or in connection with the following:
Appears in 4 contracts
Samples: Mezzanine Loan Agreement (Strategic Storage Trust VI, Inc.), Mezzanine Loan Agreement (Strategic Storage Trust VI, Inc.), Term Loan Agreement (Strategic Storage Trust VI, Inc.)
Exculpation. (a) Subject to the qualifications below, Lender shall not enforce the liability and obligation of Borrower to perform and observe the obligations contained in the Note, this Agreement, the Pledge Agreement Security Instrument or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against Borrower, except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender and each Noteholder to enforce and realize upon its interest under the Note, this Agreement, the Pledge Agreement Security Instrument and the other Loan Documents, or in the CollateralProperty, the Rents, or any other collateral given to Lender pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower’s interest in the Collateral Property, in the Rents and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Pledge Agreement Security Instrument and the other Loan Documents, agrees that it shall not xxx for, seek or demand any deficiency judgment against Borrower in any such action or proceeding under, under or by reason of, of or under or in connection with, with the Note, this Agreement, the Pledge Agreement Security Instrument or the other Loan Documents. The provisions of this Section shall not, however, (ai) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (bii) impair the right of Lender to name Borrower as a party defendant in any action or suit for foreclosure and sale under the Pledge Agreement; Security Instrument (ciii) affect the validity or enforceability of or any Guaranty guaranty made in connection with the Loan or any of the rights and remedies of Lender thereunder; (div) impair the right of Lender to obtain the appointment of a receiver; (ev) intentionally omittedimpair the enforcement of any security interest in Rents and Leases under any assignment of leases contained in the Security Instrument and any other Loan Document; (fvi) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted by the Pledge Agreement Security Instrument or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against all of the Collateral; or (g) constitute a waiver of the right of Lender to enforce the liability and obligation of Borrower, by money judgment or otherwise, to the extent of any actual loss, damage, cost, expense, liability, claim or other obligation incurred by Lender (including attorneys’ fees and costs reasonably incurred) arising out of or in connection with the following:Property.
Appears in 4 contracts
Samples: Loan Agreement (Rodin Global Property Trust, Inc.), Loan Agreement (Rodin Global Property Trust, Inc.), Loan Agreement (Rodin Global Property Trust, Inc.)
Exculpation. (a) Subject to the qualifications belowExcept as otherwise provided herein, Lender shall not enforce the liability and obligation of Borrower to perform and observe the representations warranties and obligations contained in the Note, this Agreement, the Pledge Agreement or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against Borrower, except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender and each Noteholder to enforce and realize upon its interest under in the Note, this Agreement, the Pledge Agreement, the other Loan Documents, and the interest in the Collateral and any other collateral given to Lender pursuant to the Note, this Agreement, the Pledge Agreement and or the other Loan Documents, or in the Collateral, or any other collateral given to Lender pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, that any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower’s interest in the Collateral Collateral, the Rent and in any other collateral given to Lender. In no event shall any Related Party have any personal liability for the payment of the indebtedness or any other sums due hereunder, and under the Note, the Pledge Agreement or the other Loan Documents, or for the performance or observance of any other obligation of Borrower other than pursuant to a written instrument executed by such Related Party specifically providing for such liability. Lender, by accepting the Note, this Agreement, the Pledge Agreement and the other Loan DocumentsPledge Agreement, agrees that it shall not not, except as otherwise provided herein xxx for, seek or demand any deficiency judgment against Borrower and/or any Related Party in any such action or proceeding underproceeding, under or by reason of, of or under or in connection with, with the Note, this Agreement, the Pledge Agreement or the other Loan Documents. The provisions of this Section 9.4 shall not, however, (ai) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Note, this Agreement, the Pledge or the other Loan Documents; (bii) impair the right of Lender to name Borrower as a party defendant in any action or suit for judicial foreclosure and sale under the Pledge AgreementAgreement or any other Loan Document; (ciii) affect the validity or enforceability of any indemnity (including, without limitation, the Environmental Indemnity), guaranty, master lease or any Guaranty similar instrument made in connection with the Note, this Agreement, the Mortgages or the other Loan or any of the rights and remedies of Lender thereunder; Documents, (div) impair the right of Lender to obtain the appointment of a receiver; (ev) intentionally omitted; (f) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted by the Pledge Agreement or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against all of the Collateral; or (g) constitute a waiver of impair the right of Lender to enforce the liability provisions of Sections 4.1.9, 4.1.29, 5.1.10 and obligation 5.2.9 of Borrower, by money this Agreement; or (vii) impair the right of Lender to obtain a deficiency judgment or otherwise, other judgment on the Note against Borrower if necessary to preserve or enforce its rights and remedies against any collateral given to Lender pursuant to the extent of Loan Documents, including any actual lossAwards or Insurance Proceeds to which Lender would otherwise be entitled under this Agreement or the other Loan Documents; provided, damagehowever, costLender shall only enforce such judgment against such collateral, expenseincluding the Awards and/or Insurance Proceeds, liability, claim or other obligation incurred by Lender (including attorneys’ fees and costs reasonably incurred) arising out of or in connection with the following:as applicable.
Appears in 3 contracts
Samples: Mezzanine a Loan Agreement (Wyndham International Inc), Mezzanine C Loan Agreement (Wyndham International Inc), Mezzanine B Loan Agreement (Wyndham International Inc)
Exculpation. (a) Subject From and after the Effective Date, the Exculpated Fiduciaries and, solely to the qualifications below, Lender shall not enforce extent provided by section 1125(e) of the liability and obligation of Borrower to perform and observe the obligations contained in the Note, this AgreementBankruptcy Code, the Pledge Agreement or the other Loan Documents by Section 1125(e) Parties, shall neither have nor incur any action or proceeding wherein a money judgment shall be sought against Borrower, except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender and each Noteholder to enforce and realize upon its interest under the Note, this Agreement, the Pledge Agreement and the other Loan Documentsliability to, or in the Collateralbe subject to any right of action by, any Holder of a Claim or an Interest, or any other collateral given party in interest, or any of their respective employees, representatives, financial advisors, attorneys, or agents acting in such capacity, or Affiliates, or any of their successors or assigns, for any act or omission in connection with, relating to, or arising out of, the Chapter 11 Case, formulating, negotiating or implementing this Plan and/or previous iterations hereof, the Plan Supplement, the Disclosure Statement and/or previous iterations thereof, the Alternative Plan Sponsor Agreement, the Original Plan Sponsor Agreement, the Restructuring Support Agreement, the Alternative Master Lease or the Original Master Lease (as applicable), the solicitation of acceptances of this Plan and/or previous iterations hereof, the pursuit of Confirmation of this Plan, the Confirmation of this Plan, the consummation of this Plan, the administration of this Plan, the property to Lender pursuant be distributed under this Plan, the consummation of the transactions contemplated by the Alternative Plan Sponsor Agreement, the Original Plan Sponsor Agreement, or any other act taken or omitted to be taken in connection with or in contemplation of the Loan DocumentsChapter 11 Case or implementation of this Plan; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding that this Section 9.5 shall be enforceable against Borrower only not apply to the extent of Borrower’s interest in the Collateral and in any other collateral given to Lenderrelease (x) obligations under this Plan, and Lender, by accepting obligations under the Note, this Alternative Plan Sponsor Agreement, the Pledge Original Plan Sponsor Agreement, the Restructuring Support Agreement, the Alternative Master Lease or the Original Master Lease (as applicable), the Merger Agreement and the other Loan Documentscontracts, agrees that it shall not xxx forinstruments, seek releases, agreements, and documents delivered, Reinstated or demand any deficiency judgment against Borrower in any such action or proceeding underassumed under this Plan (including, or by reason of, or in connection withwithout limitation, the Credit Facility (if the Closing of the Alternative Transaction does not occur) and the Intercompany Note, this Agreementas applicable), the Pledge Agreement and (y) any Claims or the other Loan Documents. The provisions Causes of this Section shall not, however, (a) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (b) impair the right of Lender to name Borrower as a party defendant in any action or suit for foreclosure and sale under the Pledge Agreement; (c) affect the validity or enforceability of or any Guaranty made in connection with the Loan or any of the rights and remedies of Lender thereunder; (d) impair the right of Lender to obtain the appointment of a receiver; (e) intentionally omitted; (f) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted by the Pledge Agreement or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against all of the Collateral; or (g) constitute a waiver of the right of Lender to enforce the liability and obligation of Borrower, by money judgment or otherwise, to the extent of any actual loss, damage, cost, expense, liability, claim or other obligation incurred by Lender (including attorneys’ fees and costs reasonably incurred) Action arising out of fraud, willful misconduct or gross negligence as determined by a Final Order. Any of the Exculpated Parties shall be entitled to rely, in connection all respects, upon the reasonable and informed advice of counsel with the following:respect to their duties and responsibilities under this Plan.
Appears in 3 contracts
Samples: Plan Sponsor Agreement, Alternative Plan Sponsor Agreement (Quality Care Properties, Inc.), Restructuring Support Agreement (Quality Care Properties, Inc.)
Exculpation. (a) Subject to Except as otherwise provided herein or in the qualifications belowother Loan Documents, Lender shall not enforce the liability and obligation of Borrower to perform and observe the obligations contained herein or in the Note, this Agreement, the Pledge Agreement or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against (1) Borrower (except as set forth in this Section 15.1 and the Environmental Indemnity), (2) Guarantor (except as set forth in the Guaranty and the Environmental Indemnity), (3) any Affiliate of Borrower, (4) any Person owning, directly or indirectly, any legal or beneficial interest in Borrower or any Affiliate of Borrower or (5) any direct or indirect limited partner, member, principal, officer, beneficiary, trustee, shareholder, Affiliate or director of any Persons described in clauses (1) through (5) above (collectively, subject to the exceptions in clauses (i) and (ii) below, the “Exculpated Parties”), except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender and each Noteholder to enforce and realize upon its interest under the Note, this Agreement, the Pledge Agreement Note, the Mortgages and the other Loan Documents, or and the interest in the CollateralProperties, or the Rents and any other collateral given to Lender pursuant to created by this Agreement, the Note, the Mortgages and the other Loan Documents; provided, however, that, except as specifically provided herein, that any judgment in any such action or proceeding shall be enforceable against Borrower Borrower, only to the extent of Borrower’s interest in the Collateral Properties, in the Rents and in any other collateral given to Lender, and . Lender, by accepting the Note, this Agreement, the Pledge Agreement Note, the Mortgages and the other Loan Documents, agrees that it shall not not, except as otherwise provided in this Section 15.1, xxx for, seek or demand any deficiency judgment against Borrower any Exculpated Party in any such action or proceeding underproceeding, under or by reason of, of or under or in connection withwith this Agreement, the Note, this Agreement, the Pledge Agreement Mortgages or the other Loan Documents. The provisions of this Section 15.1 shall not, however, (ai) constitute a waiver, release or impairment of any obligation evidenced or secured by any of this Agreement, the Note, the Mortgages or the other Loan Documents; (bii) impair the right of Lender to name Borrower or Operating Lessee as a party defendant in any action or suit for judicial foreclosure and sale under this Agreement and the Pledge AgreementMortgages; (ciii) affect the validity or enforceability of any indemnity (including, without limitation, those contained in Article 14 of this Agreement and the Environmental Indemnity), guaranty, master lease or any Guaranty similar instrument made in connection with this Agreement, the Note, the Mortgages and the other Loan or any of the rights and remedies of Lender thereunderDocuments; (div) impair the right of Lender to obtain the appointment of a receiver; (ev) intentionally omitted; (f) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize impair the security granted by the Pledge Agreement or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against all enforcement of the Collateralassignment of leases provisions contained in the Mortgages; or (gvi) constitute a waiver of impair the right of Lender to enforce the liability and obligation of Borrower, by money obtain a deficiency judgment or otherwiseother judgment on the Note against Borrower if necessary to obtain any Insurance Proceeds or Awards to which Lender would otherwise be entitled under this Agreement; provided, however, Lender shall only enforce such judgment to the extent of any actual loss, damage, cost, expense, liability, claim or other obligation incurred by Lender (including attorneys’ fees and costs reasonably incurred) arising out of or in connection with the following:Insurance Proceeds and/or Awards.
Appears in 3 contracts
Samples: Loan Agreement (Ashford Hospitality Trust Inc), Loan Agreement (Ashford Hospitality Trust Inc), Loan Agreement (Ashford Hospitality Trust Inc)
Exculpation. (a) Subject to the qualifications below, Lender shall not enforce the liability and obligation of Borrower to perform and observe the obligations contained in the Note, this Agreement, the Pledge Agreement or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against Borrower, except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender and each Noteholder to enforce and realize upon its interest and rights under the Note, this Agreement, the Pledge Agreement and the other Loan Documents, or in the CollateralProperty, the Rents or any other collateral given to Lender pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower’s interest in the Collateral Property, in the Rents and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Pledge Agreement and the other Loan Documents, agrees that it Lender shall not xxx for, seek or demand any deficiency judgment against Borrower in any such action or proceeding under, under or by reason of, of or under or in connection with, the Note, this Agreement, the Pledge Agreement or the other with any Loan DocumentsDocument. The provisions of this Section 10.1 shall not, however, (ai) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan DocumentsDocument; (bii) impair the right of Lender to name Borrower as a party defendant in any action or suit for foreclosure and sale under the Pledge AgreementMortgage; (ciii) affect the validity or enforceability of any of the Loan Documents or any Guaranty guaranty made in connection with the Loan or any of the rights and remedies of Lender thereunder; (div) impair the right of Lender to obtain the appointment of a receiver; (ev) intentionally omittedimpair the enforcement of the Assignment of Leases; (fvi) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted by the Pledge Agreement or to commence any other appropriate action or proceeding in order for Lender to fully realize the security granted by the Mortgage or to exercise its remedies against all of the CollateralProperty; or (gvii) constitute a waiver of the right of Lender to enforce the liability and obligation of Borrower, by money judgment or otherwise, to the extent of any actual loss, damage, cost, expense, liability, claim or other obligation incurred by Lender (including attorneys’ fees and costs reasonably incurred) arising out of or in connection with the following:following (all such liability and obligation of Borrower for any or all of the following being referred to herein as “Borrower’s Recourse Liabilities”):
Appears in 3 contracts
Samples: Loan Agreement (Thomas Properties Group Inc), Loan Agreement (Thomas Properties Group Inc), Loan Agreement (Thomas Properties Group Inc)
Exculpation. (a) Subject to the qualifications below, Lender shall not enforce the liability and obligation of Borrower to perform and observe the obligations contained in the Note, this Agreement, the Pledge Agreement Mortgage or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against Borrower, except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender and each Noteholder to enforce and realize upon its interest under the Note, this Agreement, the Pledge Agreement Mortgage and the other Loan Documents, or in the CollateralProperty, the Rents, or any other collateral given to Lender pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower’s interest in the Collateral Property, in the Rents and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Pledge Agreement Mortgage and the other Loan Documents, agrees that it shall not xxx sxx for, seek or demand any deficiency judgment against Borrower in any such action or proceeding under, under or by reason of, of or under or in connection with, with the Note, this Agreement, the Pledge Agreement Mortgage or the other Loan Documents. The provisions of this Section shall not, however, (a) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (b) impair the right of Lender to name Borrower as a party defendant in any action or suit for foreclosure and sale under the Pledge AgreementMortgage; (c) affect the validity or enforceability of or any Guaranty guaranty made in connection with the Loan or any of the rights and remedies of Lender thereunder; (d) impair the right of Lender to obtain the appointment of a receiver; (e) intentionally omittedimpair the enforcement of the Assignment of Leases; (f) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted by the Pledge Agreement Mortgage or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against all of the CollateralProperty; or (g) constitute a waiver of the right of Lender to enforce the liability and obligation of Borrower, by money judgment or otherwise, to the extent of any actual loss, damage, cost, expense, liability, claim or other obligation incurred by Lender (including attorneys’ fees and costs reasonably incurred) arising out of or in connection with the following:
Appears in 3 contracts
Samples: Building Loan Agreement (Acadia Realty Trust), Building Loan Agreement (Acadia Realty Trust), Building Loan Agreement (Acadia Realty Trust)
Exculpation. (a) Subject to the qualifications below, Lender shall not enforce the liability and obligation of Borrower to perform and observe the obligations contained in the Note, this Agreement, the Pledge Agreement Security Instrument or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against Borrower, except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender and each Noteholder to enforce and realize upon its interest under the Note, this Agreement, the Pledge Agreement Security Instrument and the other Loan Documents, or in the CollateralProperty, the Rents, or any other collateral given to Lender pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower’s interest in the Collateral Property, in the Rents and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Pledge Agreement Security Instrument and the other Loan Documents, agrees that it shall not xxx sxx for, seek or demand any deficiency judgment against Borrower in any such action or proceeding under, under or by reason of, of or under or in connection with, with the Note, this Agreement, the Pledge Agreement Security Instrument or the other Loan Documents. The provisions of this Section shall not, however, (ai) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (bii) impair the right of Lender to name Borrower as a party defendant in any action or suit for foreclosure and sale under the Pledge AgreementSecurity Instrument; (ciii) affect the validity or enforceability of the Guaranty or any Guaranty made in connection with the Loan Environmental Indemnity or any of the rights and remedies of Lender thereunder; (div) impair the right of Lender to obtain the appointment of a receiver; (ev) intentionally omittedimpair the enforcement of any assignment of leases and rents contained in the Security Instrument and any other Loan Documents; or (fvi) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted by the Pledge Agreement Security Instrument or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against all of the Collateral; or (g) constitute a waiver of the right of Lender to enforce the liability and obligation of Borrower, by money judgment or otherwise, to the extent of any actual loss, damage, cost, expense, liability, claim or other obligation incurred by Lender (including attorneys’ fees and costs reasonably incurred) arising out of or in connection with the following:Property.
Appears in 3 contracts
Samples: Loan Agreement (Moody National REIT II, Inc.), Loan Agreement (Moody National REIT II, Inc.), Loan Agreement (Moody National REIT II, Inc.)
Exculpation. (a) Subject Except as otherwise set forth in this Section 8.14 and Section 4.2 to the qualifications belowcontrary, Lender shall not enforce the liability and obligation of any Borrower or Operating Lessee to perform and observe the obligations contained in the Note, this Agreement, the Pledge Agreement Note, any Mortgage or any of the other Loan Documents executed and delivered by any action Borrower or proceeding wherein a money judgment shall be sought against Borrower, Operating Lessee except that Lender may pursue any power of sale, bring a foreclosure action, an action for specific performance performance, action for money judgment, or any other appropriate action or proceeding (including, without limitation, to enable obtain a deficiency judgment) against any or all Borrowers, or Operating Lessee or any other Person solely for the purpose of enabling Lender and each Noteholder to enforce and realize upon its interest under (a) any Collateral, and (b) any Rents to the Noteextent (x) received by any Borrower or any Manager (or any of their affiliates), this Agreementafter the occurrence of an Event of Default or (y) distributed to any Borrower, the Pledge Agreement and the other Loan DocumentsOperating Lessee or any Manager, or in the Collateraltheir respective shareholders, or partners or members, as applicable, or affiliates during or with respect to any period for which Lender did not receive the full amounts it was entitled to receive as prepayments of the Loan pursuant to Section 2.6(b) (all Rents covered by clauses (x) and (y) being hereinafter referred to as the "Recourse Distributions") and (c)) any other collateral given to Lender pursuant to under the Loan DocumentsDocuments ((a), (b), and (c) collectively, the "Default Collateral"); provided, however, that, except as specifically provided herein, that any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower’s interest in the Collateral and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Pledge Agreement and the other Loan Documents, agrees that it shall not xxx for, seek or demand any deficiency judgment against Borrower in any such action or proceeding under, or by reason of, or in connection with, the Note, this Agreement, the Pledge Agreement or the other Loan DocumentsDefault Collateral. The provisions of this Section 8.14 shall not, however, (a) constitute a waiver, release impair the validity of the Indebtedness evidenced by the Loan Documents or impairment in any way affect or impair the Liens of any obligation evidenced Mortgage or secured by any of the other Loan DocumentsDocuments or the right of Lender to foreclose any Mortgage following an Event of Default; (b) impair the right of Lender to name Borrower any Person as a party defendant in any action or suit for judicial foreclosure and sale under the Pledge Agreementany Mortgage; (c) affect the validity or enforceability of the Note, any Mortgage or any Guaranty made in connection with the other Loan or any of the rights and remedies of Lender thereunderDocuments; (d) impair the right of Lender to obtain the appointment of a receiver; (e) intentionally omittedimpair the right of Lender to bring suit for and recover against any Person any damages, losses, expenses, liabilities or costs resulting from fraud, willful misrepresentation, waste of all or any portion of any Individual Property, or wrongful removal or disposal of all or any portion of any Individual Property by any Person in connection with this Agreement, the Note, any Mortgage or the other Loan Documents; (f) constitute a prohibition against impair the right of Lender to seek a deficiency judgment against Borrower in order to fully realize obtain the security granted Recourse Distributions received by the Pledge Agreement or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against all of the CollateralPerson; or (g) constitute a waiver impair the right of Lender to bring suit for and recover against any Person with respect to any misappropriation of security deposits or Rents collected more than one (1) month in advance; (h) impair the right of Lender to obtain Insurance Proceeds or Condemnation Proceeds due to Lender pursuant to any Mortgage; (i) impair the right of Lender to enforce the liability provisions of Sections 4.1(V) or 5.1(D) through 5.1(G), inclusive of this Agreement, Section 2.8 of each Mortgage or the Environmental Indemnity even after repayment in full by any Borrower of the Indebtedness; (j) prevent or in any way hinder Lender from exercising, or constitute a defense, or counterclaim, or other basis for relief in respect of the exercise of, any other remedy against any or all of the Collateral securing the Note as provided in the Loan Documents; (k) impair the right of Lender to bring suit for and obligation recover against any person with respect to any misapplication of Borrowerany funds (including, without limitation, insurance proceeds and condemnation proceeds); (l) impair the right of Lender to xxx for, seek or demand a deficiency judgment against any Person solely for the purpose of foreclosing on any Collateral or any part thereof, or realizing upon the Default Collateral, or (m) impair the right of Lender to bring suit for and recover against any Person any damages, losses, expenses, liabilities or costs in the event that Borrower or any Operating Lessee shall take any action of any kind or nature whatsoever, either directly or indirectly to oppose, impede, obstruct, challenge, hinder, frustrate, enjoin or otherwise interfere with (A) Lender's termination of any Operating Lease with any Operating Lessee, (B) Lender or the party acquiring any Individual Property following the occurrence of a foreclosure or deed in lieu thereof (in full substitution of the applicable Operating Lessee) being deemed the "Owner" under the Management Agreement, (C) the execution, delivery or effectiveness of a new Management Agreement directly between Lender or the party acquiring any Individual Property following a foreclosure or deed in lieu thereof and applicable Manager or (D) any payment or other transfer by money any Manager of funds which would otherwise be paid to any Operating Lessee under any Operating Lease directly to Lender or the party acquiring any Individual Property following the occurrence of a foreclosure or deed in lieu thereof, in each case after or as a result of any automatic termination of the applicable Operating Lease or of Lender exercising its right to terminate the Operating Lease, in each case pursuant to the applicable Subordination, Attornment and Security Agreement and this Agreement, or shall, either directly or indirectly, cause or permit any other person to take any action which, if taken by such Operating Lessee would constitute an event described in this Section 8.14(m); provided, however, that any deficiency judgment or otherwise, referred to in this Section 8.14(m) shall be enforceable only to the extent of any actual lossof the Default Collateral. The preceding provisions of this Section 8.14 shall be inapplicable to any Person if (i) any petition for bankruptcy, reorganization or arrangement pursuant to federal or state law against any Borrower or Operating Lessee shall be filed by any Borrower, Operating Lessee, or any Affiliate of any Borrower or Operating Lessee, (ii) if an involuntary bankruptcy or other insolvency proceeding is commenced against any Borrower or Operating Lessee (by a party other than Lender) but only if such Borrower has consented or acquiesced to such proceeding or if Borrower, Operating Lessee or any Affiliate of Borrower or Operating Lessee has acted in concert with, colluded or conspired with the party to cause the filing thereof or has consented to or acquiesced thereto, (iii) if any Borrower or Operating Lessee shall institute any proceeding for the dissolution or liquidation of any Borrower or Operating Lessee, (iv) if any Borrower or Operating Lessee shall make an assignment for the benefit of creditors, (v) if any Borrower or Operating Lessee shall breach any representation, warranty or covenant in Section 4.1(C) (such that such breach was considered by a court as a factor in the court's finding for a consolidation of the assets of a Borrower or Operating Lessee with the assets of another person or entity or as a result thereof Lender suffers any material damage, cost, liability or expense; provided, liabilityhowever, claim that in the absence of an actual consolidation, recourse may be had against Borrower or other obligation incurred Operating Lessee only to the extent of losses for such breach), 4.1(V), 4.1(AA), 5.1(T) (such that such breach was considered by Lender (including attorneys’ fees and costs reasonably incurred) arising out a court as a factor in the court's finding for a consolidation of the assets of a Borrower or in connection Operating Lessee with the following:assets of another person or entity or as a result thereof Lender suffers any material damage, cost, liability or expense; provided, however, that in the absence of an actual consolidation, recourse may be had against Borrower or Operating Lessee only to the extent of losses for such breach) or 5.1(X), (v) if any Borrower or Operating Lessee allows any Transfer to occur in violation of Section 6.1(B) hereof or otherwise fails to obtain Lender's prior written consent to any Transfer to the extent any consent is required in the Loan Documents, (vi) any Borrower or Operating Lessee interferes with Lender's exercise of any of its rights or remedies hereunder or (vii) if any Borrower or Operating Lessee breaches any representation or warranty contained in Section 4.1(S).
Appears in 3 contracts
Samples: Loan Agreement (Ashford Hospitality Trust Inc), Loan Agreement (Ashford Hospitality Trust Inc), Loan Agreement (Ashford Hospitality Trust Inc)
Exculpation. (a) Subject to the qualifications below, Lender shall not enforce the liability and obligation of Borrowers (or any of Borrowers’ members, managers, partners shareholders, officers, directors or Affiliates, whether direct or indirect, collectively, the “Borrower Parties”) to perform and observe the obligations contained in the NoteNotes, this Agreement, the Pledge Agreement Mortgage or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against either Borrower, except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender and each Noteholder to enforce and realize upon its interest under the NoteNotes, this Agreement, the Pledge Agreement Mortgage and the other Loan Documents, or in any or all of the CollateralProperties, the Rents, the Vacant Space Rent or any other collateral given to Lender pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrowers or the Borrower Parties only to the extent of Borrower’s Borrowers’ or the Borrower Parties’ interest in the Collateral Properties, in the Rents, in the Vacant Space Rent and in any other collateral given to Lender, and Lender, by accepting the NoteNotes, this Agreement, the Pledge Agreement Mortgage and the other Loan Documents, agrees that it shall not xxx for, seek or demand any deficiency judgment against either Borrower or the Borrower Parties in any such action or proceeding under, or by reason of, or in connection with, the NoteNotes, this Agreement, the Pledge Agreement Mortgage or the other Loan Documents. The provisions of this Section shall not, however, (a) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (b) impair the right of Lender to name Borrower Borrowers as a party defendant defendants in any action or suit for foreclosure and sale under the Pledge AgreementMortgage; (c) affect the validity or enforceability of or any Guaranty guaranty made in connection with the Loan or any of the rights and remedies of Lender thereunder; (d) impair the right of Lender to obtain the appointment of a receiver; (e) intentionally omittedimpair the enforcement of the Assignment of Leases; (f) constitute a prohibition against Lender to seek seeking a deficiency judgment against Borrower Borrowers in order to fully realize the security granted by the Pledge Agreement Mortgage or to commence commencing any other appropriate action or proceeding in order for Lender to exercise its remedies against all of the CollateralProperties; or (g) constitute a waiver of the right of Lender to enforce the liability and obligation of BorrowerBorrowers, by money judgment or otherwise, to the extent of any actual loss, damage, cost, expense, liability, claim or other obligation incurred by Lender (including attorneys’ fees and costs reasonably incurred) arising out of or in connection with the following:
Appears in 3 contracts
Samples: Pledge and Security Agreement (MPG Office Trust, Inc.), Pledge and Security Agreement (MPG Office Trust, Inc.), Loan Agreement (Maguire Properties Inc)
Exculpation. (a) Subject to the qualifications below, Lender neither Collateral Agent nor Administrative Agent shall not enforce the liability and obligation of Borrower to perform and observe the obligations contained in the any Note, this Agreement, the Pledge Agreement or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against Borrower, except that Lender Collateral Agent or Administrative Agent, as applicable, may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender and each Noteholder Collateral Agent or Administrative Agent, as applicable, to enforce and realize upon its or the Lenders’ interest under the any Note, this Agreement, the Pledge Agreement and the other Loan Documents, or in the Collateral, Collateral or any other collateral given to Lender Collateral Agent pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower’s interest in the Collateral and in any other collateral given to Collateral Agent, and each Lender, Collateral Agent and LenderAdministrative Agent, by accepting the any Note, this Agreement, the Pledge Agreement and the other Loan Documents, as applicable, agrees that it shall not xxx for, seek or demand any deficiency judgment against Borrower in any such action or proceeding under, under or by reason of, of or under or in connection with, the with any Note, this Agreement, the Pledge Agreement or the other Loan Documents. The provisions of this Section shall not, however, (a) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (b) impair the right of Lender Collateral Agent or Administrative Agent, as applicable, to name Borrower as a party defendant in any action or suit for foreclosure and sale under the Pledge Agreement; (c) affect the validity or enforceability of or any Guaranty guaranty made in connection with the Loan or any of the rights and remedies of Lender Collateral Agent or Administrative Agent, as applicable, thereunder; (d) impair the right of Lender Collateral Agent or Administrative Agent, as applicable, to obtain the appointment of a receiver, custodian, sequestrator or other similar designee; (e) intentionally omitted; (f) constitute a prohibition against Lender Collateral Agent or Administrative Agent, as applicable, to seek a deficiency judgment against Borrower in order to fully realize the security granted by the Pledge Agreement or to commence any other appropriate action or proceeding in order for Lender Collateral Agent to exercise its remedies against all of the Collateral; or (g) constitute a waiver of the right of Lender Collateral Agent or Administrative Agent, as applicable, to enforce the liability and obligation of Borrower, by money judgment or otherwise, to the extent of any actual loss, damage, cost, expense, liability, claim or other obligation actually incurred by Collateral Agent and/or Administrative Agent, as applicable, or any Lender (including reasonable, out of pocket attorneys’ fees and costs expenses reasonably incurredincurred but excluding (x) consequential damages and/or lost profits, and (y) punitive, exemplary or other special damages, except to the extent claimed against or recovered from Collateral Agent or Administrative Agent or a Lender, as applicable, by any third party which are not a result of any fraud, gross negligence or willful misconduct by Collateral Agent or Administrative Agent or a Lender, as applicable) arising out of or in connection with the following:
Appears in 3 contracts
Samples: Loan Agreement (Vici Properties Inc.), Mezzanine B Loan Agreement (Vici Properties Inc.), Mezzanine a Loan Agreement (Vici Properties Inc.)
Exculpation. (a) Subject to the qualifications below, Lender shall not enforce the liability and obligation of Borrower to perform and observe the obligations contained in the Note, this Agreement, the Pledge Agreement or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against Borrower, except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender and each Noteholder to enforce and realize upon its interest under the Note, this Agreement, the Pledge Agreement and the other Loan Documents, or in the Collateral, or any other collateral given to Lender pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower’s interest in the Collateral and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Pledge Agreement and the other Loan Documents, Purchaser agrees that it shall does not xxx forhave and will not have any claims or causes of action against any Seller Party (other than Seller), seek or demand any deficiency judgment against Borrower in any such action or proceeding under, or by reason of, or in connection with, the Note, this Agreement, the Pledge Agreement or the other Loan Documents. The provisions of this Section shall not, however, (a) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (b) impair the right of Lender to name Borrower as a party defendant in any action or suit for foreclosure and sale under the Pledge Agreement; (c) affect the validity or enforceability of or any Guaranty made in connection with the Loan or any of the rights and remedies of Lender thereunder; (d) impair the right of Lender to obtain the appointment of a receiver; (e) intentionally omitted; (f) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted by the Pledge Agreement or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against all of the Collateral; or (g) constitute a waiver of the right of Lender to enforce the liability and obligation of Borrower, by money judgment or otherwise, to the extent of any actual loss, damage, cost, expense, liability, claim or other obligation incurred by Lender (including attorneys’ fees and costs reasonably incurred) arising out of or in connection with this Agreement or the following:transactions contemplated hereby. Purchaser agrees to look solely to Seller and Seller’s interest in the Property or, if the Closing has occurred, the net proceeds of the sale (in each case, subject to the limitations on Seller’s liability set forth in this Agreement) for the satisfaction of any liability or obligation arising under this Agreement or the transactions contemplated hereby, or for the performance of any of the covenants, warranties or other agreements contained herein, and further agrees not to xxx or otherwise seek to enforce any personal obligation against any of Seller’s other assets or properties or any other Seller Parties (or their assets or properties) with respect to any matters arising out of or in connection with this Agreement or the transactions contemplated hereby. Without limiting the generality of the foregoing provisions of this Section 40, Purchaser hereby unconditionally and irrevocably waives any and all claims and causes of action of any nature whatsoever it may now or hereafter have against the Seller Parties (other than Seller, subject to the foregoing), and hereby unconditionally and irrevocably releases and discharges such other Seller Parties from any and all liability whatsoever which may now or hereafter accrue in favor of Purchaser against such other Seller Parties, in connection with or arising out of this Agreement or the transactions contemplated hereby. The provisions of this Section 40 shall survive the Closing or the termination of this Agreement until the Survival Date set forth in Section 41 (Survival) hereof.
Appears in 3 contracts
Samples: Purchase and Sale Agreement, Purchase and Sale Agreement (SouFun Holdings LTD), Purchase and Sale Agreement (SouFun Holdings LTD)
Exculpation. (a) Subject Effective as of the Plan Effective Date, to the qualifications below, Lender shall not enforce the liability and obligation of Borrower to perform and observe the obligations contained in the Note, this Agreementfullest extent permitted by law, the Pledge Exculpated Parties shall neither have nor incur any liability to any Person for any claims or Causes of Action arising prior to or on the Plan Effective Date for any act taken or omitted to be taken in connection with, related to, or arising out of, the Chapter 11 Cases, formulating, negotiating, preparing, disseminating, implementing, filing, administering, confirming or effecting the Confirmation or Consummation of the Plan, the Disclosure Statement, the Opioid Settlement, the Opioid Trust Documents, the “Agreement or in Principle for Global Opioid Settlement and Associated Debt Refinance Activities” announced by the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against BorrowerParent on February 25, except that Lender may bring a foreclosure action2020, an action for specific performance the Restructuring Support Agreement and related prepetition transactions, or any contract, instrument, release or other appropriate action agreement or proceeding to enable Lender and each Noteholder to enforce and realize upon its interest under document created or entered into in connection with any of the Note, this Agreement, the Pledge Agreement and the other Loan Documents, or in the Collateralforegoing, or any other collateral given prepetition or postpetition act taken or omitted to Lender be taken in connection with or in contemplation of the restructuring of the Debtors, the Disclosure Statement or Confirmation or Consummation of the Plan, the Opioid Settlement or the Opioid Trust Documents, including the issuance of securities pursuant to the Loan DocumentsPlan, or the distribution of property under the Plan or any other related agreement; provided, however, thatthat the foregoing provisions of this exculpation shall not operate to waive or release: (a) any Causes of Action arising from actual fraud, except gross negligence, or willful misconduct of such applicable Exculpated Party as specifically provided hereindetermined by Final Order of the Bankruptcy Court or any other court of competent jurisdiction; and/or (b) the rights of any Person or Entity to enforce the Plan and the contracts, any judgment instruments, releases, indentures, and other agreements and documents delivered under or in any such action connection with the Plan or proceeding assumed pursuant to the Plan or Final Order of the Bankruptcy Court; provided, further, that each Exculpated Party shall be enforceable against Borrower only entitled to rely upon the extent advice of Borrower’s interest in the Collateral and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Pledge Agreement and the other Loan Documents, agrees that it shall not xxx for, seek or demand any deficiency judgment against Borrower in any such action or proceeding under, or by reason ofcounsel concerning its respective duties pursuant to, or in connection with, the Noteabove referenced documents, this Agreementactions or inactions. The Exculpated Parties have, and upon Consummation of the Pledge Agreement Plan shall be deemed to have, participated in good faith and in compliance with the applicable Laws with regard to the solicitation of votes and distribution of consideration pursuant to the Plan and, therefore, are not, and on account of such distributions shall not be, liable at any time for the violation of any applicable law, rule, or regulation governing the solicitation of acceptances or rejections of the Plan or such distributions made pursuant to the Plan. The foregoing exculpation shall be effective as of the Plan Effective Date without further notice to or order of the Bankruptcy Court, act or action under applicable law, regulation, order, or rule or the other Loan Documents. The provisions of this Section shall notvote, howeverconsent, (a) constitute a waiver, release authorization or impairment approval of any obligation evidenced Person or secured by any of the Loan Documents; (b) impair the right of Lender to name Borrower as a party defendant in any action or suit for foreclosure and sale under the Pledge Agreement; (c) affect the validity or enforceability of or any Guaranty made in connection with the Loan or any of the rights and remedies of Lender thereunder; (d) impair the right of Lender to obtain the appointment of a receiver; (e) intentionally omitted; (f) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted by the Pledge Agreement or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against all of the Collateral; or (g) constitute a waiver of the right of Lender to enforce the liability and obligation of Borrower, by money judgment or otherwise, to the extent of any actual loss, damage, cost, expense, liability, claim or other obligation incurred by Lender (including attorneys’ fees and costs reasonably incurred) arising out of or in connection with the following:Entity.
Appears in 3 contracts
Samples: Joinder Agreement (Mallinckrodt PLC), Restructuring Support Agreement (Mallinckrodt PLC), Restructuring Support Agreement
Exculpation. (a) Subject to the qualifications below, Lender shall not enforce the liability and obligation of Borrower to perform and observe the obligations contained in the Note, this Agreement, the Pledge Agreement Security Instrument or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against BorrowerBorrower or any officer, director, shareholder, partner, member, principal, employee of Borrower or any direct or indirect owner of Borrower (provided that the foregoing shall not limit in any manner, the liability of any Guarantor), except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender and each Noteholder to enforce and realize upon its interest under the Note, this Agreement, the Pledge Agreement Security Instrument and the other Loan Documents, or in the CollateralProperty (or any portion thereof), the Rents, or any other collateral given to Lender pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower’s interest in the Collateral Property, in the Rents and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Pledge Agreement Security Instrument and the other Loan Documents, agrees that it shall not xxx sue for, seek or demand any deficiency judgment against Borrower in any such action or proceeding under, under or by reason of, of or under or in connection with, with the Note, this Agreement, the Pledge Agreement Security Instrument or the other Loan Documents. The provisions of this Section 9.3 shall not, however, (ai) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (bii) impair the right of Lender to name Borrower as a party defendant in any action or suit for foreclosure and sale under the Pledge AgreementSecurity Instrument; (ciii) affect the validity or enforceability of any guaranty, indemnity or any Guaranty similar agreement or undertaking made in connection with the Loan or any of the rights and remedies of Lender thereunder; (div) impair the right of Lender to obtain the appointment of a receiver; (ev) intentionally omittedimpair the enforcement of any assignment of leases contained in the Security Instrument and any other Loan Documents; or (fvi) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted by the Pledge Agreement Security Instrument (if required by applicable law and provided such deficiency judgment is not enforced personally against Borrower or any officer, director, shareholder, partner, member, principal, employee of Borrower or any direct or indirect owner of Borrower (excluding Guarantor under the Guaranty and Environmental Indemnity, as applicable)) or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against all of the Collateral; Property (or (g) constitute a waiver of the right of Lender to enforce the liability and obligation of Borrower, by money judgment or otherwise, to the extent of any actual loss, damage, cost, expense, liability, claim or other obligation incurred by Lender (including attorneys’ fees and costs reasonably incurred) arising out of or in connection with the following:portion thereof).
Appears in 3 contracts
Samples: Loan Agreement (Global Net Lease, Inc.), Loan Agreement (Necessity Retail REIT, Inc.), Loan Agreement (Healthcare Trust, Inc.)
Exculpation. (a) Subject to the qualifications below, Lender Agent shall not enforce the liability and obligation of Borrower to perform and observe the obligations Obligations contained in the Note, this Agreement, the Pledge Agreement Mortgage or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against Borrower, except that Lender Agent may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender and each Noteholder to enforce and realize upon its (and the Lenders’) interest under the Note, this Agreement, the Pledge Agreement Mortgage and the other Loan Documents, or in all or any of the CollateralProperties, the Gross Revenues or any other collateral given to Lender Agent (on behalf of Lenders) pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower’s interest in the Collateral Properties, in the Gross Revenues and in any other collateral given to LenderAgent (on behalf of Lenders), and LenderAgent (on behalf of Lenders), by accepting the Note, this Agreement, the Pledge Agreement Mortgage and the other Loan Documents, agrees that it shall not xxx sxx for, seek or demand any deficiency judgment against Borrower in any such action or proceeding under, under or by reason of, of or under or in connection with, with the Note, this Agreement, the Pledge Agreement Mortgage or the other Loan Documents. The provisions of this Section 10.1 shall not, however, (a) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (b) impair the right of Lender Agent to name Borrower as a party defendant in any action or suit for foreclosure and sale under the Pledge AgreementMortgage; (c) affect the validity or enforceability of any of the Loan Documents or any Guaranty guaranty made in connection with the Loan or any of the rights and remedies of Lender Agent and Lenders thereunder; (d) impair the right of Lender Agent to obtain the appointment of a receiver; (e) intentionally omittedimpair the enforcement of the Assignment of Leases; (f) impair the enforcement of the Environmental Indemnity; (g) constitute a prohibition against Lender Agent to seek a deficiency judgment against Borrower in order to fully realize the security granted by the Pledge Agreement Mortgage or to commence any other appropriate action or proceeding in order for Lender Agent to exercise its remedies against all or any of the CollateralProperties; or (gh) constitute a waiver of the right of Lender Agent to enforce the liability and obligation of Borrower, by money judgment or otherwise, to the extent of any actual loss, damagedamage (excluding punitive damages except in the case of punitive damages paid by Agent or any Lender to a third party where such damages do not directly arise as a result of the acts of Agent), cost, expense, liability, claim or other obligation actually incurred by Agent or any Lender (including reasonable attorneys’ fees and costs reasonably incurred) arising out of or in connection with the following:following (all such liability and obligation of Borrower for any or all of the following being referred to herein as “Borrower’s Recourse Liabilities”):
Appears in 3 contracts
Samples: Loan Agreement (Clipper Realty Inc.), Loan Agreement (Clipper Realty Inc.), Loan Agreement (Clipper Realty Inc.)
Exculpation. (a) Subject to Except as otherwise provided herein or in the qualifications belowother Loan Documents, Lender shall not enforce the liability and obligation of Borrower or Borrower Principal, as applicable, to perform and observe the obligations contained herein or in the Note, this Agreement, the Pledge Agreement or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against Borrower, except that Lender may bring a foreclosure actionan action under the UCC, an action for specific performance or any other appropriate action or proceeding to enable Lender and each Noteholder to enforce and realize upon its interest under this Agreement, the Note, this Agreement, the Pledge Agreement and the other Loan Documents, or and the interest in the Collateral, or Collateral and any other collateral given to Lender pursuant to created by this Agreement, the Note, the Pledge Agreement and the other Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower or Borrower Principal, as applicable, only to the extent of Borrower’s 's or Borrower Principal's interest in the Collateral and in any other collateral given to Lender, and . Lender, by accepting this Agreement, the Note, this Agreement, the Pledge Agreement and the other Loan Documents, agrees that it shall not not, except as otherwise provided in this Section 15.1, xxx for, seek or demand any deficiency judgment against Borrower or Borrower Principal in any such action or proceeding underproceeding, under or by reason of, of or under or in connection withwith this Agreement, the Note, this Agreement, the Pledge Agreement or the other Loan Documents. The provisions of this Section 15.1 shall not, however, (ai) constitute a waiver, release or impairment of any obligation evidenced or secured by any of this Agreement, the Note, the Pledge Agreement or the other Loan Documents; (bii) impair the right of Lender to name Borrower as a party defendant in any action or suit for judicial foreclosure and sale under this Agreement and the Pledge Agreement; (ciii) affect the validity or enforceability of any indemnity (including, without limitation, those contained in Section 13.5 and Article 14 of this Agreement and the Environmental Indemnity), guaranty, master lease or any Guaranty similar instrument made in connection with this Agreement, the Note, the Pledge Agreement and the other Loan or any of the rights and remedies of Lender thereunderDocuments; (div) impair the right of Lender to obtain the appointment of a receiver; (ev) intentionally omitted; (f) constitute a prohibition against Lender to seek a deficiency judgment against Borrower impair the enforcement of the assignment of leases provisions contained in order to fully realize the security granted by the Pledge Agreement or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against all of the CollateralAgreement; or (gvi) constitute a waiver of impair the right of Lender to enforce the liability and obligation of Borrower, by money obtain a deficiency judgment or otherwiseother judgment on the Note against Borrower or Borrower Principal if necessary to obtain any Insurance Proceeds or Awards to which Lender would otherwise be entitled under this Agreement; provided however, Lender shall only enforce such judgment to the extent of any actual loss, damage, cost, expense, liability, claim or other obligation incurred by Lender (including attorneys’ fees and costs reasonably incurred) arising out of or in connection with the following:Insurance Proceeds and/or Awards.
Appears in 3 contracts
Samples: Mezzanine Loan Agreement (Maguire Properties Inc), Mezzanine Loan Agreement (Maguire Properties Inc), Junior Mezzanine Loan Agreement (Maguire Properties Inc)
Exculpation. (a) Subject to the qualifications below, Lender shall not enforce the liability and obligation of Borrower to perform and observe the obligations Obligations contained in the Note, this Agreement, the Pledge Agreement Mortgage or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against Borrower, except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender and each Noteholder to enforce and realize upon its interest under the Note, this Agreement, the Pledge Agreement Mortgage and the other Loan Documents, or in the CollateralProperty, the Gross Revenues or any other collateral given to Lender pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower’s interest in the Collateral Property, in the Gross Revenues and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Pledge Agreement Mortgage and the other Loan Documents, agrees that it shall not xxx for, seek or demand any deficiency judgment against Borrower in any such action or proceeding under, under or by reason of, of or under or in connection with, with the Note, this Agreement, the Pledge Agreement Mortgage or the other Loan Documents. The provisions of this Section 10.1 shall not, however, (a) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (b) impair the right of Lender to name Borrower as a party defendant in any action or suit for foreclosure and sale under the Pledge AgreementMortgage; (c) affect the validity or enforceability of any of the Loan Documents or any Guaranty guaranty made in connection with the Loan or any of the rights and remedies of Lender thereunder; (d) impair the right of Lender to obtain the appointment of a receiver; (e) intentionally omittedimpair the enforcement of the Assignment of Leases; (f) impair the enforcement of the Environmental Indemnity; (g) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted by the Pledge Agreement Mortgage or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against all of the CollateralProperty; or (gh) constitute a waiver of the right of Lender to enforce the liability and obligation of Borrower, by money judgment or otherwise, to the extent of any actual loss, damage, cost, expense, liability, claim or other obligation incurred by Lender (including attorneys’ fees and costs reasonably incurred) arising out of or in connection with the following:following (all such liability and obligation of Borrower for any or all of the following being referred to herein as “Borrower’s Recourse Liabilities”):
Appears in 3 contracts
Samples: Loan Agreement (Medalist Diversified REIT, Inc.), Loan Agreement (City Office REIT, Inc.), Loan Agreement (Carter Validus Mission Critical REIT, Inc.)
Exculpation. (a) Subject to Except as otherwise provided herein or in the qualifications belowother Loan Documents, Lender shall not enforce the liability and obligation of Borrower or Borrower Principal, as applicable, to perform and observe the obligations contained herein or in the Note, this Agreement, the Pledge Agreement or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against BorrowerBorrower or Borrower Principal, except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender and each Noteholder to enforce and realize upon its interest under the Note, this Agreement, the Pledge Agreement Note, the Mortgage and the other Loan Documents, or and the interest in the CollateralProperty, or the Rents and any other collateral given to Lender pursuant to created by this Agreement, the Note, the Mortgage and the other Loan Documents; provided, however, that, except as specifically provided herein, that any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower’s 's interest in the Collateral Property, in the Rents and in any other collateral given to Lender, and . Lender, by accepting the Note, this Agreement, the Pledge Agreement Note, the Mortgage and the other Loan Documents, agrees that it shall not not, except as otherwise provided in this Section 15.1, xxx for, seek or demand any deficiency judgment against Borrower or Borrower Principal in any such action or proceeding underproceeding, under or by reason of, of or under or in connection withwith this Agreement, the Note, this Agreement, the Pledge Agreement Mortgage or the other Loan Documents. The provisions of this Section 15.1 shall not, however, (ai) constitute a waiver, release or impairment of any obligation evidenced or secured by any of this Agreement, the Note, the Mortgage or the other Loan Documents; (bii) impair the right of Lender to name Borrower or Borrower Principal as a party defendant in any action or suit for judicial foreclosure and sale under this Agreement and the Pledge AgreementMortgage; (ciii) affect the validity or enforceability of any indemnity (including, without limitation, those contained in Section 12.6, with respect to Borrower or any Guaranty Borrower Principal, Section 13.5, with respect to Borrower, and Article 14 of this Agreement, with respect to Borrower), guaranty, master lease or similar instrument made in connection with this Agreement, the Note, the Mortgage and the other Loan or any of the rights and remedies of Lender thereunderDocuments; (div) impair the right of Lender to obtain the appointment of a receiver; (ev) intentionally omitted; (f) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize impair the security granted by the Pledge Agreement or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against all enforcement of the Collateralassignment of leases provisions contained in the Mortgage; or (gvi) constitute a waiver of impair the right of Lender to enforce the liability and obligation of Borrower, by money obtain a deficiency judgment or otherwiseother judgment on the Note against Borrower or Borrower Principal if necessary to obtain any Insurance Proceeds or Awards to which Lender would otherwise be entitled under this Agreement; provided however, Lender shall only enforce such judgment to the extent of any actual loss, damage, cost, expense, liability, claim or other obligation incurred by Lender (including attorneys’ fees and costs reasonably incurred) arising out of or in connection with the following:Insurance Proceeds and/or Awards.
Appears in 3 contracts
Samples: Loan Agreement (Manufactured Home Communities Inc), Loan Agreement (Manufactured Home Communities Inc), Loan Agreement (Manufactured Home Communities Inc)
Exculpation. (a) Subject to the qualifications below, Lender shall not enforce the liability and obligation of Borrower to perform and observe the obligations contained in the Note, this Agreement, the Pledge Loan Agreement or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against Borrower, except that Lender may bring a foreclosure actionexercise rights and remedies under the Uniform Commercial Code, an action for specific performance or any other appropriate action or proceeding to enable Lender and each Noteholder to enforce and realize upon its interest under the Note, this Agreement, the Pledge Loan Agreement and the other Loan Documents, or in the Collateral, Collateral or any other collateral given to Lender pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower’s interest in the Collateral and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Pledge Loan Agreement and the other Loan Documents, agrees that it shall not xxx for, seek or demand any deficiency judgment against Borrower in any such action or proceeding under, under or by reason of, of or under or in connection with, with the Note, this Agreement, the Pledge Loan Agreement or the other Loan Documents. The provisions of this Section section shall not, however, (a) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (b) impair the right of Lender to name Borrower as a party defendant in any action or suit for foreclosure and sale under this Loan Agreement or the Pledge Agreementother Loan Documents; (c) affect the validity or enforceability of or any Guaranty guaranty made in connection with the Loan or any of the rights and remedies of Lender thereunder; (d) impair the right of Lender to obtain the appointment of a receiver; (e) intentionally omitted; (f) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted by under this Loan Agreement or the Pledge Agreement other Loan Documents or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against all of the Collateral; or (ge) constitute a waiver of the right of Lender to enforce the liability and obligation of Borrower, by money judgment or otherwise, to the extent of any actual loss, damage, cost, expense, liability, claim or other obligation incurred by Lender (including attorneys’ fees and costs reasonably incurred) arising out of or in connection with the following:following (all such liability and obligation of Borrower for any or all of the following being referred to herein as “Borrower’s Recourse Liabilities”):
Appears in 3 contracts
Samples: Loan and Security Agreement (TPG RE Finance Trust, Inc.), Loan and Security Agreement (TPG RE Finance Trust, Inc.), Loan and Security Agreement (TPG RE Finance Trust, Inc.)
Exculpation. (a) Subject to the qualifications below, Lender shall not enforce the liability and obligation of Borrower to perform and observe the obligations contained in the Note, this Agreement, the Pledge Agreement or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against Borrower, except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender and each Noteholder to enforce and realize upon its interest under the Note, this Agreement, the Pledge Agreement and the other Loan Documents, or in the Collateral, or any other collateral given to Lender pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower’s their interest in the Collateral and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Pledge Agreement and the other Loan Documents, agrees that it shall not xxx for, seek or demand any deficiency judgment against Borrower in any such action or proceeding under, under or by reason of, of or under or in connection with, with the Note, this Agreement, the Pledge Agreement or the other Loan Documents. The provisions of this Section 9.4 shall not, however, (ai) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (bii) impair the right of Lender to name Borrower as a party defendant in any action or suit for foreclosure and sale under the Pledge AgreementAgreement or any other Loan Document; (ciii) affect the validity or enforceability of or any Guaranty guaranty made in connection with the Loan or any of the rights and remedies of Lender thereunder; (div) impair the right of Lender to obtain the appointment of a receiver; (ev) intentionally omitted; (fvi) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted by the Pledge Agreement or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against all of the Collateral; or (g) constitute a waiver of the right of Lender to enforce the liability and obligation of Borrower, by money judgment or otherwise, to the extent of any actual loss, damage, cost, expense, liability, claim or other obligation incurred by Lender (including attorneys’ fees and costs reasonably incurred) arising out of or in connection with the following:.
Appears in 3 contracts
Samples: Management Agreement (ESH Hospitality LLC), Management Agreement (ESH Hospitality LLC), Management Agreement (ESH Hospitality LLC)
Exculpation. (a) Subject to the qualifications below, Lender shall not enforce the liability and obligation of any Borrower to perform and observe the obligations contained in the Note, this Agreement, the Pledge Agreement or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against such Borrower, except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender and each Noteholder to enforce and realize upon its interest and rights under the Note, this Agreement, the Pledge Agreement and the other Loan Documents, or in the CollateralProperty, the Rents or any other collateral given to Lender pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against a Borrower only to the extent of such Borrower’s 's interest in the Collateral Property, in the Rents and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Pledge Agreement and the other Loan Documents, agrees that it Lender shall not xxx for, seek or demand any deficiency judgment against a Borrower in any such action or proceeding under, under or by reason of, of or under or in connection with, the Note, this Agreement, the Pledge Agreement or the other with any Loan DocumentsDocument. The provisions of this Section shall not, however, (ai) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan DocumentsDocument; (bii) impair the right of Lender to name Borrower one or more Borrowers as a party defendant in any action or suit for foreclosure and sale under the Pledge AgreementMortgage; (ciii) affect the validity or enforceability of any of the Loan Documents or any Guaranty guaranty made in connection with the Loan or any of the rights and remedies of Lender thereunder; (div) impair the right of Lender to obtain the appointment of a receiver; (ev) intentionally omittedimpair the enforcement of the Assignment of Leases; (fvi) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted by the Pledge Agreement or to commence any other appropriate action or proceeding in order for Lender to fully realize the security granted by the Mortgage or to exercise its remedies against all of the CollateralProperty; or (gvii) constitute a waiver of the right of Lender to enforce the liability and obligation of BorrowerBorrowers, by money judgment or otherwise, to the extent of any actual loss, damage, cost, expense, liability, claim or other obligation incurred by Lender (including attorneys’ ' fees and costs reasonably incurred) (collectively, "LENDER'S LOSSES") arising out of or in connection with the following:following (all such liability and obligation of Borrower for any or all of the following being referred to herein as "BORROWERS' RECOURSE LIABILITIES"): (a) fraud or intentional misrepresentation by any Borrower, or Guarantor in connection with obtaining the Loan; (b) physical waste of the Property or any portion thereof (other than acts committed by a third party non-affiliated property manager), or after an Event of Default the removal or disposal of any portion of the Property (other than acts committed by a third party non-affiliated property manager); (c) any Proceeds paid by reason of any Insured Casualty or any Award received in connection with a Condemnation or other sums or payments attributable to the Property not applied in accordance with the provisions of the Loan Documents (other than acts committed by a third party non-affiliated property manager) (except to the extent that a Borrower did not have the legal right, because of a bankruptcy, receivership or similar judicial proceeding, to direct disbursement of such sums or payments); (d) all Rents of the Property received or collected by or on behalf of any Borrower after an Event of Default and not applied to payment of Principal and interest due under the Note, and to the payment of actual and reasonable operating expenses of the Property, as they become due or payable (other than acts committed by a third party non-affiliated property manager) (except to the extent that such application of such funds is prevented by bankruptcy, receivership, or similar judicial proceeding in which such Borrower is legally prevented from directing the disbursement of such sums); (e) misappropriation (including failure to turn over to Lender on demand following an Event of Default) of tenant security deposits and rents collected in advance, or of funds held by any Borrower for the benefit of another party (other than acts committed by a third party non-affiliated property manager); (f) the failure to pay Taxes, provided Borrowers shall not be liable (A) to the extent funds to pay such amounts are available in the Tax and Insurance Subaccount and Lender failed to pay same or has elected not to pay the same pursuant to Section 3.3 or (B) Rents are insufficient to yield sufficient funds to pay such amounts; (g) the breach of any representation, warranty, covenant or indemnification in any Loan Document concerning Environmental Laws or Hazardous Substances, including Sections 4.21 and 5.8, and clauses (viii) through (xi) of Section 5.30; (h) the breach of the covenants set forth in Section 5.13 (other than a breach of any of the covenants described in clauses (x) and (xxi) (with respect to unsecured trade payables) set forth in the definition of "Special Purpose Bankruptcy Remote Entity" on Schedule 5, if the same occurs as a result of the economic performance of the Property); (i) any Borrower or any Guarantor of such Borrower or any of their direct or indirect Affiliates taking any action or making any omission intended or reasonably likely to hinder, delay, impair or prevent Lender in or from enforcing any and all of its rights and remedies under or pursuant to the Loan Documents or at law or in equity (unless the same is brought in good faith and is determined in favor of such Borrower or Guarantor pursuant to a final, non-appealable judgment of a court of competent jurisdiction); (j) the termination of the Management Agreement or the removal of Behringer Harvard TIC Management Services, L.P. as property manager thereunder without Lender's consent (provided that only the Borrower(s) that voted in favor of such termination or removal shall be liable for such losses); or (k) subject to the next succeeding sentence, the failure by any Borrower to consent to a modification of the terms of the Loan after a minimum of other Borrowers representing a collective 66% tenancy in common interest in the Property (as such percentage shall be automatically increased by each percentage point by which the Behringer Minimum Tenant-in-Common Interest exceeds 5%) have approved the same. For purposes of the foregoing clause (k), Lender's Losses with respect to the occurrence of any event giving rise to such matter (A) shall be deemed to be equal to any unpaid portion of the Debt that remains outstanding after Lender completes its realization with respect to the Property (and all of its other collateral for the Loan pursuant to any of the Loan Documents) and applies the proceeds of such realization to the Debt and (B) Lender's Losses with respect to any applicable Borrower shall be limited to an amount equal to the product of (1) the original principal amount of the Loan and (2) the applicable Borrower's respective undivided tenant in common interest in the Property (expressed as a percentage).
Appears in 3 contracts
Samples: Loan Agreement (Behringer Harvard Reit I Inc), Loan Agreement (Behringer Harvard Reit I Inc), Loan Agreement (Behringer Harvard Reit I Inc)
Exculpation. (a) Subject to the qualifications below, Lender shall not enforce the liability and obligation of Borrower to perform and observe the obligations contained in the Note, this Agreement, the Pledge Agreement or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against Borrower, except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender and each Noteholder to enforce and realize upon its interest and rights under the Note, this Agreement, the Pledge Agreement and the other Loan Documents, or in the CollateralProperty, the Rents or any other collateral given to Lender pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower’s interest in the Collateral Property, in the Rents and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Pledge Agreement and the other Loan Documents, agrees that it Lender shall not xxx for, seek or demand any deficiency judgment against Borrower in any such action or proceeding under, under or by reason of, of or under or in connection with, the Note, this Agreement, the Pledge Agreement or the other with any Loan DocumentsDocument. The provisions of this Section shall not, however, (ai) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan DocumentsDocument; (bii) impair the right of Lender to name Borrower as a party defendant in any action or suit for foreclosure and sale under the Pledge AgreementMortgage; (ciii) affect the validity or enforceability of any of the Loan Documents or any Guaranty guaranty made in connection with the Loan or any of the rights and remedies of Lender thereunder; (div) impair the right of Lender to obtain the appointment of a receiver; (ev) intentionally omittedimpair the enforcement of the Assignment of Leases; (fvi) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted by the Pledge Agreement or to commence any other appropriate action or proceeding in order for Lender to fully realize the security granted by the Mortgage or to exercise its remedies against all of the CollateralProperty; or (gvii) constitute a waiver of the right of Lender to enforce the liability and obligation of Borrower, by money judgment or otherwise, to the extent of any actual loss, damage, cost, expense, liability, claim or other obligation incurred by Lender (including attorneys’ fees and costs reasonably incurred) arising out of or in connection with the following:following (all such liability and obligation of Borrower for any or all of the following being referred to herein as “Borrower’s Recourse Liabilities”):
Appears in 3 contracts
Samples: Loan Agreement (Inland Real Estate Income Trust, Inc.), Loan Agreement (Inland Real Estate Income Trust, Inc.), Loan Agreement (American Realty Capital Daily Net Asset Value Trust, Inc.)
Exculpation. (a) Subject to the qualifications below, the Debt and the Other Obligations shall be non-recourse to Borrower, Guarantor and their respective Affiliates and Lender shall not enforce the liability and obligation of Borrower to perform and observe the obligations contained in the Note, this Agreement, the Pledge Agreement Mortgage or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against Borrower, Guarantor and their respective Affiliates except that Lender may bring a foreclosure action, an action for specific performance of non-monetary obligations or any other appropriate action or proceeding to enable Lender and each Noteholder to enforce and realize upon its interest under the Note, this Agreement, the Pledge Agreement Mortgage and the other Loan Documents, or in the CollateralProperty, the Rents, or any other collateral given to Lender pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower’s interest in the Collateral Property, in the Rents and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Pledge Agreement Mortgage and the other Loan Documents, agrees that it shall not xxx for, seek or demand any deficiency judgment against Borrower or its Affiliates in any such action or proceeding under, under or by reason of, of or under or in connection with, with the Note, this Agreement, the Pledge Agreement Mortgage or the other Loan Documents. The provisions of this Section 9.3 shall not, however, (a) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (b) impair the right of Lender to name Borrower as a party defendant in any action or suit for foreclosure and sale under any of the Pledge AgreementMortgage; (c) affect the validity or enforceability of the Guaranty or any Guaranty other guaranty made in connection with the Loan or any of the rights and remedies of Lender thereunder; (d) impair the right of Lender to obtain the appointment of a receiverreceiver with respect to the Property; (e) intentionally omittedimpair the enforcement of any of the Assignment of Leases; (f) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted by the Pledge Agreement or Mortgage to the extent necessary to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against all of the CollateralProperty; or (g) constitute a waiver of the right of Lender to enforce the liability and obligation of Borrower, by money judgment or otherwise, to the extent of any actual loss, damage, cost, expense, liability, claim or other obligation actually incurred by Lender but excluding consequential, special or punitive damages (including attorneys’ fees and costs reasonably incurred) arising out of or in connection with the following:
Appears in 3 contracts
Samples: Loan Agreement (Innkeepers Usa Trust/Fl), Loan Agreement (Innkeepers Usa Trust/Fl), Loan Agreement (Innkeepers Usa Trust/Fl)
Exculpation. (a) Subject to the further qualifications belowof this Section 9.4, Lender shall not enforce the liability and obligation of Borrower to perform and observe the obligations contained in the Note, this Agreement, the Pledge Agreement Security Instrument or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against Borrower, except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender and each Noteholder to enforce and realize upon its interest under the Note, this Agreement, the Pledge Agreement Security Instrument and the other Loan Documents, or in the CollateralProperty, the Rents, or any other collateral given to Lender pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower’s interest in the Collateral Property, in the Rents and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Pledge Agreement Security Instrument and the other Loan Documents, agrees that it shall not xxx for, seek or demand any deficiency judgment against Borrower in any such action or proceeding under, or by reason of, or in connection with, the Note, this Agreement, the Pledge Agreement Security Instrument or the other Loan Documents. The provisions of this Section 9.4(a) shall not, however, (ai) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (bii) impair the right of Lender to name Borrower as a party defendant in any action or suit for foreclosure and sale under the Pledge AgreementSecurity Instrument; (ciii) affect the validity or enforceability of or any Guaranty made in connection with the Loan or any of the rights and remedies of Lender thereunder; (div) impair the right of Lender to obtain the appointment of a receiver; (ev) intentionally omittedimpair the enforcement of the Assignment of Leases; or (fvi) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted by the Pledge Agreement Security Instrument or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against all of the Collateral; or (g) constitute a waiver of the right of Lender to enforce the liability and obligation of Borrower, by money judgment or otherwise, to the extent of any actual loss, damage, cost, expense, liability, claim or other obligation incurred by Lender (including attorneys’ fees and costs reasonably incurred) arising out of or in connection with the following:Property.
Appears in 3 contracts
Samples: Loan Agreement (Caesars Acquisition Co), Loan Agreement (Harrahs Entertainment Inc), Loan Agreement (Bh Re LLC)
Exculpation. (a) Subject to the qualifications below, Lender shall not enforce the liability and obligation of Borrower to perform and observe the obligations contained in the Note, this Agreement, the Pledge Agreement Security Instrument or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against Borrower, except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender and each Noteholder to enforce and realize upon its interest under the Note, this Agreement, the Pledge Agreement Security Instrument and the other Loan Documents, or in the CollateralProperty, the Rents, or any other collateral given to Lender pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower’s interest in the Collateral Property, in the Rents and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Pledge Agreement Security Instrument and the other Loan Documents, agrees that it shall not xxx for, seek or demand any deficiency judgment against Borrower in any such action or proceeding under, under or by reason of, of or under or in connection with, with the Note, this Agreement, the Pledge Agreement Security Instrument or the other Loan Documents. The provisions of this Section shall not, however, (ai) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (bii) impair the right of Lender to name Borrower as a party defendant in any action or suit for foreclosure and sale under the Pledge AgreementSecurity Instrument; (ciii) affect the validity or enforceability of any guaranty, indemnity or any Guaranty similar agreement or undertaking made in connection with the Loan or any of the rights and remedies of Lender thereunder; (div) impair the right of Lender to obtain the appointment of a receiver; (ev) intentionally omittedimpair the enforcement of any assignment of leases contained in the Security Instrument and any other Loan Documents; or (fvi) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted by the Pledge Agreement Security Instrument or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against all of the Collateral; or (g) constitute a waiver of the right of Lender to enforce the liability and obligation of Borrower, by money judgment or otherwise, to the extent of any actual loss, damage, cost, expense, liability, claim or other obligation incurred by Lender (including attorneys’ fees and costs reasonably incurred) arising out of or in connection with the following:Property.
Appears in 2 contracts
Samples: Loan Agreement (Wheeler Real Estate Investment Trust, Inc.), Loan Agreement (Carter Validus Mission Critical REIT II, Inc.)
Exculpation. (a) Subject to the qualifications below, Lender shall not enforce the liability and obligation of Borrower to perform and observe the obligations contained in the Note, this Agreement, the Pledge Agreement or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against Borrower, except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender and each Noteholder to enforce and realize upon its interest under the Note, this Agreement, the Pledge Agreement and the other Loan Documents, or in the CollateralProperty, the Rents, or any other collateral given to Lender pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower’s interest in the Collateral and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Pledge Agreement and the other Loan Documents, agrees that it shall not xxx for, seek or demand any deficiency judgment against Borrower in any such action or proceeding under, under or by reason of, of or under or in connection with, with the Note, this Agreement, the Pledge Agreement or the other Loan Documents. The provisions of this Section shall not, however, (a) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (b) impair the right of Lender to name Borrower as a party defendant in any action or suit for foreclosure and sale under the Pledge Agreement; (c) affect the validity or enforceability of or any Guaranty guaranty made in connection with the Loan or any of the rights and remedies of Lender thereunder; (d) impair the right of Lender to obtain the appointment of a receiver; (e) intentionally omitted; (f) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted by the Pledge Agreement Mortgage or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against all of the Collateral; or (g) constitute a waiver of the right of Lender to enforce the liability and obligation of Borrower, by money judgment or otherwise, to the extent of any actual loss, damage, cost, expense, liability, claim or other obligation incurred by Lender (including attorneys’ fees and costs reasonably incurred) arising out of or in connection with and Borrower shall be personally liable for the following:
Appears in 2 contracts
Samples: Mezzanine a Loan Agreement (Telx Group, Inc.), Mezzanine B Loan Agreement (Telx Group, Inc.)
Exculpation. (a) Subject to the qualifications below, Lender Trustee shall not enforce the liability and obligation of Borrower Issuers to perform and observe the obligations contained in the NoteNotes, this AgreementIndenture, the Pledge Security Trust Agreement or the other Loan Financing Documents by any action or proceeding wherein a money judgment shall be sought against BorrowerIssuers, except that Lender Trustee may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender and each Noteholder Trustee to enforce and realize upon its interest under the NoteNotes, this AgreementIndenture, the Pledge Security Trust Agreement and the other Loan Financing Documents, or in the CollateralProperty, the Rents, or any other collateral given to Lender Trustee pursuant to the Loan Financing Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower Issuers only to the extent of Borrower’s Issuers’ interest in the Collateral Property, in the Rents and in any other collateral given to LenderTrustee, and LenderTrustee, by accepting the NoteNotes, this AgreementIndenture, the Pledge Security Trust Agreement and the other Loan Financing Documents, agrees for itself and its successors and assigns that it and its successors and assigns shall not xxx for, seek or demand any deficiency judgment against Borrower Issuers or any of its Affiliates in any such action or proceeding under, or by reason of, or in connection with, the Note, this AgreementIndenture, the Pledge Security Trust Agreement or the other Loan Financing Documents. The provisions of this Section shall not, however, (a) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Financing Documents; (b) impair the right of Lender Trustee for the benefit of Noteholders to name Borrower any Issuer as a party defendant in any action or suit for foreclosure and sale under the Pledge AgreementSecurity Trust Agreement or the Pledge; (c) affect the validity or enforceability of or any Guaranty made in connection with the Loan issuance of the Notes or any of the rights and remedies of Lender thereunderTrustee under the Financing Documents; (d) impair the right of Lender Trustee to obtain the appointment of a receiver; (e) intentionally omittedimpair the enforcement of the Security Trust Agreement or the Pledge; (f) constitute a prohibition against Lender Trustee to seek a deficiency judgment against Borrower Issuers in order to fully realize the security granted by the Security Trust Agreement or the Pledge Agreement or to commence any other appropriate action or proceeding in order for Lender Trustee to exercise its remedies against all of the CollateralProperty; or (g) constitute a waiver of the right of Lender Trustee to enforce the liability and obligation of BorrowerIssuers under the terms of this Indenture, by money judgment or otherwise, to the extent of any actual out of pocket loss, damage, cost, expense, liability, claim or other obligation incurred by Lender Trustee or Noteholders (including attorneys’ fees and costs reasonably incurred) arising out of or in connection with the following:
Appears in 2 contracts
Samples: Note Indenture (Kerzner International LTD), Note Indenture (Kerzner International LTD)
Exculpation. (a) Subject to To the qualifications belowextent permitted by applicable law and approved by the Bankruptcy Court, Lender shall not enforce the liability and obligation of Borrower to perform and observe the obligations contained in the NoteUSEC, this AgreementUSEC’s affiliates, the Pledge Agreement Consenting Noteholders, B&W, Toshiba and their respective directors, officers, partners, members, managers, representatives, employees and advisors shall have no liability to any holder of a claim or the other Loan Documents by equity interest for any action act or proceeding wherein a money judgment shall be sought against Borrower, except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender and each Noteholder to enforce and realize upon its interest under the Note, this Agreement, the Pledge Agreement and the other Loan Documents, or in the Collateral, or any other collateral given to Lender pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower’s interest in the Collateral and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Pledge Agreement and the other Loan Documents, agrees that it shall not xxx for, seek or demand any deficiency judgment against Borrower in any such action or proceeding under, or by reason of, or omission in connection with, the Note, this Agreementor arising out of, the Pledge Agreement or the other Loan Documents. The provisions of this Section shall not, however, (a) constitute a waiver, release or impairment of any obligation evidenced or secured by any negotiation and implementation of the Loan Documents; (b) impair Restructuring, including the right negotiation and the pursuit of Lender approval of the Disclosure Statement, the Plan and the solicitation of votes for, or confirmation of, the Plan, and the consummation of the Plan, except for willful misconduct, gross negligence, criminal misconduct or fraud as determined by a final order of the Bankruptcy Court and, in all respects, shall be entitled to name Borrower as a party defendant in any action or suit for foreclosure rely upon the advice of counsel with respect to their duties and sale responsibilities under the Pledge Plan. Other Restructuring Actions Paducah transition planning and RD&D Program to be discussed and reasonably acceptable to the Majority Consenting Noteholders. Exhibit B Assumption Agreement Reference is hereby made to that certain Plan Support Agreement (as such agreement may be amended, modified or supplemented from time to time, the “Plan Support Agreement; ”) among USEC Inc. and the noteholders party thereto. Capitalized terms not otherwise defined herein shall have the meaning ascribed to such terms in the Plan Support Agreement. As a condition precedent to becoming the beneficial holder or owner of [__________] dollars (c$__________) affect in [___] Notes (the validity or enforceability of or any Guaranty made “New Notes”), the undersigned ______________ (the “Transferee”) hereby agrees to become bound by the terms, conditions and obligations set forth in connection with the Loan or any Plan Support Agreement. This Assumption Agreement shall take effect and shall become an integral part of the rights Plan Support Agreement immediately upon its execution and remedies of Lender thereunder; (d) impair the right of Lender Transferee shall be deemed to obtain the appointment of a receiver; (e) intentionally omitted; (f) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted be bound by the Pledge Agreement or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against all of the Collateral; or (g) constitute a waiver terms, conditions and obligations of the right Plan Support Agreement as of Lender the date thereof. Transferee hereby represents that, after giving effect to enforce its acquisition of the liability and obligation New Notes, Transferee, together with its Affiliates, directly or indirectly, legally or beneficially owns or holds $[___] in principal amount of Borrower, by money judgment or otherwise, to the extent of any actual loss, damage, cost, expense, liability, claim or other obligation incurred by Lender (including attorneys’ fees and costs reasonably incurred) arising out of or in connection with the following:Notes.
Appears in 2 contracts
Samples: Plan Support Agreement (Usec Inc), Plan Support Agreement (Usec Inc)
Exculpation. (a) Subject to the qualifications belowThe Escrow Agent and its designees, Lender and ----------- their respective partners, employees, attorneys and agents, shall not enforce incur any liability whatsoever for the liability and obligation disposition of Borrower to perform and observe the obligations contained in the Note, this Agreement, the Pledge Agreement Shares or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against Borrower, except that Lender may bring a foreclosure action, an action for specific performance or taking of any other appropriate action or proceeding to enable Lender in accordance with the terms and each Noteholder to enforce and realize upon its interest under the Note, this Agreement, the Pledge Agreement and the other Loan Documents, or in the Collateral, or any other collateral given to Lender pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower’s interest in the Collateral and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Pledge Agreement and the other Loan Documents, agrees that it shall not xxx for, seek or demand any deficiency judgment against Borrower in any such action or proceeding under, or by reason of, or in connection with, the Note, this Agreement, the Pledge Agreement or the other Loan Documents. The provisions of this Section shall notEscrow Agreement, howeverfor any mistake or error in judgment, (a) constitute a waiverfor compliance with any applicable law or any attachment, release order or impairment other directive of any obligation evidenced court or secured other authority (irrespective of any conflicting term or provision of this Escrow Agreement), or for any act or omission of any other person selected with reasonable care and engaged by any of the Loan Documents; (b) impair the right of Lender to name Borrower as a party defendant in any action or suit for foreclosure and sale under the Pledge Agreement; (c) affect the validity or enforceability of or any Guaranty made Escrow Agent in connection with this Escrow Agreement (other than for such Escrow Agent's or such person's own acts or omissions breaching a duty owed to the Loan claimant under this Escrow Agreement and amounting to gross negligence or any willful misconduct as finally determined pursuant to applicable law by a governmental author-ity having jurisdiction); and each of the rights Company and remedies of Lender thereunder; (d) impair the right of Lender to obtain Investor hereby waives any and all claims and actions whatsoever against the appointment of a receiver; (e) intentionally omitted; (f) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted by the Pledge Agreement or to commence any other appropriate action or proceeding in order for Lender to exercise Escrow Agent and its remedies against all of the Collateral; or (g) constitute a waiver of the right of Lender to enforce the liability designees, and obligation of Borrowertheir respective partners, by money judgment or otherwiseemployees, to the extent of any actual lossattorneys and agents, damage, cost, expense, liability, claim or other obligation incurred by Lender (including attorneys’ fees and costs reasonably incurred) arising out of or in connection with related directly or indirectly to any and all of the following:foregoing acts, omissions and circumstances. Furthermore, the Escrow Agent and its designees, and their respective partners, employees, attorneys and agents, shall not incur any liability (other than for a person's own acts or omissions breaching a duty owed to the claimant under this Escrow Agreement and amounting to gross negligence or willful misconduct as finally determined pursuant to applicable law by a governmental authority having jurisdiction) for other acts and omissions arising out of or related directly or indirectly to this Escrow Agreement or the Shares; and each of the Company and the Investor hereby expressly waives any and all claims and actions (other than the Escrow Agent's or such person's own acts or omissions breaching a duty owed to the claimant and amounting to gross negligence or willful misconduct as finally determined pursuant to applicable law by a governmental authority having jurisdiction) against the Escrow Agent and its designees, and their respective partners, employees, attorneys and agents, arising out of or related directly or indirectly to any and all of the foregoing acts, omissions and circumstances.
Appears in 2 contracts
Samples: Credit Agreement (Staruni Corp), Escrow Agreement (Staruni Corp)
Exculpation. (a) Subject to Except as otherwise provided herein or in the qualifications belowother Loan Documents, Lender shall not enforce the liability and obligation of Borrowers or Borrower Principal, as applicable, to perform and observe the obligations contained herein or in the Note, this Agreement, the Pledge Agreement or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against BorrowerBorrowers or Borrower Principal, except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender and each Noteholder to enforce and realize upon its interest under the Note, this Agreement, the Pledge Agreement Note, the Mortgages and the other Loan Documents, or and the interest in the CollateralProperty, or the Rents and any other collateral given to Lender pursuant to created by this Agreement, the Note, the Mortgages and the other Loan Documents; provided, however, that, except as specifically provided herein, that any judgment in any such action or proceeding shall be enforceable against Borrowers or Borrower Principal, as applicable, only to the extent of BorrowerBorrowers’ or Borrower Principal’s interest in each Individual Property, in the Collateral Rents and in any other collateral given to Lender, and . Lender, by accepting the Note, this Agreement, the Pledge Agreement Note, the Mortgages and the other Loan Documents, agrees that it shall not not, except as otherwise provided in this Section 15.1, xxx for, seek or demand any deficiency judgment against Borrowers or Borrower Principal in any such action or proceeding underproceeding, under or by reason of, of or under or in connection withwith this Agreement, the Note, this Agreement, the Pledge Agreement Mortgage or the other Loan Documents. The provisions of this Section 15.1 shall not, however, (ai) constitute a waiver, release or impairment of any obligation evidenced or secured by any of this Agreement, the Note, the Mortgages or the other Loan Documents; (bii) impair the right of Lender to name Borrowers or Borrower Principal as a party defendant in any action or suit for judicial foreclosure and sale under this Agreement and the Pledge AgreementMortgages; (ciii) affect the validity or enforceability of any indemnity (including, without limitation, those contained in Section 12.6, the Environmental Indemnity and Article 14 of this Agreement), guaranty, master lease or any Guaranty similar instrument made in connection with this Agreement, the Note, the Mortgage and the other Loan or any of the rights and remedies of Lender thereunderDocuments; (div) impair the right of Lender to obtain the appointment of a receiver; (ev) intentionally omitted; (f) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize impair the security granted by the Pledge Agreement or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against all enforcement of the Collateralassignment of leases provisions contained in the Mortgages; or (gvi) constitute a waiver of impair the right of Lender to enforce the liability and obligation of Borrower, by money obtain a deficiency judgment or otherwiseother judgment on the Note against Borrowers or Borrower Principal if necessary to obtain any Insurance Proceeds or Awards to which Lender would otherwise be entitled under this Agreement; provided, however, Lender shall only enforce such judgment to the extent of any actual loss, damage, cost, expense, liability, claim or other obligation incurred by Lender (including attorneys’ fees and costs reasonably incurred) arising out of or in connection with the following:Insurance Proceeds and/or Awards.
Appears in 2 contracts
Samples: Loan Agreement (Extra Space Storage Inc.), Loan Agreement (Extra Space Storage Inc.)
Exculpation. (a) Subject to the qualifications below, Lender shall not enforce the liability and obligation of Borrower Borrowers to perform and observe the obligations Obligations contained in the Note, this Agreement, the Pledge Agreement Mortgages or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against any Borrower, except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender and each Noteholder to enforce and realize upon its interest under in all or any portion of any of the Note, this AgreementProperties, the Pledge Agreement and the other Loan Documents, or in the Collateral, Gross Revenue or any other collateral given to Lender pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower Borrowers only to the extent of each Borrower’s interest in the Collateral Properties, in the Gross Revenue and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Pledge Agreement Mortgages and the other Loan Documents, agrees that it shall not xxx for, seek or demand any deficiency judgment against any Borrower in any such action or proceeding under, under or by reason of, of or under or in connection with, with the Note, this Agreement, the Pledge Agreement Mortgages or the other Loan Documents. The provisions of this Section shall not, however, (a1) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (b2) impair the right of Lender to name any Borrower as a party defendant in any action or suit for foreclosure and sale under the Pledge Agreementany Mortgage; (c3) affect the validity or enforceability of any of the Loan Documents or any Guaranty guaranty made in connection with the Loan or any of the rights and remedies of Lender thereunder; (d4) impair the right of Lender to obtain the appointment of a receiver; (e5) intentionally omittedimpair the enforcement of any Assignment of Leases; (f6) constitute a prohibition against Lender to seek a deficiency judgment against any Borrower in order to fully realize the security granted by the Pledge Agreement Mortgages or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against all or any portion of the CollateralProperties; or (g7) constitute a waiver of the right of Lender to enforce the liability and obligation of BorrowerBorrowers, by money judgment or otherwise, to the extent of any actual loss, damagedamage (including, without limitation, those resulting from the diminution in value of any Property), cost, expenseexpense (including, liabilitywithout limitation, claim or other obligation incurred by Lender (including attorneys’ fees and costs reasonably incurred) arising out costs), liability, claim, obligation, cause of action, suit, demand and judgment, of any nature or description whatsoever, which may at any time be imposed upon, incurred by or awarded against Lender as a result of or in connection with arising from the following:
Appears in 2 contracts
Samples: Loan Agreement (Ashford Hospitality Trust Inc), Loan Agreement (Ashford Hospitality Trust Inc)
Exculpation. (a) Subject to the qualifications below, Lender shall not enforce the liability and obligation of Borrower or its constituent members, partners, shareholders, directors, employees or agents or the direct or indirect constituent members, partners, shareholders, directors, employees or agents thereof (collectively, the "Borrower Parties") or any other Person, to perform and observe the obligations contained in the Note, this Agreement, the Pledge Agreement Note or any of the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against Borrowerany of the Borrower Parties or any other Person, except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender and each Noteholder to enforce and realize upon its interest under the Note, this AgreementProperty, the Pledge Agreement and the other Loan Documents, or in the Collateral, Rents or any other collateral given to Lender pursuant to this Agreement and the other Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against the Borrower Parties only to the extent of Borrower’s their interest in the Collateral Property, the Rents and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Pledge Agreement Note and the other Loan Documents, agrees that it shall not xxx for, seek or demand any deficiency judgment against any of the Borrower Parties or any other Person in any such action or proceeding under, under or by reason of, of or in connection with, the Note, with this Agreement, the Pledge Agreement Note or any of the other Loan Documents. The provisions of this Section paragraph shall not, however, (ai) constitute a waiver, release or impairment of any obligation evidenced or secured by this Agreement, the Note or any of the other Loan Documents; (bii) impair the right of Lender to name any of the Borrower Parties, as a party defendant in any action or suit for foreclosure and sale under the Pledge AgreementMortgage; (ciii) affect the validity or enforceability of or any Guaranty guaranty made in connection with the Loan or any of the rights and remedies of Lender thereunder; (div) impair the right of Lender to obtain the appointment of a receiver; (ev) intentionally omitted; (f) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize impair the security granted by the Pledge Agreement or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against all enforcement of the CollateralAssignment of Leases and Rents executed in connection herewith; or (gvi) constitute a waiver of the right of Lender to enforce the liability and obligation of BorrowerBorrower (but not against any members of Borrower (other than Guarantor to the extent provided in the Non-Recourse Guaranty) or their direct or indirect constituent members or partners or any other Person), by money judgment or otherwise, to the extent of any actual loss, damage, cost, expense, liability, claim or other obligation incurred by Lender (including attorneys’ ' fees and costs reasonably incurred) arising out of or in connection with the following:
Appears in 2 contracts
Samples: Loan Agreement (Maguire Properties Inc), Loan Agreement (Maguire Properties Inc)
Exculpation. (a) Subject to the qualifications below, Lender shall not enforce the liability and obligation of Borrower to perform and observe the obligations contained in the Note, this Agreement, the Pledge Agreement Note, the Security Instrument or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against Borrower, except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender and each Noteholder to enforce and realize upon its interest under the Note, this Agreement, the Pledge Agreement Note, the Security Instrument and the other Loan Documents, or in the CollateralProperty, the Rents, or any other collateral given to Lender pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower’s interest in the Collateral Property, in the Rents, and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Pledge Agreement Note, the Security Instrument and the other Loan Documents, agrees that it shall not xxx for, seek or demand any deficiency judgment against Borrower in any such action or proceeding under, under or by reason of, of or under or in connection withwith this Agreement, the Note, this Agreement, the Pledge Agreement Security Instrument or the other Loan Documents. The provisions of this Section 11.22 shall not, however, (a) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (b) impair the right of Lender to name Borrower as a party defendant in any action or suit for foreclosure and sale under the Pledge AgreementSecurity Instrument; (c) affect the validity or enforceability of any guaranty or any Guaranty indemnity made in connection with the Loan or any of the rights and remedies of Lender thereunder; (d) impair the right of Lender to obtain the appointment of a receiver; (e) intentionally omittedimpair the enforcement of the Assignment of Leases; (f) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted by the Pledge Agreement Security Instrument or to commence any other appropriate action or proceeding in order for Lender to exercise its rights and remedies against all of the CollateralProperty, the Rents or any other collateral given to Lender pursuant to the Loan Documents; or (g) constitute a waiver of the right of Lender to enforce the liability and obligation of Borrower, by money judgment or otherwise, to the extent of any actual loss, damage, cost, expense, liability, claim or other obligation incurred by Lender (including attorneys’ fees and costs reasonably incurred) arising out of or in connection with with, and Borrower shall be personally liable for, the following:following (all such liability and obligation of Borrower for any or all of the following being referred to herein as the “Borrower’s Recourse Liabilities”):
Appears in 2 contracts
Samples: Loan Agreement (Consolidated Tomoka Land Co), Loan Agreement (American Realty Capital - Retail Centers of America, Inc.)
Exculpation. As of the Effective Date, each of (ai) Subject the Ambac Parties, (ii) the Rehabilitator, (iii) the Sponsoring GA SSN Holders, (iv) the Representatives and employees of each of the Ambac Parties, the Rehabilitator, the Sponsoring GA SSN Holders, and any advisors retained by the Representatives of the foregoing, and (v) the directors, officers, and employees of the Ambac Parties, the Sponsoring GA SSN Holders, and any advisors retained by the Representatives of the foregoing (collectively, the “Exculpated Parties”), are exculpated from any and all Causes of Action based in whole or in part on any act, omission, transaction, event or other occurrence arising out of, in connection with or otherwise relating to the qualifications belowRehabilitation Proceeding (including the commencement of the Rehabilitation Proceeding, Lender the preparation therefor, negotiations relating thereto, any restructuring work relating thereto, any Court orders sought or obtained, and the administration of the Rehabilitation Proceeding), the Disclosure Statement (including the Disclosure Statement’s formulation, negotiation, preparation and dissemination), the Plan and the Plan Amendment (including the Plan and Plan Amendment’s formulation, negotiation, preparation, dissemination and approval) or any contract, instrument, document or other agreement entered into as part of or pursuant to the Amended Plan (collectively, the “Exculpated Causes of Action”); provided that the foregoing shall not enforce affect the liability and obligation of Borrower any such Person that (i) arises out of any uncured breach of the Rehabilitation Exit Support Agreement or (ii) otherwise would result from any act or omission that is determined by a Final Order to perform and observe the obligations contained constitute willful misconduct, gross negligence, intentional fraud, criminal conduct, intentional unauthorized misuse of confidential information that causes damages or ultra xxxxx acts. Injunction: Except as provided in the NoteDefinitive Documents (e.g., this AgreementPost-Effective Date Resolution of Disputes Regarding Policy Claims), as of the Effective Date, all persons and entities will be precluded from asserting against the Ambac Parties, or their respective successors or property or any of their respective current or former members, shareholders, affiliates, officers, directors, employees or agents, any Deferred Amounts, obligations, rights, causes of action or liabilities, based upon any act, omission, transaction, or other activity of any kind or nature to the extent arising out of the Rehabilitation Circumstances. Without limiting the foregoing, the Pledge Agreement following actions with respect to a Deferred Amount will be enjoined: • commencing or the other Loan Documents by continuing in any manner any action or other proceeding wherein a money judgment shall on account of such Deferred Amount, or the property to be sought against Borrowerdistributed under the terms of the Amended Plan, except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender and each Noteholder than to enforce and realize upon its interest under any right to the NoteDeferred Amount Consideration; • enforcing, this Agreementattaching, the Pledge Agreement and the other Loan Documentscollecting, or recovering in any manner any judgment, award, decree, or order against the CollateralAmbac Parties; • creating, perfecting, or enforcing any Lien or other encumbrance against property of the Ambac Parties, or any other collateral given property to Lender pursuant be distributed under the terms of the Amended Plan; • asserting any right of setoff, subrogation, or recoupment of any kind, directly or indirectly, against any obligation due to the Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower’s interest in the Collateral and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Pledge Agreement and the other Loan Documents, agrees that it shall not xxx for, seek or demand any deficiency judgment against Borrower in any such action or proceeding underAmbac Parties, or by reason any direct or indirect transferee of any property of, or successor in connection withinterest to, the Note, this Agreement, the Pledge Agreement or the other Loan DocumentsAmbac Parties as prohibited by Wis. Stat. The provisions of this Section shall not, however, (a) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents§ 645.56; (b) impair the right of Lender to name Borrower as a party defendant in any action or suit for foreclosure and sale under the Pledge Agreement; (c) affect the validity or enforceability of or any Guaranty made in connection with the Loan or any of the rights and remedies of Lender thereunder; (d) impair the right of Lender to obtain the appointment of a receiver; (e) intentionally omitted; (f) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted by the Pledge Agreement or to commence any other appropriate action • acting or proceeding in order for Lender to exercise its remedies against all any manner, in any place whatsoever, that does not comply with the provisions of the Collateral; or (g) constitute a waiver of the right of Lender to enforce the liability and obligation of Borrower, by money judgment or otherwise, to the extent of any actual loss, damage, cost, expense, liability, claim or other obligation incurred by Lender (including attorneys’ fees and costs reasonably incurred) arising out of or in connection with the following:Amended Plan.
Appears in 2 contracts
Samples: Settlement Agreement, Rehabilitation Exit Support Agreement (Ambac Financial Group Inc)
Exculpation. (a) Subject to the qualifications belowThe Escrow Agent and its designees, Lender and their respective partners, employees, attorneys and agents, shall not enforce incur any liability whatsoever for the liability and obligation disposition of Borrower to perform and observe the obligations contained in the Note, this Agreement, the Pledge Agreement Shares or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against Borrower, except that Lender may bring a foreclosure action, an action for specific performance or taking of any other appropriate action or proceeding to enable Lender in accordance with the terms and each Noteholder to enforce and realize upon its interest under the Note, this Agreement, the Pledge Agreement and the other Loan Documents, or in the Collateral, or any other collateral given to Lender pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower’s interest in the Collateral and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Pledge Agreement and the other Loan Documents, agrees that it shall not xxx for, seek or demand any deficiency judgment against Borrower in any such action or proceeding under, or by reason of, or in connection with, the Note, this Agreement, the Pledge Agreement or the other Loan Documents. The provisions of this Section shall notEscrow Agreement, howeverfor any mistake or error in judgment, (a) constitute a waiverfor compliance with any applicable law or any attachment, release order or impairment other directive of any obligation evidenced court or secured other authority (irrespective of any conflicting term or provision of this Escrow Agreement), or for any act or omission of any other person selected with reasonable care and engaged by any of the Loan Documents; (b) impair the right of Lender to name Borrower as a party defendant in any action or suit for foreclosure and sale under the Pledge Agreement; (c) affect the validity or enforceability of or any Guaranty made Escrow Agent in connection with this Escrow Agreement (other than for such Escrow Agent's or such person's own acts or omissions breaching a duty owed to the Loan claimant under this Escrow Agreement and amounting to gross negligence or any willful misconduct as finally determined pursuant to applicable law by a governmental authority having jurisdiction); and each of the rights Company and remedies of Lender thereunder; (d) impair the right of Lender to obtain Investor hereby waives any and all claims and actions whatsoever against the appointment of a receiver; (e) intentionally omitted; (f) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted by the Pledge Agreement or to commence any other appropriate action or proceeding in order for Lender to exercise Escrow Agent and its remedies against all of the Collateral; or (g) constitute a waiver of the right of Lender to enforce the liability designees, and obligation of Borrowertheir respective partners, by money judgment or otherwiseemployees, to the extent of any actual lossattorneys and agents, damage, cost, expense, liability, claim or other obligation incurred by Lender (including attorneys’ fees and costs reasonably incurred) arising out of or in connection with related directly or indirectly to any and all of the following:foregoing acts, omissions and circumstances. Furthermore, the Escrow Agent and its designees, and their respective partners, employees, attorneys and agents, shall not incur any liability (other than for a person's own acts or omissions breaching a duty owed to the claimant under this Escrow Agreement and amounting to gross negligence or willful misconduct as finally determined pursuant to applicable law by a governmental authority having jurisdiction) for other acts and omissions arising out of or related directly or indirectly to this Escrow Agreement or the Shares; and each of the Company and the Investor hereby expressly waives any and all claims and actions (other than the Escrow Agent's or such person's own acts or omissions breaching a duty owed to the claimant and amounting to gross negligence or willful misconduct as finally determined pursuant to applicable law by a governmental authority having jurisdiction) against the Escrow Agent and its designees, and their respective partners, employees, attorneys and agents, arising out of or related directly or indirectly to any and all of the foregoing acts, omissions and circumstances.
Appears in 2 contracts
Samples: Escrow Agreement (Nationwide Companies Inc), Escrow Agreement (National Companies Inc)
Exculpation. (a) Subject to the qualifications below, Lender shall not enforce the liability and obligation of Borrower to perform and observe the obligations contained in the Note, this Agreement, the Pledge Agreement or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against Borrower, except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender and each Noteholder to enforce and realize upon its interest under the Note, this Agreement, the Pledge Agreement and the other Loan Documents, or in the Collateral, or any other collateral given to Lender pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower’s interest in the Collateral and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Pledge Agreement and the other Loan Documents, Seller agrees that it shall does not xxx forhave and will not have any claims, seek causes of action, or demand recourse against any deficiency judgment against Borrower in disclosed or undisclosed, past, present or future, direct or indirect officer, director, agent, incorporator, representative, employee, trustee, shareholder, partner, member, manager, principal, parent, subsidiary or other affiliate of Purchaser, including, without limitation, Tishman Speyer Properties, L.P. or BlackRock Realty Advisors, Inc. or any officer, director, agent, incorporator, representative, employee, trustee, shareholder, partner, member, manager, principal of any such action or proceeding underparent, or by reason of, or in connection with, the Note, this Agreement, the Pledge Agreement or the other Loan Documents. The provisions of this Section shall not, however, (a) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (b) impair the right of Lender to name Borrower as a party defendant in any action or suit for foreclosure and sale under the Pledge Agreement; (c) affect the validity or enforceability of or any Guaranty made in connection with the Loan or any of the rights and remedies of Lender thereunder; (d) impair the right of Lender to obtain the appointment of a receiver; (e) intentionally omitted; (f) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted by the Pledge Agreement or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against all of the Collateral; or (g) constitute a waiver of the right of Lender to enforce the liability and obligation of Borrower, by money judgment or otherwise, to the extent of any actual loss, damage, cost, expense, liability, claim subsidiary or other obligation incurred by Lender affiliate (including attorneys’ fees and costs reasonably incurred) collectively, "Purchaser's Parties"), arising out of or in connection with this Agreement or the following:transactions contemplated hereby. Seller agrees to look solely to Purchaser and its assets for the satisfaction of any liability or obligation arising under this Agreement or the transactions contemplated hereby, or for the performance of any of the covenants, warranties or other agreements contained herein, or for the payment or collection of any amount, judgment, judicial process, arbitral award, fee or cost or any other obligation or claim arising out of or based upon this Agreement, and further agrees not to sue or otherwise seek to enforce any personal obligation against any xx Purchaser's Parties with respect to any matters arising out of or in connection with this Agreement or the transactions contemplated hereby. Without limiting the generality of the foregoing provisions of this Section 10.23, Seller hereby unconditionally and irrevocably waives any and all claims and causes of action of any nature whatsoever it may now or hereafter have against Purchaser's Parties, and hereby unconditionally and irrevocably releases and discharges Purchaser's Parties from any and all liability whatsoever which may now or hereafter accrue in favor of Seller against Purchaser's Parties, in connection with or arising out of this Agreement or the transactions contemplated hereby. The provisions of this Section 10.23 shall survive the termination of this Agreement and the Closing.
Appears in 2 contracts
Samples: Purchase and Sale Agreement (Metlife Inc), Purchase and Sale Agreement (Metlife Inc)
Exculpation. (a) Subject to the qualifications below, Lender shall not enforce the liability and obligation of Borrower or Operating Lessee to perform and observe the obligations Obligations contained in the Note, this Agreement, the Pledge Agreement Mortgage or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against Borrower, Operating Lessee or against any SPC Party, any Mezzanine Borrower, any Guarantor, any Affiliates of the foregoing or any of their respective direct or indirect principals, directors, officers, employees, beneficiaries, shareholders, partners, members, trustees or agents (each, exclusive of the Borrower and Operating Lessee, an “Other Exculpated Party”), except that (1) any Other Exculpated Party that is party to any Loan Document or any other separate written guaranty, indemnity or other agreement given by such Other Exculpated Party in connection with the Loan (including, without limitation, the Assignment of Management Agreement or any other Loan Document to which such Other Exculpated Party is a party) shall remain fully liable therefor and the foregoing provisions shall not operate to limit or impair the liabilities and obligations of such Other Exculpated Party thereunder, and (2) Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender and each Noteholder to enforce and realize upon its interest under the Note, this Agreement, the Pledge Agreement Mortgage and the other Loan Documents, or in the CollateralProperties, the Gross Revenue, or any other collateral given to Lender pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower or Operating Lessee only to the extent of Borrower’s and Operating Lessee’s interest in the Collateral Properties, in the Gross Revenue and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Pledge Agreement Mortgage and the other Loan Documents, agrees that it shall not xxx sxx for, seek or demand any deficiency judgment against Borrower any of the Exculpated Parties in any such action or proceeding under, under or by reason of, of or under or in connection with, with the Note, this Agreement, the Pledge Agreement Mortgage or the other Loan Documents. The provisions of this Section 10.1 shall not, however, (a) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (b) impair the right of Lender to name Borrower or Operating Lessee as a party defendant in any action or suit for foreclosure and sale under the Pledge AgreementMortgage; (c) affect the validity or enforceability of any of the Loan Documents or any Guaranty guaranty made in connection with the Loan or any of the rights and remedies of Lender thereunder; (d) impair the right of Lender to obtain the appointment of a receiver; (e) intentionally omittedimpair the enforcement of the Assignment of Leases; (f) impair the enforcement of the Environmental Indemnity; (g) constitute a prohibition against Lender to seek a deficiency judgment against Borrower or Operating Lessee in order to fully realize the security granted by the Pledge Agreement Mortgage or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against all the Properties; (i) waive or impair the liability of any Other Exculpated Party under any Loan Document or any other separate written guaranty, indemnity or other agreement to which such Other Exculpated Party is a party (including, without limitation, the CollateralAssignment of Management Agreement or any other Loan Document to which such Other Exculpated Party is a party); or (gi) constitute a waiver of the right of Lender to enforce the liability and obligation of BorrowerBorrower or Operating Lessee, by money judgment or otherwise, to the extent of any actual loss, damage, cost, out-of-pocket cost or expense, liability, claim or other obligation incurred by Lender (including reasonable outside attorneys’ fees and costs reasonably incurred) arising out of or in connection with the following:following (all such liability and obligation of Borrower or Operating Lessee for any or all of the following being referred to herein as “Borrower’s Recourse Liabilities”):
Appears in 2 contracts
Samples: Loan Agreement (Hospitality Investors Trust, Inc.), Loan Agreement (Hospitality Investors Trust, Inc.)
Exculpation. (a) Subject to the qualifications below, Lender shall not enforce the liability and obligation of Borrower to perform and observe the obligations contained in the Note, this Agreement, the Pledge Agreement or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against Borrower, except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender and each Noteholder to enforce and realize upon its interest and rights under the Note, this Agreement, the Pledge Agreement and the other Loan Documents, or in the CollateralProperty, the Rents or any other collateral given to Lender pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower’s interest in the Collateral Property, in the Rents and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Pledge Agreement and the other Loan Documents, agrees that it Lender shall not xxx for, seek or demand any deficiency judgment against Borrower in any such action or proceeding under, under or by reason of, of or under or in connection with, the Note, this Agreement, the Pledge Agreement or the other with any Loan DocumentsDocument. The provisions of this Section 10.1 shall not, however, (ai) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan DocumentsDocument; (bii) impair the right of Lender to name Borrower as a party defendant in any action or suit for foreclosure and sale under the Pledge AgreementMortgage; (ciii) affect the validity or enforceability of any of the Loan Documents or any Guaranty guaranty made in connection with the Loan or any of the rights and remedies of Lender thereunder; (div) impair the right of Lender to obtain the appointment of a receiver; (ev) intentionally omittedimpair the enforcement of the Assignment of Leases; (fvi) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted by the Pledge Agreement or to commence any other appropriate action or proceeding in order for Lender to fully realize the security granted by the Mortgage or to exercise its remedies against all of the CollateralProperty; or (gvii) constitute a waiver of the right of Lender to enforce the liability and obligation of Borrower, by money judgment or otherwise, to the extent of any actual loss, damage, cost, expense, liability, claim or other obligation incurred by Lender (including attorneys’ fees and costs reasonably incurred) arising out of or in connection with the following:obligation
Appears in 2 contracts
Samples: Loan Agreement (Hines Global REIT, Inc.), Loan Agreement (KBS Real Estate Investment Trust, Inc.)
Exculpation. (a) Subject to the qualifications below, Lender Mortgagee shall not enforce the liability and obligation of Borrower Mortgagor to perform and observe the obligations contained in the Note, Note or this Agreement, the Pledge Agreement or the other Loan Documents Mortgage by any action or proceeding wherein a money judgment shall be sought against BorrowerMortgagor or any general or limited partner of Mortgagor (hereafter collectively referred to as the "Exculpated Parties"), except that Lender Mortgagee may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender and each Noteholder Mortgagee to enforce and realize upon its interest under the Note, this AgreementMortgage, the Pledge Agreement Other Security Documents, and the other Loan Documents, or interest in the CollateralMortgaged Property, or the Rents and any other collateral given to Lender pursuant to Mortgagee created by this Mortgage and the Loan Other Security Documents; provided, however, that, except as specifically provided herein, that any judgment in any such action or proceeding shall be enforceable against Borrower the Exculpated Parties only to the extent of Borrower’s Mortgagor's interest in the Collateral Mortgaged Property, in the Rents and in any other collateral given to Lender, and LenderMortgagee. Mortgagee, by accepting the Note, Note and this Agreement, the Pledge Agreement and the other Loan DocumentsMortgage, agrees that it shall not xxx for, seek or demand any deficiency judgment against Borrower the Exculpated Parties in any such action or proceeding underproceeding, under or by reason of, of or in connection with, with the Note, the Other Security Documents or this Agreement, the Pledge Agreement or the other Loan DocumentsMortgage. The provisions of this Section paragraph shall not, however, (ai) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan DocumentsNote, the Other Security Documents or this Mortgage; (bii) impair the right of Lender Mortgagee to name Borrower Mortgagor as a party defendant in any action or suit for judicial foreclosure and sale under the Pledge Agreementthis Mortgage; (ciii) affect the validity or enforceability of or any Guaranty guaranty made in connection with the Loan Note, this Mortgage, or any of the rights and remedies of Lender thereunderOther Security Documents; (div) impair the right of Lender Mortgagee to obtain the appointment of a receiver; (ev) intentionally omittedimpair the enforcement of the Assignment of Leases and Rents executed in connection herewith; (fvi) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted by the Pledge Agreement or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against all of the Collateral; or (g) constitute a waiver of impair the right of Lender Mortgagee to enforce bring suit with respect to fraud or intentional misrepresentation by the liability and obligation of Borrower, by money judgment Exculpated Parties or otherwise, to the extent of any actual loss, damage, cost, expense, liability, claim other person or other obligation incurred by Lender (including attorneys’ fees and costs reasonably incurred) arising out of or entity in connection with the following:Note, this Mortgage or the Other Security Documents; (vii) impair the right of Mortgagee to obtain the Rents received by any of the Exculpated Parties after the occurrence of an Event of Default; (viii) impair the right of Mortgagee to bring suit with respect to the Exculpated Parties' misappropriation of tenant security deposits or Rents collected in advance; (ix) impair the right of Mortgagee to obtain insurance proceeds or condemnation awards due to Mortgagee under this Mortgage; (x) impair the right of Mortgagee to enforce the provisions of sub-paragraphs 36(g) through 36(j), inclusive and paragraphs 34 and 35 of this Mortgage against the Mortgagor (excluding any general or limited partner thereof); or (xi) impair the right of Mortgagee to recover any part of the Debt from the Mortgagor (excluding the general and limited partners of Mortgagor), following the breach of any covenant contained in paragraph 9 or 56 hereof.
Appears in 2 contracts
Samples: First Mortgage and Security Agreement (Century Properties Fund Xvi), First Mortgage and Security Agreement (Century Properties Fund Xii)
Exculpation. (a) Subject The Advisor agrees to indemnify the qualifications belowEscrow Agent for, Lender shall not enforce the liability and obligation to hold it harmless against, any loss, liability, or expense incurred without gross negligence, bad faith, reckless disregard of Borrower to perform its duties and observe the obligations contained in the Note, under this Agreement, fraud or willful misconduct on the Pledge Agreement part of the Escrow Agent, its affiliates or the other Loan Documents by agents arising directly or indirectly from any action or proceeding wherein omission to act on the part of the Escrow Agent, its affiliates or agents pursuant to this Agreement, as well as the reasonable costs and expenses of defending any claim or liability or of prosecuting any action in the premises. The Escrow Agent shall not be obligated to take any action hereunder which might in its reasonable judgment subject it to any expense or liability unless it shall have been furnished with indemnity acceptable to it. Prior to the Termination Date, Subscription Payments held by the Escrow Agent shall remain the property of the Subscribers making such Payments and shall not be subject to a money judgment shall be sought against Borrower, except that Lender may bring a foreclosure action, an action for specific performance lien of the Escrow Agent or any other appropriate creditors of the REIT or the Advisor. The Escrow Agent shall not be obligated to take any action which it is not expressly directed to take in this Agreement unless and until it shall have received written instruction from the REIT. The Escrow Agent shall be liable only for its own, including its affiliates or proceeding to enable Lender agents own, gross negligence, bad faith, fraud, willful misconduct or reckless disregard of its duties and each Noteholder to enforce and realize upon its interest obligations under the Note, this Agreement, the Pledge Agreement and shall incur no liability for action in accordance with the other Loan Documentsterms of this Escrow Agreement or with the terms of any instructions received by it from the Advisor, whether or in the Collateral, or any other collateral given to Lender pursuant not contrary to the Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower’s interest in the Collateral and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Pledge Agreement and the other Loan Documents, agrees that it shall not xxx for, seek or demand any deficiency judgment against Borrower in any such action or proceeding under, or by reason of, or in connection with, the Note, this Agreement, the Pledge Agreement or the other Loan Documents. The provisions of this Section Agreement or to the agreements between the REIT and the Subscribers. The Escrow Agent may rely upon, and shall notbe protected in acting upon, howeverany resolution, (a) constitute a waivercertificate, release opinion, notice, request, consent, or impairment other paper or document believed by it to be genuine and to have been signed by the proper person or persons. Any notice or instruction from the REIT shall be sufficient if it bears or purports to bear the signature of any obligation evidenced or secured by any one of the Loan Documents; (b) impair following: Xxxxxxx Xxxxxxxxx and Xxxx X. Xxxx, whose signatures appear hereon, with or without designation of principal or of representative capacity. The Escrow Agent may consult with counsel, and the right opinion of Lender such counsel shall be full and complete protection in respect to name Borrower as a party defendant in any action taken or suit for foreclosure not taken, or suffered by it hereunder in accordance with such opinion. The Escrow Agent may petition any court of competent jurisdiction to resolve any disagreement relating hereto and sale under the Pledge Agreement; (c) affect the validity or enforceability of or any Guaranty made in connection with the Loan or any of the may refuse to act until such court has ordered it to act. Such rights and remedies shall be alternative and any action taken or not taken in conformance with an opinion of Lender thereunder; (d) impair counsel or court order shall not constitute negligence or misconduct and shall be complete and final acquittance and discharge of the right of Lender to obtain Escrow Agent's responsibilities with respect thereto. Notwithstanding the appointment of a receiver; (e) intentionally omitted; (f) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted foregoing, it is understood and agreed by the Pledge Agreement or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against all parties that no member of the Collateral; or Advisor acting in its capacity as such shall have any personal liability under this agreement and that any person asserting a claim against the Advisor hereunder shall look solely to the assets of such Advisor (g) constitute a waiver specifically excluding the personal assets of the right of Lender to enforce the liability and obligation of Borrower, by money judgment or otherwise, to the extent of any actual loss, damage, cost, expense, liability, claim or other obligation incurred by Lender (including attorneys’ fees and costs reasonably incurred) arising out of or in connection with the following:members thereof).
Appears in 2 contracts
Samples: Escrow Agreement (Boston Capital Real Estate Investment Trust Inc), Escrow Agreement (Boston Capital Real Estate Investment Trust Inc)
Exculpation. (a) Subject Notwithstanding anything to the contrary contained in this Agreement, the Note, the Mortgages or the other Loan Documents but subject to the qualifications below, Lender shall not enforce the liability and obligation of Borrower to perform and observe the obligations contained in the Note, this Agreement, the Pledge Agreement Mortgages or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against Borrower, except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender and each Noteholder to enforce and realize upon its interest under the Note, this Agreement, the Pledge Agreement Mortgages and the other Loan Documents, or in one or more Properties, the CollateralRents, or any other collateral given to Lender pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower’s interest in the Collateral Properties, in the Rents and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Pledge Agreement Mortgages and the other Loan Documents, agrees that it shall not xxx for, seek or demand any deficiency judgment against Borrower in any such action or proceeding under, under or by reason of, of or under or in connection with, with the Note, this Agreement, the Pledge Agreement Mortgages or the other Loan Documents. The provisions of this Section shall not, however, (a) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (b) impair the right of Lender to name Borrower as a party defendant in any action or suit for foreclosure and sale under the Pledge AgreementMortgages (as long as Lender shall not xxx for, seek or demand any deficiency judgment against Borrower); (c) affect the validity or enforceability of or any Guaranty guaranty made in connection with the Loan or any of the rights and remedies of Lender thereunder; (d) impair the right of Lender to obtain the appointment of a receiver; (e) intentionally omittedimpair the enforcement of any assignment of leases contained in the Mortgage; (f) constitute a prohibition against Lender to seek seeking a deficiency judgment against Borrower (but not Guarantor) if necessary in order to fully realize the security granted by the Pledge Agreement Mortgages or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against all of the Collateralany Individual Property; or (g) constitute a waiver of the right of Lender to enforce the liability and obligation of Borrower, by money judgment or otherwise, to the extent of any actual loss, damage, cost, expense, liability, claim or other obligation incurred by Lender (including attorneys’ fees and costs expenses reasonably incurred) arising out of or in connection with the following:
Appears in 2 contracts
Samples: Loan Agreement (Cole Credit Property Trust III, Inc.), Loan Agreement (Cole Credit Property Trust III, Inc.)
Exculpation. (a) Subject to Except as otherwise provided in this Section 9.4 and comparable provisions in the qualifications belowPledge Agreement or in the other Loan Documents, Lender shall not enforce the liability and obligation of Borrower to perform and observe the obligations contained in the Note, this Agreement, the Note or the Pledge Agreement or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against Borrower or any of Borrower's Affiliates, except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender and each Noteholder to enforce and realize upon its interest under this Agreement, the Note, the Pledge Agreement, the other Loan Documents, and the Collateral, and any other Collateral created by this Agreement, the Note, the Pledge Agreement and the other Loan Documents, or in the Collateral, or any other collateral given to Lender pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, that any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower’s 's interest in the Collateral and in any other collateral given to Lender, and . Lender, by accepting the Note, this Agreement, the Pledge Agreement Note and the other Loan DocumentsPledge Agreement, agrees that it shall not xxx not, except as otherwise provided in this Section 9.4 and comparable provisions or in the Pledge Agreement, sue for, seek or demand any deficiency judgment against Borrower or xxx of Borrower's Affiliates in any such action or proceeding underproceeding, under or by reason of, of or under or in connection withwith this Agreement, the Note, this Agreement, the Pledge Agreement or the other Loan Documents. The provisions of this Section shall not, however, (ai) constitute a waiver, release or impairment of any obligation evidenced or secured by any of this Agreement, the Note, the Pledge Agreement or the other Loan Documents; (bii) impair the right of Lender to name Borrower as a party defendant in any action or suit for judicial foreclosure and sale under the Pledge Agreement; (ciii) except as set forth in this Section 9.4, affect the validity or enforceability of any indemnity (including, without limitation, the Environmental Indemnity), guaranty (including, without limitation, the Guaranty), master lease or any Guaranty similar instrument made in connection with this Agreement, the Note, the Pledge Agreement, or the other Loan or any of the rights and remedies of Lender thereunderDocuments; (div) impair the right of Lender to obtain the appointment of a receiver; (ev) intentionally omitted; (f) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted by the Pledge Agreement or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against all of the Collateral; or (g) constitute a waiver of impair the right of Lender to enforce Sections 4.1.9, 4.1.29, 5.1.9 and 5.2.8 hereof; or (vi) impair the liability and obligation right of Borrower, by money Lender to obtain a deficiency judgment or otherwiseother judgment on the Note against Borrower to the extent necessary to (A) preserve or enforce its rights and remedies against the Collateral or (B) obtain any Insurance Proceeds or Awards to which Lender would otherwise be entitled under the terms of this Agreement or the Pledge Agreement; provided however, Lender shall only enforce such judgment to the extent of any actual loss, damage, cost, expense, liability, claim or other obligation incurred by amounts Lender (including attorneys’ fees and costs reasonably incurred) arising out is entitled to under the terms of or in connection with the following:this Agreement from such Insurance Proceeds and/or Awards.
Appears in 2 contracts
Samples: Junior Mezzanine Loan Agreement (Felcor Lodging Trust Inc), Mezzanine Loan Agreement (Felcor Lodging Trust Inc)
Exculpation. (a) Subject to Except as otherwise provided herein or in the qualifications belowother Loan Documents, Lender shall not enforce the liability and obligation of Borrower or Borrower Principal, as applicable, to perform and observe the obligations contained herein or in the Note, this Agreement, the Pledge Agreement or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against BorrowerBorrower or Borrower Principal, except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender and each Noteholder to enforce and realize upon its interest under the Note, this Agreement, the Pledge Agreement Note, the Mortgages and the other Loan Documents, or and the interest in the CollateralProperties, or the Rents and any other collateral given to Lender pursuant to created by this Agreement, the Note, the Mortgages and the other Loan Documents; provided, however, that, except as specifically provided herein, that any judgment in any such action or proceeding shall be enforceable against Borrower or Borrower Principal, as applicable, only to the extent of Borrower’s 's or Borrower Principal's interest in the Collateral Properties, in the Rents and in any other collateral given to Lender, and . Lender, by accepting the Note, this Agreement, the Pledge Agreement Note, the Mortgages and the other Loan Documents, agrees that it shall not not, except as otherwise provided in this Section 15.1, xxx for, seek or demand any deficiency judgment against Borrower or Borrower Principal in any such action or proceeding underproceeding, under or by reason of, of or under or in connection withwith this Agreement, the Note, this Agreement, the Pledge Agreement Mortgages or the other Loan Documents. The provisions of this Section 15.1 shall not, however, (ai) constitute a waiver, release or impairment of any obligation evidenced or secured by any of this Agreement, the Note, the Mortgages or the other Loan Documents; (bii) impair the right of Lender to name Borrower or Borrower Principal as a party defendant in any action or suit for judicial foreclosure and sale under this Agreement and the Pledge AgreementMortgages; (ciii) affect the validity or enforceability of any indemnity (including, without limitation, those contained in Section 12.6, Section 13.5 and Article 14 of this Agreement), guaranty, master lease or any Guaranty similar instrument made in connection with this Agreement, the Note, the Mortgages and the other Loan or any of the rights and remedies of Lender thereunderDocuments; (div) impair the right of Lender to obtain the appointment of a receiver; (ev) intentionally omitted; (f) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize impair the security granted by the Pledge Agreement or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against all enforcement of the Collateralassignment of leases provisions contained in the Mortgages; or (gvi) constitute a waiver of impair the right of Lender to enforce the liability and obligation of Borrower, by money obtain a deficiency judgment or otherwiseother judgment on the Note against Borrower or Borrower Principal if necessary to obtain any Insurance Proceeds or Awards to which Lender would otherwise be entitled under this Agreement; provided however, Lender shall only enforce such judgment to the extent of any actual loss, damage, cost, expense, liability, claim or other obligation incurred by Lender (including attorneys’ fees and costs reasonably incurred) arising out of or in connection with the following:Insurance Proceeds and/or Awards.
Appears in 2 contracts
Samples: Loan Agreement (Corporate Property Associates 15 Inc), Loan Agreement (Corporate Property Associates 16 Global Inc)
Exculpation. (a) Subject to the qualifications belowThe Escrow Agent and its designees, Lender and their respective partners, employees, attorneys and agents, shall not enforce incur any liability whatsoever for the liability and obligation investment or disposition of Borrower to perform and observe the obligations contained in the Note, this Agreement, the Pledge Agreement funds or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against Borrower, except that Lender may bring a foreclosure action, an action for specific performance or taking of any other appropriate action or proceeding to enable Lender in accordance with the terms and each Noteholder to enforce and realize upon its interest under the Note, this Agreement, the Pledge Agreement and the other Loan Documents, or in the Collateral, or any other collateral given to Lender pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower’s interest in the Collateral and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Pledge Agreement and the other Loan Documents, agrees that it shall not xxx for, seek or demand any deficiency judgment against Borrower in any such action or proceeding under, or by reason of, or in connection with, the Note, this Agreement, the Pledge Agreement or the other Loan Documents. The provisions of this Section shall notEscrow Agreement, howeverfor any mistake or error in judgment, (a) constitute a waiverfor compliance with any applicable law or any attachment, release order or impairment other directive of any obligation evidenced court or secured other authority (irrespective of any conflicting term or provision of this Escrow Agreement), or for any act or omission of any other person selected with reasonable care and engaged by any of the Loan Documents; (b) impair the right of Lender to name Borrower as a party defendant in any action or suit for foreclosure and sale under the Pledge Agreement; (c) affect the validity or enforceability of or any Guaranty made Escrow Agent in connection with this Escrow Agreement (other than for such Escrow Agent's or such person's own acts or omissions breaching a duty owed to the Loan claimant under this Escrow Agreement and amounting to gross negligence or any willful misconduct as finally determined pursuant to applicable law by a governmental authority having jurisdiction); and each of the rights Company and remedies of Lender thereunder; (d) impair the right of Lender to obtain Purchasers hereby waive any and all claims and actions whatsoever against the appointment of a receiver; (e) intentionally omitted; (f) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted by the Pledge Agreement or to commence any other appropriate action or proceeding in order for Lender to exercise Escrow Agent and its remedies against all of the Collateral; or (g) constitute a waiver of the right of Lender to enforce the liability designees, and obligation of Borrowertheir respective partners, by money judgment or otherwiseemployees, to the extent of any actual lossattorneys and agents, damage, cost, expense, liability, claim or other obligation incurred by Lender (including attorneys’ fees and costs reasonably incurred) arising out of or in connection with related directly or indirectly to any and all of the following:foregoing acts, omissions and circumstances. Furthermore, the Escrow Agent and its designees, and their respective partners, employees, attorneys and agents, shall not incur any liability (other than for a person's own acts or omissions breaching a duty owed to the claimant under this Escrow Agreement and amounting to willful misconduct as finally determined pursuant to applicable law by a governmental authority having jurisdiction) for other acts and omissions arising out of or related directly or indirectly to this Escrow Agreement or the Escrow Amount; and each of the Company and the Purchasers hereby expressly waives any and all claims and actions (other than those attributable to a person's own acts or omissions breaching a duty owed to the claimant and amounting to gross negligence or willful misconduct as finally determined pursuant to applicable law by a governmental authority having jurisdiction) against the Escrow Agent and its designees, and their respective partners, employees, attorneys and agents, arising out of or related directly or indirectly to any and all of the foregoing acts, omissions and circumstances.
Appears in 2 contracts
Samples: Form of Escrow Agreement (Xybernaut Corp), Securities Purchase Agreement (Starbase Corp)
Exculpation. (a) 22.%2.%3.%4. Subject to the qualifications below, Lender shall not enforce the liability and obligation of Borrower Pledgor to perform and observe the obligations contained in the Note, this Agreement, the Pledge Agreement or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against BorrowerPledgor, except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender and each Noteholder to enforce and realize upon its interest under the Note, this Agreement, the Pledge Agreement and the other Loan Documents, or in the Collateral, or any other collateral Collateral given to Lender pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower Pledgor only to the extent of BorrowerPledgor’s interest in the Collateral and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Pledge Agreement and the other Loan Documents, agrees that it shall not xxx for, seek or demand any deficiency judgment against Borrower Pledgor in any such action or proceeding under, under or by reason of, of or under or in connection with, with the Note, this Agreement, the Pledge Agreement or the other Loan Documents. The provisions of this Section shall not, however, (a) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (b) impair the right of Lender to name Borrower Pledgor (if applicable) as a party defendant in any action or suit for foreclosure and sale under the Pledge Agreement; (c) affect the validity or enforceability of or any Guaranty guaranty made in connection with the Loan or any of the rights and remedies of Lender thereunder; (d) impair the right of Lender to obtain the appointment of a receiver; (e) intentionally omitted; or (f) constitute a prohibition against Lender to seek a deficiency judgment against Borrower (if applicable) in order to fully realize the security granted by the Pledge Agreement or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against all of the Collateral; or (g) constitute a waiver of the right of Lender to enforce the liability and obligation of Borrower, by money judgment or otherwise, to the extent of any actual loss, damage, cost, expense, liability, claim or other obligation incurred by Lender (including attorneys’ fees and costs reasonably incurred) arising out of or in connection with the following:.
Appears in 2 contracts
Samples: Junior Mezzanine Loan Agreement (Ashford Hospitality Prime, Inc.), Senior Mezzanine Loan Agreement (Ashford Hospitality Prime, Inc.)
Exculpation. (a) Subject to the qualifications below, Lender shall not enforce the liability and obligation of Borrower to perform and observe the obligations contained in the Note, this Agreement, the Pledge Agreement Mortgages or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against Borrower, except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender and each Noteholder to enforce and realize upon its interest under the Note, this Agreement, the Pledge Agreement Mortgages and the other Loan Documents, or in the CollateralProperties, the Rents, or any other collateral given to Lender pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower’s interest in the Collateral Properties, in the Rents and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Pledge Agreement Mortgages and the other Loan Documents, agrees that it shall not xxx sue for, seek or demand any deficiency judgment against Borrower in any such action or proceeding under, or by reason of, or in connection with, the Note, this Agreement, the Pledge Agreement Mortgages or the other Loan Documents. The provisions of this Section 9.3 shall not, however, (ai) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (bii) impair the right of Lender to name Borrower as a party defendant in any action or suit for foreclosure and sale under any of the Pledge AgreementMortgages; (ciii) affect the validity validity, enforceability or enforceability terms of or any the Limited Recourse Guaranty made in connection with the Loan or any of the rights and remedies of Lender thereunder; (div) impair the right of Lender to obtain the appointment of a receiver; (ev) intentionally omittedimpair the enforcement of the Assignment of Leases; or (fvi) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted by the Pledge Agreement Mortgages or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against all of the Collateral; or (g) constitute a waiver of the right of Lender to enforce the liability and obligation of Borrower, by money judgment or otherwise, to the extent of any actual loss, damage, cost, expense, liability, claim or other obligation incurred by Lender (including attorneys’ fees and costs reasonably incurred) arising out of or in connection with the following:Properties.
Appears in 2 contracts
Samples: Loan Agreement (Lineage, Inc.), Loan Agreement (Lineage, Inc.)
Exculpation. (a) Subject to the qualifications below, Lender shall not enforce the liability and obligation of Borrower to perform and observe the obligations contained in the Note, this Agreement, the Pledge Agreement Mortgages or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against Borrower, except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender and each Noteholder to enforce and realize upon its interest under the Note, this Agreement, the Pledge Agreement Mortgages and the other Loan Documents, or in the CollateralProperties, the Rents, or any other collateral given to Lender pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower’s interest in the Collateral Properties, in the Rents and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Pledge Agreement Mortgages and the other Loan Documents, agrees that it shall not xxx for, seek or demand any deficiency judgment against Borrower in any such action or proceeding under, or by reason of, or in connection with, the Note, this Agreement, the Pledge Agreement Mortgages or the other Loan Documents. The provisions of this Section shall not, however, (a) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (b) impair the right of Lender to name Borrower as a party defendant in any action or suit for foreclosure and sale under any of the Pledge AgreementMortgages; (c) affect the validity or enforceability of or any Guaranty made in connection with the Loan or any of the rights and remedies of Lender thereunder; (d) impair the right of Lender to obtain the appointment of a receiver; (e) intentionally omittedimpair the enforcement of any of the Assignments of Leases; (f) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted by each of the Pledge Agreement Mortgages or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against all of the CollateralProperties; or (g) constitute a waiver of the right of Lender to enforce the liability and obligation of Borrower, by money judgment or otherwise, to the extent of any actual loss, damage, cost, expense, liability, claim or other obligation incurred by Lender (including attorneys’ fees and costs reasonably incurred) arising out of or in connection with the following:
Appears in 2 contracts
Samples: Loan Agreement (Harrahs Entertainment Inc), Loan Agreement (Harrahs Entertainment Inc)
Exculpation. (a) Subject to the qualifications below, Lender shall not enforce the liability and obligation of Borrower to perform and observe the obligations contained in the Note, this Agreement, the Pledge Agreement Mortgages or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against Borrower, except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender and each Noteholder to enforce and realize upon its interest under the Note, this Agreement, the Pledge Agreement Mortgages and the other Loan Documents, or in the CollateralProperties, the Rents, or any other collateral given to Lender pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower’s interest in the Collateral Properties, in the Rents and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Pledge Agreement Mortgages and the other Loan Documents, agrees that it shall not xxx for, seek or demand any deficiency judgment against Borrower in any such action or proceeding under, or by reason of, or in connection with, the Note, this Agreement, the Pledge Agreement Mortgages or the other Loan Documents. The provisions of this Section shall not, however, (a) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (b) impair the right of Lender to name Borrower as a party defendant in any action or suit for foreclosure and sale under any of the Pledge AgreementMortgages; (c) affect the validity or enforceability of the Guaranty or any Guaranty made in connection with the Loan Environmental Indemnity or any of the rights and remedies of Lender thereunder; (d) impair the right of Lender to obtain the appointment of a receiver; (e) intentionally omittedimpair the enforcement of the Assignment of Leases; (f) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted by each of the Pledge Agreement Mortgages or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against all of the CollateralProperties; or (g) constitute a waiver of the right of Lender to enforce the liability and obligation of Borrower, by money judgment or otherwise, to the extent of any actual loss, damage, cost, expense, liability, claim or other obligation incurred by Lender (including attorneys’ fees fees, costs and costs expenses reasonably incurred) arising out of or in connection with the following:
Appears in 2 contracts
Samples: Loan Agreement (Brixmor Property Group Inc.), Loan Agreement (Brixmor Property Group Inc.)
Exculpation. (a) Subject to Except as otherwise provided herein or in the qualifications belowother Loan Documents, Lender shall not enforce the liability and obligation of Borrower or Borrower Principal, as applicable, to perform and observe the obligations contained herein or in the Note, this Agreement, the Pledge Agreement or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against BorrowerBorrower or Borrower Principal, except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender and each Noteholder to enforce and realize upon its interest under the Note, this Agreement, the Pledge Agreement Note, the Deed of Trust and the other Loan Documents, or and the interest in the CollateralProperty, or the Rents and any other collateral given to Lender pursuant to created by this Agreement, the Note, the Deed of Trust and the other Loan Documents; provided, however, that, except as specifically provided herein, that any judgment in any such action or proceeding shall be enforceable against Borrower or Borrower Principal, as applicable, only to the extent of Borrower’s 's or Borrower Principal's interest in the Collateral Property, in the Rents (following an Event of Default) and in any other collateral given to Lender, and . Lender, by accepting the Note, this Agreement, the Pledge Agreement Note, the Deed of Trust and the other Loan Documents, agrees that it shall not not, except as otherwise provided in this Section 15.1, xxx for, seek or demand any deficiency judgment against Borrower or Borrower Principal in any such action or proceeding underproceeding, under or by reason of, of or under or in connection withwith this Agreement, the Note, this Agreement, the Pledge Agreement Deed of Trust or the other Loan Documents. The provisions of this Section 15.1 shall not, however, (ai) constitute a waiver, release or impairment of any obligation evidenced or secured by any this Agreement, the Note, the Deed of Trust or the other Loan Documents; (bii) impair the right of Lender to name Borrower or Borrower Principal as a party defendant in any action or suit for judicial foreclosure and sale under this Agreement and the Pledge AgreementDeed of Trust; (ciii) affect the validity or enforceability of any indemnity (including, without limitation, those contained in Section 12.6 and Article 14 of this Agreement), guaranty, master lease or any Guaranty similar instrument made in connection with this Agreement, the Note, the Deed of Trust and the other Loan or any of the rights and remedies of Lender thereunderDocuments; (div) impair the right of Lender to obtain the appointment of a receiver; (ev) intentionally omitted; (f) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize impair the security granted by the Pledge Agreement or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against all enforcement of the Collateralassignment of leases provisions contained in the Deed of Trust; or (gvi) constitute a waiver of impair the right of Lender to enforce the liability and obligation of Borrower, by money obtain a deficiency judgment or otherwiseother judgment on the Note against Borrower or Borrower Principal if necessary to obtain any Insurance Proceeds or Awards to which Lender would otherwise be entitled under this Agreement; provided however, Lender shall only enforce such judgment to the extent of any actual loss, damage, cost, expense, liability, claim or other obligation incurred by Lender (including attorneys’ fees and costs reasonably incurred) arising out of or in connection with the following:Insurance Proceeds and/or Awards.
Appears in 2 contracts
Samples: Loan Agreement (Inland Western Retail Real Estate Trust Inc), Loan Agreement (Inland Western Retail Real Estate Trust Inc)
Exculpation. (a) Subject to the qualifications below, Lender shall not enforce the liability and obligation of Borrower (or any of Borrower’s members, managers, partners, shareholders, or Affiliates, whether direct or indirect, collectively, the “Borrower Parties”) to perform and observe the obligations contained in the Note, this Agreement, the Pledge Agreement or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against Borrower, except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender and each Noteholder to enforce and realize upon its interest under the Note, this Agreement, the Pledge Agreement and the other Loan Documents, or in the Collateral, or any other collateral given to Lender pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower or the Borrower Parties only to the extent of Borrower’s or the Borrower Parties’ interest in the Collateral and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Pledge Agreement and the other Loan Documents, agrees that it shall not xxx for, seek or demand any deficiency judgment against Borrower or the Borrower Parties in any such action or proceeding under, or by reason of, or in connection with, the Note, this Agreement, the Pledge Agreement or the other Loan Documents. The provisions of this Section shall not, however, (a) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (b) impair the right of Lender to name Borrower as a party defendant in any action or suit for foreclosure and sale under the Pledge Agreement; (c) affect the validity or enforceability of or any Guaranty guaranty made in connection with the Loan or any of the rights and remedies of Lender thereunder; (d) impair the right of Lender to obtain the appointment of a receiver; (e) intentionally omitted; (f) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted by the Pledge Agreement or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against all the Collateral; (f) impair the enforcement of the CollateralAssignment of Leases and Rents; or (g) constitute a waiver of the right of Lender to enforce the liability and obligation of Borrower, by money judgment or otherwise, to the extent of any actual loss, damage, cost, expense, liability, claim or other obligation incurred by Lender (including including, without limitation, attorneys’ fees and costs reasonably incurred) ), arising out of or in connection with the following:
Appears in 2 contracts
Samples: Loan Agreement (Maguire Properties Inc), Loan Agreement (Maguire Properties Inc)
Exculpation. (a) Subject to the qualifications below, Lender shall not enforce the liability and obligation of Borrower to perform and observe the obligations Obligations contained in the Note, this Agreement, the Pledge Agreement Mortgage or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against Borrower, except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender and each Noteholder to enforce and realize upon its interest under the Note, this Agreement, the Pledge Agreement Mortgage and the other Loan Documents, or in the CollateralProperty, the Gross Revenues or any other collateral given to Lender pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower’s interest in the Collateral Property, in the Gross Revenues and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Pledge Agreement Mortgage and the other Loan Documents, agrees that it shall not xxx sxx for, seek or demand any deficiency judgment against Borrower in any such action or proceeding under, under or by reason of, of or under or in connection with, with the Note, this Agreement, the Pledge Agreement Mortgage or the other Loan Documents. The provisions of this Section 10.1 shall not, however, (a) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (b) impair the right of Lender to name Borrower as a party defendant in any action or suit for foreclosure and sale under the Pledge AgreementMortgage; (c) affect the validity or enforceability of any of the Loan Documents or any Guaranty guaranty made in connection with the Loan or any of the rights and remedies of Lender thereunder; (d) impair the right of Lender to obtain the appointment of a receiver; (e) intentionally omittedimpair the enforcement of the Assignment of Leases; (f) impair the enforcement of the Environmental Indemnity; (g) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted by the Pledge Agreement Mortgage or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against all of the CollateralProperty; or (gh) constitute a waiver of the right of Lender to enforce the liability and obligation of Borrower, by money judgment or otherwise, to the extent of any actual loss, damage, cost, expense, liability, claim or other obligation incurred by Lender (including attorneys’ fees and costs reasonably incurred) arising out of or in connection with the following:following (all such liability and obligation of Borrower for any or all of the following being referred to herein as “Borrower’s Recourse Liabilities”):
Appears in 2 contracts
Samples: Loan Agreement (NOVONIX LTD), Loan Agreement (NOVONIX LTD)
Exculpation. (a) Subject to the qualifications below, Lender shall not enforce the liability and obligation of Borrower to perform and observe the obligations contained in the Note, this Agreement, the Pledge Agreement Security Instrument or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against BorrowerBorrower or Sole Member, except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender and each Noteholder to enforce and realize upon its interest under the Note, this Agreement, the Pledge Agreement Security Instrument and the other Loan Documents, or in the CollateralProperty, the Rents, or any other collateral given to Lender pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower’s interest in the Collateral Property, in the Rents and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Pledge Agreement Security Instrument and the other Loan Documents, agrees that it shall not xxx for, seek or demand any deficiency judgment against Borrower in any such action or proceeding under, or by reason of, or in connection with, the Note, this Agreement, the Pledge Agreement Security Instrument or the other Loan Documents. The provisions of this Section 3.1 shall not, however, (a) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (b) impair the right of Lender to name Borrower as a party defendant in any action or suit for foreclosure and sale under the Pledge AgreementSecurity Instrument; (c) affect the validity or enforceability of the Guaranty or the Environmental Indemnity or any Guaranty guaranty or indemnity made in connection with the Loan therein or any of the rights and remedies of Lender thereunder; (d) impair the right of Lender to obtain the appointment of a receiver; (e) intentionally omittedimpair the enforcement of the Assignment of Leases; or (f) constitute a prohibition against Lender to seek seeking a deficiency judgment against Borrower in order to fully realize the security granted by the Pledge Agreement Security Instrument or to commence commencing any other appropriate action or proceeding in order for Lender to exercise its remedies against all of the Collateral; or (g) constitute a waiver of the right of Lender to enforce the liability and obligation of Borrower, by money judgment or otherwise, to the extent of any actual loss, damage, cost, expense, liability, claim or other obligation incurred by Lender (including attorneys’ fees and costs reasonably incurred) arising out of or in connection with the following:Property.
Appears in 2 contracts
Samples: Loan Agreement (Inland Diversified Real Estate Trust, Inc.), Loan Agreement (Inland Diversified Real Estate Trust, Inc.)
Exculpation. (a) Subject to the qualifications below, Lender shall not enforce the liability and obligation of Borrower to perform and observe the obligations contained in the Note, this Agreement, the Pledge Agreement Mortgages or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against Borrower, except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender and each Noteholder to enforce and realize upon its interest under the Note, this Agreement, the Pledge Agreement Mortgages and the other Loan Documents, or in the CollateralProperties, the Rents, or any other collateral given to Lender pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower’s interest in the Collateral Properties, in the Rents and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Pledge Agreement Mortgages and the other Loan Documents, agrees that it shall not xxx for, seek or demand any deficiency judgment against Borrower in any such action or proceeding under, under or by reason of, of or under or in connection with, with the Note, this Agreement, the Pledge Agreement Mortgages or the other Loan Documents. The provisions of this Section shall not, however, (a) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (b) impair the right of Lender to name Borrower as a party defendant in any action or suit for foreclosure and sale under any of the Pledge AgreementMortgages; (c) affect the validity or enforceability of or any Guaranty guaranty made in connection with the Loan or any of the rights and remedies of Lender thereunder; (d) impair the right of Lender to obtain the appointment of a receiver; (e) intentionally omittedimpair the enforcement of any assignment of leases contained in each of the Mortgages; (f) constitute a prohibition against Lender to seek a deficiency judgment against Borrower (but not Guarantor) in order to fully realize the security granted by each of the Pledge Agreement Mortgages or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against all of the CollateralProperties; or (g) constitute a waiver of the right of Lender to enforce the liability and obligation of Borrower, by money judgment or otherwise, to the extent of any actual loss, damage, cost, expense, liability, claim or other obligation incurred by Lender (including attorneys’ fees and costs expenses reasonably incurred) arising out of or in connection with the following:
Appears in 2 contracts
Samples: Loan Agreement (Inland Real Estate Income Trust, Inc.), Loan Agreement (Inland Real Estate Income Trust, Inc.)
Exculpation. (a) Subject to the qualifications below, Lender shall not enforce the liability and obligation of Borrower to perform and observe the obligations contained in the Note, this Agreement, the Pledge Agreement or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against Borrower, except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender and each Noteholder to enforce and realize upon its interest and rights under the Note, this Agreement, the Pledge Agreement and the other Loan Documents, or in the CollateralProperty, the Rents or any other collateral given to Lender pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower’s interest in the Collateral Property, in the Rents and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Pledge Agreement and the other Loan Documents, agrees that it Lender shall not xxx for, seek or demand any deficiency judgment against Borrower in any such action or proceeding under, under or by reason of, of or under or in connection with, the Note, this Agreement, the Pledge Agreement or the other with any Loan DocumentsDocument. The provisions of this Section 10.1 shall not, however, (ai) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan DocumentsDocument; (bii) impair the right of Lender to name Borrower as a party defendant in any action or suit for foreclosure and sale under the Pledge AgreementMortgage; (ciii) affect the validity or enforceability of any of the Loan Documents or any Guaranty guaranty made in connection with the Loan or any of the rights and remedies of Lender thereunder; (div) impair the right of Lender to obtain the appointment of a receiver; (ev) intentionally omittedimpair the enforcement of the Assignment of Leases; (fvi) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted by the Pledge Agreement or to commence any other appropriate action or proceeding in order for Lender to fully realize the security granted by the Mortgage or to exercise its remedies against all of the CollateralProperty; or (gvii) constitute a waiver of the right of Lender to enforce the liability and obligation of Borrower (but not any of Borrower’s constituent members, partners, officers, directors or shareholders), by money judgment or otherwise, to the extent of any actual loss, damage, cost, expense, liability, claim or other obligation incurred by Lender (including attorneys’ fees and costs reasonably incurred) arising out of or in connection with the following:following (all such liability and obligation of Borrower for any or all of the following being referred to herein as “Borrower’s Recourse Liabilities”):
Appears in 2 contracts
Samples: Loan Agreement (KBS Real Estate Investment Trust, Inc.), Loan Agreement (KBS Real Estate Investment Trust, Inc.)
Exculpation. (a) Subject to the qualifications below, Lender shall not enforce the liability and obligation of Borrower to perform and observe the obligations contained in the Note, this Agreement, the Pledge Agreement Mortgage or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against Borrower, except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender and each Noteholder to enforce and realize upon its interest under the Note, this Agreement, the Pledge Agreement Mortgage and the other Loan Documents, or in the CollateralProperty, the CPLV Rents, or any other collateral Collateral given to Lender pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower’s interest in the Collateral Property, in the Rents and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Pledge Agreement Mortgage and the other Loan Documents, agrees that it shall not xxx for, seek or demand any deficiency judgment against Borrower in any such action or proceeding under, under or by reason of, of or under or in connection with, with the Note, this Agreement, the Pledge Agreement Mortgage or the other Loan Documents. The provisions of this Section shall not, however, (a) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (b) impair the right of Lender to name Borrower as a party defendant in any action or suit for foreclosure and sale under the Pledge AgreementMortgage; (c) affect the validity or enforceability of or any Guaranty guaranty made in connection with the Loan or any of the rights and remedies of Lender thereunder; (d) impair the right of Lender to obtain the appointment of a receiver; (e) intentionally omittedimpair the enforcement of any assignment of leases contained in the Mortgage; (f) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted by the Pledge Agreement Mortgage or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against all of the CollateralProperty; or (g) constitute a waiver of the right of Lender to enforce the liability and obligation of Borrower, by money judgment or otherwise, to the extent of any actual loss, damage, cost, expense, liability, claim or other obligation actually incurred by Lender (including reasonable, out of pocket attorneys’ fees and costs expenses reasonably incurredincurred but excluding (x) consequential damages and/or lost profits, and (y) punitive, exemplary or other special damages, except to the extent claimed against or recovered from Lender by any third party which are not a result of any fraud, gross negligence or willful misconduct by Lender) arising out of or in connection with the following:
Appears in 2 contracts
Samples: Loan Agreement, Loan Agreement (Vici Properties Inc.)
Exculpation. (a) Subject to the qualifications belowset forth in this Section 9.3, Lender shall not enforce the liability and obligation of Borrower to perform and observe the obligations contained in the Note, this Agreement, the Pledge Agreement or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against Borrower, except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender and each Noteholder to enforce and realize upon its interest under the Note, this Agreement, the Pledge Agreement and the other Loan Documents, or in the Collateral, Pledged Collateral or any other collateral given to Lender pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower’s interest in the Property, in the Pledged Collateral and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Pledge Agreement and the other Loan Documents, agrees that it shall not xxx for, seek or demand any deficiency judgment against Borrower in any such action or proceeding under, under or by reason of, of or under or in connection with, with the Note, this Agreement, the Pledge Agreement or the other Loan Documents. The provisions of this Section shall not, however, (ai) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (bii) impair the right of Lender to name Borrower as a party defendant in any action or suit for foreclosure and sale under the Pledge Agreement; (ciii) affect the validity or enforceability of or any Guaranty guaranty made in connection with the Loan or any of the rights and remedies of Lender thereunder; (div) impair the right of Lender to obtain the appointment of a receiver; (e) intentionally omitted; (fv) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted by the Pledge Agreement or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against all of the Pledged Collateral; or (g) constitute a waiver of the right of Lender to enforce the liability and obligation of Borrower, by money judgment or otherwise, to the extent of any actual loss, damage, cost, expense, liability, claim or other obligation incurred by Lender (including attorneys’ fees and costs reasonably incurred) arising out of or in connection with the following:.
Appears in 2 contracts
Samples: Loan Agreement (Strategic Hotels & Resorts, Inc), Loan Agreement (Strategic Hotels & Resorts, Inc)
Exculpation. (a) Subject to the qualifications below, (i) Lender shall not enforce the liability and obligation of Borrower to perform and observe the obligations contained in the Note, this Agreement, the Pledge Agreement Mortgage or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against any of the members of Borrower or any direct or indirect partner, shareholder, member, manager, owner, officer, director, trustee or employee in or of Borrower (collectively, the "Exculpated Parties") or Borrower, except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender and each Noteholder to enforce and realize upon its interest under the Note, this Agreement, the Pledge Agreement Mortgage and the other Loan Documents, or in the CollateralProperty, the Rents, or any other collateral given to Lender pursuant to the Loan Documents; provided, however, that, (ii) except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower’s 's interest in the Collateral Property, in the Rents and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Pledge Agreement Mortgage and the other Loan Documents, agrees that it shall not xxx sue for, seek or demand any deficiency judgment against Borrower or any Exculpated Parties in any such action or proceeding under, under or by reason of, of or under or in connection with, with the Note, this Agreement, the Pledge Agreement Mortgage or the other Loan Documents and (iii) none of the Exculpated Parties shall have any personal liability in any respect for the Loan or the obligations of Borrower contained in the Loan Documents. The provisions of this Section shall not, however, (a) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (b) impair the right of Lender to name Borrower as a party defendant in any action or suit for foreclosure and sale under the Pledge AgreementMortgage; (c) affect the validity or enforceability of or any Guaranty guaranty made in connection with the Loan (including, without limitation, the Guaranty) or any of the rights and remedies of Lender thereunder, or be taken to prevent recourse against any guarantor (including, without limitation, Metropolitan) under any guaranty made in connection with the Loan (including, without limitation, the Guaranty); (d) impair the right of Lender to obtain the appointment of a receiver; (e) intentionally omittedimpair the enforcement of the Assignment of Leases; (f) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted by the Pledge Agreement Mortgage or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against all of the CollateralProperty; or (g) constitute a waiver of the right of Lender to enforce the liability and obligation of Borrower, by money judgment or otherwise, to the extent of any actual loss, damage, cost, expense, liability, claim or other obligation incurred by Lender (including attorneys’ ' fees and costs reasonably incurred) arising out of or in connection with any of the following:
Appears in 2 contracts
Samples: Loan Agreement (Reckson Operating Partnership Lp), Loan Agreement (Reckson Associates Realty Corp)
Exculpation. (a) Subject to the qualifications below, Lender shall not enforce the liability and obligation of Borrower to perform and observe the obligations contained in the Note, this Agreement, the Pledge Agreement Mortgages or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against Borrower, except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender and each Noteholder to enforce and realize upon its interest under the Note, this Agreement, the Pledge Agreement Mortgages and the other Loan Documents, or in the CollateralProperties, the Rents, or any other collateral given to Lender pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower’s interest in the Collateral Properties, in the Rents and in any other collateral given to Lender, and each Lender, by accepting the Note, this Agreement, the Pledge Agreement Mortgages and the other Loan Documents, agrees that it shall not xxx for, seek or demand any deficiency judgment against Borrower in any such action or proceeding under, or by reason of, or in connection with, the Note, this Agreement, the Pledge Agreement Mortgages or the other Loan Documents. The provisions of this Section 9.2 shall not, however, (a) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (b) impair the right of Lender to name Borrower as a party defendant in any action or suit for foreclosure and sale under any of the Pledge AgreementMortgages; (c) affect the validity or enforceability of or any Guaranty made in connection with the Loan or any of the rights and remedies of Lender thereunder; (d) impair the right of Lender to obtain the appointment of a receiver; (e) intentionally omittedimpair the enforcement of any of the Assignments of Leases; (f) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted by each of the Pledge Agreement Mortgages or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against all of the CollateralProperties; or (g) constitute a waiver of the right of Lender to enforce the liability and obligation of Borrower, by money judgment or otherwise, to the extent of any actual loss, damage, cost, expense, liability, claim or other obligation incurred by or on behalf of Lender (including attorneys’ fees and costs reasonably incurred) arising out of or in connection with the following:
Appears in 2 contracts
Samples: Loan Agreement, Recognition Agreement (Harrahs Entertainment Inc)
Exculpation. (a) Subject to Except as otherwise provided herein or in the qualifications belowother Loan Documents, Lender shall not enforce the liability and obligation of Borrower or Borrower Principal, as applicable, to pay, perform and and/or observe the obligations contained herein, in the Note, this Agreement, the Pledge Agreement or in the other Loan Documents by any action or proceeding against Borrower wherein a money judgment shall be sought against Borrower, the members/partners of Borrower or Borrower Principal or its respective members or partners, except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding against Borrower to enable Lender and each Noteholder to enforce and realize upon its interest under the Note, this Agreement, the Pledge Agreement Note, the Mortgage and the other Loan Documents, or and the interest in the CollateralProperty, or the Rents and any other collateral given to Lender pursuant to created by this Agreement, the Note, the Mortgage and the other Loan Documents; provided, however, that, except as specifically provided herein, that any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower’s 's interest in the Collateral Property, in the Rents and in any other collateral given to Lender, and . Lender, by accepting the Note, this Agreement, the Pledge Agreement Note, the Mortgage and the other Loan Documents, agrees that it shall not not, except as otherwise provided in Section 15.1(b) and (c), xxx for, seek or demand any deficiency judgment against Borrower or Borrower Principal in any such action or proceeding underproceeding, under or by reason of, of or under or in connection withwith this Agreement, the Note, this Agreement, the Pledge Agreement Mortgage or the other Loan Documents. The provisions of this Section 15.1 shall not, however, (ai) constitute a waiver, release or impairment of any obligation evidenced or secured by any of this Agreement, the Note, the Mortgage or the other Loan Documents; (bii) impair the right of Lender to name Borrower as a party defendant in any action or suit for judicial foreclosure and sale under this Agreement and the Pledge AgreementMortgage; (ciii) affect the validity or enforceability of or any Guaranty indemnity (including, without limitation, those contained in Section 12.6, Section 13.5 and Article 14 of this Agreement), made in connection with this Agreement, the Note, the Mortgage and the other Loan or any of the rights and remedies of Lender thereunderDocuments; (div) impair the right of Lender to obtain the appointment of a receiver; (ev) intentionally omittedimpair the enforcement of the assignment of leases provisions contained in the Mortgage; or (fvi) constitute a prohibition against impair the right of Lender to seek obtain a deficiency judgment against Borrower in order or other judgment on the Note against Borrower if necessary to fully realize the security granted by the Pledge Agreement obtain any Insurance Proceeds or Awards to commence any other appropriate action or proceeding in order for which Lender to exercise its remedies against all of the Collateralwould otherwise be entitled under this Agreement; or (g) constitute a waiver of the right of provided however, Lender to shall only enforce the liability and obligation of Borrower, by money such judgment or otherwise, to the extent of any actual loss, damage, cost, expense, liability, claim or other obligation incurred by Lender (including attorneys’ fees and costs reasonably incurred) arising out of or in connection with the following:Insurance Proceeds and/or Awards.
Appears in 2 contracts
Samples: Loan Agreement (Sun Communities Inc), Loan Agreement (Sun Communities Inc)
Exculpation. (a) Subject to the qualifications below, Lender shall not enforce the liability and obligation of Borrower to perform and observe the obligations contained in the Note, this Agreement, the Pledge Agreement Mortgage or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against Borrower, except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender and each Noteholder to enforce and realize upon its interest under the Note, this Agreement, the Pledge Agreement Mortgage and the other Loan Documents, or in the CollateralProperty, the Rents, or any other collateral given to Lender pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower’s 's interest in the Collateral Property, in the Rents and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Pledge Agreement Mortgage and the other Loan Documents, agrees that it shall not xxx for, seek or demand any deficiency judgment against Borrower in any such action or proceeding under, under or by reason of, of or under or in connection with, with the Note, this Agreement, the Pledge Agreement Mortgage or the other Loan Documents. The provisions of this Section shall not, however, (a) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (b) impair the right of Lender to name Borrower as a party defendant in any action or suit for foreclosure and sale under the Pledge AgreementMortgage; (c) affect the validity or enforceability of or any Guaranty guaranty made in connection with the Loan or any of the rights and remedies of Lender thereunder; (d) impair the right of Lender to obtain the appointment of a receiver; (e) intentionally omittedimpair the enforcement of the Assignment of Leases; (f) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize on any security given by Borrower in connection with the security granted by the Pledge Agreement Loan or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against all of the Collateralsuch security; or (g) constitute a waiver of the right of Lender to enforce the liability and obligation of Borrower, by money judgment or otherwise, to the extent of any actual loss, damage, cost, expense, liability, claim or other obligation incurred by Lender (including attorneys’ ' fees and costs reasonably incurred) arising out of or in connection with the following:
Appears in 2 contracts
Samples: Loan Agreement (Glimcher Realty Trust), Loan Agreement (Glimcher Realty Trust)
Exculpation. (a) Subject The General Partner agrees to indemnify the Escrow Agent for, and to hold it harmless against, any loss, liability, or expense incurred without gross negligence or willful misconduct on the part of the Escrow Agent, arising out of this Escrow Agreement, as well as the costs and expenses of defending any claim or liability or of prosecuting any action in the premises. The Escrow Agent shall not be obligated to take any action hereunder which might in its reasonable judgment subject it to any expense or liability unless it shall have been furnished with indemnity acceptable to it. Prior to the qualifications belowTermination Date, Lender Subscription Payments held by the Escrow Agent shall remain the property of the Subscribers making such Payments and shall not enforce be subject to a lien of the liability and obligation of Borrower to perform and observe the obligations contained in the Note, this Agreement, the Pledge Agreement or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against Borrower, except that Lender may bring a foreclosure action, an action for specific performance Escrow Agent or any other appropriate creditors of the Fund or the General Partner. The Escrow Agent shall not be obligated to take any action which it is not expressly directed to take in this Agreement unless and until it shall have received written instruction from the Fund. The Escrow Agent shall be liable only for its own gross negligence or proceeding to enable Lender willful misconduct and each Noteholder to enforce and realize upon its interest under shall incur no liability for action in accordance with the Noteterms of this Escrow Agreement or with the terms of any instructions received by it from the General Partner, this Agreement, the Pledge Agreement and the other Loan Documents, whether or in the Collateral, or any other collateral given to Lender pursuant not contrary to the Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower’s interest in the Collateral and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Pledge Agreement and the other Loan Documents, agrees that it shall not xxx for, seek or demand any deficiency judgment against Borrower in any such action or proceeding under, or by reason of, or in connection with, the Note, this Agreement, the Pledge Agreement or the other Loan Documents. The provisions of this Section Agreement or to the agreements between the Fund and the Subscribers. The Escrow Agent may rely upon, and shall notbe protected in acting upon, howeverany resolution, (a) constitute a waivercertificate, release opinion, notice, request, consent, or impairment other paper or document believed by it to be genuine and to have been signed by the proper person or persons. Any notice or instruction from the Fund shall be sufficient if it bears or purports to bear the signature of any obligation evidenced or secured by any one of the Loan Documents; (b) impair following: Xxxxxxx Xxxxxxxxx and Xxxx X. Xxxx, whose signatures appear hereon, with or without designation of principal or of representative capacity. The Escrow Agent may consult with counsel, and the right opinion of Lender such counsel shall be full and complete protection in respect to name Borrower as a party defendant in any action taken or suit for foreclosure suffered by it hereunder in accordance with such opinion. The Escrow Agent may petition any court of competent jurisdiction to resolve any disagreement relating hereto and sale under the Pledge Agreement; (c) affect the validity or enforceability of or any Guaranty made in connection with the Loan or any of the may refuse to act until such court has ordered it to act. Such rights and remedies shall be alternative and any action taken or not taken in conformance with an opinion of Lender thereunder; (d) impair counsel or court order shall not constitute negligence or misconduct and shall be complete and final acquittance and discharge of the right of Lender to obtain Escrow Agent's responsibilities with respect thereto. Notwithstanding the appointment of a receiver; (e) intentionally omitted; (f) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted foregoing, it is understood and agreed by the Pledge Agreement or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against all parties that no partner of the Collateral; or General Partner acting in its capacity as such shall have any personal liability under this agreement and that any person asserting a claim against the General Partner hereunder shall look solely to the assets of such General Partner (g) constitute a waiver specifically excluding the personal assets of the right of Lender to enforce the liability and obligation of Borrower, by money judgment or otherwise, to the extent of any actual loss, damage, cost, expense, liability, claim or other obligation incurred by Lender (including attorneys’ fees and costs reasonably incurred) arising out of or in connection with the following:partners thereof).
Appears in 2 contracts
Samples: Contributions Escrow Agreement (BCTC v Assignor Corp), Contributions Escrow Agreement (Boston Capital Tax Credit Fund Iv Lp)
Exculpation. (a) Subject Notwithstanding anything to the contrary contained in this Agreement, in the Note or in any other Loan Document, but subject to the qualifications below, Lender shall not enforce the liability and obligation of Borrower to perform and observe the obligations contained in the Note, this Agreement, the Pledge Agreement Mortgage or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against Borrower, except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender and each Noteholder to enforce and realize upon its interest under the Note, this Agreement, the Pledge Agreement Mortgage and the other Loan Documents, or in the CollateralProperty, the Rents, or any other collateral given to Lender pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower’s interest in the Collateral Property, in the Rents, Net Proceeds and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Pledge Agreement Mortgage and the other Loan Documents, agrees that it shall not xxx for, seek or demand any deficiency judgment against Borrower in any such action or proceeding under, under or by reason of, of or under or in connection with, with the Note, this Agreement, the Pledge Agreement Mortgage or the other Loan Documents. The provisions of this Section shall not, however, (a) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (b) impair the right of Lender to name Borrower as a party defendant in any action or suit for foreclosure and sale under the Pledge AgreementMortgage; (c) affect the validity or enforceability of or any Guaranty guaranty made in connection with the Loan or any of the rights and remedies of Lender thereunder; (d) impair the right of Lender to obtain the appointment of a receiver; (e) intentionally omittedimpair the enforcement of the Assignment of Leases; (f) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted by the Pledge Agreement Mortgage or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against all of the CollateralProperty; or (g) constitute a waiver of the right of Lender to enforce the liability and obligation of Borrower, by money judgment or otherwise, to the extent of any actual loss, damage, cost, expense, liability, claim or other obligation incurred by Lender (including attorneys’ fees and costs reasonably incurred) arising out of or in connection with and Borrower shall be personally liable for the following:
Appears in 2 contracts
Samples: Loan Agreement (Interstate Hotels & Resorts Inc), Loan Agreement (Interstate Hotels & Resorts Inc)
Exculpation. (a) Subject to the qualifications below, Lender shall not enforce the liability and obligation of Borrower to perform and observe the obligations contained in the Note, this Agreement, the Pledge Agreement Security Instruments or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against Borrower, except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender and each Noteholder to enforce and realize upon its interest under the Note, this Agreement, the Pledge Agreement Security Instruments and the other Loan Documents, or in the CollateralProperties or any Property, the Rents, or any other collateral given to Lender pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower’s interest in the Collateral Properties, in the Rents and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Pledge Agreement Security Instruments and the other Loan Documents, agrees that it shall not xxx sxx for, seek or demand any deficiency judgment against Borrower in any such action or proceeding under, or by reason of, or in connection with, the Note, this Agreement, the Pledge Agreement Security Instruments or the other Loan Documents. The provisions of this Section 3.1 shall not, however, (ai) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (bii) impair the right of Lender to name Borrower as a party defendant in any action or suit for foreclosure and sale under the Pledge Agreementany Security Instrument; (ciii) affect the validity or enforceability of or any Guaranty made in connection with the Loan or any of the rights and remedies of Lender thereunder; (div) impair the right of Lender to obtain the appointment of a receiver; (ev) intentionally omittedimpair the enforcement of the Assignments of Leases; or (fvi) constitute a prohibition against Lender to seek seeking a deficiency judgment against Borrower in order to fully realize the security granted by the Pledge Agreement each Security Instrument or to commence commencing any other appropriate action or proceeding in order for Lender to exercise its remedies against all of the Collateral; Properties or (g) constitute a waiver of the right of Lender to enforce the liability and obligation of Borrower, by money judgment or otherwise, to the extent of any actual loss, damage, cost, expense, liability, claim or other obligation incurred by Lender (including attorneys’ fees and costs reasonably incurred) arising out of or in connection with the following:Property.
Appears in 2 contracts
Samples: Loan Agreement (Global Medical REIT Inc.), Loan Agreement (Global Medical REIT Inc.)
Exculpation. (a) Subject to the qualifications below, Lender Payee shall not enforce the liability and obligation of Borrower Maker to perform and observe the obligations contained in the Note, this Agreement, the Pledge Agreement Note or the other Loan Documents Mortgage by any action or proceeding wherein a money judgment shall be sought against BorrowerMaker or any general or limited partner of Maker (hereinafter collectively referred to as the "Exculpated Parties"), except that Lender Payee may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender and each Noteholder Payee to enforce and realize upon its interest under the this Note, this Agreementthe Mortgage, the Pledge Agreement Other Security Documents, and the other Loan Documents, or interest in the CollateralMortgaged Property, or the Rents (as defined in the Mortgage) and any other collateral given to Lender pursuant to Payee created by this Note, the Loan Mortgage and the Other Security Documents; provided, however, that, except as specifically provided herein, that any judgment in any such action or proceeding shall be enforceable against Borrower the Exculpated Parties only to the extent of Borrower’s Maker's interest in the Collateral Mortgaged Property, in the Rents and in any other collateral given to Lender, and LenderPayee. Payee, by accepting the Note, this Agreement, the Pledge Agreement Note and the other Loan DocumentsMortgage, agrees that it shall not xxx sue for, seek or demand any deficiency judgment against Borrower the Exculpated Parties in any such action or proceeding underproceeding, under or by reason of, of or under or in connection withwith the Mortgage, the Other Security Documents or this Note, this Agreement, the Pledge Agreement or the other Loan Documents. The provisions of this Section paragraph shall not, however, (ai) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan DocumentsMortgage, the Other Security Documents or this Note; (bii) impair the right of Lender Payee to name Borrower Maker as a party defendant in any action or suit for judicial foreclosure and sale under the Pledge AgreementMortgage; (ciii) affect the validity or enforceability of or any Guaranty guaranty made in connection with the Loan Mortgage, this Note, or any of the rights and remedies of Lender thereunderOther Security Documents; (div) impair the right of Lender Payee to obtain the appointment of a receiver; (ev) intentionally omittedimpair the enforcement of the First Assignment of Leases and Rents dated the date hereof given by Maker to Payee executed in connection herewith; (fvi) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted by the Pledge Agreement or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against all of the Collateral; or (g) constitute a waiver of impair the right of Lender Payee to enforce bring suit with respect to fraud or intentional misrepresentation by Maker, the liability and obligation of Borrower, by money judgment Exculpated Parties or otherwise, to the extent of any actual loss, damage, cost, expense, liability, claim other person or other obligation incurred by Lender (including attorneys’ fees and costs reasonably incurred) arising out of or entity in connection with the following:Mortgage, this Note or the Other Security Documents; (vii) impair the right of Payee to obtain the Rents received by any of the Exculpated Parties after the occurrence of an Event of Default; (viii) impair the right of Payee to bring suit with respect to the Exculpated Parties' misappropriation of tenant security deposits or Rents collected in advance; (ix) impair the right of Payee to obtain insurance proceeds or condemnation awards due to Payee under the Mortgage; (x) impair the right of Payee to enforce the provisions of sub-paragraphs 36(g) through 36(j), inclusive and paragraphs 34 and 35 of the Mortgage against the Maker (excluding the general and limited partners of Maker); or (xi) impair the right of Payee to recover any part of the Debt from the Maker (excluding the general and limited partners of Maker) following the breach of any covenant contained in paragraphs 9 or 56 of the Mortgage.
Appears in 2 contracts
Samples: First Mortgage Note (Century Properties Fund Xii), Century Properties Fund Xvi
Exculpation. (a) Subject to the qualifications below, Lender shall not enforce the liability and obligation of Borrower to perform and observe the obligations Obligations contained in the Note, this Agreement, the Pledge Agreement or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against Borrower, except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender and each Noteholder to enforce and realize upon its interest under the Note, this Agreement, the Pledge Agreement and the other Loan Documents, or in the Collateral, Collateral or any other collateral given to Lender pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower’s interest in the Collateral and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Pledge Agreement and the other Loan Documents, agrees that it shall not xxx for, seek or demand any deficiency judgment against Borrower in any such action or proceeding under, under or by reason of, of or under or in connection with, with the Note, this Agreement, the Pledge Agreement or the other Loan Documents. The provisions of this Section 10.1 shall not, however, (a) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (b) impair the right of Lender to name Borrower as a party defendant in any action or suit for foreclosure and sale under the Pledge Agreement; (c) affect the validity or enforceability of any of the Loan Documents or any Guaranty guaranty made in connection with the Loan or any of the rights and remedies of Lender thereunder; (d) impair the right of Lender to obtain the appointment of a receiverreceiver or to exercise its rights under the Pledge Agreement to exercise voting control over the Pledged Equity Interests prior to the completion of a UCC foreclosure sale; (e) intentionally omitted[reserved]; (f) impair the enforcement of the Environmental Indemnity; (g) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted by the Pledge Agreement or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against all of the Collateral; or (gh) constitute a waiver of the right of Lender to enforce the liability and obligation of Borrower, by money judgment or otherwise, to the extent of any actual loss, damagedamage (excluding punitive damages except in the case of punitive damages paid by Lender to a third party where such damages do not directly arise as a result of the acts of Lender), cost, expense, liability, claim or other obligation actually incurred by Lender (including reasonable attorneys’ fees and costs reasonably incurred) arising out of or in connection with the following:following (all such liability and obligation of Borrower for any or all of the following being referred to herein as “Borrower’s Recourse Liabilities”):
Appears in 2 contracts
Samples: First Mezzanine Loan Agreement (Clipper Realty Inc.), Second Mezzanine Loan Agreement (Clipper Realty Inc.)
Exculpation. (a) Subject to the qualifications below, Lender shall not enforce the liability and obligation of Borrower to perform and observe the obligations contained in the this Note, this Agreement, the Pledge Agreement Deed of Trust or in any of the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against Borrower, except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender and each Noteholder to enforce and realize upon its interest interests under the this Note, this Agreement, the Pledge Agreement Deed of Trust and the other Loan Documents, or in the CollateralTrust Property, the Rents (as defined in the Deed of Trust), or any other collateral given to Lender pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower’s interest in the Collateral Trust Property, in the Rents and in any other collateral given to Lender, and Lender, by . By accepting the this Note, this Agreement, the Pledge Agreement Deed of Trust and the other Loan Documents, Xxxxxx agrees that it shall not xxx except as otherwise herein provided, sue for, seek or demand any deficiency judgment or other monetary judgment against Borrower in any such action or proceeding under, under or by reason of, of or under or in connection withwith this Note, the Note, this Agreement, the Pledge Agreement Deed of Trust or the other Loan Documents. The provisions of this Section paragraph shall not, however, (a) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (b) impair the right of Lender to name Borrower Xxxxxxxx as a party defendant in any action or suit for foreclosure and sale under the Pledge AgreementDeed of Trust; (c) affect the validity or enforceability of any guaranty or any Guaranty indemnity made in connection with the Loan or any of the rights and remedies of the Lender thereunder; (d) impair the right of Lender to obtain the appointment of a receiver; (e) intentionally omitted; (f) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize impair the security granted by the Pledge Agreement or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against all enforcement of the CollateralAssignment of Leases; or (gf) constitute a waiver of the right of Lender to enforce the liability and obligation of BorrowerXxxxxxxx, by money judgment or otherwise, to the extent of of, but only to the extent of, any actual loss, damage, cost, expense, liability, claim or other obligation incurred by Lender Xxxxxx (including attorneys’ fees and costs reasonably incurred) arising out of or in connection with the following:
Appears in 2 contracts
Exculpation. (a) Subject to the qualifications below, Lender shall not enforce the liability and obligation of Borrower to perform and observe the obligations contained in the Note, this Agreement, the Pledge Agreement Mortgage or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against Borrower, except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender and each Noteholder to enforce and realize upon its interest under the Note, this Agreement, the Pledge Agreement Mortgage and the other Loan Documents, or in the CollateralProperty, the Rents, or any other collateral given to Lender pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower’s interest in the Collateral Property, in the Rents, Net Proceeds and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Pledge Agreement Mortgage and the other Loan Documents, agrees that it shall not xxx for, seek or demand any deficiency judgment against Borrower in any such action or proceeding under, under or by reason of, of or under or in connection with, with the Note, this Agreement, the Pledge Agreement Mortgage or the other Loan Documents. The provisions of this Section shall not, however, (a) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (b) impair the right of Lender to name Borrower as a party defendant in any action or suit for foreclosure and sale under the Pledge AgreementMortgage; (c) affect the validity or enforceability of or any Guaranty guaranty made in connection with the Loan or any of the rights and remedies of Lender thereunder; (d) impair the right of Lender to obtain the appointment of a receiver; (e) intentionally omittedimpair the enforcement of the Assignment of Leases; (f) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted by the Pledge Agreement Mortgage or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against all of the CollateralProperty; or (g) constitute a waiver of the right of Lender to enforce the liability and obligation of Borrower, by money judgment or otherwise, to the extent of any actual loss, damage, cost, expense, liability, claim or other obligation incurred by Lender (including attorneys’ fees and costs reasonably incurred) arising out of or in connection with and Borrower shall be personally liable for the following:
Appears in 2 contracts
Samples: Loan Agreement (Cedar Shopping Centers Inc), Loan Agreement (Telx Group, Inc.)
Exculpation. (a) Subject to the qualifications below, Lender shall not enforce the liability and obligation of Borrower to perform and observe the obligations contained in the Note, this Agreement, the Pledge Agreement Note, the Security Instrument or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against Borrower, except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender and each Noteholder to enforce and realize upon its interest under the Note, this Agreement, the Pledge Agreement Note, the Security Instrument and the other Loan Documents, or in the CollateralProperty, the Rents, or any other collateral given to Lender pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower’s interest in the Collateral Property, in the Rents, and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Pledge Agreement Note, the Security Instrument and the other Loan Documents, agrees that it shall not xxx for, seek or demand any deficiency judgment against Borrower in any such action or proceeding under, under or by reason of, of or under or in connection withwith this Agreement, the Note, this Agreement, the Pledge Agreement Security Instrument or the other Loan Documents. The provisions of this Section 11.22 shall not, however, (a) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (b) impair the right of Lender to name Borrower as a party defendant in any action or suit for foreclosure and sale under the Pledge AgreementSecurity Instrument; (c) affect the validity or enforceability of any guaranty or any Guaranty indemnity made in connection with the Loan or any of the rights and remedies of Lender thereunder; (d) impair the right of Lender to obtain the appointment of a receiver; (e) intentionally omittedimpair the enforcement of the Assignment of Leases; (f) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order for Lender to fully realize the security granted by the Pledge Agreement Security Instrument or to commence any other appropriate action or proceeding in order for Lender to exercise its rights and remedies against all of the CollateralProperty, the Rents or any other collateral given to Lender pursuant to the Loan Documents; or (g) constitute a waiver of the right of Lender to enforce the liability and obligation of Borrower, by money judgment or otherwise, to the extent of any actual loss, damage, cost, expense, liability, claim or other obligation incurred by Lender (including attorneys’ fees and costs reasonably incurred) arising out of or in connection with with, and Borrower shall be personally liable for, the following:following (all such liability and obligation of Borrower for any or all of the following being referred to herein as the “Borrower’s Recourse Liabilities”):
Appears in 2 contracts
Samples: Loan Agreement (Ionis Pharmaceuticals Inc), Loan Agreement (Ionis Pharmaceuticals Inc)
Exculpation. (a) Subject to the qualifications below, Lender shall not enforce the liability and obligation of Borrower Borrowers to perform and observe the obligations contained in the Note, this Agreement, the Pledge Agreement or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against any Borrower, except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender and each Noteholder to enforce and realize upon its interest under the Note, this Agreement, the Pledge Agreement and the other Loan Documents, or in the Collateral, or any other collateral Collateral given to Lender pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against any Borrower only to the extent of such Borrower’s interest in the Collateral and in any other collateral given to LenderCollateral, and Lender, by accepting the Note, this Agreement, the Pledge Agreement and the other Loan Documents, agrees that it shall not xxx for, seek or demand any deficiency judgment against any Borrower in any such action or proceeding under, or by reason of, or in connection with, the Note, this Agreement, the Pledge Agreement or the other Loan Documents. The provisions of this Section 9.4 shall not, however, (a) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (b) impair the right of Lender to name any Borrower as a party defendant in any action or suit for foreclosure and sale under the Pledge Agreement; (c) affect the validity or enforceability of or any Guaranty guaranty made in connection with the Loan Loan, including, without limitation, the Non-Recourse Guaranty, the Closing Completion Guaranty, the Construction Completion Guaranty and the HRHI Guaranty, or any of the rights and remedies of Lender thereunder; (d) impair the right of Lender to obtain the appointment of a receiver; (e) intentionally omitted; (f) constitute a prohibition against Lender to seek seeking a deficiency judgment against any Borrower in order to fully realize the security granted by the Pledge Agreement or to commence commencing any other appropriate action or proceeding in order for Lender to exercise its remedies against all of the Collateral; or (gf) constitute a waiver of the right of Lender to enforce the liability and obligation of any Borrower, by money judgment or otherwise, to the extent of any actual loss, damagedamage (excluding any lost revenue, diminution of value and other consequential damages), reasonable cost, reasonable expense, liability, claim or other obligation incurred by Lender (including attorneys’ fees and costs reasonably incurred) arising out of or in connection with the following:
Appears in 2 contracts
Samples: Third Mezzanine Loan Agreement (Hard Rock Hotel Holdings, LLC), First Mezzanine Loan Agreement (Hard Rock Hotel Holdings, LLC)
Exculpation. (a) Subject to Except as otherwise provided herein or in the qualifications belowother Loan Documents, Lender shall not enforce the liability and obligation of Borrower or Borrower Principal or any SPE Component Entity, as applicable, to perform and observe the obligations contained herein or in the Note, this Agreement, the Pledge Agreement or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against BorrowerBorrower or Borrower Principal or any SPE Component Entity, except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender and each Noteholder to enforce and realize upon its interest under the Note, this Agreement, the Pledge Agreement Note, the Mortgage and the other Loan Documents, or and the interest in the CollateralProperty, or the Rents and any other collateral given to Lender pursuant to created by this Agreement, the Note, the Mortgage and the other Loan Documents; provided, however, that, except as specifically provided herein, that any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower’s or Borrower Principal’s collective interest in the Collateral Property, the Operating Leases, in the Rents and in any other collateral given to Lender, and . Lender, by accepting the Note, this Agreement, the Pledge Agreement Note, the Mortgage and the other Loan Documents, agrees that it shall not xxx not, except as otherwise provided in this Section 15.01, sxx for, seek or demand any deficiency judgment against Borrower or Borrower Principal or any SPE Component Entity in any such action or proceeding underproceeding, under or by reason of, of or under or in connection withwith this Agreement, the Note, this Agreement, the Pledge Agreement Mortgage or the other Loan Documents. The provisions of this Section 15.01 shall not, however, (ai) constitute a waiver, release or impairment of any obligation evidenced or secured by any of this Agreement, the Note, the Mortgage or the other Loan Documents; (bii) impair the right of Lender to name Borrower or Borrower Principal as a party defendant in any action or suit for judicial foreclosure and sale under this Agreement and the Pledge AgreementMortgage; (ciii) affect the validity or enforceability of or any Guaranty made indemnity contained in connection with the Loan or any of the rights Articles XIII and remedies of Lender thereunderXIV; (div) impair Lender’s right to enforce its remedies under the Environmental Indemnity and the Exceptions to Non-Recourse Guaranty; (v) impair the right of Lender to obtain the appointment of a receiver; (evi) intentionally omitted; (f) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize impair the security granted by the Pledge Agreement or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against all enforcement of the Collateralassignment of leases provisions contained in the Mortgage; or (gvii) constitute a waiver of impair the right of Lender to enforce obtain a deficiency judgment or other judgment on the liability and obligation of Note against Borrower, by money Operating Lessee or Borrower Principal if necessary to obtain any Insurance Proceeds or Awards to which Lender would otherwise be entitled under this Agreement; provided, however, Lender shall only enforce such judgment or otherwise, to the extent of any actual loss, damage, cost, expense, liability, claim the Insurance Proceeds and/or Awards actually collected or other obligation incurred received by Lender (including attorneys’ fees and costs reasonably incurred) arising out of or in connection with the following:Borrower.
Appears in 2 contracts
Samples: Loan Agreement (Bon Ton Stores Inc), Loan Agreement (Bon Ton Stores Inc)
Exculpation. (a) Subject to the qualifications below, Lender shall not enforce the liability and obligation of Borrower to perform and observe the obligations contained in the Note, this Agreement, the Pledge Agreement or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against Borrower, except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender and each Noteholder to enforce and realize upon its interest and rights under the Note, this Agreement, the Pledge Agreement and the other Loan Documents, or in the CollateralProperty, the Rents or any other collateral given to Lender pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower’s 's interest in the Collateral Property, in the Rents and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Pledge Agreement and the other Loan Documents, agrees that it Lender shall not xxx sxx for, seek or demand any deficiency judgment against Borrower in any such action or proceeding under, under or by reason of, of or under or in connection with, the Note, this Agreement, the Pledge Agreement or the other with any Loan DocumentsDocument. The provisions of this Section 10.1 shall not, however, (ai) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan DocumentsDocument; (bii) impair the right of Lender to name Borrower as a party defendant in any action or suit for foreclosure and sale under the Pledge AgreementMortgage; (ciii) affect the validity or enforceability of any of the Loan Documents or any Guaranty guaranty made in connection with the Loan or any of the rights and remedies of Lender thereunder; (div) impair the right of Lender to obtain the appointment of a receiver; (ev) intentionally omittedimpair the enforcement of the Assignment of Leases and Rents; (fvi) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted by the Pledge Agreement or to commence any other appropriate action or proceeding in order for Lender to fully realize the security granted by the Mortgage or to exercise its remedies against all of the CollateralProperty; or (gvii) constitute a waiver of the right of Lender to enforce the liability and C obligation of Borrower, by money judgment or otherwise, to the extent of any actual loss, damage, cost, expense, liability, claim or other obligation incurred by Lender (including attorneys’ ' fees and costs reasonably incurred) arising out of or in connection with the following:following (all such liability and obligation of Borrower for any or all of the following being referred to herein as "Borrower 's Recourse Liabilities "):
Appears in 2 contracts
Samples: Loan Agreement (Medalist Diversified REIT, Inc.), Loan Agreement (Medalist Diversified REIT, Inc.)
Exculpation. (a) Subject to the qualifications below, Lender shall not enforce the liability and obligation of Borrower to perform and observe the obligations Obligations contained in the Note, this Agreement, the Pledge Agreement Mortgage or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against Borrower, except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender and each Noteholder to enforce and realize upon its interest under the Note, this Agreement, the Pledge Agreement Mortgage and the other Loan Documents, or in the CollateralProperty, the Gross Revenues or any other collateral given to Lender pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower’s 's interest in the Collateral Property, in the Gross Revenues and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Pledge Agreement Mortgage and the other Loan Documents, agrees that it shall not xxx for, seek or demand any deficiency judgment against Borrower in any such action or proceeding under, under or by reason of, of or under or in connection with, with the Note, this Agreement, the Pledge Agreement Mortgage or the other Loan Documents. The provisions of this Section 11.22 shall not, however, (a) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (b) impair the right of Lender to name Borrower as a party defendant in any action or suit for foreclosure and sale under the Pledge AgreementMortgage; (c) affect the validity or enforceability of any of the Loan Documents or any Guaranty guaranty made in connection with the Loan or any of the rights and remedies of Lender thereunder; (d) impair the right of Lender to obtain the appointment of a receiver; (e) intentionally omittedimpair the enforcement of the Assignment of Leases; (f) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted by the Pledge Agreement Mortgage or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against all of the CollateralProperty; or (g) constitute a waiver of the right of Lender to enforce the liability and obligation of Borrower, by money judgment or otherwise, to the extent of any actual loss, damage, cost, expense, liability, claim or other obligation incurred by Lender (including reasonable attorneys’ ' fees and costs reasonably incurred) arising out of or in connection with the following:following (all such liability and obligation of Borrower for any or all of the following being referred to herein as "Borrower's Recourse Liabilities"):
Appears in 2 contracts
Samples: Loan Agreement (Lodging Fund REIT III, Inc.), Loan Agreement (Lodging Fund REIT III, Inc.)
Exculpation. (a) Subject to the qualifications below, Lender shall not enforce the liability and obligation of Borrower or its constituent members, partners, shareholders, directors, employees or agents or the direct or indirect constituent members, partners, shareholders, directors, employees or agents thereof (collectively, the “Borrower Parties”) or any other Person, to perform and observe the obligations contained in the Note, this Agreement, the Pledge Agreement Note or any of the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against Borrowerany of the Borrower Parties or any other Person, except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender and each Noteholder to enforce and realize upon its interest under the Note, this AgreementProperty, the Pledge Agreement and the other Loan Documents, or in the Collateral, Rents or any other collateral given to Lender pursuant to this Agreement and the other Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against the Borrower Parties only to the extent of Borrower’s their interest in the Collateral Property, the Rents and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Pledge Agreement Note and the other Loan Documents, agrees that it shall not xxx sxx for, seek or demand any deficiency judgment against any of the Borrower Parties or any other Person in any such action or proceeding under, under or by reason of, of or in connection with, the Note, with this Agreement, the Pledge Agreement Note or any of the other Loan Documents. The provisions of this Section paragraph shall not, however, (ai) constitute a waiver, release or impairment of any obligation evidenced or secured by this Agreement, the Note or any of the other Loan Documents; (bii) impair the right of Lender to name any of the Borrower Parties, as a party defendant in any action or suit for foreclosure and sale under the Pledge AgreementMortgage; (ciii) affect the validity or enforceability of or any Guaranty guaranty made in connection with the Loan or any of the rights and remedies of Lender thereunder; (div) impair the right of Lender to obtain the appointment of a receiver; (ev) intentionally omitted; (f) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize impair the security granted by the Pledge Agreement or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against all enforcement of the CollateralAssignment of Leases and Rents; or (gvi) constitute a waiver of the right of Lender to enforce the liability and obligation of BorrowerBorrower (but not against any members of Borrower (other than Guarantor to the extent provided in the Non-Recourse Guaranty) or their direct or indirect constituent members or partners or any other Person), by money judgment or otherwise, to the extent of any actual loss, damage, cost, expense, liability, claim or other obligation (but excluding any punitive, consequential or speculative damages) incurred by Lender (including attorneys’ fees and costs reasonably incurred) arising out of or in connection with the following:
Appears in 2 contracts
Samples: Loan Agreement (Maguire Properties Inc), Loan Agreement (Maguire Properties Inc)
Exculpation. (ag) Subject to Except as otherwise provided herein or in the qualifications belowother Loan Documents, Lender shall not enforce the liability and obligation of Borrower or Borrower Principal, as applicable, to pay, perform and and/or observe the obligations contained herein, in the Note, this Agreement, the Pledge Agreement or in the other Loan Documents by any action or proceeding against Borrower wherein a money judgment shall be sought against Borrower, the members/parties of Borrower or Borrower Principal or its respective members, partners, shareholders, officers, or directors (the “Exculpated Parties”), except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding against Borrower to enable Lender and each Noteholder to enforce and realize upon its interest under the Note, this Agreement, the Pledge Agreement Note, the Mortgage and the other Loan Documents, or and the interest in the CollateralProperty, or the Rents and any other collateral given to Lender pursuant to created by this Agreement, the Note, the Mortgage and the other Loan Documents; provided, however, that, except as specifically provided herein, that any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower’s interest in the Collateral Property, in the Rents and in any other collateral given to Lender, and . Lender, by accepting the Note, this Agreement, the Pledge Agreement Note, the Mortgage and the other Loan Documents, agrees that it shall not not, except as otherwise provided in Sections 15.1(b) and (c) xxx for, seek or demand any deficiency judgment against Borrower the Exculpated Parties in any such action or proceeding underproceeding, under or by reason of, of or under or in connection withwith this Agreement, the Note, this Agreement, the Pledge Agreement Mortgage or the other Loan Documents. The provisions of this Section 15.1 shall not, however, (ai) constitute a waiver, release or impairment of any obligation evidenced or secured by any of this Agreement, the Note, the Mortgage or the other Loan Documents; (bii) impair the right of Lender to name Borrower as a party defendant in any action or suit for judicial foreclosure and sale under this Agreement and the Pledge AgreementMortgage; (ciii) affect the validity or enforceability of or any Guaranty indemnity (including, without limitation, those contained in Section 12.6 and Article 14 of this Agreement) made in connection with this Agreement, the Note, the Mortgage and the other Loan or any of the rights and remedies of Lender thereunderDocuments; (div) impair the right of Lender to obtain the appointment of a receiver; (ev) intentionally omittedimpair the enforcement of the assignment of leases provisions contained in the Mortgage; or (fvi) constitute a prohibition against impair the right of Lender to seek obtain a deficiency judgment against Borrower in order or other judgment on the Note against Borrower if necessary to fully realize the security granted by the Pledge Agreement obtain any Insurance Proceeds or Awards to commence any other appropriate action or proceeding in order for which Lender to exercise its remedies against all of the Collateralwould otherwise be entitled under this Agreement; or (g) constitute a waiver of the right of provided, however, Lender to shall only enforce the liability and obligation of Borrower, by money such judgment or otherwise, to the extent of any actual loss, damage, cost, expense, liability, claim or other obligation incurred by Lender (including attorneys’ fees and costs reasonably incurred) arising out of or in connection with the following:Insurance Proceeds and/or Awards.
Appears in 2 contracts
Samples: Loan Agreement (Sun Communities Inc), Loan Agreement (Sun Communities Inc)
Exculpation. (a) Subject to the qualifications below, Lender shall not enforce the liability and obligation of Borrower Borrowers to perform and observe the obligations contained in the Note, this Agreement, the Pledge Agreement or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against any Borrower, except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender and each Noteholder to enforce and realize upon its interest under the Note, this Agreement, the Pledge Agreement and the other Loan Documents, or in the Collateral, or any other collateral Collateral given to Lender pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against any Borrower only to the extent of such Borrower’s interest in the Collateral and in any other collateral given to LenderCollateral, and Lender, by accepting the Note, this Agreement, the Pledge Agreement and the other Loan Documents, agrees that it shall not xxx for, seek or demand any deficiency judgment against any Borrower in any such action or proceeding under, or by reason of, or in connection with, the Note, this Agreement, the Pledge Agreement or the other Loan Documents. The provisions of this Section 9.4 shall not, however, (a) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (b) impair the right of Lender to name any Borrower as a party defendant in any action or suit for foreclosure and sale under the Pledge Agreement; (c) affect the validity or enforceability of or any Guaranty guaranty made in connection with the Loan Loan, including, without limitation, the Non-Recourse Guaranty, the Non-Qualified Prepayment Guaranty, the Closing Completion Guaranty, the Construction Completion Guaranty and the HRHI Guaranty, or any of the rights and remedies of Lender thereunder; (d) impair the right of Lender to obtain the appointment of a receiver; (e) intentionally omitted; (f) constitute a prohibition against Lender to seek seeking a deficiency judgment against any Borrower in order to fully realize the security granted by the Pledge Agreement or to commence commencing any other appropriate action or proceeding in order for Lender to exercise its remedies against all of the Collateral; or (gf) constitute a waiver of the right of Lender to enforce the liability and obligation of any Borrower, by money judgment or otherwise, to the extent of any actual loss, damagedamage (excluding any lost revenue, diminution of value and other consequential damages), reasonable cost, reasonable expense, liability, claim or other obligation incurred by Lender (including attorneys’ fees and costs reasonably incurred) arising out of or in connection with the following:
Appears in 2 contracts
Samples: Second Mezzanine Loan Agreement (Hard Rock Hotel Holdings, LLC), First Mezzanine Loan Agreement (Hard Rock Hotel Holdings, LLC)
Exculpation. (a) Subject to the qualifications below, Lender shall not enforce the liability and obligation of Borrower (or any of Borrower’s members, managers partners shareholders, or Affiliates, whether direct or indirect, collectively, the “Borrower Parties”) to perform and observe the obligations contained in the Note, this Agreement, the Pledge Agreement Mortgage or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against Borrower, except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender and each Noteholder to enforce and realize upon its interest under the Note, this Agreement, the Pledge Agreement Mortgage and the other Loan Documents, or in the CollateralProperty, the Rents, or any other collateral given to Lender pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower or the Borrower Parties only to the extent of Borrower’s or the Borrower Parties’ interest in the Collateral Property, in the Rents and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Pledge Agreement Mortgage and the other Loan Documents, agrees that it shall not xxx for, seek or demand any deficiency judgment against Borrower or the Borrower Parties in any such action or proceeding under, or by reason of, or in connection with, the Note, this Agreement, the Pledge Agreement Mortgage or the other Loan Documents. The provisions of this Section shall not, however, (a) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (b) impair the right of Lender to name Borrower as a party defendant in any action or suit for foreclosure and sale under the Pledge AgreementMortgage; (c) affect the validity or enforceability of or any Guaranty guaranty made in connection with the Loan or any of the rights and remedies of Lender thereunder; (d) impair the right of Lender to obtain the appointment of a receiver; (e) intentionally omittedimpair the enforcement of the Assignment of Leases; (f) constitute a prohibition against Lender to seek seeking a deficiency judgment against Borrower in order to fully realize the security granted by the Pledge Agreement Mortgage or to commence commencing any other appropriate action or proceeding in order for Lender to exercise its remedies against all of the CollateralProperty; or (g) constitute a waiver of the right of Lender to enforce the liability and obligation of Borrower, by money judgment or otherwise, to the extent of any actual loss, damage, cost, expense, liability, claim or other obligation incurred by Lender (including reasonable attorneys’ fees and costs reasonably incurred) arising out of or in connection with the following:
Appears in 2 contracts
Samples: Loan Agreement (MPG Office Trust, Inc.), Loan Agreement (Maguire Properties Inc)
Exculpation. (a) Subject to the qualifications below, Lender shall not enforce the liability and obligation of Borrowers (or any of Borrowers’ members, managers partners shareholders, officers, directors or Affiliates, whether direct or indirect, collectively, the “Borrower Parties”) to perform and observe the obligations contained in the Note, this Agreement, the Pledge Agreement Agreements or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against either Borrower, except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender and each Noteholder to enforce and realize upon its interest under the Note, this Agreement, the Pledge Agreement Agreements and the other Loan Documents, or in any or all of the Collateral, Collateral or any other collateral given to Lender pursuant to the Pledge Agreements and the other Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrowers or the Borrower Parties only to the extent of Borrower’s Borrowers’ or the Borrower Parties’ interest in the Collateral and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Pledge Agreement Agreements, and the other Loan Documents, agrees that it shall not xxx for, seek or demand any deficiency judgment against either Borrower or the Borrower Parties in any such action or proceeding under, or by reason of, or in connection with, the Note, this Agreement, the Pledge Agreement Agreements, or the other Loan Documents. The provisions of this Section shall not, however, (a) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (b) impair the right of Lender to name Borrower Borrowers as a party defendant defendants in any action or suit for foreclosure and sale under the Pledge AgreementAgreements; (c) affect the validity or enforceability of or any Guaranty guaranty made in connection with the Loan or any of the rights and remedies of Lender thereunder; (d) impair the right of Lender to obtain the appointment of a receiver; (e) intentionally omitted; (f) constitute a prohibition against Lender to seek seeking a deficiency judgment against Borrower Borrowers in order to fully realize the security granted by the Pledge Agreement Agreements or to commence commencing any other appropriate action or proceeding in order for Lender to exercise its remedies against all of the CollateralProperties; or (ge) constitute a waiver of the right of Lender to enforce the liability and obligation of BorrowerBorrowers, by money judgment or otherwise, to the extent of any actual loss, damage, cost, expense, liability, claim or other obligation incurred by Lender (including attorneys’ fees and costs reasonably incurred) arising out of or in connection with the following:: 97
Appears in 2 contracts
Samples: Pledge and Security Agreement (MPG Office Trust, Inc.), Pledge and Security Agreement (MPG Office Trust, Inc.)
Exculpation. (a) Subject to the qualifications below, Lender shall not enforce the liability and obligation of Borrower or Leasehold Pledgor to perform and observe the obligations Obligations contained in the Note, this Agreement, the Pledge Agreement or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against Borrower, Leasehold Pledgor, or against Owner, Operating Lessee, any SPC Party, any Guarantor, any Affiliates of the foregoing or any of their respective direct or indirect principals, directors, officers, employees, beneficiaries, shareholders, partners, members, trustees or agents (each, exclusive of the Borrower and Leasehold Pledgor, an “Other Exculpated Party”), except that (1) any Other Exculpated Party that is party to any Loan Document or any other separate written guaranty, indemnity or other agreement given by such Other Exculpated Party in connection with the Loan (including, without limitation, the Subordination of Management Agreement or any other Loan Document to which such Other Exculpated Party is a party) shall remain fully liable therefor and the foregoing provisions shall not operate to limit or impair the liabilities and obligations of such Other Exculpated Party thereunder, and (2) Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender and each Noteholder to enforce and realize upon its interest under the Note, this Agreement, the Pledge Agreement and the other Loan Documents, or in all or any portion of the Collateral, Collateral or any other collateral given to Lender pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower or Leasehold Pledgor only to the extent of Borrower’s and Leasehold Pledgor’s interest in the Collateral and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Pledge Agreement and the other Loan Documents, agrees that it shall not xxx sxx for, seek or demand any deficiency judgment against Borrower any of the Exculpated Parties in any such action or proceeding under, under or by reason of, of or under or in connection with, with the Note, this Agreement, the Pledge Agreement or the other Loan Documents. The provisions of this Section 10.1 shall not, however, (a) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (b) impair the right of Lender to name Borrower or Leasehold Pledgor as a party defendant in any action or suit for foreclosure and sale under the Pledge Agreement; (c) affect the validity or enforceability of any of the Loan Documents or any Guaranty guaranty made in connection with the Loan or any of the rights and remedies of Lender thereunder; (d) impair the right of Lender to obtain the appointment of a receiver; (e) intentionally omittedimpair the enforcement of the Environmental Indemnity; (f) constitute a prohibition against Lender to seek a deficiency judgment against Borrower or Leasehold Pledgor in order to fully realize the security granted by the Pledge Agreement or the other Security Documents or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against all or any portion of the Collateral; (g) waive or impair the liability of any Other Exculpated Party under any Loan Document or any other separate written guaranty, indemnity or other agreement to which such Other Exculpated Party is a party (including, without limitation, the Subordination of Management Agreement or any other Loan Document to which such Other Exculpated Party is a party); or (gh) constitute a waiver of the right of Lender to enforce the liability and obligation of BorrowerBorrower or Leasehold Pledgor, by money judgment or otherwise, to the extent of any actual loss, damage, cost, out-of-pocket cost or expense, liability, claim or other obligation incurred by Lender (including reasonable outside attorneys’ fees and costs reasonably incurred) arising out of or in connection with the following:following (all such liability and obligation of Borrower or Leasehold Pledgor for any or all of the following being referred to herein as “Borrower’s Recourse Liabilities”):
Appears in 2 contracts
Samples: Mezzanine a Loan Agreement (Hospitality Investors Trust, Inc.), Mezzanine Loan Agreement (Hospitality Investors Trust, Inc.)
Exculpation. (a) Subject Notwithstanding anything in the Loan Documents to the contrary, but subject to the qualifications belowhereinbelow set forth, Xxxxxx agrees that (i) Borrower shall be liable upon the indebtedness evidenced hereby and for the other obligations arising under the Loan Documents to the full extent (but only to the extent) of the security therefor, the same being all properties (whether real or personal), rights, estates and interests now or at any time hereafter securing the payment of this Note and/or the other obligations of Borrower under the Loan Documents (collectively, the "Security Property"), (ii) if default occurs in the timely and proper payment of all or any part of such indebtedness evidenced hereby or in the timely and proper performance of the other obligations of Borrower under the Loan Documents, any judicial proceedings brought by Lender against Borrower shall not enforce be limited to the preservation, enforcement and foreclosure, or any thereof, of the liens, security titles, estates, assignments, rights and security interest now or at any time hereafter securing the payment of this Note and/or the other obligations of Borrower under the Loan Documents, and no attachment, execution or other writ of process shall be sought, issued or levied upon any assets, properties or funds of Borrower other than the Security Property except with respect to the liability described below in this section, and obligation (iii) in the event of a foreclosure of such liens, security titles the payment assignments, rights or security interests securing the payment of this Note and/or the other obligations of Borrower to perform and observe under the obligations contained in Loan Documents, no judgment for any deficiency upon the Note, this Agreement, the Pledge Agreement or the other Loan Documents by any action or proceeding wherein a money judgment indebtedness evidenced hereby shall be sought or obtained by Lender against Borrower, except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender and each Noteholder to enforce and realize upon its interest under the Note, this Agreement, the Pledge Agreement and the other Loan Documents, or in the Collateral, or any other collateral given to Lender pursuant with respect to the Loan Documentsliability described below in this section; provided, however, that, except as specifically provided hereinnotwithstanding the foregoing provisions of this section, any judgment in any such action or proceeding Borrower shall be enforceable fully and personally liable and subject to legal action (a) for proceeds paid under any insurance policies (or paid as a result of any other claim or cause of action against Borrower only any person or entity) by reason of damage, loss or destruction to all or any portion of the Security Property, to the full extent of Borrower’s interest in the Collateral and in any other collateral given such proceeds not previously delivered to Lender, and but which, under the terms of the Loan Documents, should have been delivered to Lender; (b) for proceeds or awards resulting from the condemnation or other taking in lieu of condemnation of all or any portion of the Security Property, or any of them, to the full extent of such proceeds or awards not previously delivered to Lender, but which, under the term of the Loan Documents, should have been delivered to Lender; (c) for all tenant security deposits or other refundable deposits paid to or held by accepting Borrower or any other person or entity in connection with leases of all or any portion of the NoteSecurity Property which are not applied in accordance with the terms of the applicable lease or other agreement; (d) for rent and other payments received from tenants under leases of all or any portion of the Security Property paid more than one month in advance; (e) for rents, this Agreementissues, profits and revenues of all or any portion of the Pledge Agreement Security Property received or applicable to a period after any notice of default from Lender hereunder or under the Loan Documents in the event of any default by Borrower hereunder or thereunder which are not either applied to the ordinary and necessary expenses of owning and operating the Security Property or paid to Lender; (f) for waste committed on the Security Property, Damage to the Security Property at a result of the intentional misconduct or gross negligence of Borrower or any of its principals, officers or general partners, or any agent or employee of any such persons, or any removal of the Security Property in violation of the terms of the Loan Documents, to the full extent of the losses or damages incurred by Xxxxxx on account of such failure, (g) for failure to pay any valid taxes, assessments, mechanic's liens, materialmen's liens or other liens which could create liens on any portion of the Security Property which would be superior to the lien or security title of the Security Instrument or the other Loan Documents, agrees that it shall not xxx for, seek or demand any deficiency judgment against Borrower in to the full extent of the amount claimed by any such action lien claimant, (h) for all obligations and indemnities of Borrower under the Loan Documents relating to hazardous or proceeding undertoxic substances or compliance with environmental laws and regulations to the full extent of any losses or damages (including those resulting from diminution in value of any Security Property) incurred by Xxxxxx as a result of the existence of such hazardous or toxic substances or failure to comply with environmental laws or regulations, and (i) for fraud or material misrepresentation by Borrower or any of its principals, officers, or general partners, any guarantor, any indemnitor or any agent, employee or other person authorized or apparently authorized to make statements or representations on behalf of Xxxxxxxx, any principal, officer or partner of Xxxxxxxx, any guarantor or any indemnitor, to the full extent of any losses, damages and expenses of Xxxxxx on account thereof. References herein to particular sections of the Loan Documents shall be deemed references to such sections as affected by reason of, or other provision of the Loan Documents relating thereto. Nothing contained in connection with, the Note, this Agreement, the Pledge Agreement or the other Loan Documents. The provisions of this Section section shall not, however, (a1) constitute be deemed to be a waiver, release or impairment of the indebtedness evidenced by this Note or the other obligations of Borrower under the Loan Documents or the lien of the Loan documents upon the Security Property, or (2) preclude Lender from foreclosing the Loan Documents in case of any obligation evidenced default or secured by from enforcing any of the Loan Documents; (b) impair the right other rights of Lender to name Borrower except as a party defendant stated in this section, or (3) limit or impair in any action or suit for foreclosure way whatever the indemnity and sale under the Pledge Agreement; (c) affect the validity or enforceability Guaranty Agreement of or any Guaranty made even date executed and delivered in connection with the Loan indebtedness evidenced by this Note or release, relieve, reduce, waive or impair in any of the rights and remedies of Lender thereunder; (d) impair the right of Lender to obtain the appointment of a receiver; (e) intentionally omitted; (f) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted by the Pledge Agreement or to commence way whatsoever, any other appropriate action or proceeding in order for Lender to exercise its remedies against all of the Collateral; or (g) constitute a waiver of the right of Lender to enforce the liability and obligation of Borrower, by money judgment or otherwise, any party to the extent of any actual loss, damage, cost, expense, liability, claim or other obligation incurred by Lender (including attorneys’ fees and costs reasonably incurred) arising out of or in connection with the following:such Indemnity Agreement.
Appears in 2 contracts
Samples: Promissory Note (Homes for America Holdings Inc), Promissory Note (Homes for America Holdings Inc)
