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 ▇▇▇ 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: (i) fraud or intentional misrepresentation by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor in connection with the execution and delivery of the Loan Documents and/or the Loan; (ii) the misappropriation, conversion or misapplication in contravention of the Loan Documents by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any funds of Borrower, Senior Mezzanine Borrower, Mortgage Borrower or Operating Company, including, without limitation, (A) any Revenues, (B) any Net Liquidation Proceeds or Insurance Proceeds, (C) any Awards received in connection with a Condemnation, (D) any Rents or security deposits (or any item of Revenue, from whatever source) following an Event of Default, or (E) any distribution or other payments made in connection with any part of the Collateral or Senior Mezzanine Collateral; (iii) the misappropriation, conversion or misapplication by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any security deposits or Rents paid more than one (1) month in advance; (iv) any act of actual intentional physical waste by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor; (v) the breach of any representation, warranty, covenant or indemnification provision in the Environmental Indemnity Agreement concerning environmental laws, hazardous substances and asbestos and any indemnification of Lender with respect thereto in either document; (vi) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company fails to obtain Lender’s prior consent to any voluntary intentional Transfer as required by this Agreement, the Mortgage Loan Agreement or the Mortgages, as applicable; (vii) any security deposits, advance deposits or any other deposits collected with respect to any of the Properties which are not delivered to Mortgage Lender upon a foreclosure of any of the Properties or action in lieu thereof, except to the extent any such security deposits were applied in accordance with the terms and conditions of any of the Leases prior to the occurrence of the Event of Default that gave rise to such foreclosure or action in lieu thereof; (viii) in the event of: (A) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing a voluntary petition under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (B) the filing of an involuntary petition against Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law by any Person in which Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of their respective Affiliates, agents or employees colludes with or such other Person, or Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor soliciting or causing to be solicited petitioning creditors for any involuntary petition against Borrower, Operating Company or any Guarantor from any Person; (C) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing an answer consenting to or otherwise acquiescing in or joining in any involuntary petition filed against it by any other Person, other than Lender, under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (D) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor consenting to or acquiescing in or joining in an application for the appointment of a custodian, receiver, trustee, or examiner for Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of the Properties, the Collateral, the Senior Mezzanine Collateral or any portion thereof, other than at the request of Lender; or (E) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor making an assignment for the benefit of creditors (other than Lender), or admitting, in writing or in any legal proceeding, its insolvency or inability to pay its debts as they become due; (ix) if Borrower, Senior Mezzanine Borrower or Mortgage Borrower fails to maintain its status as a Special Purpose Entity or breaches any material representation or warranty set forth in Section 4.1.30 of this Agreement; and (x) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company fails to obtain Lender’s prior consent to any voluntary Indebtedness (other than (x) with respect to Mortgage Borrower, Permitted Indebtedness and (y) with respect to Operating Company, Permitted Indebtedness (Operating Company), as applicable) or voluntary Lien (other than Permitted Encumbrances) encumbering any of the Properties, Senior Mezzanine Collateral or Collateral as required by this Agreement, the Senior Mezzanine Loan Agreement, the Mortgage Loan Agreement, the Pledge Agreement or the Mortgages. Notwithstanding anything to the contrary under this Agreement, neither any present or future Affiliate of Borrower (other than Guarantor, to the extent provided under the Guaranty) nor any present or future shareholder, officer, director, employee, trustee, beneficiary, advisor, partner, member, principal, participant or agent of or in any Borrower or of or in any person or entity that is or becomes an Affiliate of any Borrower shall have any personal liability, directly or indirectly, under or in connection with the Loan Documents. Neither the negative capital account of any Affiliate of Borrower in Borrower, or in any other Affiliate of Borrower in any other Affiliate of Borrower, nor any obligation of any Affiliate of Borrower in any Borrower to restore a negative capital account or to contribute or loan capital to any Borrower or to any other Affiliate of Borrower shall at any time be deemed to be the property or an asset of any Borrower (or any other Affiliate of Borrower) and neither Lender nor its successors or assigns shall have any right to collect, enforce or proceed against any such negative capital account or obligation to restore, contribute or loan capital. (b) Notwithstanding anything to the contrary in this Agreement, the Note or any of the Loan Documents, Lender shall not be deemed to have waived any right which Lender may have under Section 506(a), 506(b), 1111(b) or any other provisions of the Bankruptcy Code to file a claim for the full amount of the Indebtedness or to require that all collateral shall continue to secure all of the Indebtedness owing to Lender in accordance with the Loan Documents.
Appears in 5 contracts
Sources: Ninth Mezzanine Loan Agreement (Harrahs Entertainment Inc), Mezzanine Loan Agreement (Harrahs Entertainment Inc), Mezzanine Loan Agreement (Harrahs Entertainment 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, ▇▇▇ 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:
(i) fraud or intentional misrepresentation by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor in connection with the execution and delivery of the Loan Documents Insurance Proceeds and/or the Loan;
(ii) the misappropriation, conversion or misapplication in contravention of the Loan Documents by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any funds of Borrower, Senior Mezzanine Borrower, Mortgage Borrower or Operating Company, including, without limitation, (A) any Revenues, (B) any Net Liquidation Proceeds or Insurance Proceeds, (C) any Awards received in connection with a Condemnation, (D) any Rents or security deposits (or any item of Revenue, from whatever source) following an Event of Default, or (E) any distribution or other payments made in connection with any part of the Collateral or Senior Mezzanine Collateral;
(iii) the misappropriation, conversion or misapplication by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any security deposits or Rents paid more than one (1) month in advance;
(iv) any act of actual intentional physical waste by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor;
(v) the breach of any representation, warranty, covenant or indemnification provision in the Environmental Indemnity Agreement concerning environmental laws, hazardous substances and asbestos and any indemnification of Lender with respect thereto in either document;
(vi) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company fails to obtain Lender’s prior consent to any voluntary intentional Transfer as required by this Agreement, the Mortgage Loan Agreement or the Mortgages, as applicable;
(vii) any security deposits, advance deposits or any other deposits collected with respect to any of the Properties which are not delivered to Mortgage Lender upon a foreclosure of any of the Properties or action in lieu thereof, except to the extent any such security deposits were applied in accordance with the terms and conditions of any of the Leases prior to the occurrence of the Event of Default that gave rise to such foreclosure or action in lieu thereof;
(viii) in the event of:
(A) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing a voluntary petition under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (B) the filing of an involuntary petition against Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law by any Person in which Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of their respective Affiliates, agents or employees colludes with or such other Person, or Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor soliciting or causing to be solicited petitioning creditors for any involuntary petition against Borrower, Operating Company or any Guarantor from any Person; (C) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing an answer consenting to or otherwise acquiescing in or joining in any involuntary petition filed against it by any other Person, other than Lender, under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (D) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor consenting to or acquiescing in or joining in an application for the appointment of a custodian, receiver, trustee, or examiner for Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of the Properties, the Collateral, the Senior Mezzanine Collateral or any portion thereof, other than at the request of Lender; or (E) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor making an assignment for the benefit of creditors (other than Lender), or admitting, in writing or in any legal proceeding, its insolvency or inability to pay its debts as they become due;
(ix) if Borrower, Senior Mezzanine Borrower or Mortgage Borrower fails to maintain its status as a Special Purpose Entity or breaches any material representation or warranty set forth in Section 4.1.30 of this Agreement; and
(x) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company fails to obtain Lender’s prior consent to any voluntary Indebtedness (other than (x) with respect to Mortgage Borrower, Permitted Indebtedness and (y) with respect to Operating Company, Permitted Indebtedness (Operating Company), as applicable) or voluntary Lien (other than Permitted Encumbrances) encumbering any of the Properties, Senior Mezzanine Collateral or Collateral as required by this Agreement, the Senior Mezzanine Loan Agreement, the Mortgage Loan Agreement, the Pledge Agreement or the Mortgages. Notwithstanding anything to the contrary under this Agreement, neither any present or future Affiliate of Borrower (other than Guarantor, to the extent provided under the Guaranty) nor any present or future shareholder, officer, director, employee, trustee, beneficiary, advisor, partner, member, principal, participant or agent of or in any Borrower or of or in any person or entity that is or becomes an Affiliate of any Borrower shall have any personal liability, directly or indirectly, under or in connection with the Loan Documents. Neither the negative capital account of any Affiliate of Borrower in Borrower, or in any other Affiliate of Borrower in any other Affiliate of Borrower, nor any obligation of any Affiliate of Borrower in any Borrower to restore a negative capital account or to contribute or loan capital to any Borrower or to any other Affiliate of Borrower shall at any time be deemed to be the property or an asset of any Borrower (or any other Affiliate of Borrower) and neither Lender nor its successors or assigns shall have any right to collect, enforce or proceed against any such negative capital account or obligation to restore, contribute or loan capitalAwards.
(b) Notwithstanding anything to the contrary in this Agreement, the Note or any of the Loan Documents, Lender shall not be deemed to have waived any right which Lender may have under Section 506(a), 506(b), 1111(b) or any other provisions of the Bankruptcy Code to file a claim for the full amount of the Indebtedness or to require that all collateral shall continue to secure all of the Indebtedness owing to Lender in accordance with the Loan Documents.
Appears in 4 contracts
Sources: Mezzanine Loan Agreement (Ashford Hospitality Trust Inc), Mezzanine Loan Agreement (Ashford Hospitality Trust Inc), Mezzanine 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 Security Instrument 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 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 ▇▇▇ for, 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 Security Instrument 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 AgreementSecurity Instrument; (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 rights of Lender to (A) obtain the appointment of a receiver and/or (B) enforce its rights and remedies provided in Articles 8 and 9 hereof; (5) impair the enforcement of the assignment of leases and rents contained in the Security Instrument and in any other Loan Documents; (6) impair the right of Lender to obtain the appointment enforce Section 4.12(e) of a receiverthis Agreement; (e) intentionally omitted; (f7) 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 CollateralProperty; or (g) 8) 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 Loss incurred by Lender (including attorneys’ fees and costs reasonably incurred) arising out of or in connection with the following:
(i) fraud or intentional misrepresentation by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor Borrower Party in connection with the execution and delivery of the Loan Documents and/or the Loan;
(ii) the misappropriation, conversion gross negligence or misapplication in contravention of the Loan Documents by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor willful misconduct of any funds of Borrower, Senior Mezzanine Borrower, Mortgage Borrower or Operating Company, including, without limitation, (A) any Revenues, (B) any Net Liquidation Proceeds or Insurance Proceeds, (C) any Awards received in connection with a Condemnation, (D) any Rents or security deposits (or any item of Revenue, from whatever source) following an Event of Default, or (E) any distribution or other payments made in connection with any part of the Collateral or Senior Mezzanine CollateralParty;
(iii) any litigation or other legal proceeding related to the misappropriationDebt filed by any Borrower Party that delays, conversion opposes, impedes, obstructs, hinders, enjoins or misapplication by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company otherwise interferes with or frustrates the efforts of Lender to exercise any Guarantor of any security deposits or Rents paid more than one (1) month rights and remedies available to Lender as provided herein and in advancethe other Loan Documents;
(iv) waste to the Property caused by the intentional acts or intentional omissions of any act Borrower Party and/or the removal or disposal of actual intentional physical waste by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantorportion of the Property after an Event of Default;
(v) the breach misapplication, misappropriation or conversion by any Borrower Party of (A) any insurance proceeds paid by reason of any representationloss, warrantydamage or destruction to the Property, covenant (B) any Awards or indemnification provision other amounts received in connection with the Environmental Indemnity Agreement concerning environmental lawsCondemnation of all or a portion of the Property, hazardous substances and asbestos and (C) any indemnification Rents following an Event of Lender with respect thereto Default or (D) any Tenant security deposits or Rents collected in either documentadvance;
(vi) if Borrower, Mortgage Borrower, Senior Mezzanine any act of arson by any Borrower Party or Operating Company fails to obtain Lender’s prior consent to of which any voluntary intentional Transfer as required by this Agreement, the Mortgage Loan Agreement or the Mortgages, as applicableBorrower Party has knowledge;
(vii) failure to pay Taxes, charges for labor or materials or other charges that can create liens on any portion of the Property in accordance with the terms and provisions hereof;
(viii) failure to pay Insurance Premiums, to maintain the Policies in full force and effect and/or to provide Lender evidence of the same, in each case, as expressly provided herein;
(ix) any security deposits, advance deposits or any other deposits collected with respect to any of the Properties Property which are not delivered to Mortgage Lender upon a foreclosure of any of the Properties Property or action in lieu thereof, except to the extent any such security deposits were applied in accordance with the terms and conditions of any of the Leases prior to the occurrence of the Event of Default that gave rise to such foreclosure or action in lieu thereof;
(viiix) in any tax on the event of:
(A) Borrowermaking and/or recording of the Security Instrument, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing a voluntary petition under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (B) the filing of an involuntary petition against Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law by any Person in which Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of their respective Affiliates, agents or employees colludes with or such other Person, or Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor soliciting or causing to be solicited petitioning creditors for any involuntary petition against Borrower, Operating Company or any Guarantor from any Person; (C) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing an answer consenting to or otherwise acquiescing in or joining in any involuntary petition filed against it by any other Person, other than Lender, under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (D) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor consenting to or acquiescing in or joining in an application for the appointment of a custodian, receiver, trustee, or examiner for Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor Note or any of the Propertiesother Loan Documents or any transfer or similar taxes (whether due upon the making of the same or upon Lender’s exercise of its remedies under the Loan Documents), but excluding any income, franchise or other similar taxes;
(xi) the Collateralseizure or forfeiture of the Property, the Senior Mezzanine Collateral or any portion thereof, other than at or Borrower’s interest therein, resulting from criminal wrongdoing by any Borrower Party;
(xii) the request failure to make any Condemnation Payment and/or any Balancing Payment, to permit on-site inspections of Lender; the Property and/or to provide the Required Financial Items, in each case, as and when required herein;
(xiii) Intentionally Omitted;
(xiv) the failure to make repairs, renewals or replacements (Eincluding, without limitation, structural and nonstructural, exterior and interior, ordinary and extraordinary, foreseen and unforeseen) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company to the Property or any Guarantor making an assignment for portion thereof (including, without limitation, the benefit Improvements now or at any time hereafter erected on the Property) as and when required pursuant to the terms of creditors the Loan Documents or as and when necessary to maintain the Property in good and safe condition, in a rentable and tenantable state of repair and/or in the condition required pursuant to the terms of the Loan Documents; and/or
(xv) any indemnity obligations of Lender to Bank under the Restricted Account Agreement (other than Lender), or admitting, in writing or in any legal proceeding, its insolvency or inability to pay its debts as they become due;
(ix) if Borrower, Senior Mezzanine Borrower or Mortgage Borrower fails to maintain its status those arising as a Special Purpose Entity or breaches any material representation or warranty set forth in Section 4.1.30 direct result of this Agreement; and
(x) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company fails to obtain Lender’s prior consent to any voluntary Indebtedness (other than (x) with respect to Mortgage Borrower, Permitted Indebtedness and (y) with respect to Operating Company, Permitted Indebtedness (Operating Companygross negligence or willful misconduct), as applicable) or voluntary Lien (other than Permitted Encumbrances) encumbering any of the Properties, Senior Mezzanine Collateral or Collateral as required by this Agreement, the Senior Mezzanine Loan Agreement, the Mortgage Loan Agreement, the Pledge Agreement or the Mortgages. Notwithstanding anything to the contrary under this Agreement, neither any present or future Affiliate of Borrower (other than Guarantor, to the extent provided under the Guaranty) nor any present or future shareholder, officer, director, employee, trustee, beneficiary, advisor, partner, member, principal, participant or agent of or in any Borrower or of or in any person or entity that is or becomes an Affiliate of any Borrower shall have any personal liability, directly or indirectly, under or in connection with the Loan Documents. Neither the negative capital account of any Affiliate of Borrower in Borrower, or in any other Affiliate of Borrower in any other Affiliate of Borrower, nor any obligation of any Affiliate of Borrower in any Borrower to restore a negative capital account or to contribute or loan capital to any Borrower or to any other Affiliate of Borrower shall at any time be deemed to be the property or an asset of any Borrower (or any other Affiliate of Borrower) and neither Lender nor its successors or assigns shall have any right to collect, enforce or proceed against any such negative capital account or obligation to restore, contribute or loan capital.
(b) Notwithstanding anything to the contrary in this Agreement, the Note or any of the Loan Documents, (A) Lender shall not be deemed to have waived any right which Lender may have under Section 506(a), 506(b), 1111(b) or any other provisions of the Bankruptcy Code to file a claim for the full amount of the Indebtedness Debt or to require that all collateral shall continue to secure all of the Indebtedness Debt owing to Lender in accordance with the Loan Documents, and (B) the Debt shall be fully recourse to Borrower in the event that: (i) the first full monthly payment of principal and interest under the Note is not paid when due; (ii) Borrower fails to comply with any provisions hereof relating to cash management or fails to appoint a new property manager upon the request of Lender, fails to cooperate with any New Manager or fails to comply with any limitations on instructing the property manager, each as required by and in accordance with, as applicable, the terms and provisions of, this Agreement, the Assignment of Management Agreement and the Security Instrument; (iii) any representation, warranty or covenant contained in Article 5 or Article 6 hereof is violated or breached; (iv) a Bankruptcy Event occurs; or (v) Sections 11.1 or 11.6 hereof are violated or breached in any material respect.
Appears in 4 contracts
Sources: Loan Agreement (Independence Realty Trust, Inc), Loan Agreement (Independence Realty Trust, Inc), Loan Agreement (Independence Realty Trust, 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 ▇▇▇▇▇▇ 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 ▇▇▇ 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 incurred) arising out of or in connection with the following:
(i) fraud or intentional misrepresentation by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor in connection with the execution and delivery of the Loan Documents and/or the Loan;
(ii) the misappropriation, conversion or misapplication in contravention of the Loan Documents by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any funds of Borrower, Senior Mezzanine Borrower, Mortgage Borrower or Operating Company, including, without limitation, (A) any Revenues, (B) any Net Liquidation Proceeds or Insurance Proceeds, (C) any Awards received in connection with a Condemnation, (D) any Rents or security deposits (or any item of Revenue, from whatever source) following an Event of Default, or (E) any distribution or other payments made in connection with any part of the Collateral or Senior Mezzanine Collateral;
(iii) the misappropriation, conversion or misapplication by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any security deposits or Rents paid more than one (1) month in advance;
(iv) any act of actual intentional physical waste by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor;
(v) the breach of any representation, warranty, covenant or indemnification provision in the Environmental Indemnity Agreement concerning environmental laws, hazardous substances and asbestos and any indemnification of Lender with respect thereto in either document;
(vi) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company fails to obtain Lender’s prior consent to any voluntary intentional Transfer as required by this Agreement, the Mortgage Loan Agreement or the Mortgages, as applicable;
(vii) any security deposits, advance deposits or any other deposits collected with respect to any of the Properties which are not delivered to Mortgage Lender upon a foreclosure of any of the Properties or action in lieu thereof, except to the extent any such security deposits were applied in accordance with the terms and conditions of any of the Leases prior to the occurrence of the Event of Default that gave rise to such foreclosure or action in lieu thereof;
(viii) in the event of:
(A) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing a voluntary petition under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (B) the filing of an involuntary petition against Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law by any Person in which Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of their respective Affiliates, agents or employees colludes with or such other Person, or Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor soliciting or causing to be solicited petitioning creditors for any involuntary petition against Borrower, Operating Company or any Guarantor from any Person; (C) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing an answer consenting to or otherwise acquiescing in or joining in any involuntary petition filed against it by any other Person, other than Lender, under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (D) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor consenting to or acquiescing in or joining in an application for the appointment of a custodian, receiver, trustee, or examiner for Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of the Properties, the Collateral, the Senior Mezzanine Collateral or any portion thereof, other than at the request of Lender; or (E) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor making an assignment for the benefit of creditors (other than Lender), or admitting, in writing or in any legal proceeding, its insolvency or inability to pay its debts as they become due;
(ix) if Borrower, Senior Mezzanine Borrower or Mortgage Borrower fails to maintain its status as a Special Purpose Entity or breaches any material representation or warranty those set forth in Section 4.1.30 of this Agreement; and
(xthe Plan Supplement) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company fails executed to obtain Lender’s prior consent to any voluntary Indebtedness (other than (x) with respect to Mortgage Borrower, Permitted Indebtedness and (y) with respect to Operating Company, Permitted Indebtedness (Operating Company), as applicable) or voluntary Lien (other than Permitted Encumbrances) encumbering any of implement the Properties, Senior Mezzanine Collateral or Collateral as required by this Agreement, the Senior Mezzanine Loan Agreement, the Mortgage Loan Agreement, the Pledge Agreement or the Mortgages. Notwithstanding anything to the contrary under this Agreement, neither any present or future Affiliate of Borrower (other than Guarantor, to the extent provided under the Guaranty) nor any present or future shareholder, officer, director, employee, trustee, beneficiary, advisor, partner, member, principal, participant or agent of or in any Borrower or of or in any person or entity that is or becomes an Affiliate of any Borrower shall have any personal liability, directly or indirectly, under or in connection with the Loan Documents. Neither the negative capital account of any Affiliate of Borrower in Borrower, or in any other Affiliate of Borrower in any other Affiliate of Borrower, nor any obligation of any Affiliate of Borrower in any Borrower to restore a negative capital account or to contribute or loan capital to any Borrower or to any other Affiliate of Borrower shall at any time be deemed to be the property or an asset of any Borrower (or any other Affiliate of Borrower) and neither Lender nor its successors or assigns shall have any right to collect, enforce or proceed against any such negative capital account or obligation to restore, contribute or loan capitalPlan.
(b) Notwithstanding anything to the contrary in this Agreement, the Note or any of the Loan Documents, Lender shall not be deemed to have waived any right which Lender may have under Section 506(a), 506(b), 1111(b) or any other provisions of the Bankruptcy Code to file a claim for the full amount of the Indebtedness or to require that all collateral shall continue to secure all of the Indebtedness owing to Lender in accordance with the Loan Documents.
Appears in 4 contracts
Sources: Restructuring Support and Forbearance Agreement (CAESARS ENTERTAINMENT Corp), Restructuring Support, Forbearance, and Settlement Agreement (CAESARS ENTERTAINMENT Corp), Restructuring Support and Forbearance 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 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 ▇▇▇ 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; Property.
(b) Nothing contained herein shall in any manner or (g) constitute a waiver of way release, affect or impair the right of Lender to enforce the liability recover, and obligation of BorrowerBorrower shall be fully and personally liable and subject to legal action, by money judgment or otherwise, to the extent of for any actual loss, damage, cost, expense, liabilitydamage, claim or other obligation incurred by Lender (including reasonable attorneys’ fees and costs reasonably incurredcourt costs), but excluding consequential, special, punitive and exemplary damages) incurred or suffered by Lender arising out of or in connection with the following:
(i) fraud or intentional misrepresentation by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor in connection with the execution and delivery of the Loan Documents and/or the Loan;
(ii) the misappropriation, conversion or misapplication in contravention of the Loan Documents by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any funds of Borrower, Senior Mezzanine Borrower, Mortgage Borrower or Operating Company, including, without limitation, (A) any Revenues, (B) any Net Liquidation Proceeds or Insurance Proceeds, (C) any Awards received in connection with a Condemnation, (D) any Rents or security deposits (or any item of Revenue, from whatever source) following an Event of Default, or (E) any distribution or other payments made in connection with any part of the Collateral or Senior Mezzanine Collateral;
(iii) the misappropriation, conversion or misapplication by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any security deposits or Rents paid more than one (1) month in advance;
(iv) any act of actual intentional physical waste by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor;
(v) the breach of any representation, warranty, covenant or indemnification provision in the Environmental Indemnity Agreement concerning environmental laws, hazardous substances and asbestos and any indemnification of Lender with respect thereto in either document;
(vi) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company fails to obtain Lender’s prior consent to any voluntary intentional Transfer as required by this Agreement, the Mortgage Loan Agreement or the Mortgages, as applicable;
(vii) any security deposits, advance deposits or any other deposits collected with respect to any of the Properties which are not delivered to Mortgage Lender upon a foreclosure of any of the Properties or action in lieu thereof, except to the extent any such security deposits were applied in accordance with the terms and conditions of any of the Leases prior to the occurrence of the Event of Default that gave rise to such foreclosure or action in lieu thereof;
(viii) in the event of:
(A) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing a voluntary petition under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (B) the filing of an involuntary petition against Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law by any Person in which Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of their respective Affiliates, agents or employees colludes with or such other Person, or Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor soliciting or causing to be solicited petitioning creditors for any involuntary petition against Borrower, Operating Company or any Guarantor from any Person; (C) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing an answer consenting to or otherwise acquiescing in or joining in any involuntary petition filed against it by any other Person, other than Lender, under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (D) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor consenting to or acquiescing in or joining in an application for the appointment of a custodian, receiver, trustee, or examiner for Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of the Properties, the Collateral, the Senior Mezzanine Collateral or any portion thereof, other than at the request of Lender; or (E) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor making an assignment for the benefit of creditors (other than Lender), or admitting, in writing or in any legal proceeding, its insolvency or inability to pay its debts as they become due;
(ix) if Borrower, Senior Mezzanine Borrower or Mortgage Borrower fails to maintain its status as a Special Purpose Entity or breaches any material representation or warranty set forth in Section 4.1.30 of this Agreement; and
(x) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company fails to obtain Lender’s prior consent to any voluntary Indebtedness (other than (x) with respect to Mortgage Borrower, Permitted Indebtedness and (y) with respect to Operating Company, Permitted Indebtedness (Operating Company), as applicable) or voluntary Lien (other than Permitted Encumbrances) encumbering any of the Properties, Senior Mezzanine Collateral or Collateral as required by this Agreement, the Senior Mezzanine Loan Agreement, the Mortgage Loan Agreement, the Pledge Agreement or the Mortgages. Notwithstanding anything to the contrary under this Agreement, neither any present or future Affiliate of Borrower (other than Guarantor, to the extent provided under the Guaranty) nor any present or future shareholder, officer, director, employee, trustee, beneficiary, advisor, partner, member, principal, participant or agent of or in any Borrower or of or in any person or entity that is or becomes an Affiliate of any Borrower shall have any personal liability, directly or indirectly, under or in connection with the Loan Documents. Neither the negative capital account of any Affiliate of Borrower in Borrower, or in any other Affiliate of Borrower in any other Affiliate of Borrower, nor any obligation of any Affiliate of Borrower in any Borrower to restore a negative capital account or to contribute or loan capital to any Borrower or to any other Affiliate of Borrower shall at any time be deemed to be the property or an asset of any Borrower (or any other Affiliate of Borrower) and neither Lender nor its successors or assigns shall have any right to collect, enforce or proceed against any such negative capital account or obligation to restore, contribute or loan capital.
(b) Notwithstanding anything to the contrary in this Agreement, the Note or any of the Loan Documents, Lender shall not be deemed to have waived any right which Lender may have under Section 506(a), 506(b), 1111(b) or any other provisions of the Bankruptcy Code to file a claim for the full amount of the Indebtedness or to require that all collateral shall continue to secure all of the Indebtedness owing to Lender in accordance with the Loan Documents.
Appears in 4 contracts
Sources: 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 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 ▇▇▇ 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:
(i) fraud or any material intentional misrepresentation by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor Credit Party in connection with the execution and delivery of the Loan Documents and/or the Loan;
(ii) the misappropriation, conversion fraudulent acts or misapplication in contravention of the Loan Documents by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor willful misconduct of any funds Credit Party, Guarantor or Manager, if applicable (so long as Manager is an Affiliate of Borrower, Senior Mezzanine Borrower, Mortgage Borrower any Credit Party or Operating Company, including, without limitation, Guarantor);
(Aiii) any Revenues, (B) any Net Liquidation Proceeds during a Trigger Period or Insurance Proceeds, (C) any Awards received in connection with a Condemnation, (D) any Rents or security deposits (or any item during the continuance of Revenue, from whatever source) following an Event of Default, or (E) any distribution or other payments made in connection with any part misappropriation of the Collateral Rents by Manager, if applicable (so long as Manager is an Affiliate of any Credit Party or Senior Mezzanine Collateral;
(iii) the misappropriation, conversion or misapplication by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company Guarantor or any Affiliate thereof), any Credit Party, Guarantor of or any security deposits or Rents paid more than one (1) month in advanceAffiliate thereof;
(iv) any act the failure of actual intentional physical waste by Borrowerthe Observatory Tenant, Mortgage Borrowerduring the continuance of an Event of Default or during a Trigger Period, Senior Mezzanine Borrower, Operating Company or any Guarantorto pay all Rent under the Observatory Lease into the HSBC Collection Account in accordance with the Loan Documents and Net Observatory Deck Revenue under the Observatory Lease directly into the JP Collection Account in accordance with the Loan Documents;
(v) the misappropriation of (A) any insurance proceeds paid by reason of any loss, damage or destruction to the Property, or (B) any Awards or other amounts received in connection with the Condemnation of all or a portion of the Property by Manager, if applicable (so long as Manager is an Affiliate of any Credit Party or Guarantor or any Affiliate thereof), any Credit Party or Guarantor or any Affiliate thereof;
(vi) any failure by Manager, if applicable (so long as Manager is an Affiliate of any Credit Party or Guarantor), any Credit Party or Guarantor or any Affiliate thereof to use current Rents to pay then current material operating expenses with respect to the Property in the ordinary course of business (except with respect to Taxes, Other Charges and Trade Payables being contested in accordance with Section 4.1.2);
(vii) intentional physical waste of the Property (but excluding any matter that arises by reason of lack of cash flow with respect to the Property, except to the extent that such lack of cash flow arises from the misappropriation of revenue with respect to the Property as described in clauses (iii), (iv), (v) and (vi) above);
(viii) any removal or disposal of any portion of the Property after an Event of Default in any manner prohibited by the Loan Documents;
(ix) any Credit Party’s failure to obtain Agent’s prior consent to any Transfer, as applicable, as required by the Mortgage or Article VIII hereof (except with respect to a mechanic’s, tax, judgment or similar Lien arising from insufficient Property cash flow except to the extent that such lack of cash flow arises from the misappropriation of revenue with respect to the Property as described in clauses (iii), (iv), (v) and (vi) above);
(x) a voluntary Lien remains an encumbrance on all or any portion of the Property, the Operating Lease or the Observatory Lease in violation of the Loan Documents;
(xi) subject to the provisions of Section 8.3(a)(v), the failure by any Credit Party to comply with the material single purpose entity requirements of this Agreement including those set forth in Section 4.2.19 hereof if such failure leads to a consolidation of the assets of any Credit Party with the assets of another Person (other than the other Credit Parties);
(xii) the incurrence of Indebtedness in violation of the Loan Documents;
(xiii) the breach of any representation, warranty, covenant or indemnification provision in the Environmental Indemnity Agreement concerning environmental laws, hazardous substances Hazardous Substances and asbestos and any indemnification of Lender with respect thereto in either documentasbestos;
(vi) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company fails to obtain Lender’s prior consent to any voluntary intentional Transfer as required by this Agreement, the Mortgage Loan Agreement or the Mortgages, as applicable;
(viixiv) any security deposits, advance deposits or any other deposits collected with respect to any of the Properties Property which are not delivered to Mortgage Lender Agent upon a foreclosure of any of the Properties Property or action transfer in lieu thereof, except to the extent any such security deposits were applied in accordance with the terms and conditions of any of the Leases prior to the occurrence of the Event of Default that gave rise to such foreclosure or action transfer in lieu thereof;
(viii) in the event of:
(A) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing a voluntary petition under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (B) the filing of an involuntary petition against Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law by any Person in which Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of their respective Affiliates, agents or employees colludes with or such other Person, or Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor soliciting or causing to be solicited petitioning creditors for any involuntary petition against Borrower, Operating Company or any Guarantor from any Person; (C) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing an answer consenting to or otherwise acquiescing in or joining in any involuntary petition filed against it by any other Person, other than Lender, under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (D) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor consenting to or acquiescing in or joining in an application for the appointment of a custodian, receiver, trustee, or examiner for Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of the Properties, the Collateral, the Senior Mezzanine Collateral or any portion thereof, other than at the request of Lender; or (E) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor making an assignment for the benefit of creditors (other than Lender), or admitting, in writing or in any legal proceeding, its insolvency or inability to pay its debts as they become due;
(ix) if Borrower, Senior Mezzanine Borrower or Mortgage Borrower fails to maintain its status as a Special Purpose Entity or breaches any material representation or warranty set forth in Section 4.1.30 of this Agreement; and
(xxv) if Borrowerany modifications, Mortgage Borroweramendments, Senior Mezzanine Borrower restatements and/or supplements made to the Ground Lease, Sublease or Operating Company fails to obtain Lender’s prior the Observatory Lease without the consent to of Agent and any voluntary Indebtedness (other than (x) with respect to Mortgage Borrower, Permitted Indebtedness and (y) with respect to Operating Company, Permitted Indebtedness (Operating Company), as applicable) or voluntary Lien (other than Permitted Encumbrances) encumbering any termination of the Properties, Senior Mezzanine Collateral or Collateral as required by this Agreement, Observatory Lease without the Senior Mezzanine Loan Agreement, the Mortgage Loan Agreement, the Pledge Agreement or the Mortgagesconsent of Agent. Notwithstanding anything to the contrary under this Agreement, neither any present or future Affiliate of Borrower (other than Guarantor, to the extent provided under the Guaranty) nor any present or future shareholder, officer, director, employee, trustee, beneficiary, advisor, partner, member, principal, participant or agent of or in any Borrower or of or in any person or entity that is or becomes an Affiliate of any Borrower shall have any personal liability, directly or indirectly, under or in connection with the Loan Documents. Neither the negative capital account of any Affiliate of Borrower in Borrower, or in any other Affiliate of Borrower in any other Affiliate of Borrower, nor any obligation of any Affiliate of Borrower in any Borrower to restore a negative capital account or to contribute or loan capital to any Borrower or to any other Affiliate of Borrower shall at any time be deemed to be the property or an asset of any Borrower (or any other Affiliate of Borrower) and neither Lender nor its successors or assigns shall have any right to collect, enforce or proceed against any such negative capital account or obligation to restore, contribute or loan capital.
(b) Notwithstanding anything to the contrary in this Agreement, the Note or any of the Loan Documents, Lender (A) neither Agent nor Lenders shall not be deemed to have waived any right which Lender Agent and/or Lenders may have under Section 506(a), 506(b), 1111(b) or any other provisions of the Bankruptcy Code to file a claim for the full amount of the Indebtedness Debt or to require that all collateral shall continue to secure all of the Indebtedness Debt owing to Lender Lenders in accordance with the Loan Documents, and (B) the Debt shall be fully recourse to Borrower, but not to any holder of a direct or indirect interest in ESBA or any party supervising either party comprising Borrower (other than as provided in the Guaranty and Environmental Indemnity) or Controlling either party comprising Borrower, in the event that: (1) any Credit Party files a voluntary petition under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (2) an Affiliate, officer, trustee, director, or representative which Controls, directly or indirectly, any Credit Party or Guarantor files or any Credit Party or Guarantor joins in the filing of an involuntary petition against any Credit Party under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law, or solicits or causes to be solicited petitioning creditors for any involuntary petition against any Credit Party or from any Person; (3) there is the filing of an involuntary petition against any Credit Party under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law, in which any Credit Party or Guarantor colludes with, or otherwise assists such Person, or solicits or causes to be solicited petitioning creditors for any involuntary petition against any Credit Party from any Person; (4) any Credit Party files an answer joining in any involuntary petition filed against it, by any other Person under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law, or solicits or causes to be solicited petitioning creditors for any involuntary petition from any Person; (5) any Affiliate, officer, trustee, director, or representative which Controls any Credit Party or Guarantor joins in an application for the appointment of a custodian, receiver, trustee, or examiner for any Credit Party or any portion of the Property; (6) any Credit Party makes a general assignment for the benefit of creditors, or admits, in writing or in any legal proceeding, its insolvency or inability to pay its debts as they become due unless such admission is true; or (7) in connection with any enforcement action or exercise or assertion of any right or remedy upon the continuance of an Event of Default and acceleration of the Loan by or on behalf of the Agent and Lenders under or in connection with the Guaranty, Mortgage, Subordinations, Negative Pledges or any other Loan Document, any Credit Party, or Manager, if applicable (if the Manager is an Affiliate of any Credit Party or Guarantor) (I) seeks a defense, judicial intervention or injunctive or other equitable relief of any kind, or (II) asserts, or causes a third party to assert, in a pleading filed in connection with a judicial proceeding any defense against Agent and/or the Lenders, or (III) any right in connection with any security for the Loan, in each of (I), (II) or (III) that the Subordinations or the Negative Pledges or the subordination provisions of the Sublease or Observatory Lease are void, voidable or unenforceable.
Appears in 4 contracts
Sources: 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 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 ▇▇▇ 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:
(i) fraud or intentional misrepresentation by any Borrower, any Mortgage Borrower, any Senior Mezzanine Borrower, any Manager, any Operating Company or any Guarantor in connection with the execution and delivery of the Loan Documents and/or the Loan;
(ii) the misappropriation, conversion or misapplication in contravention of the Loan Documents by any Borrower, any Mortgage Borrower, any Senior Mezzanine Borrower, any Manager, any Operating Company or any Guarantor of any funds of any Borrower, any Mortgage Borrower, any Senior Mezzanine Borrower, Mortgage Borrower any Manager or any Operating Company, including, without limitation, (A) any Revenues, (B) any Net Liquidation Insurance Proceeds or Insurance Proceedspaid by reason of any Casualty, (C) any Awards received in connection with a Condemnation, or (D) any Rents or security deposits (or any item of Revenue, from whatever source) following an Event of Default, or (E) any distribution or other payments made in connection with any part of the Collateral or Senior Mezzanine Collateral;
(iii) the misappropriation, conversion or misapplication by any Borrower, any Mortgage Borrower, any Senior Mezzanine Borrower, any Manager, any Operating Company or any Guarantor of any security deposits or Rents paid more than one (1) month in advance;
(iv) any act of actual intentional physical waste by any Borrower, any Mortgage Borrower, any Senior Mezzanine Borrower, any Manager, any Operating Company or any Guarantor;
(v) the breach of any representation, warranty, covenant or indemnification provision in the Environmental Indemnity Agreement concerning environmental laws, hazardous substances and asbestos and any indemnification of Lender Lender, Servicer or Collateral Agent with respect thereto in either document;
(vi) if any Borrower, any Mortgage Borrower, any Senior Mezzanine Borrower or any Operating Company fails to obtain Lender’s prior consent to any voluntary intentional Transfer (whether by any Borrower, any Mortgage Borrower, any Senior Mezzanine Borrower or any Operating Company) as required by this Agreement, the Mortgage Loan Agreement Agreement, the Senior Mezzanine Loan Agreement, the Pledge Agreement, any pledge agreement constituting a Senior Mezzanine Loan Document or the Mortgages, as applicable;
(vii) any security deposits, advance deposits or any other deposits collected with respect to any of the Properties which are not delivered to Mortgage Lender Lender, Mortgage Loan Collateral Agent or the Servicer (as defined in the Mortgage Loan Agreement) upon a foreclosure of any of the Properties or action in lieu thereof, except to the extent any such security deposits were applied in accordance with the terms and conditions of any of the Leases prior to the occurrence of the Event of Default that gave rise to such foreclosure or action in lieu thereof;
(viii) in the event of:
: (A) any Borrower, any Mortgage Borrower, any Senior Mezzanine Borrower, any Operating Company or any Guarantor filing a voluntary petition under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (B) the filing of an involuntary petition against any Borrower, any Mortgage Borrower, any Senior Mezzanine Borrower, any Operating Company or any Guarantor under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law by any Person in which such Borrower, such Mortgage Borrower, such Senior Mezzanine Borrower, such Operating Company or any such Guarantor or any of their respective Affiliates, agents or employees colludes with or such other Person, or Borrower, Mortgage such Borrower, Senior Mezzanine Borrower, such Operating Company or any such Guarantor soliciting or causing to be solicited petitioning creditors for any involuntary petition against such Borrower, such Mortgage Borrower, Senior Mezzanine Borrower, such Operating Company or any such Guarantor from any Person; (C) any Borrower, any Mortgage Borrower, Senior Mezzanine Borrower, any Operating Company or any Guarantor filing an answer consenting to or otherwise acquiescing in or joining in any involuntary petition filed against it by any other Person, other than Lender, under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (D) any Borrower, any Mortgage Borrower, any Senior Mezzanine Borrower, any Operating Company or any Guarantor consenting to or acquiescing in or joining in an application for the appointment of a custodian, receiver, trustee, or examiner for such Borrower, such Mortgage Borrower, Senior Mezzanine Borrower, such Operating Company or any such Guarantor or any of the Properties, the Collateral, the Senior Mezzanine Collateral or Collateral or any portion thereof, other than at the request of Lender; or (E) any Borrower, any Mortgage Borrower, any Senior Mezzanine Borrower, any Operating Company or any Guarantor making an assignment for the benefit of creditors (other than Lender), or admitting, in writing or in any legal proceedingproceeding (unless failure to make such admission would be a violation of law), its insolvency or inability to pay its debts as they become due;
(ix) if Borrower, Senior Mezzanine Borrower or Mortgage any Borrower fails to maintain its status as a Special Purpose Entity or breaches any material representation or warranty set forth in Section 4.1.30 of this Agreement, if any Senior Mezzanine Borrower fails to maintain its status as a Special Purpose Entity (as defined in the Senior Mezzanine Loan Agreement) or breaches any material representation or warranty set forth in Section 4.1.30 of the Senior Mezzanine Loan Agreement, or if any Mortgage Borrower fails to maintain its status as a Special Purpose Entity (as defined in the Mortgage Loan Agreement) or breaches any material representation or warranty set forth in Section 4.1.30 of the Mortgage Loan Agreement; and
(x) if any Borrower, any Mortgage Borrower, any Senior Mezzanine Borrower or any Operating Company fails to obtain Lender’s prior consent to any voluntary Indebtedness (other than (x) with respect to Mortgage Borrower, Permitted Indebtedness and (y) with respect to Operating Company, or Permitted Indebtedness (Operating Company), as applicable) or voluntary Lien (other than Permitted Encumbrances) encumbering the Collateral, any of the Properties, Senior Mezzanine Collateral or Collateral Properties as required by this Agreement, the Senior Mezzanine Loan Agreement, the Mortgage Loan Agreement, the applicable Senior Mezzanine Loan Agreement, any applicable pledge agreement constituting a Senior Mezzanine Loan Document, the Pledge Agreement or the Mortgages, as applicable. Notwithstanding anything to the contrary under this Agreement, neither any present or future Affiliate of any Borrower (other than Guarantor, to the extent provided under the Guaranty) nor any present or future shareholder, officer, director, employee, trustee, beneficiary, advisor, partner, member, principal, participant or agent of or in any Borrower or of or in any person or entity that is or becomes an Affiliate of any Borrower shall have any personal liability, directly or indirectly, under or in connection with the Loan Documents. Neither the negative capital account of any Affiliate of any Borrower in such Borrower, or in any other Affiliate of Borrower in any other Affiliate of such Borrower, nor any obligation of any Affiliate of any Borrower in any such Borrower to restore a negative capital account or to contribute or loan capital to any such Borrower or to any other Affiliate of such Borrower shall at any time be deemed to be the property or an asset of any such Borrower (or any other Affiliate of such Borrower) and neither Lender nor its successors or assigns shall have any right to collect, enforce or proceed against any such negative capital account or obligation to restore, contribute or loan capital.
(b) Notwithstanding anything to the contrary in this Agreement, the Note or any of the Loan Documents, Lender shall not be deemed to have waived any right which Lender may have under Section 506(a), 506(b), 1111(b) or any other provisions of the Bankruptcy Code to file a claim for the full amount of the Indebtedness or to require that all collateral shall continue to secure all of the Indebtedness owing to Lender in accordance with the Loan Documents.
Appears in 4 contracts
Sources: Second Mezzanine Loan Agreement (Harrahs Entertainment Inc), Eighth Mezzanine Loan Agreement (Harrahs Entertainment Inc), Ninth 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 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 ▇▇▇ 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 the following:
(i) fraud or intentional misrepresentation by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor in connection with the execution and delivery of the Loan Documents and/or the Loan;
(ii) the misappropriation, conversion or misapplication in contravention of the Loan Documents by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any funds of Borrower, Senior Mezzanine Borrower, Mortgage Borrower or Operating Company, including, without limitation, (A) any Revenues, (B) any Net Liquidation Proceeds or Insurance Proceeds, (C) any Awards received in connection with a Condemnation, (D) any Rents or security deposits (or any item of Revenue, from whatever source) following an Event of Default, or (E) any distribution or other payments made in connection with any part of the Collateral or Senior Mezzanine Collateral;
(iii) the misappropriation, conversion or misapplication by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any security deposits or Rents paid more than one (1) month in advance;
(iv) any act of actual intentional physical waste by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor;
(v) the breach of any representation, warranty, covenant or indemnification provision in the Environmental Indemnity Agreement concerning environmental laws, hazardous substances and asbestos and any indemnification of Lender with respect thereto in either document;
(vi) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company fails to obtain Lender’s prior consent to any voluntary intentional Transfer as required by this Agreement, the Mortgage Loan Agreement or the Mortgagestransactions contemplated hereby. Purchaser agrees to look solely to Seller and Seller’s interest in the Property or, as applicable;
if the Closing has occurred, the net proceeds of the sale (viiin each case, subject to the limitations on Seller’s liability set forth in this Agreement) for the satisfaction of any security depositsliability or obligation arising under this Agreement or the transactions contemplated hereby, advance deposits or for the performance of any of the covenants, warranties or other agreements contained herein, and further agrees not to ▇▇▇ or otherwise seek to enforce any personal obligation against any of Seller’s other assets or properties or any other deposits collected 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 Properties which are not delivered to Mortgage Lender upon a foreclosure foregoing provisions of this Section 40, Purchaser hereby unconditionally and irrevocably waives any and all claims and causes of action of any of nature whatsoever it may now or hereafter have against the Properties or action in lieu thereof, except to the extent any such security deposits were applied in accordance with the terms and conditions of any of the Leases prior to the occurrence of the Event of Default that gave rise to such foreclosure or action in lieu thereof;
(viii) in the event of:
(A) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing a voluntary petition under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (B) the filing of an involuntary petition against Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law by any Person in which Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of their respective Affiliates, agents or employees colludes with or such other Person, or Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor soliciting or causing to be solicited petitioning creditors for any involuntary petition against Borrower, Operating Company or any Guarantor from any Person; (C) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing an answer consenting to or otherwise acquiescing in or joining in any involuntary petition filed against it by any other Person, other than Lender, under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (D) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor consenting to or acquiescing in or joining in an application for the appointment of a custodian, receiver, trustee, or examiner for Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of the Properties, the Collateral, the Senior Mezzanine Collateral or any portion thereof, other than at the request of Lender; or (E) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor making an assignment for the benefit of creditors Seller Parties (other than LenderSeller, 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 admittinghereafter accrue in favor of Purchaser against such other Seller Parties, in writing connection with or in any legal proceeding, its insolvency arising out of this Agreement or inability to pay its debts as they become due;
(ix) if Borrower, Senior Mezzanine Borrower the transactions contemplated hereby. The provisions of this Section 40 shall survive the Closing or Mortgage Borrower fails to maintain its status as a Special Purpose Entity or breaches any material representation or warranty the termination of this Agreement until the Survival Date set forth in Section 4.1.30 of this Agreement; and
41 (xSurvival) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company fails to obtain Lender’s prior consent to any voluntary Indebtedness (other than (x) with respect to Mortgage Borrower, Permitted Indebtedness and (y) with respect to Operating Company, Permitted Indebtedness (Operating Company), as applicable) or voluntary Lien (other than Permitted Encumbrances) encumbering any of the Properties, Senior Mezzanine Collateral or Collateral as required by this Agreement, the Senior Mezzanine Loan Agreement, the Mortgage Loan Agreement, the Pledge Agreement or the Mortgages. Notwithstanding anything to the contrary under this Agreement, neither any present or future Affiliate of Borrower (other than Guarantor, to the extent provided under the Guaranty) nor any present or future shareholder, officer, director, employee, trustee, beneficiary, advisor, partner, member, principal, participant or agent of or in any Borrower or of or in any person or entity that is or becomes an Affiliate of any Borrower shall have any personal liability, directly or indirectly, under or in connection with the Loan Documents. Neither the negative capital account of any Affiliate of Borrower in Borrower, or in any other Affiliate of Borrower in any other Affiliate of Borrower, nor any obligation of any Affiliate of Borrower in any Borrower to restore a negative capital account or to contribute or loan capital to any Borrower or to any other Affiliate of Borrower shall at any time be deemed to be the property or an asset of any Borrower (or any other Affiliate of Borrower) and neither Lender nor its successors or assigns shall have any right to collect, enforce or proceed against any such negative capital account or obligation to restore, contribute or loan capitalhereof.
(b) Notwithstanding anything to the contrary in this Agreement, the Note or any of the Loan Documents, Lender shall not be deemed to have waived any right which Lender may have under Section 506(a), 506(b), 1111(b) or any other provisions of the Bankruptcy Code to file a claim for the full amount of the Indebtedness or to require that all collateral shall continue to secure all of the Indebtedness owing to Lender in accordance with the Loan Documents.
Appears in 3 contracts
Sources: Purchase and Sale Agreement, Purchase and Sale Agreement (SouFun Holdings LTD), Purchase and Sale Agreement (SouFun Holdings LTD)
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, ▇▇▇ 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 the Insurance Proceeds and/or Awards.
(b) Notwithstanding the provisions of this Section 15.1 to the contrary:
(1) Borrower and Borrower Principal shall be personally liable to Lender (including attorneys’ fees on a joint and costs reasonably incurred) arising out of or in connection with the followingseveral basis for Losses due to:
(i) fraud or intentional misrepresentation by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company Borrower Principal or any Guarantor other Affiliate of Borrower or Borrower Principal in connection with the execution and the delivery of this Agreement, the Note, the Mortgage, any of the other Loan Documents, or any certificate, report, financial statement or other instrument or document furnished to Lender at the time of the closing of the Loan Documents and/or or during the term of the Loan;
(ii) Borrower's misapplication or misappropriation of Rents received by Borrower after the misappropriation, conversion or misapplication in contravention occurrence and during the continuance of the Loan Documents by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any funds of Borrower, Senior Mezzanine Borrower, Mortgage Borrower or Operating Company, including, without limitation, (A) any Revenues, (B) any Net Liquidation Proceeds or Insurance Proceeds, (C) any Awards received in connection with a Condemnation, (D) any Rents or security deposits (or any item of Revenue, from whatever source) following an Event of Default, or (E) any distribution or other payments made in connection with any part of the Collateral or Senior Mezzanine Collateral;
(iii) the misappropriation, conversion Borrower's misapplication or misapplication by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor misappropriation of any tenant security deposits or Rents paid more than one (1) month collected in advanceadvance and which have not been applied to the operation of the Property;
(iv) the misapplication or the misappropriation of Insurance Proceeds or Awards;
(v) Borrower's failure to pay Taxes, Other Charges (except to the extent that sums sufficient to pay such amounts have been deposited in escrow with Lender pursuant to the terms hereof and there exists no impediment to Lender's utilization thereof) beyond any applicable notice and cure periods specified therein;
(vi) any act of actual intentional physical waste or arson by Borrower, Mortgage Borrowerany principal, Senior Mezzanine BorrowerAffiliate, Operating Company member or general partner thereof or by Borrower Principal, any Guarantor;
(v) the breach of any representationprincipal, warrantyAffiliate, covenant member or indemnification provision in the Environmental Indemnity Agreement concerning environmental laws, hazardous substances and asbestos and any indemnification of Lender with respect thereto in either document;
(vi) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company fails to obtain Lender’s prior consent to any voluntary intentional Transfer as required by this Agreement, the Mortgage Loan Agreement or the Mortgages, as applicable;general partner thereof; or
(vii) the portion of any security depositsRent paid by any Tenant more than thirty (30) days in advance that would have been payable by such Tenant from and after the occurrence of an Event of Default; and
(2) Borrower Principal shall be personally liable to Lender for Losses due to the Property, advance deposits or any other deposits collected part thereof, becoming an asset in (A) a voluntary bankruptcy or insolvency proceeding of Borrower or Borrower Principal, or (B) an involuntary bankruptcy or insolvency proceeding of Borrower or Borrower Principal in connection with respect to which Borrower, Borrower Principal, SPE Component Entity or any of the Properties which are not delivered to Mortgage Lender upon a foreclosure Affiliate of any of the Properties foregoing has or action have solicited, procured, or supported in lieu thereofany way with the creditors commencing or filing such proceeding. Additionally, Borrower Principal shall be personally liable to Lender for Losses in the event of a breach by Borrower or SPE Component Entity of any of the covenants set forth in Article 6, except to the extent any that such security deposits were applied breach was inadvertent, immaterial and is promptly cured in accordance with Section 11.1(d).
(c) Notwithstanding the terms foregoing, the agreement of Lender not to pursue recourse liability as set forth in subsection (a) above SHALL BECOME NULL AND VOID and conditions shall be of no further force and effect and the Debt shall become fully recourse
(1) to Borrower and Borrower Principal, jointly and severally, in the event of a breach of any of the Leases prior covenants set forth in Article 7 hereof and (2) to the occurrence of the Event of Default that gave rise to such foreclosure or action in lieu thereof;
(viii) Borrower in the event of:
(i) of a breach by Borrower or SPE Component Entity of any of the covenants set forth in Article 6, except the extent that such breach was inadvertent, immaterial and is promptly cured in accordance with Section 11.1(d) hereof or (ii) the Property or any part thereof shall become an asset in (A) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing a voluntary petition under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; proceeding of Borrower or Borrower Principal, or (B) the filing of an involuntary petition against Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law by any Person proceeding of Borrower or Borrower Principal in connection with which Borrower, Mortgage BorrowerBorrower Principal, Senior Mezzanine Borrower, Operating Company SPE Component Entity or any Guarantor or any Affiliate of their respective Affiliates, agents or employees colludes with or such other Person, or Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor soliciting or causing to be solicited petitioning creditors for any involuntary petition against Borrower, Operating Company or any Guarantor from any Person; (C) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing an answer consenting to or otherwise acquiescing in or joining in any involuntary petition filed against it by any other Person, other than Lender, under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (D) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor consenting to or acquiescing in or joining in an application for the appointment of a custodian, receiver, trustee, or examiner for Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of the Propertiesforegoing has or have solicited, the Collateral, the Senior Mezzanine Collateral or any portion thereof, other than at the request of Lender; or (E) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor making an assignment for the benefit of creditors (other than Lender)procured, or admitting, in writing or supported in any legal way with the creditors commencing or filing such proceeding, its insolvency or inability to pay its debts as they become due;.
(ixd) if Borrower, Senior Mezzanine Borrower or Mortgage Borrower fails to maintain its status as a Special Purpose Entity or breaches any material representation or warranty set forth in Section 4.1.30 of this Agreement; and
(x) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company fails to obtain Lender’s prior consent to any voluntary Indebtedness (other than (x) with respect to Mortgage Borrower, Permitted Indebtedness and (y) with respect to Operating Company, Permitted Indebtedness (Operating Company), as applicable) or voluntary Lien (other than Permitted Encumbrances) encumbering any of the Properties, Senior Mezzanine Collateral or Collateral as required by this Agreement, the Senior Mezzanine Loan Agreement, the Mortgage Loan Agreement, the Pledge Agreement or the Mortgages. Notwithstanding anything to the contrary under this Agreement, neither any present or future Affiliate of Borrower (other than Guarantor, to the extent provided under the Guaranty) nor any present or future shareholder, officer, director, employee, trustee, beneficiary, advisor, partner, member, principal, participant or agent of or in any Borrower or of or in any person or entity that is or becomes an Affiliate of any Borrower Nothing herein shall have any personal liability, directly or indirectly, under or in connection with the Loan Documents. Neither the negative capital account of any Affiliate of Borrower in Borrower, or in any other Affiliate of Borrower in any other Affiliate of Borrower, nor any obligation of any Affiliate of Borrower in any Borrower to restore a negative capital account or to contribute or loan capital to any Borrower or to any other Affiliate of Borrower shall at any time be deemed to be the property or an asset a waiver of any Borrower (or any other Affiliate of Borrower) and neither Lender nor its successors or assigns shall have any right to collect, enforce or proceed against any such negative capital account or obligation to restore, contribute or loan capital.
(b) Notwithstanding anything to the contrary in this Agreement, the Note or any of the Loan Documents, Lender shall not be deemed to have waived any right which Lender may have under Section 506(a), 506(b), 1111(b) or any other provisions provision of the U.S. Bankruptcy Code to file a claim for the full amount of the Indebtedness indebtedness secured by the Mortgage or to require that all collateral shall continue to secure all of the Indebtedness indebtedness owing to Lender in accordance with this Agreement, the Note, the Mortgage or the other Loan Documents.
Appears in 3 contracts
Sources: 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 Security Instrument, 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 Borrower, any other Borrower Party or any principal, director, officer, employee, beneficiary, shareholder, partner, member, trustee, agent, or Affiliate of Borrower, any other Borrower Party 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 Security Instrument, the Pledge Agreement and the other Loan Documents, or in the Property (or any portion thereof), the Collateral, 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 and any other Borrower Party only to the extent of Borrower’s and any other Borrower Party’s interest in the Collateral Property, in the Collateral, in the Rents and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Security Instrument, the Pledge Agreement and the other Loan Documents, agrees that it shall not ▇▇▇ for, seek or demand any deficiency judgment against Borrower, any other Borrower Party 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 Security Instrument, 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 or any other Borrower Party as a party defendant in any action or suit for foreclosure and sale under the Security Instrument or the Pledge Agreement; (c3) affect the validity or enforceability of any indemnity, guaranty or any Guaranty similar instrument (including, without limitation, indemnities set forth in Article 12 hereof, Section 11.2 hereof, in the Environmental Indemnity and in the Guaranty) 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 personally and without the effect of the exculpatory provisions of this Article 13); (d4) impair the rights of Lender to (A) obtain the appointment of a receiver and/or (B) enforce its rights and remedies provided in Articles 8 and 9 hereof; (5) impair the enforcement of the assignment of leases and rents contained in the Security Instrument and in any other Loan Documents; (6) impair the right of Lender to obtain the appointment enforce Section 4.12(e) of a receiverthis Agreement; (e) intentionally omitted; (f7) constitute a prohibition against Lender to seek a deficiency judgment against Borrower or any other Borrower Party in order to fully realize the security granted by the Security Instrument or 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 the Property (or any portion thereof); or (g) 8) 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 Loss incurred by Lender (including attorneys’ fees and costs reasonably incurred) arising out of or in connection with the following:
(i) fraud or intentional material misrepresentation by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company any Borrower Party or any Guarantor of their respective Affiliates in connection with the execution and delivery of the Loan Documents and/or the Loan;
(ii) willful misconduct any Borrower Party or any of their respective Affiliates in connection with the misappropriationLoan or any Individual Property;
(iii) any litigation or other legal proceeding related to the Debt in which any Borrower Party or their respective Affiliates files or raises a defense that intentionally interferes with Lender exercising any rights and remedies available to Lender as provided in under this Agreement and the other Loan Documents only to the extent a court of competent jurisdiction, conversion in a final non-appealable decision, finds the applicable defenses were not raised in good faith by Borrower;
(iv) intentional physical waste to any Individual Property caused by the intentional acts or misapplication in contravention intentional omissions by any Borrower Party or any of their respective Affiliates (provided that the foregoing is not the result of the Loan Documents insufficiency of cash flow from the Properties to prevent such intentional omissions, and if there is any insufficiency of cash flow, such insufficiency is not a result of misappropriation of Rents by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company any Borrower Party and/or the removal or disposal of any portion of the property by any Borrower Party or any Guarantor of their respective Affiliates after an event of default other than in the ordinary course of owning and managing the Properties or otherwise in violation of this Agreement and the other Loan Documents);
(v) misappropriation by any funds Borrower Party or any of Borrower, Senior Mezzanine Borrower, Mortgage Borrower or Operating Company, including, without limitation, their respective Affiliates of (A) any Revenuesinsurance proceeds (including BI Proceeds or Casualty Proceeds) with respect to the Properties, (B) any Net Liquidation Proceeds Awards or Insurance Proceedsother amounts received in connection with any Condemnation of all or any portion of any Individual Property, or (C) any Awards received Rents (provided that, in connection with a Condemnation, (D) each case there shall be no liability under this subsection to the extent that the turnover of such funds is prohibited by any Rents applicable law or security deposits (or any item of Revenue, from whatever source) following an Event of Default, or (E) any distribution or other payments made in connection with any part of the Collateral or Senior Mezzanine Collateral;
(iii) the misappropriation, conversion or misapplication by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any security deposits or Rents paid more than one (1) month in advance;
(iv) any act of actual intentional physical waste by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor;
(v) the breach of any representation, warranty, covenant or indemnification provision in the Environmental Indemnity Agreement concerning environmental laws, hazardous substances and asbestos and any indemnification of Lender with respect thereto in either documentcourt order);
(vi) Borrower’s failure to pay (or cause to be paid) real property taxes, Ground Rent or other charges due in connection with the Properties that results in liens on any portion of any Individual Property in accordance with the terms and provisions of this Agreement and the other Loan Documents (other than if Borrowersuch failure is caused by the acts of a Tenant) to the extent that (i) any such liens are not bonded over or discharged in accordance with this Agreement and the other Loan Documents and (ii) the Properties generated sufficient revenue in the immediately preceding six (6) month period to pay the same and Borrower failed to apply such revenue to such real property taxes or other charges, Mortgage Borrowerunless such charges are the subject of a bona fide dispute in which Borrower is contesting the amount or validity thereof in accordance with the terms of this Agreement and the other Loan Documents (provided, Senior Mezzanine Borrower however, that there shall be no personal liability under this subsection solely for the failure to pay real property taxes or Operating Company fails Ground Rent if (a) sufficient sums had been reserved hereunder for the express purpose of paying the real property taxes, Ground Rent or charges in question and Lender failed to obtain pay same, and (b) Lender’s prior consent access to such sums was not restricted or constrained by any voluntary intentional Transfer as required action taken by this Agreement, the Mortgage Loan Agreement or the Mortgages, as applicableon behalf of any Borrower Party in any manner);
(vii) Borrower’s failure to pay Insurance Premiums or the amount of any deductible following a Casualty, Condemnation or other insurance claim, to maintain the Policies in full force and effect, in each case, as expressly provided herein (provided, however, that there shall be no personal liability under this subsection for the aforementioned failures to the extent that, in each case, (A) the Properties generated insufficient revenue in the immediately preceding six (6) month period to pay the Insurance Premiums in question or (B)(i) sufficient sums had been reserved hereunder for the express purpose of paying the Insurance Premiums in question and Lender failed to pay same, and (ii) Lender’s access to such sums was not restricted or constrained by any action taken by or on behalf any Borrower Party in any manner);
(viii) any security deposits, advance deposits or any other deposits collected with respect to by any Borrower Party or any of their respective Affiliates in connection with the Properties which are not delivered to Mortgage Lender upon request upon a foreclosure or action in lieu thereof except to the extent such amounts have been previously applied by Borrower in accordance with this Agreement and the other Loan Documents, the existing leases or in accordance with a court order (provided that, in each case there shall be no liability under this subsection to the extent that the failure to turn over such funds is prohibited by any applicable law or court order);
(ix) the seizure or forfeiture of any Individual Property resulting from criminal wrongdoing by any Borrower Party or any of their respective Affiliates;
(x) breach or violation by any Borrower Party or any of their respective Affiliates of any of the Properties material terms of Sections 11.1, 11.2, 11.6, 11.8 and/or 11.9 of the Loan Agreement;
(xi) any liability or action obligation pursuant to any purchase and sale agreement entered into by a Borrower for the sale by Borrower of a Previously-Owned Property or any other liability or obligation otherwise related to a Previously-Owned Property;
(xii) failure to comply with the terms and provisions of Article 15 hereof;
(xiii) any amendment or modification of the Ground Lease in lieu thereofviolation of the terms hereof or any cancellation, except to expiration or termination (for any reason whatsoever) of the extent Ground Lease, or the surrender of the leasehold estate thereunder in violation of the terms hereof;
(xiv) without limiting Section 13.1(b)(B)(ii) below, any such security deposits were applied voluntary debt, lien or transfer of any Individual Property or the Collateral in violation of the Loan Documents (other than liens being contested in good faith in accordance with the terms and conditions provisions of any of the Leases prior to the occurrence of the Event of Default that gave rise to such foreclosure or action in lieu thereof;this Agreement); and/or
(viiixv) in the event of:
(Awithout limiting Section 13.1(b)(B)(i) below, any breach of violation by Borrower, Mortgage BorrowerPledgor, Senior Mezzanine Borrower, Operating Company or Additional Obligor and/or any Guarantor filing a voluntary petition under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (B) the filing SPE Component Entity of an involuntary petition against Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law by any Person in which Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of their respective Affiliates, agents or employees colludes with or such other Person, or Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor soliciting or causing to be solicited petitioning creditors for any involuntary petition against Borrower, Operating Company or any Guarantor from any Person; (C) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing an answer consenting to or otherwise acquiescing in or joining in any involuntary petition filed against it by any other PersonArticle 5 hereof, other than Lender, under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (D) immaterial breaches which are promptly cured by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor consenting to or acquiescing in or joining in an application for the appointment of a custodian, receiver, trustee, or examiner for Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of the Properties, the Collateral, the Senior Mezzanine Collateral or any portion thereof, other than at the request of Lender; or (E) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor making an assignment for the benefit of creditors (other than Lender), or admitting, in writing or in any legal proceeding, its insolvency or inability to pay its debts as they become due;
(ix) if Borrower, Senior Mezzanine Borrower or Mortgage Borrower fails to maintain its status as a Special Purpose Entity or breaches any material representation or warranty set forth in Section 4.1.30 of this Agreement; and
(x) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company fails to obtain Lender’s prior consent to any voluntary Indebtedness (other than (x) with respect to Mortgage Borrower, Permitted Indebtedness and (y) with respect to Operating Company, Permitted Indebtedness (Operating Company), as applicable) or voluntary Lien (other than Permitted Encumbrances) encumbering any of the Properties, Senior Mezzanine Collateral or Collateral as required by this Agreement, the Senior Mezzanine Loan Agreement, the Mortgage Loan Agreement, the Pledge Agreement or the Mortgages. Notwithstanding anything to the contrary under this Agreement, neither any present or future Affiliate of Borrower (other than Guarantor, to the extent provided under the Guaranty) nor any present or future shareholder, officer, director, employee, trustee, beneficiary, advisor, partner, member, principal, participant or agent of or in any Borrower or of or in any person or entity that is or becomes an Affiliate of any Borrower shall have any personal liability, directly or indirectly, under or in connection with the Loan Documents. Neither the negative capital account of any Affiliate of Borrower in Borrower, or in any other Affiliate of Borrower in any other Affiliate of Borrower, nor any obligation of any Affiliate of Borrower in any Borrower to restore a negative capital account or to contribute or loan capital to any Borrower or to any other Affiliate of Borrower shall at any time be deemed to be the property or an asset of any Borrower (or any other Affiliate of Borrower) and neither Lender nor its successors or assigns shall have any right to collect, enforce or proceed against any such negative capital account or obligation to restore, contribute or loan capital.
(b) Notwithstanding anything to the contrary in this Agreement, the Note or any of the Loan Documents, (A) Lender shall not be deemed to have waived any right which Lender may have under Section 506(a), 506(b), 1111(b) or any other provisions of the Bankruptcy Code to file a claim for the full amount of the Indebtedness Debt or to require that all collateral shall continue to secure all of the Indebtedness Debt owing to Lender in accordance with the Loan Documents, and (B) the Debt shall be fully recourse to Borrower in the event of: (i) any breach or violation by Borrower, Pledgor, Additional Obligor or any SPE Component Entity of Article 5 hereof, as a result of which, a court orders the substantive consolidation of Borrower, Pledgor, Additional Obligor or any SPE Component Entity with one or more constituent owner(s) of Borrower, Pledgor, Additional Obligor and/or SPE Component Entity (any such person or entity, a “Bankrupt Person”) and which court cites such breach or violation as a material factor in ordering the substantive consolidation of the assets and liabilities of Borrower, Pledgor, Additional Obligor and/or SPE Component Entity with the assets and liabilities of the Bankrupt Person; (ii) any violation or breach of Article 6 hereof caused by (1) any voluntary transfer of the Collateral or fee simple title to all or any portion of the Property (other than with Lender’s prior written consent or as expressly permitted by this Agreement or the other Loan Documents) or (2) any sale or pledge of the ownership interests in any Restricted Party in violation of the terms of the Loan Documents, which, in the case of any sale or pledge described in this clause (2) remains uncured for a period of ten (10) days following Borrower’s obtaining knowledge of such violation (or Borrower’s receipt of notice from Lender of such violation); (iii) a Bankruptcy Event with occurs, or (iv) the incurrence of any voluntary debt secured by all or any portion of any Individual Property or other Collateral or any direct or indirect interests in Borrower, except Indebtedness and liens (including, liens being contested in good faith in accordance with the terms and provisions of this Agreement) expressly permitted pursuant to this Agreement.
Appears in 3 contracts
Sources: Loan Agreement (Retail Value Inc.), Loan Agreement (Retail Value Inc.), Loan Agreement (DDR 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 Security Instruments or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against Borrower, Borrower or any of its partners or members 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, 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 ▇s▇▇ 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 Instruments 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 AgreementSecurity Instruments; (c) 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 the 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 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 Security Instruments 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:
(i) fraud or intentional misrepresentation by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company Guarantor or any Guarantor other guarantor in connection with the execution and delivery of the Loan Documents and/or the Loan;
(ii) the misappropriation, conversion gross negligence or misapplication in contravention willful misconduct of the Loan Documents by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any funds of Borrower, Senior Mezzanine Borrower, Mortgage Borrower or Operating Company, including, without limitation, (A) any Revenues, (B) any Net Liquidation Proceeds or Insurance Proceeds, (C) any Awards received in connection with a Condemnation, (D) any Rents or security deposits (or any item of Revenue, from whatever source) following an Event of Default, or (E) any distribution or other payments made in connection with any part of the Collateral or Senior Mezzanine CollateralGuarantor;
(iii) the misappropriation, conversion or misapplication by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any security deposits or Rents paid more than one (1) month in advance;
(iv) any act of actual intentional physical waste by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor;
(v) the breach of any representation, warranty, covenant or indemnification provision in the Environmental Indemnity Agreement or in the Security Instruments concerning environmental lawsEnvironmental Laws, hazardous substances and asbestos and any indemnification of Lender with respect thereto in either document;
(iv) the removal or disposal of any portion of the Properties after an Event of Default;
(v) the misapplication or conversion by Borrower (but only to the extent of such misapplication or conversion) of (A) any Insurance Proceeds paid by reason of any loss, damage or destruction to the Properties, (B) any Awards or other amounts received in connection with the condemnation of all or a portion of the Properties, or (C) any Rents following an Event of Default;
(vi) if Borrowerfailure to pay Taxes, Mortgage Borrower, Senior Mezzanine Borrower charges for labor or Operating Company fails to obtain Lender’s prior consent to materials or Other Charges that can create liens on any voluntary intentional Transfer as required by this Agreement, portion of the Mortgage Loan Agreement or the Mortgages, as applicableProperties;
(vii) any security deposits, advance deposits or any other deposits collected with respect to any of the Properties which are not delivered to Mortgage Lender upon a foreclosure of any of the Properties or action in lieu thereof, except to the extent any such security deposits were applied in accordance with the terms and conditions of any of the Leases prior to the occurrence of the Event of Default that gave rise to such foreclosure or action in lieu thereof;; and
(viii) in the event of:
(A) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing a voluntary petition under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (B) the filing ’s indemnifications of an involuntary petition against Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law by any Person in which Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of their respective Affiliates, agents or employees colludes with or such other Person, or Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor soliciting or causing to be solicited petitioning creditors for any involuntary petition against Borrower, Operating Company or any Guarantor from any Person; (C) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing an answer consenting to or otherwise acquiescing in or joining in any involuntary petition filed against it by any other Person, other than Lender, under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (D) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor consenting to or acquiescing in or joining in an application for the appointment of a custodian, receiver, trustee, or examiner for Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of the Properties, the Collateral, the Senior Mezzanine Collateral or any portion thereof, other than at the request of Lender; or (E) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor making an assignment for the benefit of creditors (other than Lender), or admitting, in writing or in any legal proceeding, its insolvency or inability to pay its debts as they become due;
(ix) if Borrower, Senior Mezzanine Borrower or Mortgage Borrower fails to maintain its status as a Special Purpose Entity or breaches any material representation or warranty Lender set forth in Section 4.1.30 of this Agreement; and
(x) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company fails to obtain Lender’s prior consent to any voluntary Indebtedness (other than (x) with respect to Mortgage Borrower, Permitted Indebtedness and (y) with respect to Operating Company, Permitted Indebtedness (Operating Company), as applicable) or voluntary Lien (other than Permitted Encumbrances) encumbering any of the Properties, Senior Mezzanine Collateral or Collateral as required by this Agreement, the Senior Mezzanine Loan Agreement, the Mortgage Loan Agreement, the Pledge Agreement or the Mortgages9.2 hereof. Notwithstanding anything to the contrary under this Agreement, neither any present or future Affiliate of Borrower (other than Guarantor, to the extent provided under the Guaranty) nor any present or future shareholder, officer, director, employee, trustee, beneficiary, advisor, partner, member, principal, participant or agent of or in any Borrower or of or in any person or entity that is or becomes an Affiliate of any Borrower shall have any personal liability, directly or indirectly, under or in connection with the Loan Documents. Neither the negative capital account of any Affiliate of Borrower in Borrower, or in any other Affiliate of Borrower in any other Affiliate of Borrower, nor any obligation of any Affiliate of Borrower in any Borrower to restore a negative capital account or to contribute or loan capital to any Borrower or to any other Affiliate of Borrower shall at any time be deemed to be the property or an asset of any Borrower (or any other Affiliate of Borrower) and neither Lender nor its successors or assigns shall have any right to collect, enforce or proceed against any such negative capital account or obligation to restore, contribute or loan capital.
(b) Notwithstanding anything to the contrary in this Agreement, the Note or any of the Loan Documents, (A) Lender shall not be deemed to have waived any right which Lender may have under Section 506(a), 506(b), 1111(b) or any other provisions of the Bankruptcy Code to file a claim for the full amount of the Indebtedness Debt secured by the Security Instruments or to require that all collateral shall continue to secure all of the Indebtedness Debt owing to Lender in accordance with the Loan Documents, and (B) the Debt shall be fully recourse to Borrower in the event that: (i) the first Interest Only Payment Amount is not paid when due; (ii) Borrower fails to permit on-site inspections of the Properties, fails to provide financial information, fails to maintain its status as a single purpose entity or fails to appoint a new property manager upon the request of Lender after an Event of Default, each as required by, and in accordance with the terms and provisions of, this Agreement and the Security Instruments; (iii) Borrower fails to obtain Lender’s prior written consent to any subordinate financing or other voluntary lien encumbering any Individual Property; (iv) Borrower fails to obtain Lender’s prior written consent to any assignment, transfer, or conveyance of any Individual Property or any interest therein as required by the Security Instrument or hereunder; or (v) if any Individual Property becomes an asset in a bankruptcy or insolvency proceeding as a result of any petition for bankruptcy, reorganization or arrangement pursuant to federal bankruptcy law, or any similar federal or state law, filed by, or collusively arranged by, Borrower or any Affiliates of Borrower.
Appears in 3 contracts
Sources: Loan Agreement (U-Store-It Trust), Loan Agreement (U-Store-It Trust), Loan Agreement (U-Store-It Trust)
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 ▇▇▇ 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; Documents or any separate guaranty or indemnification agreements guarantying the Guaranteed Obligations.
(i) the application of rents, security deposits, or other income, issues, profits, and revenues derived from the Borrower’s Premises during an uncured Event of Default to anything other than (a) normal and necessary operating expenses of Borrower’s Premises or (b) impair the right Indebtedness evidenced by the Note. It is understood that any rents collected more than one month in advance as of Lender the time of the Event of Default shall be considered to name Borrower as a party defendant in have been collected after the Event of Default;
(ii) any action loss, cost or suit for foreclosure and sale under the Pledge Agreement; (c) affect the validity or enforceability damages arising out of or any Guaranty made in connection with fraud or material misrepresentations to Lender by Borrower (or by any of its general partners, officers, shareholders, members, or their agents, if applicable);
(iii) any loss, cost or damages arising out of or in connection with Borrower’s use or misapplication of (a) any proceeds paid to Borrower under any insurance policies by reason of damage, loss or destruction to any portion of Borrower’s Premises, or (b) proceeds or awards paid to Borrower resulting from the Loan condemnation or other taking in lieu of condemnation of any portion of Borrower’s Premises, for purposes other than those set forth in the Mortgage;
(iv) any loss, cost or damages arising out of or in connection with any material physical waste of Borrower’s Premises or any portion thereof and all reasonable costs incurred by Lender in order to protect Borrower’s Premises;
(v) any taxes, assessments and insurance premiums for which Borrower is liable under the Note, the Mortgage or any of the rights other Loan Documents 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 which are paid by Lender (including attorneys’ fees but not the proportionate amount of any such taxes, assessments and insurance premiums which accrue following the date of foreclosure plus any applicable redemption period or acceptance of a deed-in-lieu of foreclosure);
(vi) any loss, costs reasonably incurred) or damages arising out of or in connection with the following:
(i) fraud or intentional misrepresentation by Borrowercovenants, Mortgage Borrowerobligations, Senior Mezzanine Borrower, Operating Company or any Guarantor in connection with the execution and delivery liabilities under Paragraph 31 of the Loan Documents and/or the Loan;
(ii) the misappropriation, conversion or misapplication in contravention of the Loan Documents by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any funds of Borrower, Senior Mezzanine Borrower, Mortgage Borrower or Operating Company, including, without limitation, (A) any Revenues, (B) any Net Liquidation Proceeds or Insurance Proceeds, (C) any Awards received in connection with a Condemnation, (D) any Rents or security deposits (or any item of Revenue, from whatever source) following an Event of Default, or (E) any distribution or other payments made in connection with any part of the Collateral or Senior Mezzanine Collateral;
(iii) the misappropriation, conversion or misapplication by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any security deposits or Rents paid more than one (1) month in advance;
(iv) any act of actual intentional physical waste by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor;
(v) the breach of any representation, warranty, covenant or indemnification provision in and the Environmental Indemnity Agreement concerning environmental laws, hazardous substances and asbestos and any indemnification of Lender with respect thereto in either document;
(vi) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company fails to obtain Lender’s prior consent to any voluntary intentional Transfer as required by this Agreement, the Mortgage Loan Agreement or the Mortgages, as applicableIndemnity;
(vii) any security depositsloss, advance deposits cost or damages to Lender arising out of or in connection with any other deposits collected with respect to any construction lien, mechanic’s lien, materialman’s lien or similar lien against Borrower’s Premises arising out of the Properties which are not delivered to Mortgage Lender upon a foreclosure acts of any omissions of the Properties or action in lieu thereof, except to the extent any such security deposits were applied in accordance with the terms and conditions of any of the Leases prior to the occurrence of the Event of Default that gave rise to such foreclosure or action in lieu thereofBorrower;
(viii) any and all loss, costs or damages arising out of or incurred in order to cause the Improvements (as defined in the Mortgage) to comply with the accessibility provisions of The Americans with Disabilities Act and each of the regulations promulgated thereunder, as the same may be amended from time to time which are required by any governmental authority;
(ix) the total Indebtedness in the event of:
that (Aa) Lender is prevented from acquiring title to Borrower’s Premises after any Event of Default because of failure of Borrower’s title under federal, Mortgage state or local laws, less any recovery received by Lender from any title insurance policy it holds in connection with the Borrower’s Premises, Senior Mezzanine Borrower, Operating Company or any Guarantor filing a voluntary petition under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (Bb) the filing of an involuntary petition against Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law by any Person in which Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company Borrower or any Guarantor or any general partner, beneficiary, trustee or member of their respective Affiliatesthe foregoing, agents or employees colludes with or such other Person, or Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor soliciting or causing to be solicited petitioning creditors for any involuntary voluntarily files a petition against Borrower, Operating Company or any Guarantor from any Person; (C) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing an answer consenting to or otherwise acquiescing in or joining in any involuntary petition filed against it by any other Person, other than Lender, under the Bankruptcy Code or any other Federal or state bankruptcy or commences a case or insolvency law; (D) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company proceeding under any provision or any Guarantor consenting to or acquiescing in or joining in an application for the appointment of a custodian, receiver, trustee, or examiner for Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any chapter of the Properties, the Collateral, the Senior Mezzanine Collateral or any portion thereof, other than at the request of Lender; or (E) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor making an assignment for the benefit of creditors (other than Lender), or admitting, in writing or in any legal proceeding, its insolvency or inability to pay its debts as they become dueFederal Bankruptcy Code;
(ix) if Borrower, Senior Mezzanine Borrower or Mortgage Borrower fails to maintain its status as a Special Purpose Entity or breaches any material representation or warranty set forth in Section 4.1.30 of this Agreement; and
(x) if Borrowerany loss, Mortgage Borrowerdamage, Senior Mezzanine cost, expense and liability, including, but not limited to, reasonable attorneys’ fees and costs, resulting from any act of Borrower or Operating Company fails to obtain Lender’s prior consent to any voluntary Indebtedness (other than (x) with respect to Mortgage Borrowerits general partners, Permitted Indebtedness and (y) with respect to Operating Companymembers, Permitted Indebtedness (Operating Company)shareholders, officers, directors, beneficiaries, and/or trustees, as applicable) the case may be, to obstruct, delay or voluntary Lien (other than Permitted Encumbrances) encumbering impede Lender from exercising any of its rights or remedies under the PropertiesLoan Documents;
(xi) the total Indebtedness in the event that (a) Borrower makes an unpermitted transfer of an interest in the Borrower or in Borrower’s Premises without the prior written approval of Lender, Senior Mezzanine Collateral or Collateral as required (b) Borrower makes an unpermitted encumbrance on Borrower’s Premises or the holder of an ownership interest in Borrower encumbers such interest, without the prior written approval of Lender;
(xii) all costs and fees, including without limitation reasonable attorneys’ fees and costs, incurred by this AgreementLender in the enforcement of subparagraphs (i) through (xi) above. With the exception of those items of liability specifically set forth in items (i) through (xii) above, the Senior Mezzanine Loan Agreement, the Mortgage Loan Agreement, the Pledge Agreement or the Mortgages. Notwithstanding anything to the contrary under this Agreement, neither lien of any present or future Affiliate of Borrower (other than Guarantor, to the extent provided under the Guaranty) nor judgment against any present or future shareholder, officer, director, employee, trustee, beneficiary, advisor, partner, member, principal, participant or agent of or single Guarantor in any Borrower or of or in any person or entity that is or becomes an Affiliate of any Borrower shall have any personal liability, directly or indirectlyproceeding instituted on, under or in connection with the Loan Documents. Neither the negative capital account of any Affiliate of Borrower in Borrower, or in any other Affiliate of Borrower in any other Affiliate of Borrower, nor any obligation of any Affiliate of Borrower in any Borrower to restore a negative capital account or to contribute or loan capital this Guaranty shall not extend to any Borrower property now or to any hereafter owned by such Guarantor other Affiliate than the interest of Borrower shall at any time be deemed to be such Guarantor in the property or an asset Guarantor Premises described in the Guarantor Second Mortgage executed by such Guarantor and the other security of any Borrower (or any other Affiliate of Borrower) and neither Lender nor its successors or assigns shall have any right to collect, enforce or proceed against any such negative capital account or obligation to restore, contribute or loan capital.
(b) Notwithstanding anything to the contrary in this Agreement, the Note or any of the Loan Documents, Lender shall not be deemed to have waived any right which Lender may have under Section 506(a), 506(b), 1111(b) or any other provisions of the Bankruptcy Code to file a claim Guarantor for the full amount of the Indebtedness or to require that all collateral shall continue to secure all of the Indebtedness owing to Lender in accordance with the Loan DocumentsGuaranteed Obligations.
Appears in 3 contracts
Sources: 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 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 ▇▇▇ 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:
(i1) fraud or intentional material misrepresentation or failure to disclose a material fact by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company Borrower or any Guarantor of the Borrower Parties in connection with the execution and delivery of the Loan Documents and/or the Loan;
(ii2) the misappropriation, conversion gross negligence or misapplication in contravention willful misconduct of Borrower or any of the Loan Documents by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any funds of Borrower, Senior Mezzanine Borrower, Mortgage Borrower or Operating Company, including, without limitation, (A) any Revenues, (B) any Net Liquidation Proceeds or Insurance Proceeds, (C) any Awards received in connection with a Condemnation, (D) any Rents or security deposits (or any item of Revenue, from whatever source) following an Event of Default, or (E) any distribution or other payments made in connection with any part of the Collateral or Senior Mezzanine CollateralParties;
(iii) the misappropriation, conversion or misapplication by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any security deposits or Rents paid more than one (1) month in advance;
(iv) any act of actual intentional physical waste by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor;
(v3) the breach of any representation, warranty, covenant or indemnification provision in this Agreement or the Environmental Indemnity Agreement concerning environmental laws, hazardous substances and asbestos and any indemnification of Lender with respect thereto in either documentany of such documents;
(vi4) willful physical waste of the Property to the extent that sufficient cash flow of the Property is available to prevent such waste;
(5) the removal or disposal of any portion of the Property after an Event of Default;
(6) the misappropriation or conversion by or on behalf of Borrower of (A) any insurance proceeds paid by reason of any loss or damage, (B) any Award received in connection with a condemnation or similar proceeding, (C) any Rents or other revenues derived from the Property following an Event of Default or (D) any Rents paid more than one (1) month in advance following an Event of Default;
(7) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company any other entity that is required to be a Single-Purpose Entity fails to obtain Lender’s prior consent to comply with the SPE Covenants or maintain its status as a Single-Purpose Entity; or
(8) if any voluntary intentional Transfer occurs other than as required permitted by this Agreement, the Mortgage Loan Agreement or the Mortgages, as applicable;.
(viia) any security deposits, advance deposits or any other deposits collected with respect to any of the Properties which are not delivered to Mortgage Lender upon a foreclosure of any of the Properties or action in lieu thereof, except to the extent any such security deposits were applied in accordance with the terms and conditions of any of the Leases prior to the occurrence of the Event of Default that gave rise to such foreclosure or action in lieu thereof;
(viii) in the event of:
(A) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor Borrower filing a voluntary petition under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (Bb) the filing of an involuntary petition against Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor Borrower under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law by any other Person in which Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor Borrower or any of their respective Affiliates, agents or employees the Borrower Parties colludes with or otherwise assists such other Person, or Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor soliciting or causing to be solicited petitioning creditors for any involuntary petition against Borrower, Operating Company or any Guarantor Borrower from any Person; (Cc) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company Borrower or any Guarantor of the Borrower Parties filing an answer consenting to or otherwise acquiescing in or joining in any involuntary petition filed against it it, by any other Person, other than Lender, Person under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (Dd) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company Borrower or any Guarantor of the Borrower Parties consenting to or acquiescing in or joining in an application for the appointment of a custodian, receiver, trustee, or examiner for Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company Borrower or all or any Guarantor portion of the Property; (e) Borrower or any of the Properties, the Collateral, the Senior Mezzanine Collateral or any portion thereof, other than at the request of Lender; or (E) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor Borrower Parties making an assignment for the benefit of creditors (other than Lender)creditors, or admitting, in writing or in any legal proceeding, its insolvency or inability to pay its debts as they become due;
; or (ixii) if Borrower, Senior Mezzanine Borrower or Mortgage any Borrower fails to maintain its status as a Special Purpose Entity Party, or breaches any material representation or warranty set forth in Section 4.1.30 of this Agreement; and
(x) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company fails to obtain Lender’s prior consent to any voluntary Indebtedness (other than (x) with respect to Mortgage Borrower, Permitted Indebtedness and (y) with respect to Operating Company, Permitted Indebtedness (Operating Company), as applicable) or voluntary Lien (other than Permitted Encumbrances) encumbering any of the Properties, Senior Mezzanine Collateral or Collateral as required by this Agreement, the Senior Mezzanine Loan Agreement, the Mortgage Loan Agreement, the Pledge Agreement or the Mortgages. Notwithstanding anything to the contrary under this Agreement, neither any present or future Affiliate of Borrower (other than Guarantor, to the extent provided under the Guaranty) nor any present or future shareholder, officer, director, employee, trustee, beneficiary, advisor, partner, member, principal, participant or agent of or in any Borrower or of or in any person or entity that is or becomes an Affiliate of any Borrower shall have Party, in any personal liabilityjudicial or quasi-judicial case, action or proceeding directly or indirectly, under indirectly contests the validity or in connection with the Loan Documents. Neither the negative capital account of any Affiliate of Borrower in Borrower, or in any other Affiliate of Borrower in any other Affiliate of Borrower, nor any obligation of any Affiliate of Borrower in any Borrower to restore a negative capital account or to contribute or loan capital to any Borrower or to any other Affiliate of Borrower shall at any time be deemed to be the property or an asset of any Borrower (or any other Affiliate of Borrower) and neither Lender nor its successors or assigns shall have any right to collect, enforce or proceed against any such negative capital account or obligation to restore, contribute or loan capital.
(b) Notwithstanding anything to the contrary in this Agreement, the Note or any enforceability of the Loan DocumentsDocuments or directly or indirectly contests or intentionally hinders, delays or obstructs the pursuit of any rights or remedies by Lender shall not be deemed to have waived any right which Lender may have under Section 506(a), 506(b), 1111(b) or any other (including the commencement and/or prosecution of a foreclosure action after an Event of Default. The provisions of this Article 10 shall survive the Bankruptcy Code to file a claim for expiration and termination of this Agreement and the full amount repayment of the Indebtedness or to require that all collateral shall continue to secure all of the Indebtedness owing to Lender in accordance with the Loan DocumentsIndebtedness.
Appears in 2 contracts
Sources: Mezzanine Loan Documents (Strategic Storage Trust VI, Inc.), Mezzanine Loan Agreement (Strategic Storage Trust VI, 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 ▇▇▇ 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 the liability and obligation of Borrower, by money judgment or otherwise, bring suit with respect 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:
(i) fraud or intentional misrepresentation by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company the Exculpated Parties or any Guarantor other person or entity in connection with the execution and delivery Note, this Mortgage or the Other Security Documents; (vii) impair the right of Mortgagee to obtain the Rents received by any of the Loan Documents and/or Exculpated Parties after the Loan;
(ii) the misappropriation, conversion or misapplication in contravention occurrence of the Loan Documents by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any funds of Borrower, Senior Mezzanine Borrower, Mortgage Borrower or Operating Company, including, without limitation, (A) any Revenues, (B) any Net Liquidation Proceeds or Insurance Proceeds, (C) any Awards received in connection with a Condemnation, (D) any Rents or security deposits (or any item of Revenue, from whatever source) following 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 (Exi) any distribution or other payments made in connection with impair the right of Mortgagee to recover any part of the Collateral or Senior Mezzanine Collateral;
Debt from the Mortgagor (iii) excluding the misappropriationgeneral and limited partners of Mortgagor), conversion or misapplication by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any security deposits or Rents paid more than one (1) month in advance;
(iv) any act of actual intentional physical waste by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor;
(v) following the breach of any representation, warranty, covenant contained in paragraph 9 or indemnification provision in the Environmental Indemnity Agreement concerning environmental laws, hazardous substances and asbestos and any indemnification of Lender with respect thereto in either document;
(vi) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company fails to obtain Lender’s prior consent to any voluntary intentional Transfer as required by this Agreement, the Mortgage Loan Agreement or the Mortgages, as applicable;
(vii) any security deposits, advance deposits or any other deposits collected with respect to any of the Properties which are not delivered to Mortgage Lender upon a foreclosure of any of the Properties or action in lieu thereof, except to the extent any such security deposits were applied in accordance with the terms and conditions of any of the Leases prior to the occurrence of the Event of Default that gave rise to such foreclosure or action in lieu thereof;
(viii) in the event of:
(A) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing a voluntary petition under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (B) the filing of an involuntary petition against Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law by any Person in which Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of their respective Affiliates, agents or employees colludes with or such other Person, or Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor soliciting or causing to be solicited petitioning creditors for any involuntary petition against Borrower, Operating Company or any Guarantor from any Person; (C) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing an answer consenting to or otherwise acquiescing in or joining in any involuntary petition filed against it by any other Person, other than Lender, under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (D) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor consenting to or acquiescing in or joining in an application for the appointment of a custodian, receiver, trustee, or examiner for Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of the Properties, the Collateral, the Senior Mezzanine Collateral or any portion thereof, other than at the request of Lender; or (E) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor making an assignment for the benefit of creditors (other than Lender), or admitting, in writing or in any legal proceeding, its insolvency or inability to pay its debts as they become due;
(ix) if Borrower, Senior Mezzanine Borrower or Mortgage Borrower fails to maintain its status as a Special Purpose Entity or breaches any material representation or warranty set forth in Section 4.1.30 of this Agreement; and
(x) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company fails to obtain Lender’s prior consent to any voluntary Indebtedness (other than (x) with respect to Mortgage Borrower, Permitted Indebtedness and (y) with respect to Operating Company, Permitted Indebtedness (Operating Company), as applicable) or voluntary Lien (other than Permitted Encumbrances) encumbering any of the Properties, Senior Mezzanine Collateral or Collateral as required by this Agreement, the Senior Mezzanine Loan Agreement, the Mortgage Loan Agreement, the Pledge Agreement or the Mortgages. Notwithstanding anything to the contrary under this Agreement, neither any present or future Affiliate of Borrower (other than Guarantor, to the extent provided under the Guaranty) nor any present or future shareholder, officer, director, employee, trustee, beneficiary, advisor, partner, member, principal, participant or agent of or in any Borrower or of or in any person or entity that is or becomes an Affiliate of any Borrower shall have any personal liability, directly or indirectly, under or in connection with the Loan Documents. Neither the negative capital account of any Affiliate of Borrower in Borrower, or in any other Affiliate of Borrower in any other Affiliate of Borrower, nor any obligation of any Affiliate of Borrower in any Borrower to restore a negative capital account or to contribute or loan capital to any Borrower or to any other Affiliate of Borrower shall at any time be deemed to be the property or an asset of any Borrower (or any other Affiliate of Borrower) and neither Lender nor its successors or assigns shall have any right to collect, enforce or proceed against any such negative capital account or obligation to restore, contribute or loan capital56 hereof.
(b) Notwithstanding anything to the contrary in this Agreement, the Note or any of the Loan Documents, Lender shall not be deemed to have waived any right which Lender may have under Section 506(a), 506(b), 1111(b) or any other provisions of the Bankruptcy Code to file a claim for the full amount of the Indebtedness or to require that all collateral shall continue to secure all of the Indebtedness owing to Lender in accordance with the Loan Documents.
Appears in 2 contracts
Sources: First Mortgage and Security Agreement (Century Properties Fund Xvi), First Mortgage and Security Agreement (Century Properties Fund Xii)
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 sue ▇▇▇ for▇, 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:
(i) fraud or intentional misrepresentation by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor Borrower Party in connection with the execution and delivery of the Loan Documents and/or the Loan;
(ii) the misappropriation, conversion gross negligence or misapplication in contravention willful misconduct of any Borrower Party;
(iii) material physical waste to any Individual Property arising from the Loan Documents intentional acts or omissions of any Borrower Party (it being acknowledged that omissions to perform acts for which sufficient cash flow is not available from the Properties shall not be deemed an intentional omission for purposes of this clause (iii));
(iv) the removal or disposal by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company any Borrower Party or any Guarantor of its respective Affiliates of any funds portion of Borrower, Senior Mezzanine Borrower, Mortgage any Individual Property after an Event of Default unless such portion of any Individual Property so removed or so disposed of is replaced with property of equal utility and value or such removal or disposal was otherwise permitted pursuant to the terms and conditions hereof;
(v) the misapplication or conversion by any Borrower or Operating Company, including, without limitation, Party of (A) any Revenuesinsurance proceeds paid by reason of any loss, damage or destruction to any Individual Property (or any portion thereof), (B) any Net Liquidation Proceeds Awards or Insurance Proceedsother amounts received in connection with the Condemnation of all or a portion of any Individual Property, (C) any Awards received in connection with a CondemnationRents following an Event of Default, (D) any Rents paid more than one month in advance and/or (E) any Net Liquidation Proceeds After Debt Service);
(vi) failure to pay Taxes, charges for labor or security deposits materials or other charges that can create liens on any portion of any Individual Property in accordance with the terms and provisions hereof; provided, however, Borrower shall have no liability under this subsection (vi) if (A) such Taxes, charges for labor or materials or other charges that can create liens are being contested in accordance with the terms and conditions hereof or (B) sufficient cash flow is not available from the Properties to pay such amounts; provided, that, in no instance shall Borrower be released from any item liability pursuant to this clause (vi) to the extent (1) such insufficiency of Revenue, cash flow arises from whatever sourcethe intentional misappropriation or conversion of Rent by any Borrower Party or (2) following Borrower or Mortgage Borrower incurred such charges after the occurrence and during the continuance of an Event of Default, except to the extent such charges were (I) necessary to protect against imminent danger to the health or safety of any Tenant or any Person at or in the immediate vicinity of any Individual Property or to prevent any imminent defect, damage or harm to any Individual Property, (II) contracted for prior to such Event of Default or (EIII) any distribution or other payments made consented to in connection with any part of the Collateral or Senior Mezzanine Collateral;
(iii) the misappropriation, conversion or misapplication writing by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any security deposits or Rents paid more than one (1) month in advance;
(iv) any act of actual intentional physical waste by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor;
(v) the breach of any representation, warranty, covenant or indemnification provision in the Environmental Indemnity Agreement concerning environmental laws, hazardous substances and asbestos and any indemnification of Lender with respect thereto in either document;
(vi) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company fails to obtain Lender’s prior consent to any voluntary intentional Transfer as required by this Agreement, the Mortgage Loan Agreement or the Mortgages, as applicable;
(vii) any security deposits, advance deposits or any other deposits collected with respect to any of the Properties Individual Property which are not delivered to Mortgage Lender upon a foreclosure of any of the Properties Collateral or action in lieu thereof, except to the extent any such security deposits were applied in accordance with the terms and conditions of any of the Leases prior to the occurrence of the Event of Default that gave rise to such foreclosure or action in lieu thereof;
(viii) in the event of:
(A) breach or violation by Borrower, Mortgage BorrowerBorrower and/or any SPE Component Entity (as defined herein and in the Mortgage Loan Agreement) of any representation, Senior Mezzanine Borrower, Operating Company warranty or any Guarantor filing a voluntary petition under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (B) the filing of an involuntary petition against Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law by any Person covenant contained in which Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of their respective Affiliates, agents or employees colludes with or such other Person, or Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor soliciting or causing to be solicited petitioning creditors for any involuntary petition against Borrower, Operating Company or any Guarantor from any Person; (C) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing an answer consenting to or otherwise acquiescing in or joining in any involuntary petition filed against it by any other Person, other than Lender, under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (D) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor consenting to or acquiescing in or joining in an application for the appointment of a custodian, receiver, trustee, or examiner for Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of the Properties, the Collateral, the Senior Mezzanine Collateral or any portion thereof, other than at the request of Lender; or (E) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor making an assignment for the benefit of creditors (other than Lender), or admitting, in writing or in any legal proceeding, its insolvency or inability to pay its debts as they become dueArticle 5 hereof;
(ix) if Borrowerthe failure by Borrower to (A) permit (or cause Mortgage Borrower to permit) on-site inspections of any Individual Property, Senior Mezzanine (B) provide any financial information regarding hereunder and/or pursuant to the other Loan Documents and/or (C) appoint (or cause Mortgage Borrower to appoint) a Qualified Manager pursuant to a Qualified Management Agreement upon the request of Lender which failure constitutes an Event of Default;
(x) a breach of Section 11.1 and/or Section 11.2 hereof, which breach continues for three (3) Business Days after notice from Lender;
(xi) any material amendment, material modification or voluntary termination of any Ground Lease by any Borrower or any Mortgage Borrower without Lender’s consent other than as expressly permitted pursuant to the terms hereof;
(xii) the termination or suspension of any Health Care License arising in connection with any grossly negligent or willful material violation of any Health Care Requirement or otherwise by Borrower or Mortgage Borrower fails to maintain its status as a Special Purpose Entity or breaches any material representation voluntary termination or warranty set forth in Section 4.1.30 rejection of this Agreement; and
(x) if Borrower, any such Health Care License by Borrower or Mortgage Borrower, Senior in each instance, which termination, suspension or rejection constitutes an Event of Default;
(xiii) any violation of Article 6 hereof not otherwise covered pursuant to clauses (b)(iv) and (b)(v) immediately below, provided, however, for the avoidance of doubt, a Sale or Pledge resulting from the consummation of an enforcement action by Lender, Mortgage Lender or the holder of any Mezzanine Loan shall not be a Sale or Pledge in violation of Article 6 hereof; or
(xiv) the incurrence by Mortgage Borrower or Operating Company fails to obtain Lender’s prior consent to of any voluntary Indebtedness (other than (x) with respect to Mortgage Borrower, Permitted Indebtedness and (y) with respect to Operating Company, Permitted Indebtedness (Operating Company), as applicable) or voluntary Lien (other than Permitted Encumbrances) encumbering any of the Properties, Senior Mezzanine Collateral or Collateral as required indebtedness prohibited by this Agreement, the Senior Mezzanine Loan Agreement, the Mortgage Loan Agreement, the Pledge Agreement or the Mortgages. Notwithstanding anything to the contrary under this Agreement, neither any present or future Affiliate of Borrower (other than Guarantor, to the extent provided under the Guaranty) nor any present or future shareholder, officer, director, employee, trustee, beneficiary, advisor, partner, member, principal, participant or agent of or in any Borrower or of or in any person or entity that is or becomes an Affiliate of any Borrower shall have any personal liability, directly or indirectly, under or in connection with the Loan Documents. Neither the negative capital account of any Affiliate of Borrower in Borrower, or in any other Affiliate of Borrower in any other Affiliate of Borrower, nor any obligation of any Affiliate of Borrower in any Borrower to restore a negative capital account or to contribute or loan capital to any Borrower or to any other Affiliate of Borrower shall at any time be deemed to be the property or an asset of any Borrower (or any other Affiliate of Borrower) and neither Lender nor its successors or assigns shall have any right to collect, enforce or proceed against any such negative capital account or obligation to restore, contribute or loan capital.
(b) Notwithstanding anything to the contrary in this Agreement, the Note or any of the Loan Documents, (A) Lender shall not be deemed to have waived any right which Lender may have under Section 506(a), 506(b), 1111(b) or any other provisions of the Bankruptcy Code to file a claim for the full amount of the Indebtedness Debt or to require that all collateral shall continue to secure all of the Indebtedness Debt owing to Lender in accordance with the Loan Documents, and (B) the Debt shall be fully recourse to Borrower in the event that: (i) a Bankruptcy Event occurs, (ii) the first full monthly payment of principal (if any) and interest under the Note is not paid when due; (iii) any representation, warranty or covenant contained in Article 5 is violated or breached and such breach or violation results in, or is a substantial factor in, a substantive consolidation of Borrower, Mortgage Borrower and/or any SPE Component Entity (as defined herein and in the Mortgage Loan Agreement) with any other Person in a bankruptcy or similar proceedings; (iv) if Borrower, Mortgage Borrower and/or any SPE Component Entity (as defined herein and in the Mortgage Loan Agreement) fails to obtain Lender’s prior written consent to (A) any voluntary indebtedness or (B) voluntary monetary lien encumbering any Individual Property or any Collateral to the extent such lien required Lender’s consent under this Agreement or the other Loan Documents; or (v) if Borrower, Mortgage Borrower and/or any SPE Component Entity (as defined herein and in the Mortgage Loan Agreement) fails to obtain Lender’s prior written consent to any voluntary transfer of any material portion of any Individual Property or any Collateral or to any voluntary act that causes a change in the ownership of Borrower, Mortgage Borrower and/or any SPE Component Entity (as defined herein and in the Mortgage Loan Agreement) to the extent such ownership change required Lender’s consent under this Agreement; provided, however, for the avoidance of doubt, a Sale or Pledge resulting from the consummation of an enforcement action by Lender, Mortgage Lender or the holder of any Mezzanine Loan shall not be a Sale or Pledge in violation of Article 6 hereof. Notwithstanding any provision contained herein or in any other Loan Document, no direct or indirect shareholder, partner, member, principal, affiliate, employee, officer, director, agent or representative of Borrower (each, a “Related Party”) (other than (a) Guarantor in accordance with the Guaranty and the Environmental Indemnity and (b) any Manager that is an Affiliate of Borrower in accordance with any Loan Document to which such Manager may be a party) shall have any personal liability for, nor be joined as a party to any action with respect to (i) the payment of any sum of money which is or may be payable hereunder or under any other Loan Documents, including, but not limited to, the repayment of the Loan or (ii) the performance or discharge of any covenants, obligations or undertakings of Guarantor or any Related Party with respect thereto. In addition to the foregoing, anything contained herein or in the other Loan Documents notwithstanding, in no event will the assets of any Related Party (other than Guarantor in accordance with the Guaranty and the Environmental Indemnity) be available to satisfy any obligation of Borrower hereunder.
Appears in 2 contracts
Sources: Mezzanine Loan Agreement (Northstar Realty Finance Corp.), Mezzanine Loan Agreement (NorthStar Healthcare Income, 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 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 ▇▇▇ 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:
(i) fraud or intentional misrepresentation by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company Borrower or any Guarantor in connection with the execution and delivery Loan, including by reason of the Loan Documents and/or the Loanany claim under RICO;
(ii) the misappropriation, conversion gross negligence or misapplication in contravention of the Loan Documents by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any funds willful misconduct of Borrower, Senior Mezzanine Borrower, Mortgage Borrower or Operating Company, including, without limitation, (A) any Revenues, (B) any Net Liquidation Proceeds or Insurance Proceeds, (C) any Awards received in connection with a Condemnation, (D) any Rents or security deposits (Guarantor or any item of Revenue, from whatever source) following an Event of Default, or (E) any distribution or other payments made in connection with any part of the Collateral or Senior Mezzanine CollateralRestricted Party;
(iii) the misappropriation, conversion or misapplication by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any security deposits or Rents paid more than one (1) month in advance;
(iv) any act of actual intentional physical waste by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor;
(v) the breach of any representation, warranty, covenant or indemnification provision in the Environmental Indemnity Agreement or in the Mortgage concerning environmental laws, hazardous substances and or asbestos and any indemnification of Lender with respect thereto in either documentany Loan Document;
(iv) wrongful removal or destruction by Borrower or any Affiliate of Borrower of any portion of the Property after the occurrence of an Event of Default or any intentional physical waste of the Property by Borrower of any Affiliate thereof, provided, however, that such physical waste shall exclude wear and tear to the Property that occurs in the ordinary course of business of the Property;
(v) any Legal Requirement (including RICO) mandating the forfeiture by Borrower of the Property, or any portion thereof, because of the conduct or purported conduct of criminal activity by Borrower or any Restricted Party in connection therewith;
(vi) if Borrowerany misrepresentation, Mortgage Borrower, Senior Mezzanine miscertification or breach of warranty by Borrower or Operating Company fails to obtain Lender’s prior consent Guarantor with respect to any voluntary intentional Transfer as required by representation, warranty or certification contained in this Agreement, the Mortgage Loan Agreement or any other Loan Document or in any document executed in connection therewith, pursuant to any of the MortgagesLoan Documents or otherwise to induce Lender to make the Loan, or any advance thereof, or to release monies from any account held by Lender (including any reserve or escrow) or to take other action with respect to the Collateral (as applicabledefined in the Mortgage);
(vii) the misappropriation or conversion by or on behalf of Borrower or any of its Affiliates of (A) any Insurance Proceeds, (B) any Condemnation Proceeds, or (C) any Rents paid more than one (1) month in advance; provided such amounts are not applied to the payment of the Loan or the Operating Expenses of the Property;
(viii) failure to pay charges for labor or materials or other charges that can create Liens on any portion of the Property that are superior to the Lien of the Mortgage, unless such charges are being contested in accordance herewith;
(ix) any security deposits, advance deposits or any other deposits collected by Borrower or any Affiliate thereof with respect to any of the Properties Property which are not delivered to Mortgage Lender upon a foreclosure of any of the Properties Property or action in lieu thereof, except to the extent any such security deposits were applied in accordance with the terms and conditions of any of the Leases prior to the occurrence of the Event of Default that gave rise to such foreclosure or action in lieu thereof;; or
(viiix) if Borrower fails to permit on-site inspections of the Property, fails to provide financial information specifically required by this Agreement or fails to appoint a new Manager upon the request of Lender, each as required by, and in accordance with, the event of:terms and provisions of this Agreement or the Mortgage.
(Aa) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor Borrower filing a voluntary petition under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (Bb) the filing of an involuntary petition against Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor Borrower under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law by any other Person in which Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of their respective Affiliates, agents or employees Borrower colludes with or otherwise assists such other Person, or Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company solicits or any Guarantor soliciting or causing causes to be solicited petitioning creditors for any involuntary petition against Borrower, Operating Company or any Guarantor Borrower from any Person; (Cc) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor Borrower filing an answer consenting to or otherwise acquiescing in or joining in any involuntary petition filed against it it, by any other Person, other than Lender, Person under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (Dd) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor Borrower consenting to or acquiescing in or joining in an application for the appointment of a custodian, receiver, trustee, or examiner for Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of the Properties, the Collateral, the Senior Mezzanine Collateral Borrower or any portion thereof, other than at the request of Lender; or (E) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor making an assignment for the benefit of creditors (other than Lender), or admitting, in writing or in any legal proceeding, its insolvency or inability to pay its debts as they become due;
(ix) if Borrower, Senior Mezzanine Borrower or Mortgage Borrower fails to maintain its status as a Special Purpose Entity or breaches any material representation or warranty set forth in Section 4.1.30 of this Agreement; and
(x) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company fails to obtain Lender’s prior consent to any voluntary Indebtedness (other than (x) with respect to Mortgage Borrower, Permitted Indebtedness and (y) with respect to Operating Company, Permitted Indebtedness (Operating Company), as applicable) or voluntary Lien (other than Permitted Encumbrances) encumbering any of the Properties, Senior Mezzanine Collateral or Collateral as required by this Agreement, the Senior Mezzanine Loan Agreement, the Mortgage Loan Agreement, the Pledge Agreement or the Mortgages. Notwithstanding anything to the contrary under this Agreement, neither any present or future Affiliate of Borrower (other than Guarantor, to the extent provided under the Guaranty) nor any present or future shareholder, officer, director, employee, trustee, beneficiary, advisor, partner, member, principal, participant or agent of or in any Borrower or of or in any person or entity that is or becomes an Affiliate of any Borrower shall have any personal liability, directly or indirectly, under or in connection with the Loan Documents. Neither the negative capital account of any Affiliate of Borrower in Borrower, or in any other Affiliate of Borrower in any other Affiliate of Borrower, nor any obligation of any Affiliate of Borrower in any Borrower to restore a negative capital account or to contribute or loan capital to any Borrower or to any other Affiliate of Borrower shall at any time be deemed to be the property or an asset of any Borrower (or any other Affiliate of Borrower) and neither Lender nor its successors or assigns shall have any right to collect, enforce or proceed against any such negative capital account or obligation to restore, contribute or loan capital.
(b) Notwithstanding anything to the contrary in this Agreement, the Note or any of the Loan Documents, Lender shall not be deemed to have waived any right which Lender may have under Section 506(a), 506(b), 1111(b) or any other provisions of the Bankruptcy Code to file a claim for the full amount of the Indebtedness or to require that all collateral shall continue to secure all of the Indebtedness owing to Lender in accordance with the Loan Documents.Property; or
Appears in 2 contracts
Sources: Loan Agreement (MPG Office Trust, Inc.), Loan Agreement (Maguire 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 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, ▇▇▇ 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 lossthe Insurance Proceeds and/or Awards.
(b) Notwithstanding the provisions of this Section 15.1 to the contrary, damage, cost, expense, liability, claim or other obligation incurred by Borrower and Borrower Principal shall be personally liable to Lender (including attorneys’ fees on a joint and costs reasonably incurred) arising out of or in connection with the followingseveral basis for Losses due to:
(i) fraud or intentional misrepresentation by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company Borrower Principal or any Guarantor other Affiliate of Borrower or Borrower Principal in connection with the execution and the delivery of the Loan Documents and/or the Loan;
(ii) the misappropriation, conversion or misapplication in contravention of the Loan Documents by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any funds of Borrower, Senior Mezzanine Borrower, Mortgage Borrower or Operating Company, including, without limitation, (A) any Revenues, (B) any Net Liquidation Proceeds or Insurance Proceeds, (C) any Awards received in connection with a Condemnation, (D) any Rents or security deposits (or any item of Revenue, from whatever source) following an Event of Default, or (E) any distribution or other payments made in connection with any part of the Collateral or Senior Mezzanine Collateral;
(iii) the misappropriation, conversion or misapplication by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any security deposits or Rents paid more than one (1) month in advance;
(iv) any act of actual intentional physical waste by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor;
(v) the breach of any representation, warranty, covenant or indemnification provision in the Environmental Indemnity Agreement concerning environmental laws, hazardous substances and asbestos and any indemnification of Lender with respect thereto in either document;
(vi) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company fails to obtain Lender’s prior consent to any voluntary intentional Transfer as required by this Agreement, the Mortgage Loan Agreement or Note, the MortgagesPledge Agreement, as applicable;
(vii) any security deposits, advance deposits or any other deposits collected with respect to any of the Properties which are not delivered other Loan Documents, or any certificate, report, financial statement or other instrument or document furnished to Mortgage Lender upon a foreclosure of any at the time of the Properties or action in lieu thereof, except to the extent any such security deposits were applied in accordance with the terms and conditions of any of the Leases prior to the occurrence of the Event of Default that gave rise to such foreclosure or action in lieu thereof;
(viii) in the event of:
(A) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing a voluntary petition under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (B) the filing of an involuntary petition against Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law by any Person in which Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of their respective Affiliates, agents or employees colludes with or such other Person, or Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor soliciting or causing to be solicited petitioning creditors for any involuntary petition against Borrower, Operating Company or any Guarantor from any Person; (C) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing an answer consenting to or otherwise acquiescing in or joining in any involuntary petition filed against it by any other Person, other than Lender, under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (D) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor consenting to or acquiescing in or joining in an application for the appointment of a custodian, receiver, trustee, or examiner for Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of the Properties, the Collateral, the Senior Mezzanine Collateral or any portion thereof, other than at the request of Lender; or (E) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor making an assignment for the benefit of creditors (other than Lender), or admitting, in writing or in any legal proceeding, its insolvency or inability to pay its debts as they become due;
(ix) if Borrower, Senior Mezzanine Borrower or Mortgage Borrower fails to maintain its status as a Special Purpose Entity or breaches any material representation or warranty set forth in Section 4.1.30 of this Agreement; and
(x) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company fails to obtain Lender’s prior consent to any voluntary Indebtedness (other than (x) with respect to Mortgage Borrower, Permitted Indebtedness and (y) with respect to Operating Company, Permitted Indebtedness (Operating Company), as applicable) or voluntary Lien (other than Permitted Encumbrances) encumbering any of the Properties, Senior Mezzanine Collateral or Collateral as required by this Agreement, the Senior Mezzanine Loan Agreement, the Mortgage Loan Agreement, the Pledge Agreement or the Mortgages. Notwithstanding anything to the contrary under this Agreement, neither any present or future Affiliate of Borrower (other than Guarantor, to the extent provided under the Guaranty) nor any present or future shareholder, officer, director, employee, trustee, beneficiary, advisor, partner, member, principal, participant or agent of or in any Borrower or of or in any person or entity that is or becomes an Affiliate of any Borrower shall have any personal liability, directly or indirectly, under or in connection with the Loan Documents. Neither the negative capital account of any Affiliate of Borrower in Borrower, or in any other Affiliate of Borrower in any other Affiliate of Borrower, nor any obligation of any Affiliate of Borrower in any Borrower to restore a negative capital account or to contribute or loan capital to any Borrower or to any other Affiliate of Borrower shall at any time be deemed to be the property or an asset of any Borrower (or any other Affiliate of Borrower) and neither Lender nor its successors or assigns shall have any right to collect, enforce or proceed against any such negative capital account or obligation to restore, contribute or loan capital.
(b) Notwithstanding anything to the contrary in this Agreement, the Note or any closing of the Loan Documents, Lender shall not be deemed to have waived any right which Lender may have under Section 506(a), 506(b), 1111(b) or any other provisions during the term of the Bankruptcy Code to file a claim for the full amount of the Indebtedness or to require that all collateral shall continue to secure all of the Indebtedness owing to Lender in accordance with the Loan Documents.Loan;
Appears in 2 contracts
Sources: Mezzanine Loan Agreement (Maguire Properties Inc), 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 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 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 Security Instruments and the other Loan Documents, or in the CollateralProperties (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 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 ▇▇▇ for, 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 Security Instruments 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 AgreementSecurity Instruments; (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 assignment of leases and rents contained in the Security Instruments and in any other Loan Documents; (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 Security Instruments or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against all of the CollateralProperties (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:
(i) fraud or intentional misrepresentation by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor Borrower Party in connection with the execution and delivery of the Loan Documents and/or the Loan;
(ii) the misappropriation, conversion gross negligence or misapplication in contravention willful misconduct of any Borrower Party;
(iii) material physical waste to any Individual Property arising from the Loan Documents intentional acts or omissions of any Borrower Party (it being acknowledged that omissions to perform acts for which sufficient cash flow is not available from the Properties shall not be deemed an intentional omission for purposes of this clause (iii));
(iv) the removal or disposal by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company any Borrower Party or any Guarantor of its respective Affiliates of any funds portion of Borrower, Senior Mezzanine Borrower, Mortgage any Individual Property after an Event of Default unless such portion of any Individual Property so removed or so disposed of is replaced with property of equal utility and value or such removal or disposal was otherwise permitted pursuant to the terms and conditions hereof;
(v) the misapplication or conversion by any Borrower or Operating Company, including, without limitation, Party of (A) any Revenuesinsurance proceeds paid by reason of any loss, damage or destruction to any Individual Property (or any portion thereof), (B) any Net Liquidation Proceeds Awards or Insurance Proceedsother amounts received in connection with the Condemnation of all or a portion of any Individual Property, (C) any Awards received in connection with a Condemnation, Rents following an Event of Default and/or (D) any Rents or security deposits (or any item of Revenue, from whatever source) following an Event of Default, or (E) any distribution or other payments made in connection with any part of the Collateral or Senior Mezzanine Collateral;
(iii) the misappropriation, conversion or misapplication by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any security deposits or Rents paid more than one (1) month in advance;
(ivvi) failure to pay Taxes, charges for labor or materials or other charges that can create liens on any act of actual intentional physical waste by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor;
(v) the breach portion of any representationIndividual Property in accordance with the terms and provisions hereof; provided, warrantyhowever, covenant or indemnification provision in the Environmental Indemnity Agreement concerning environmental laws, hazardous substances and asbestos and any indemnification of Lender with respect thereto in either document;
Borrower shall have no liability under this subsection (vi) if Borrower(A) such Taxes, Mortgage Borrowercharges for labor or materials or other charges that can create liens are being contested in accordance with the terms and conditions hereof or (B) sufficient cash flow is not available from the Properties to pay such amounts; provided, Senior Mezzanine that, in no instance shall Borrower be released from any liability pursuant to this clause (vi) to the extent (1) such insufficiency of cash flow arises from the intentional misappropriation or Operating Company fails conversion of Rent by any Borrower Party or (2) Borrower incurred such charges after the occurrence and during the continuance of an Event of Default, except to obtain Lender’s prior consent the extent such charges were (I) necessary to protect against imminent danger to the health or safety of any Tenant or any Person at or in the immediate vicinity of any Individual Property or to prevent any imminent defect, damage or harm to any voluntary intentional Transfer as required Individual Property, (II) contracted for prior to such Event of Default or (III) consented to in writing by this Agreement, the Mortgage Loan Agreement or the Mortgages, as applicableLender;
(vii) any security deposits, advance deposits or any other deposits collected with respect to any of the Properties Individual Property which are not delivered to Mortgage Lender upon a foreclosure of any of the Properties Individual Property or action in lieu thereof, except to the extent any such security deposits were applied in accordance with the terms and conditions of any of the Leases prior to the occurrence of the Event of Default that gave rise to such foreclosure or action in lieu thereof;
(viii) the breach or violation by Borrower and/or any SPE Component Entity of any representation, warranty or covenant contained in the event of:
(A) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing a voluntary petition under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (B) the filing of an involuntary petition against Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law by any Person in which Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of their respective Affiliates, agents or employees colludes with or such other Person, or Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor soliciting or causing to be solicited petitioning creditors for any involuntary petition against Borrower, Operating Company or any Guarantor from any Person; (C) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing an answer consenting to or otherwise acquiescing in or joining in any involuntary petition filed against it by any other Person, other than Lender, under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (D) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor consenting to or acquiescing in or joining in an application for the appointment of a custodian, receiver, trustee, or examiner for Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of the Properties, the Collateral, the Senior Mezzanine Collateral or any portion thereof, other than at the request of Lender; or (E) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor making an assignment for the benefit of creditors (other than Lender), or admitting, in writing or in any legal proceeding, its insolvency or inability to pay its debts as they become dueArticle 5 hereof;
(ix) if Borrowerthe failure by Borrower to (A) permit on-site inspections of any Individual Property, Senior Mezzanine Borrower or Mortgage Borrower fails (B) provide any financial information regarding hereunder and/or pursuant to maintain its status as the other Loan Documents and/or (C) appoint a Special Purpose Entity or breaches any material representation or warranty set forth in Section 4.1.30 Qualified Manager pursuant to a Qualified Management Agreement upon the request of this Agreement; andLender which failure constitutes an Event of Default;
(x) if Borrowera breach of Section 11.1 and/or Section 11.2 hereof, Mortgage Borrowerwhich breach continues for three (3) Business Days after notice from Lender;
(xi) any material amendment, Senior Mezzanine material modification or voluntary termination of any Ground Lease by any Borrower or Operating Company fails to obtain without Lender’s prior consent to any voluntary Indebtedness (other than (x) with respect to Mortgage Borrower, Permitted Indebtedness and (y) with respect to Operating Company, Permitted Indebtedness (Operating Company), as applicable) or voluntary Lien (other than Permitted Encumbrances) encumbering any of the Properties, Senior Mezzanine Collateral or Collateral as required by this Agreement, the Senior Mezzanine Loan Agreement, the Mortgage Loan Agreement, the Pledge Agreement or the Mortgages. Notwithstanding anything expressly permitted pursuant to the contrary under this Agreement, neither any present terms hereof;
(xii) the termination or future Affiliate of Borrower (other than Guarantor, to the extent provided under the Guaranty) nor any present or future shareholder, officer, director, employee, trustee, beneficiary, advisor, partner, member, principal, participant or agent of or in any Borrower or of or in any person or entity that is or becomes an Affiliate suspension of any Borrower shall have any personal liability, directly or indirectly, under or Health Care License arising in connection with the Loan Documents. Neither the negative capital account any grossly negligent or willful material violation of any Affiliate Health Care Requirement or otherwise by Borrower or any voluntary termination or rejection of Borrower in any such Health Care License by Borrower, in each instance, which termination, suspension or in rejection constitutes an Event of Default; or
(xiii) any other Affiliate violation of Borrower in any other Affiliate Article 6 hereof not otherwise covered pursuant to clauses (b)(iv) and (b)(v) immediately below, provided, however, for the avoidance of Borrowerdoubt, nor any obligation a Sale or Pledge resulting from the consummation of an enforcement action by Lender or the holder of any Affiliate Mezzanine Loan shall not be a Sale or Pledge in violation of Borrower in any Borrower to restore a negative capital account or to contribute or loan capital to any Borrower or to any other Affiliate of Borrower shall at any time be deemed to be the property or an asset of any Borrower (or any other Affiliate of Borrower) and neither Lender nor its successors or assigns shall have any right to collect, enforce or proceed against any such negative capital account or obligation to restore, contribute or loan capitalArticle 6 hereof.
(b) Notwithstanding anything to the contrary in this Agreement, the Note or any of the Loan Documents, (A) Lender shall not be deemed to have waived any right which Lender may have under Section 506(a), 506(b), 1111(b) or any other provisions of the Bankruptcy Code to file a claim for the full amount of the Indebtedness Debt or to require that all collateral shall continue to secure all of the Indebtedness Debt owing to Lender in accordance with the Loan Documents, and (B) the Debt shall be fully recourse to Borrower in the event that: (i) a Bankruptcy Event occurs, (ii) the first full monthly payment of principal (if any) and interest under the Note is not paid when due; (iii) any representation, warranty or covenant contained in Article 5 is violated or breached and such breach or violation results in, or is a substantial factor in, a substantive consolidation of Borrower and/or any SPE Component Entity with any other Person in a bankruptcy or similar proceedings; (iv) if Borrower and/or any SPE Component Entity fails to obtain Lender’s prior written consent to (A) any voluntary indebtedness or (B) voluntary monetary lien encumbering any Individual Property to the extent such lien required Lender’s consent under this Agreement or the other Loan Documents; or (v) if Borrower and/or any SPE Component Entity fails to obtain Lender’s prior written consent to any voluntary transfer of any material portion of any Individual Property or to any voluntary act that causes a change in the ownership of Borrower and/or any SPE Component Entity to the extent such ownership change required Lender’s consent under this Agreement; provided, however, for the avoidance of doubt, a Sale or Pledge resulting from the consummation of an enforcement action by Lender or the holder of any Mezzanine Loan shall not be a Sale or Pledge in violation of Article 6 hereof. Notwithstanding any provision contained herein or in any other Loan Document, no direct or indirect shareholder, partner, member, principal, affiliate, employee, officer, director, agent or representative of Borrower (each, a “Related Party”) (other than (a) Guarantor in accordance with the Guaranty and the Environmental Indemnity and (b) any Manager that is an Affiliate of Borrower in accordance with any Loan Document to which such Manager may be a party) shall have any personal liability for, nor be joined as a party to any action with respect to (i) the payment of any sum of money which is or may be payable hereunder or under any other Loan Documents, including, but not limited to, the repayment of the Loan or (ii) the performance or discharge of any covenants, obligations or undertakings of Guarantor or any Related Party with respect thereto. In addition to the foregoing, anything contained herein or in the other Loan Documents notwithstanding, in no event will the assets of any Related Party (other than Guarantor in accordance with the Guaranty and the Environmental Indemnity) be available to satisfy any obligation of Borrower hereunder.
Appears in 2 contracts
Sources: Loan Agreement (NorthStar Healthcare Income, Inc.), Loan Agreement (Northstar Realty Finance Corp.)
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 ▇▇▇ 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:
(i) fraud or intentional misrepresentation by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company Borrower or any Guarantor in connection with the execution and delivery Loan, including by reason of the Loan Documents and/or the Loanany claim under RICO;
(ii) the misappropriation, conversion gross negligence or misapplication in contravention willful misconduct of the Loan Documents by Borrower, Mortgage Borrower, Senior Mezzanine BorrowerGuarantor, Operating Company Principal or any Guarantor of any funds of Borrower, Senior Mezzanine Borrower, Mortgage Borrower or Operating Company, including, without limitation, (A) any Revenues, (B) any Net Liquidation Proceeds or Insurance Proceeds, (C) any Awards received in connection with a Condemnation, (D) any Rents or security deposits (or any item of Revenue, from whatever source) following an Event of Default, or (E) any distribution or other payments made in connection with any part of the Collateral or Senior Mezzanine CollateralRestricted Party;
(iii) the misappropriation, conversion or misapplication by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any security deposits or Rents paid more than one (1) month in advance;
(iv) any act of actual intentional physical waste by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor;
(v) the breach of any representation, warranty, covenant or indemnification provision in the Environmental Indemnity Agreement concerning environmental laws, hazardous substances and or asbestos and any indemnification of Lender with respect thereto in either documentany Loan Document;
(iv) wrongful removal or destruction by Borrower or any Affiliate of Borrower, of any portion of the Property or the Collateral after the occurrence of an Event of Default or any intentional physical waste of the Property by Borrower of any Affiliate thereof, provided, however, that such physical waste shall exclude wear and tear to the Property that occurs in the ordinary course of business of the Property;
(v) any Legal Requirement (including RICO) mandating the forfeiture by Borrower or Mortgage Borrower of the Property or the Collateral, or any portion thereof, because of the conduct or purported conduct of criminal activity by Borrower or any Restricted Party in connection therewith;
(vi) if Borrowerany misrepresentation, Mortgage Borrower, Senior Mezzanine miscertification or breach of warranty by Borrower or Operating Company fails to obtain Lender’s prior consent Guarantor with respect to any voluntary intentional Transfer as required by representation, warranty or certification contained in this Agreement, the Mortgage Loan Agreement or any other Loan Document or in any document executed in connection therewith, pursuant to any of the MortgagesLoan Documents or otherwise to induce Lender to make the Loan, or any advance thereof, or to release monies from any account held by Lender (including any reserve or escrow) or to take other action with respect to the Collateral (as applicabledefined in the Mortgage);
(vii) the misappropriation or conversion by Borrower or Mortgage Borrower of (A) any Net Liquidation Proceeds or Insurance Proceeds, (B) any Awards received in connection with a Condemnation, (C) any Rents following an Event of Default or any Rents paid more than one (1) month in advance; or (D) any distribution or other payments made in connection with any part of the Collateral provided such amounts are not applied to the payment of the Loan or the Operating Expenses of the Property;
(viii) failure to pay charges for labor or materials or other charges that can create Liens on any portion of the Property that are superior to the Lien of the Mortgage, unless such charges are being contested in accordance herewith;
(ix) any security deposits, advance deposits or any other deposits collected by Borrower, Mortgage Borrower or any Affiliate thereof with respect to any of the Properties Property which are not delivered to Mortgage Lender upon a foreclosure of any of the Properties Property or action in lieu thereof, except to the extent any such security deposits were applied in accordance with the terms and conditions of any of the Leases prior to the occurrence of the Event of Default that gave rise to such foreclosure or action in lieu thereof;
(viiix) any breach of any representation, warrant or covenant contained in Section 3 of the event of:Pledge Agreement;
(Axi) Borrowerif Borrower or Mortgage Borrower fails to permit on-site inspections of the Property, fails to provide financial information specifically required by this Agreement or fails to appoint a new property manager upon the request of Lender, each as required by, and in accordance with the terms and provisions of this Agreement or the other Loan Documents; or
(xii) if the Operating Partnership shall default under the Vacant Space Master Lease beyond any applicable notice and/or cure period contained therein, if the Vacant Space Master Lease shall have been amended or modified (except as specifically provided in Section 3.1.19 hereof), without Lender’s prior written consent or if the Vacant Space Master Lease shall have been terminated, cancelled or surrendered (except as specified in Section 3.1.19 hereof) without Lender’s prior written consent, or if the Operating Partnership is the subject of a Bankruptcy Action, other than an involuntary Bankruptcy Action which is dismissed within ninety (90) days.
(a) Borrower or Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor Borrower filing a voluntary petition under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (Bb) the filing of an involuntary petition against Borrower, Borrower or Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law by any Person in which Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of their respective Affiliates, agents or employees colludes with or such other Person, or Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor soliciting or causing to be solicited petitioning creditors for any involuntary petition against Borrower, Operating Company or any Guarantor from any Person; (C) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor Borrower filing an answer consenting to or otherwise acquiescing in or joining in any involuntary petition filed against it it, by any other Person, other than Lender, Person under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law, or soliciting or causing to be solicited petitioning creditors for any involuntary petition from any Person; (Dc) Borrower, Borrower or Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor Borrower consenting to or acquiescing in or joining in an application for the appointment of a custodian, receiver, trustee, or examiner for Borrower, Borrower or Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of the Properties, the Collateral, the Senior Mezzanine Collateral Borrower or any portion thereof, other than at of the request of LenderProperty or the Collateral; or (Ed) Borrower, Borrower or Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor Borrower making an assignment for the benefit of creditors (other than Lender)creditors, or admitting, in writing or in any legal proceeding, its insolvency or inability to pay its debts as they become due;
; (ix2) if Borrower, Senior Mezzanine the first Monthly Interest Payment is not paid when due; (3) if Borrower or Mortgage Borrower fails to maintain its status as a Special Purpose Entity or breaches any material representation or warranty set forth as required by and in Section 4.1.30 accordance with the terms of this AgreementAgreement and there is a substantive consolidation of Borrower or Mortgage Borrower with any other Person; and
(x4) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company fails to obtain Lender’s prior consent to any voluntary Indebtedness (other than (x) with respect to Mortgage Borrower, Permitted Indebtedness and (y) with respect to Operating Company, Permitted Indebtedness (Operating Company), as applicable) or voluntary Lien (other than Permitted Encumbrances) encumbering any of the Properties, Senior Mezzanine Collateral or Collateral Property as required by this Agreement, the Senior Mezzanine Loan Agreement, the Mortgage Loan Agreement, the Pledge ; or (5) if Borrower fails to obtain Lender’s prior consent to any Transfer as required by this Agreement or the Mortgages. Notwithstanding anything to the contrary under this Agreement, neither any present or future Affiliate of Borrower (other than Guarantor, to the extent provided under the Guaranty) nor any present or future shareholder, officer, director, employee, trustee, beneficiary, advisor, partner, member, principal, participant or agent of or in any Borrower or of or in any person or entity that is or becomes an Affiliate of any Borrower shall have any personal liability, directly or indirectly, under or in connection with the Loan Documents. Neither the negative capital account of any Affiliate of Borrower in Borrower, or in any other Affiliate of Borrower in any other Affiliate of Borrower, nor any obligation of any Affiliate of Borrower in any Borrower to restore a negative capital account or to contribute or loan capital to any Borrower or to any other Affiliate of Borrower shall at any time be deemed to be the property or an asset of any Borrower (or any other Affiliate of Borrower) and neither Lender nor its successors or assigns shall have any right to collect, enforce or proceed against any such negative capital account or obligation to restore, contribute or loan capitalMortgage.
(b) Notwithstanding anything to the contrary in this Agreement, the Note or any of the Loan Documents, Lender shall not be deemed to have waived any right which Lender may have under Section 506(a), 506(b), 1111(b) or any other provisions of the Bankruptcy Code to file a claim for the full amount of the Indebtedness or to require that all collateral shall continue to secure all of the Indebtedness owing to Lender in accordance with the Loan Documents.
Appears in 2 contracts
Sources: Loan Agreement (Maguire Properties Inc), Loan Agreement (Maguire Properties 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, ▇▇▇ 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 lossthe Insurance Proceeds and/or Awards.
(b) Notwithstanding the provisions of this Section 9.4 to the contrary, damage, cost, expense, liability, claim or other obligation incurred by Pledgor shall be personally liable to Lender (including attorneys’ fees and costs reasonably incurred) arising out of or in connection with for the following:
Losses it incurs due to: (i) fraud or intentional misrepresentation by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor in connection with the execution and the delivery of this Agreement, the Note, the Pledge Agreement, the other Loan Documents and/or the Loan;
or any Mortgage Loan Document; (ii) the misappropriation, conversion Pledgor’s or misapplication in contravention of the Loan Documents by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company ’s misapplication or any Guarantor misappropriation of any funds of Borrower, Senior Mezzanine Borrower, Rents received by Pledgor or Mortgage Borrower after the occurrence of a Default or Operating Company, including, without limitation, (A) any Revenues, (B) any Net Liquidation Proceeds or Insurance Proceeds, (C) any Awards received in connection with a Condemnation, (D) any Rents or security deposits (or any item of Revenue, from whatever source) following an Event of Default, ; (iii) Pledgor’s or Mortgage Borrower’s misapplication or misappropriation of Security Deposits or Rents collected more than thirty (E30) days in advance; (iv) Pledgor’s or Mortgage Borrower’s misapplication or the misappropriation of Insurance Proceeds or Awards; (v) Pledgor’s or Mortgage Borrower’s misapplication or the misappropriation of Net Liquidation After Debt Service or any distribution distributions or other payments made in connection with respect of any part of the Collateral Property or Senior Mezzanine the Collateral;
; (iiivi) Pledgor’s making a distribution to its equity owners after the misappropriation, conversion or misapplication by Borrower, occurrence of an Event of Default; (vii) Mortgage Borrower’s failure to pay Taxes, Senior Mezzanine BorrowerOther Charges (except to the extent that sums sufficient to pay such amounts have been deposited in escrow with Mortgage Lender pursuant to the terms of Section 7.2 of the Mortgage Loan Agreement, Operating Company charges for labor or materials or other charges that can create Liens on the Properties; (viii) Pledgor’s failure to return or to reimburse Lender for all Personal Property taken from any Guarantor Properties by or on behalf of any security deposits Mortgage Borrower and not replaced with Personal Property of the same utility and of the same or Rents paid more than one greater value; (1) month in advance;
(ivix) any act of actual intentional physical waste or arson by BorrowerPledgor, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company Borrower or Principal or any Affiliate or thereof or Guarantor;
; (vx) any fees or commissions paid by Pledgor to Principal or any Affiliate of Pledgor or Principal or Guarantor in violation of the breach terms of any representation, warranty, covenant or indemnification provision in the Environmental Indemnity Agreement concerning environmental laws, hazardous substances and asbestos and any indemnification of Lender with respect thereto in either document;
(vi) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company fails to obtain Lender’s prior consent to any voluntary intentional Transfer as required by this Agreement, the Mortgage Loan Note, the Pledge Agreement or the Mortgages, as applicable;
other Loan Documents; (viixi) any security deposits, advance deposits Pledgor’s failure to comply with the provisions of Sections 4.1.40 and 5.1.19 of this Agreement; (xii) Pledgor ‘s or any other deposits collected with respect to any of the Properties which are not delivered to Mortgage Lender upon Principal’s default under Section 4.1.36 hereof (excluding a foreclosure of any of the Properties default under clauses (h) or action in lieu thereof, except (q) to the extent any that such security deposits were applied in accordance with default arises solely from insufficient cash flows from the terms and conditions of any Collateral); or (xiii) the termination or cancellation of the Leases prior to the occurrence of the Event of Default that gave rise to such foreclosure ▇▇▇▇▇▇▇ Ground Lease for any reason or action in lieu thereof;under any circumstances whatsoever.
(viiic) Notwithstanding the foregoing, the agreement of Lender not to pursue recourse liability as set forth in Subsection (a) above SHALL BECOME NULL AND VOID and shall be of no further force and effect (i) in the event of:
of a default under Section 5.2.10 hereof, (ii) if any Individual Property, the Collateral or any part thereof shall become an asset in (A) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing a voluntary petition under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; proceeding or (B) the filing of an involuntary petition against Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law proceeding commenced by any Person (other than Lender) in which BorrowerPledgor or Mortgage Borrower colludes with, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of their respective Affiliates, agents or employees colludes with or otherwise assists such other Person, or Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company solicits or any Guarantor soliciting or causing causes to be solicited petitioning creditors for any involuntary petition against Borrower, Operating Company or any Guarantor from any Person; (C) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing an answer consenting to or otherwise acquiescing in or joining in any involuntary petition filed against it by any other Person, other than Lender, under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (D) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor consenting to or acquiescing in or joining in an application for the appointment of a custodian, receiver, trustee, or examiner for Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of the Properties, the Collateral, the Senior Mezzanine Collateral or any portion thereof, other than at the request of Lender; or (E) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor making an assignment for the benefit of creditors (other than Lender), or admitting, in writing or in any legal proceeding, its insolvency or inability to pay its debts as they become due;
(ix) if Borrower, Senior Mezzanine Borrower Pledgor or Mortgage Borrower fails to maintain its status as a Special Purpose Entity from any Person or breaches any material representation or warranty set forth in Section 4.1.30 of this Agreement; and(iii) if the first Monthly Debt Service Payment Amount is not paid when due.
(xd) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company fails to obtain Lender’s prior consent to any voluntary Indebtedness (other than (x) with respect to Mortgage Borrower, Permitted Indebtedness and (y) with respect to Operating Company, Permitted Indebtedness (Operating Company), as applicable) or voluntary Lien (other than Permitted Encumbrances) encumbering any of the Properties, Senior Mezzanine Collateral or Collateral as required by this Agreement, the Senior Mezzanine Loan Agreement, the Mortgage Loan Agreement, the Pledge Agreement or the Mortgages. Notwithstanding anything to the contrary under this Agreement, neither any present or future Affiliate of Borrower (other than Guarantor, to the extent provided under the Guaranty) nor any present or future shareholder, officer, director, employee, trustee, beneficiary, advisor, partner, member, principal, participant or agent of or in any Borrower or of or in any person or entity that is or becomes an Affiliate of any Borrower Nothing herein shall have any personal liability, directly or indirectly, under or in connection with the Loan Documents. Neither the negative capital account of any Affiliate of Borrower in Borrower, or in any other Affiliate of Borrower in any other Affiliate of Borrower, nor any obligation of any Affiliate of Borrower in any Borrower to restore a negative capital account or to contribute or loan capital to any Borrower or to any other Affiliate of Borrower shall at any time be deemed to be the property or an asset a waiver of any Borrower (or any other Affiliate of Borrower) and neither Lender nor its successors or assigns shall have any right to collect, enforce or proceed against any such negative capital account or obligation to restore, contribute or loan capital.
(b) Notwithstanding anything to the contrary in this Agreement, the Note or any of the Loan Documents, Lender shall not be deemed to have waived any right which Lender may have under Section 506(a), 506(b), 1111(b) or any other provisions provision of the Bankruptcy Code to file a claim for the full amount of the Indebtedness indebtedness secured by the Pledge Agreement or to require that all collateral shall continue to secure all of the Indebtedness indebtedness owing to Lender in accordance with this Agreement, the Note, the Pledge Agreement and the other Loan Documents.
Appears in 2 contracts
Sources: Mezzanine Loan Agreement (KBS Real Estate Investment Trust, Inc.), Mezzanine 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 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 ▇▇▇ 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:
(i) fraud or intentional misrepresentation by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor in connection with the execution and delivery of the Loan Documents and/or the Loan;
(ii) the misappropriation, conversion or misapplication in contravention of the Loan Documents by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any funds of Borrower, Senior Mezzanine Borrower, Mortgage Borrower or Operating Company, including, without limitation, (A) any Revenues, (B) any Net Liquidation Proceeds or Insurance Proceeds, (C) any Awards received in connection with a Condemnation, (D) any Rents or security deposits (or any item of Revenue, from whatever source) following an Event of Default, or (E) any distribution or other payments made in connection with any part of the Collateral or Senior Mezzanine Collateral;
(iii) the misappropriation, conversion or misapplication by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any security deposits or Rents paid more than one (1) month in advance;
(iv) any act of actual intentional physical waste by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor;
(v) the breach of any representation, warranty, covenant or indemnification provision in the Environmental Indemnity Agreement concerning environmental laws, hazardous substances and asbestos and any indemnification of Lender with respect thereto in either document;
(vi) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company fails to obtain Lender’s prior consent to any voluntary intentional Transfer as required by this Agreement, the Mortgage Loan Agreement or the Mortgages, as applicable;
(vii) any security deposits, advance deposits or any other deposits collected with respect to any of the Properties which are not delivered to Mortgage Lender upon a foreclosure of any of the Properties or action in lieu thereof, except to the extent any such security deposits were applied in accordance with the terms and conditions of any of the Leases prior to the occurrence of the Event of Default that gave rise to such foreclosure or action in lieu thereof;
(viii) in the event of:
: (A) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing a voluntary petition under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (B) the filing of an involuntary petition against Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law by any Person in which Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of their respective Affiliates, agents or employees colludes with or such other Person, or Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor soliciting or causing to be solicited petitioning creditors for any involuntary petition against Borrower, Operating Company or any Guarantor from any Person; (C) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing an answer consenting to or otherwise acquiescing in or joining in any involuntary petition filed against it by any other Person, other than Lender, under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (D) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor consenting to or acquiescing in or joining in an application for the appointment of a custodian, receiver, trustee, or examiner for Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of the Properties, Properties or the Collateral, the Senior Mezzanine Collateral or any portion thereof, other than at the request of Lender; or (E) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor making an assignment for the benefit of creditors (other than Lender), or admitting, in writing or in any legal proceeding, its insolvency or inability to pay its debts as they become due;
(ix) if Borrower, Senior Mezzanine any of the limited liability companies constituting Borrower or Mortgage Borrower fails to maintain its status as a Special Purpose Entity or breaches any material representation or warranty set forth in Section 4.1.30 of this Agreement; and
(x) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company fails to obtain Lender’s prior consent to any voluntary Indebtedness (other than (x) with respect to Mortgage Borrower, Permitted Indebtedness and (y) with respect to Operating Company, Permitted Indebtedness (Operating Company), as applicable) or voluntary Lien (other than Permitted Encumbrances) encumbering any of the Properties, Senior Mezzanine Collateral Properties or Collateral as required by this Agreement, the Senior Mezzanine Loan Agreement, the Mortgage Loan Agreement, the Pledge Agreement or the Mortgages. Notwithstanding anything to the contrary under this Agreement, neither any present or future Affiliate of Borrower (other than Guarantor, to the extent provided under the Guaranty) nor any present or future shareholder, officer, director, employee, trustee, beneficiary, advisor, partner, member, principal, participant or agent of or in any Borrower or of or in any person or entity that is or becomes an Affiliate of any Borrower shall have any personal liability, directly or indirectly, under or in connection with the Loan Documents. Neither the negative capital account of any Affiliate of Borrower in Borrower, or in any other Affiliate of Borrower in any other Affiliate of Borrower, nor any obligation of any Affiliate of Borrower in any Borrower to restore a negative capital account or to contribute or loan capital to any Borrower or to any other Affiliate of Borrower shall at any time be deemed to be the property or an asset of any Borrower (or any other Affiliate of Borrower) and neither Lender nor its successors or assigns shall have any right to collect, enforce or proceed against any such negative capital account or obligation to restore, contribute or loan capital.
(b) Notwithstanding anything to the contrary in this Agreement, the Note or any of the Loan Documents, Lender shall not be deemed to have waived any right which Lender may have under Section 506(a), 506(b), 1111(b) or any other provisions of the Bankruptcy Code to file a claim for the full amount of the Indebtedness or to require that all collateral shall continue to secure all of the Indebtedness owing to Lender in accordance with the Loan Documents.
Appears in 2 contracts
Sources: First Mezzanine Loan Agreement (Harrahs Entertainment Inc), First 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 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 ▇▇▇ 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:
(i) fraud or intentional misrepresentation by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor in connection with the execution and delivery of the Loan Documents and/or the Loan;
(ii) the misappropriation, conversion or misapplication in contravention of the Loan Documents by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any funds of Borrower, Senior Mezzanine Borrower, Mortgage Borrower or Operating Company, including, without limitation, (A) any Revenues, (B) any Net Liquidation Proceeds or Insurance Proceeds, (C) any Awards received in connection with a Condemnation, (D) any Rents or security deposits (or any item of Revenue, from whatever source) following an Event of Default, or (E) any distribution or other payments made in connection with any part of the Collateral or Senior Mezzanine Collateral;
(iii) the misappropriation, conversion or misapplication by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any security deposits or Rents paid more than one (1) month in advance;
(iv) any act of actual intentional physical waste by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor;
(v) the breach of any representation, warranty, covenant or indemnification provision in the Environmental Indemnity Agreement concerning environmental laws, hazardous substances and asbestos and any indemnification of Lender with respect thereto in either document;
(vi) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company fails to obtain Lender’s prior consent to any voluntary intentional Transfer as required by this Agreement, the Mortgage Loan Agreement or the Mortgages, as applicable;
(vii) any security deposits, advance deposits or any other deposits collected with respect to any of the Properties which are not delivered to Mortgage Lender upon a foreclosure of any of the Properties or action in lieu thereof, except to the extent any such security deposits were applied in accordance with the terms and conditions of any of the Leases prior to the occurrence of the Event of Default that gave rise to such foreclosure or action in lieu thereof;
(viii) in the event of:
: (A) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing a voluntary petition under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (B) the filing of an involuntary petition against Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law by any Person in which Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of their respective Affiliates, agents or employees colludes with or such other Person, or Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor soliciting or causing to be solicited petitioning creditors for any involuntary petition against Borrower, Operating Company or any Guarantor from any Person; (C) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing an answer consenting to or otherwise acquiescing in or joining in any involuntary petition filed against it by any other Person, other than Lender, under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (D) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor consenting to or acquiescing in or joining in an application for the appointment of a custodian, receiver, trustee, or examiner for Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of the Properties, the Collateral, the Senior Mezzanine Collateral or any portion thereof, other than at the request of Lender; or (E) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor making an assignment for the benefit of creditors (other than Lender), or admitting, in writing or in any legal proceeding, its insolvency or inability to pay its debts as they become due;
(ix) if Borrower, Senior Mezzanine Borrower or Mortgage Borrower fails to maintain its status as a Special Purpose Entity or breaches any material representation or warranty set forth in Section 4.1.30 of this Agreement; and
(x) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company fails to obtain Lender’s prior consent to any voluntary Indebtedness (other than (x) with respect to Mortgage Borrower, Permitted Indebtedness and (y) with respect to Operating Company, Permitted Indebtedness (Operating Company), as applicable) or voluntary Lien (other than Permitted Encumbrances) encumbering any of the Properties, Senior Mezzanine Collateral or Collateral as required by this Agreement, the Senior Mezzanine Loan Agreement, the Mortgage Loan Agreement, the Pledge Agreement or the Mortgages. Notwithstanding anything to the contrary under this Agreement, neither any present or future Affiliate of Borrower (other than Guarantor, to the extent provided under the Guaranty) nor any present or future shareholder, officer, director, employee, trustee, beneficiary, advisor, partner, member, principal, participant or agent of or in any Borrower or of or in any person or entity that is or becomes an Affiliate of any Borrower shall have any personal liability, directly or indirectly, under or in connection with the Loan Documents. Neither the negative capital account of any Affiliate of Borrower in Borrower, or in any other Affiliate of Borrower in any other Affiliate of Borrower, nor any obligation of any Affiliate of Borrower in any Borrower to restore a negative capital account or to contribute or loan capital to any Borrower or to any other Affiliate of Borrower shall at any time be deemed to be the property or an asset of any Borrower (or any other Affiliate of Borrower) and neither Lender nor its successors or assigns shall have any right to collect, enforce or proceed against any such negative capital account or obligation to restore, contribute or loan capital.
(b) Notwithstanding anything to the contrary in this Agreement, the Note or any of the Loan Documents, Lender shall not be deemed to have waived any right which Lender may have under Section 506(a), 506(b), 1111(b) or any other provisions of the Bankruptcy Code to file a claim for the full amount of the Indebtedness or to require that all collateral shall continue to secure all of the Indebtedness owing to Lender in accordance with the Loan Documents.
Appears in 2 contracts
Sources: Mezzanine Loan Agreement (Harrahs Entertainment Inc), 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 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 ▇▇▇ 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”):
(ia) fraud or intentional misrepresentation by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company Sole Member or any Guarantor in connection with the execution and delivery of obtaining the Loan Documents and/or the Loan(or any portion thereof);
(iib) the misappropriation, conversion or misapplication in contravention intentional physical waste of the Loan Documents by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company Property or any Guarantor portion thereof, or after an Event of Default the removal or disposal of any funds portion of Borrower, Senior Mezzanine Borrower, Mortgage Borrower or Operating Company, including, the Property without limitation, replacement;
(Ac) any Revenues, (B) Proceeds paid by reason of any Net Liquidation Proceeds Insured Casualty or Insurance Proceeds, (C) any Awards Award received in connection with a CondemnationCondemnation or other sums or payments attributable to the Property not applied in accordance with the provisions of the Loan Documents (except to the extent that Borrower did not have the legal right, because of a bankruptcy, receivership or similar judicial proceeding, to direct disbursement of such sums or payments);
(Dd) any all Rents of the Property received or security deposits collected by or on behalf of the Borrower after an Event of Default and not deposited into the Deposit Account or applied to payment of Principal and interest due under the Notes, and to the payment of actual and reasonable operating expenses of the Property, as they become due or payable (except to the extent that such application of such funds is prevented by bankruptcy, receivership, or any item similar judicial proceeding in which Borrower is legally prevented from directing the disbursement of Revenue, from whatever sourcesuch 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 (E) any distribution or other payments made in connection with any part of funds held by Borrower for the Collateral or Senior Mezzanine Collateralbenefit of another party;
(iiif) the misappropriationfailure to pay Taxes, conversion or misapplication by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any security deposits or Rents paid more than one (1) month provided Borrower shall not be liable to the extent funds to pay such amounts are available in advancethe Tax and Insurance Subaccount and Lender failed to pay same;
(iv) any act of actual intentional physical waste by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor;
(vg) the breach of any representation, warranty, covenant or indemnification provision in the any Loan Document concerning Environmental Indemnity Agreement concerning environmental lawsLaws or Hazardous Substances, hazardous substances including Section 4.21 hereof and asbestos Section 5.8 hereof, and any indemnification of Lender with respect thereto in either document;
(vi) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company fails to obtain Lender’s prior consent to any voluntary intentional Transfer as required by this Agreement, the Mortgage Loan Agreement or the Mortgages, as applicable;
(vii) any security deposits, advance deposits or any other deposits collected with respect to any of the Properties which are not delivered to Mortgage Lender upon a foreclosure of any of the Properties or action in lieu thereof, except to the extent any such security deposits were applied in accordance with the terms and conditions of any of the Leases prior to the occurrence of the Event of Default that gave rise to such foreclosure or action in lieu thereof;
clauses (viii) in the event of:through (xi) of Section 5.30 hereof; or
(A) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing a voluntary petition under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (Bh) the filing breach of an involuntary petition against Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law by any Person in which Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of their respective Affiliates, agents or employees colludes with or such other Person, or Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor soliciting or causing to be solicited petitioning creditors for any involuntary petition against Borrower, Operating Company or any Guarantor from any Person; (C) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing an answer consenting to or otherwise acquiescing in or joining in any involuntary petition filed against it by any other Person, other than Lender, under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (D) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor consenting to or acquiescing in or joining in an application for the appointment of a custodian, receiver, trustee, or examiner for Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of the Properties, the Collateral, the Senior Mezzanine Collateral or any portion thereof, other than at the request of Lender; or (E) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor making an assignment for the benefit of creditors (other than Lender), or admitting, in writing or in any legal proceeding, its insolvency or inability to pay its debts as they become due;
(ix) if Borrower, Senior Mezzanine Borrower or Mortgage Borrower fails to maintain its status as a Special Purpose Entity or breaches any material representation or warranty ’s covenants set forth in Section 4.1.30 of this Agreement; and
(x) if 2.6.2 hereof, including without limitation, Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company fails to obtain Lender’s prior consent to any voluntary Indebtedness (other than (x) with respect to Mortgage Borrower, Permitted Indebtedness and (y) with respect to Operating Company, Permitted Indebtedness (Operating Company), as applicable) or voluntary Lien (other than Permitted Encumbrances) encumbering any of the Properties, Senior Mezzanine Collateral or Collateral as required by this Agreement, the Senior Mezzanine Loan Agreement, the Mortgage Loan Agreement, the Pledge Agreement or the Mortgages. Notwithstanding anything to the contrary under this Agreement, neither any present or future Affiliate of Borrower (other than Guarantor, to the extent provided under the Guaranty) nor any present or future shareholder, officer, director, employee, trustee, beneficiary, advisor, partner, member, principal, participant or agent of or in any Borrower or of or in any person or entity that is or becomes an Affiliate of any Borrower shall have any personal liability, directly or indirectly, under or in connection with the Loan Documents. Neither the negative capital account of any Affiliate of Borrower in Borrower, or in any other Affiliate of Borrower in any other Affiliate of Borrower, nor any obligation of any Affiliate of Borrower in any Borrower to restore a negative capital account or to contribute or loan capital to any Borrower or to any other Affiliate of Borrower shall at any time be deemed to be the property or an asset of any Borrower (or any other Affiliate of Borrower) and neither Lender nor its successors or assigns shall have any right to collect, enforce or proceed against any such negative capital account or obligation to restore, contribute or loan capital.
(b) pay the Cap Recovery Costs and interest thereon at the Default Rate. Notwithstanding anything to the contrary in this Agreement, the Note Agreement or any of the Loan Documents, (A) Lender shall not be deemed to have waived any right which Lender may have under Section 506(a), 506(b), 1111(b) or any other provisions of the U.S. Bankruptcy Code to file a claim for the full amount of the Indebtedness Debt or to require that all collateral shall continue to secure all of the Indebtedness owing to Lender Debt in accordance with the Loan Documents, and (B) Lender’s agreement not to pursue personal liability of Borrower as set forth above SHALL BECOME NULL AND VOID and shall be of no further force and effect, and the Debt shall be fully recourse to Borrower in the event that one or more of the following occurs (each, a “Springing Recourse Event”): (i) an Event of Default described in Section 8.1(d) hereof shall have occurred or (ii) a breach of the covenants set forth in Section 5.13 hereof, or (iii) the occurrence of any condition or event described in either Section 8.1(f) hereof or Section 8.1(g) hereof and, with respect to such condition or event described in Section 8.1(g) hereof, either Borrower, Sole Member, Guarantor or any Person owning an interest (directly or indirectly) in Borrower, Sole Member or Guarantor consents to, aids, solicits, supports, or otherwise cooperates or colludes to cause such condition or event or fails to contest such condition or event.
Appears in 2 contracts
Sources: Loan Agreement (Thomas Properties Group Inc), Loan Agreement (Thomas Properties Group Inc)
Exculpation. (a) Subject to the qualifications below, Lender Administrative Agent 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 Administrative Agent may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender and each Noteholder Administrative Agent 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 Administrative 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 Properties, in the Rents and in any other collateral given to LenderAdministrative Agent, and LenderAdministrative Agent, by accepting the Note, this Agreement, the Pledge Agreement Mortgages and the other Loan Documents, agrees that it shall not ▇▇▇ 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 Administrative Agent 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 Administrative Agent thereunder; (d) impair the right of Lender Administrative Agent to obtain the appointment of a receiver; (e) intentionally omittedimpair the enforcement of the collateral assignment of leases and rents contained in the Mortgage; (f) constitute a prohibition against Lender Administrative Agent 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 Administrative Agent to exercise its remedies against all of the CollateralProperties; or (g) constitute a waiver of the right of Lender Administrative Agent 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 to the extent actually incurred by Lender Administrative Agent and Lenders (including attorneys’ fees fees, costs and costs expenses reasonably incurred) arising out of or in connection with the following:
(i) fraud or intentional materially and willful misrepresentation by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company Borrower or any Guarantor SPE Constituent Entity or any of their respective Affiliates in connection with the execution and delivery of the Loan Documents and/or the Loan;
(ii) willful misconduct of Borrower or any SPE Constituent Entity or any of their respective Affiliates which results in physical damage or waste to the misappropriation, Property;
(iii) the removal or disposal of any portion of any Individual Property during the continuance of an Event of Default;
(iv) the misappropriation or conversion or misapplication in contravention of the Loan Documents by Borrower, Mortgage Borrowerany SPE Constituent Entity, Senior Mezzanine Borrower, Operating Company Guarantor or any Guarantor of any funds their respective Affiliates of Borrower, Senior Mezzanine Borrower, Mortgage Borrower or Operating Company, including, without limitation, (A) any Revenuesinsurance proceeds paid by reason of any Casualty or proceeds of the PLL Policy, (B) any Net Liquidation Proceeds Awards or Insurance Proceeds, (C) any Awards other amounts received in connection with a Condemnation, (DC) any Rents or security deposits (or any item during the continuance of Revenue, from whatever source) following an Event of Default, or (ED) any distribution or other payments made in connection with any part of the Collateral or Senior Mezzanine Collateral;
(iii) the misappropriation, conversion or misapplication by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any security deposits or Rents paid more than one (1) month in advance;
(iv) any act of actual intentional physical waste by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor;
(v) the breach of any representation, warranty, covenant or indemnification provision in the Environmental Indemnity Agreement concerning environmental laws, hazardous substances and asbestos and any indemnification of Lender with respect thereto in either document(intentionally omitted);
(vi) if Borrower, Mortgage Borrower, Senior Mezzanine a material breach by Borrower or Operating Company fails any SPE Constituent Entity or material failure by Borrower or any SPE Constituent Entity to obtain Lender’s prior consent to any voluntary intentional Transfer as required by this Agreement, comply with the Mortgage Loan Agreement covenants set forth in Section 5.1.29(a) or the Mortgages, as applicable(b) hereof;
(vii) if Borrower voluntarily encumbers any security deposits, advance deposits or Individual Property by any Lien securing indebtedness for borrowed money (other deposits collected with respect to any of the Properties which are not delivered to Mortgage Lender upon than a foreclosure of any of the Properties or action in lieu thereof, except to the extent any such security deposits were applied in accordance with the terms and conditions of any of the Leases Permitted Encumbrance) without Unanimous Lender’s prior to the occurrence of the Event of Default that gave rise to such foreclosure or action in lieu thereof;written consent; or
(viii) in the event of:
(A) if Borrower, Mortgage Borrowerany SPE Constituent Entity, Senior Mezzanine Borrower, Operating Company or any Guarantor filing a voluntary petition under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (B) the filing of an involuntary petition against Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law by any Person in which Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of their respective Affiliates, agents or employees colludes with or such other Person, or Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor soliciting or causing to be solicited petitioning creditors for any involuntary petition against Borrower, Operating Company or any Guarantor from any Person; (C) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing an answer consenting to or otherwise acquiescing in or joining in any involuntary petition filed against it by any other Person, other than Lender, under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (D) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor consenting to or acquiescing in or joining in an application for the appointment of a custodian, receiver, trustee, or examiner for Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of the Properties, the Collateral, the Senior Mezzanine Collateral or any portion thereof, other than at the request of Lender; or (E) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor making an assignment for the benefit of creditors (other than Lender), or admitting, in writing or in any legal proceeding, its insolvency or inability to pay its debts as they become due;
(ix) if Borrower, Senior Mezzanine Borrower or Mortgage Borrower fails to maintain its status as a Special Purpose Entity or breaches any material representation or warranty set forth in Section 4.1.30 of this Agreement; and
(x) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company Affiliate fails to obtain Unanimous Lender’s prior written consent to any voluntary Indebtedness Transfer of an Individual Property or any direct or indirect interest therein in any case in which such consent is required to be obtained pursuant to Section 5.2.10 hereof (other than provided, however, that a Transfer by reason of a foreclosure (xor deed-in-lieu or assignment deed-in-lieu thereof) with respect to Mortgage Borrower, Permitted Indebtedness and by Administrative Agent or any Lender (yor its designee) with respect to Operating Company, Permitted Indebtedness (Operating Company), as applicable) or voluntary Lien (other than Permitted Encumbrances) encumbering any of the Properties, Senior Mezzanine Collateral or Collateral as required by this Agreement, the Senior Mezzanine Loan Agreement, the Mortgage Loan Agreement, the Pledge Agreement or the Mortgages. Notwithstanding anything to the contrary under this Agreement, neither any present or future Affiliate of Borrower (other than Guarantor, to the extent provided under the Guaranty) nor any present or future shareholder, officer, director, employee, trustee, beneficiary, advisor, partner, member, principal, participant or agent of or in any Borrower or of or in any person or entity that is or becomes an Affiliate of any Borrower shall have any personal liability, directly or indirectly, under or in connection with collateral for the Loan Documents. Neither the negative capital account of any Affiliate of Borrower in Borrower, or in any other Affiliate of Borrower in any other Affiliate of Borrower, nor any obligation of any Affiliate of Borrower in any Borrower to restore a negative capital account or to contribute or loan capital to any Borrower or to any other Affiliate of Borrower shall at any time not be deemed to be the property or an asset a Transfer in violation of any Borrower (or any other Affiliate of Borrower) and neither Lender nor its successors or assigns shall have any right to collect, enforce or proceed against any such negative capital account or obligation to restore, contribute or loan capitalSection 5.2.10 hereof).
(b) Notwithstanding anything to the contrary in this Agreement, the Note or any of the Loan Documents, Lender (A) Administrative Agent shall not be deemed to have waived any right which Lender Administrative Agent may have under Section 506(a), 506(b), 1111(b) or any other provisions of the Bankruptcy Code to file a claim for the full amount of the Indebtedness Debt secured by the Mortgages or to require that all collateral shall continue to secure all of the Indebtedness Debt owing to Lender Lenders and all amounts due to Administrative Agent in accordance with the Loan Documents, and (B) the Debt shall be fully recourse to Borrower in the event of:
(i) Borrower or any SPE Constituent Entity filing a voluntary petition under the Bankruptcy Code; (ii) the filing of an involuntary petition against Borrower or any SPE Constituent Entity under the Bankruptcy Code in which Borrower, any SPE Constituent Entity, Guarantor or any Affiliate of Guarantor colludes with any involuntary petition against Borrower or any SPE Constituent Entity from any Person; (iii) Borrower, any SPE Constituent Entity, Guarantor or any Affiliate of Guarantor filing an answer consenting to or otherwise joining in any involuntary petition filed against it, by any other Person under the Bankruptcy Code; or (iv) Borrower, any SPE Constituent Entity or Guarantor consenting to or joining in an application for the appointment of a custodian, receiver, trustee, or examiner for Borrower or any SPE Constituent Entity or any Individual Property (or portion thereof).
Appears in 2 contracts
Sources: Loan Agreement (Excel Trust, L.P.), Loan Agreement (Excel Trust, L.P.)
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 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, 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 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 Note and the other Loan DocumentsPledge Agreement, agrees that it shall not not, except as otherwise provided herein or in the Pledge Agreement, ▇▇▇ 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 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) 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 (vii) impair the liability and obligation right of Borrower, by money Lender to obtain a deficiency judgment or otherwiseother judgment on the Note against Borrower 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 lossthe Insurance Proceeds and/or Awards.
(b) Notwithstanding the provisions of this Section 9.4 to the contrary, damage, cost, expense, liability, claim or other obligation incurred by Borrower shall be personally liable to Lender (including attorneys’ fees and costs reasonably incurred) arising out of or in connection with for the following:
Losses it incurs due to: (i) fraud or intentional misrepresentation in connection with the execution and the delivery of this Agreement, the Note, the Pledge Agreement, the other Loan Documents or any Mortgage Loan Documents; (ii) Borrower’s or Mortgage Borrower’s misappropriation or intentional misapplication of Rents received by Borrower or Mortgage Borrower after the occurrence and during the continuance of an Event of Default; (iii) Borrower’s or Mortgage Borrower’s misappropriation or intentional misapplication of security deposits or Rents collected more than thirty (30) days in advance; (iv) Borrower’s or Mortgage Borrower’s misappropriation or intentional misapplication of Insurance Proceeds or Awards; (v) Borrower’s or Mortgage Borrower’s misappropriation or intentional misapplication of Net Liquidation After Debt Service or any distributions or other payments made in respect of any part of the Property or the Collateral; (vi) Borrower’s making a distribution to its equity owners after the occurrence and during the continuance of an Event of Default; (vii) Mortgage Borrower’s failure to pay Taxes, Other Charges (except to the extent that sums sufficient to pay such amounts have been deposited in escrow with Mortgage Lender pursuant to the terms of Section 7.2 of the Mortgage Loan Agreement, charges for labor or materials or other charges that can create Liens on the Properties (except to the extent that there is insufficient cash flow from the operation of the Property; (viii) Borrower’s failure to return or to reimburse Lender for all Personal Property taken from any Properties by or on behalf of Mortgage Borrower (other than Personal Property that is obsolete or removed or disposed in the ordinary course of business of owning and operating the Property) and not replaced with Personal Property of the same utility and of the same or greater value; (vii) any act of intentional waste or arson by Borrower, Mortgage Borrower, Senior Mezzanine BorrowerPrincipal, Operating Company or any Guarantor in connection Affiliate thereof or Guarantor; (viii) [intentionally deleted]; (ix) Borrower’s failure to comply with the execution provisions of Section 5.1.10 hereof (provided Borrower shall have an additional ten (10) day after written notice of such failure to deliver the required financial statements or reports pursuant to Section 5.1.10 hereof before recourse is sought); (x) Borrower’s failure to comply with the provisions of Sections 4.1.39 and delivery 5.1.19 of this Agreement; (xi) Borrower’s or Principal’s default under Section 4.1.36 hereof; or (xii) Operating Tenant’s or Principal’s (as defined in the Subordination Agreement) default under Section 11 of the Loan Documents and/or the Loan;Subordination Agreement.
(iic) Notwithstanding the misappropriationforegoing, conversion or misapplication in contravention of the Loan Documents by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any funds of Borrower, Senior Mezzanine Borrower, Mortgage Borrower or Operating Company, including, without limitation, (A) any Revenues, (B) any Net Liquidation Proceeds or Insurance Proceeds, (C) any Awards received in connection with a Condemnation, (D) any Rents or security deposits (or any item of Revenue, from whatever source) following an Event of Default, or (E) any distribution or other payments made in connection with any part of the Collateral or Senior Mezzanine Collateral;
(iii) the misappropriation, conversion or misapplication by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any security deposits or Rents paid more than one (1) month in advance;
(iv) any act of actual intentional physical waste by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor;
(v) the breach of any representation, warranty, covenant or indemnification provision in the Environmental Indemnity Agreement concerning environmental laws, hazardous substances and asbestos and any indemnification agreement of Lender with respect thereto not to pursue recourse liability as set forth in either document;
Subsection (via) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company fails to obtain Lender’s prior consent to any voluntary intentional Transfer as required by this Agreement, the Mortgage Loan Agreement or the Mortgages, as applicable;
above SHALL BECOME NULL AND VOID and shall be of no further force and effect (vii) any security deposits, advance deposits or any other deposits collected with respect to any of the Properties which are not delivered to Mortgage Lender upon a foreclosure of any of the Properties or action in lieu thereof, except to the extent any such security deposits were applied in accordance with the terms and conditions of any of the Leases prior to the occurrence of the Event of Default that gave rise to such foreclosure or action in lieu thereof;
(viiii) in the event of:
of Borrower’s default under Section5.2.10 hereof or Article 7 of the Security Instruments, (ii) if any Individual Property, the Collateral or any part thereof shall become an asset in (A) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing a voluntary petition under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; proceeding or (B) the filing of an involuntary petition against Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law proceeding commenced by any Person in which Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of their respective Affiliates, agents or employees colludes with or such other Person, or Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor soliciting or causing to be solicited petitioning creditors for any involuntary petition against Borrower, Operating Company or any Guarantor from any Person; (C) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing an answer consenting to or otherwise acquiescing in or joining in any involuntary petition filed against it by any other Person, other than Lender, under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (D) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor consenting to or acquiescing in or joining in an application for the appointment of a custodian, receiver, trustee, or examiner for Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of the Properties, the Collateral, the Senior Mezzanine Collateral or any portion thereof, other than at the request of Lender; or (E) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor making an assignment for the benefit of creditors (other than Lender), or admitting, in writing or in any legal proceeding, its insolvency or inability to pay its debts as they become due;
(ix) if Borrower, Senior Mezzanine and Borrower or Mortgage Borrower fails to maintain its status as a Special Purpose Entity or breaches any material representation or warranty set forth in Section 4.1.30 of this Agreement; and
(x) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company fails to obtain Lender’s prior consent to any voluntary Indebtedness (other than (x) with respect to Mortgage Borrower, Permitted Indebtedness and (y) with respect to Operating Company, Permitted Indebtedness (Operating Company), as applicable, fails to use its commercially reasonable efforts to obtain a dismissal of such proceedings.
(d) or voluntary Lien (other than Permitted Encumbrances) encumbering any of the Properties, Senior Mezzanine Collateral or Collateral as required by this Agreement, the Senior Mezzanine Loan Agreement, the Mortgage Loan Agreement, the Pledge Agreement or the Mortgages. Notwithstanding anything to the contrary under this Agreement, neither any present or future Affiliate of Borrower (other than Guarantor, to the extent provided under the Guaranty) nor any present or future shareholder, officer, director, employee, trustee, beneficiary, advisor, partner, member, principal, participant or agent of or in any Borrower or of or in any person or entity that is or becomes an Affiliate of any Borrower Nothing herein shall have any personal liability, directly or indirectly, under or in connection with the Loan Documents. Neither the negative capital account of any Affiliate of Borrower in Borrower, or in any other Affiliate of Borrower in any other Affiliate of Borrower, nor any obligation of any Affiliate of Borrower in any Borrower to restore a negative capital account or to contribute or loan capital to any Borrower or to any other Affiliate of Borrower shall at any time be deemed to be the property or an asset a waiver of any Borrower (or any other Affiliate of Borrower) and neither Lender nor its successors or assigns shall have any right to collect, enforce or proceed against any such negative capital account or obligation to restore, contribute or loan capital.
(b) Notwithstanding anything to the contrary in this Agreement, the Note or any of the Loan Documents, Lender shall not be deemed to have waived any right which Lender may have under Section 506(a), 506(b), 1111(b) or any other provisions provision of the Bankruptcy Code to file a claim for the full amount of the Indebtedness indebtedness secured by the Pledge Agreement or to require that all collateral shall continue to secure all of the Indebtedness indebtedness owing to Lender in accordance with this Agreement, the Note, the Pledge Agreement and the other Loan Documents.
Appears in 2 contracts
Sources: Mezzanine Loan Agreement (Meristar Hospitality Operating Partnership Lp), Mezzanine Loan Agreement (Meristar Hospitality 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 sue for, ▇▇▇ for, seek ek 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:
(i) fraud or intentional misrepresentation by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor Borrower Party in connection with the execution and delivery of the Loan Documents and/or the Loan;
(ii) the misappropriation, conversion gross negligence or misapplication in contravention willful misconduct of any Borrower Party;
(iii) material physical waste to any Individual Property arising from the Loan Documents intentional acts or omissions of any Borrower Party (it being acknowledged that omissions to perform acts for which sufficient cash flow is not available from the Properties shall not be deemed an intentional omission for purposes of this clause (iii));
(iv) the removal or disposal by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company any Borrower Party or any Guarantor of its respective Affiliates of any funds portion of Borrower, Senior Mezzanine Borrower, Mortgage any Individual Property after an Event of Default unless such portion of any Individual Property so removed or so disposed of is replaced with property of equal utility and value or such removal or disposal was otherwise permitted pursuant to the terms and conditions hereof;
(v) the misapplication or conversion by any Borrower or Operating Company, including, without limitation, Party of (A) any Revenuesinsurance proceeds paid by reason of any loss, damage or destruction to any Individual Property (or any portion thereof), (B) any Net Liquidation Proceeds Awards or Insurance Proceedsother amounts received in connection with the Condemnation of all or a portion of any Individual Property, (C) any Awards received in connection with a CondemnationRents following an Event of Default, (D) any Rents paid more than one month in advance and/or (E) any Net Liquidation Proceeds After Debt Service;
(vi) failure to pay Taxes, charges for labor or security deposits materials or other charges that can create liens on any portion of any Individual Property in accordance with the terms and provisions hereof; provided, however, Borrower shall have no liability under this subsection (vi) if (A) such Taxes, charges for labor or materials or other charges that can create liens are being contested in accordance with the terms and conditions hereof or (B) sufficient cash flow is not available from the Properties to pay such amounts; provided, that, in no instance shall Borrower be released from any item liability pursuant to this clause (vi) to the extent (1) such insufficiency of Revenue, cash flow arises from whatever sourcethe intentional misappropriation or conversion of Rent by any Borrower Party or (2) following Borrower or Mortgage Borrower incurred such charges after the occurrence and during the continuance of an Event of Default, except to the extent such charges were (I) necessary to protect against imminent danger to the health or safety of any Tenant or any Person at or in the immediate vicinity of any Individual Property or to prevent any imminent defect, damage or harm to any Individual Property, (II) contracted for prior to such Event of Default or (EIII) any distribution or other payments made consented to in connection with any part of the Collateral or Senior Mezzanine Collateral;
(iii) the misappropriation, conversion or misapplication writing by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any security deposits or Rents paid more than one (1) month in advance;
(iv) any act of actual intentional physical waste by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor;
(v) the breach of any representation, warranty, covenant or indemnification provision in the Environmental Indemnity Agreement concerning environmental laws, hazardous substances and asbestos and any indemnification of Lender with respect thereto in either document;
(vi) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company fails to obtain Lender’s prior consent to any voluntary intentional Transfer as required by this Agreement, the Mortgage Loan Agreement or the Mortgages, as applicable;
(vii) any security deposits, advance deposits or any other deposits collected with respect to any of the Properties Individual Property which are not delivered to Mortgage Lender upon a foreclosure of any of the Properties Collateral or action in lieu thereof, except to the extent any such security deposits were applied in accordance with the terms and conditions of any of the Leases prior to the occurrence of the Event of Default that gave rise to such foreclosure or action in lieu thereof;
(viii) in the event of:
(A) breach or violation by Borrower, Mezzanine A Borrower, Mortgage BorrowerBorrower and/or any Applicable SPE Component Entity of any representation, Senior Mezzanine Borrower, Operating Company warranty or any Guarantor filing a voluntary petition under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (B) the filing of an involuntary petition against Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law by any Person covenant contained in which Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of their respective Affiliates, agents or employees colludes with or such other Person, or Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor soliciting or causing to be solicited petitioning creditors for any involuntary petition against Borrower, Operating Company or any Guarantor from any Person; (C) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing an answer consenting to or otherwise acquiescing in or joining in any involuntary petition filed against it by any other Person, other than Lender, under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (D) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor consenting to or acquiescing in or joining in an application for the appointment of a custodian, receiver, trustee, or examiner for Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of the Properties, the Collateral, the Senior Mezzanine Collateral or any portion thereof, other than at the request of Lender; or (E) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor making an assignment for the benefit of creditors (other than Lender), or admitting, in writing or in any legal proceeding, its insolvency or inability to pay its debts as they become dueArticle 5 hereof;
(ix) if the failure by Borrower to (A) permit (or cause Mortgage Borrower or Mezzanine A Borrower to permit) on-site inspections of any Individual Property, (B) provide any financial information regarding hereunder and/or pursuant to the other Loan Documents and/or (C) appoint (or cause Mortgage Borrower to appoint) a Qualified Manager pursuant to a Qualified Management Agreement upon the request of Lender which failure constitutes an Event of Default;
(x) a breach of Section 11.1 and/or Section 11.2 hereof, which breach continues for three (3) Business Days after notice from Lender;
(xi) any material amendment, material modification or voluntary termination of any Ground Lease by any Borrower, Senior Mezzanine A Borrower or any Mortgage Borrower without Lender’s consent other than as expressly permitted pursuant to the terms hereof;
(xii) the termination or suspension of any Health Care License arising in connection with any grossly negligent or willful material violation of any Health Care Requirement or otherwise by Borrower, Mezzanine A Borrower or Mortgage Borrower fails to maintain its status as a Special Purpose Entity or breaches any material representation voluntary termination or warranty set forth in Section 4.1.30 rejection of this Agreement; and
(x) if any such Health Care License by Borrower, Mezzanine A Borrower or Mortgage Borrower, Senior in each instance, which termination, suspension or rejection constitutes an Event of Default;
(xiii) any violation of Article 6 hereof not otherwise covered pursuant to clauses (b)(iv) and (b)(v) immediately below, provided, however, for the avoidance of doubt, a Sale or Pledge resulting from the consummation of an enforcement action by Lender, Mortgage Lender or the holder of any Mezzanine Loan shall not be a Sale or Pledge in violation of Article 6 hereof; or
(xiv) the incurrence by Mortgage Borrower or Operating Company fails to obtain Lender’s prior consent to of any voluntary Indebtedness (other than (x) with respect to Mortgage Borrower, Permitted Indebtedness and (y) with respect to Operating Company, Permitted Indebtedness (Operating Company), as applicable) or voluntary Lien (other than Permitted Encumbrances) encumbering any of the Properties, Senior Mezzanine Collateral or Collateral as required indebtedness prohibited by this Agreement, the Senior Mezzanine Loan Agreement, the Mortgage Loan Agreement, the Pledge Agreement or the Mortgages. Notwithstanding anything to the contrary under this Agreement, neither any present or future Affiliate of by Mezzanine A Borrower (other than Guarantor, to the extent provided under the Guaranty) nor any present or future shareholder, officer, director, employee, trustee, beneficiary, advisor, partner, member, principal, participant or agent of or in any Borrower or of or in any person or entity that is or becomes an Affiliate of any Borrower shall have any personal liability, directly or indirectly, under or in connection with voluntary indebtedness prohibited by the Mezzanine A Loan Documents. Neither the negative capital account of any Affiliate of Borrower in Borrower, or in any other Affiliate of Borrower in any other Affiliate of Borrower, nor any obligation of any Affiliate of Borrower in any Borrower to restore a negative capital account or to contribute or loan capital to any Borrower or to any other Affiliate of Borrower shall at any time be deemed to be the property or an asset of any Borrower (or any other Affiliate of Borrower) and neither Lender nor its successors or assigns shall have any right to collect, enforce or proceed against any such negative capital account or obligation to restore, contribute or loan capitalAgreement.
(b) Notwithstanding anything to the contrary in this Agreement, the Note or any of the Loan Documents, (A) Lender shall not be deemed to have waived any right which Lender may have under Section 506(a), 506(b), 1111(b) or any other provisions of the Bankruptcy Code to file a claim for the full amount of the Indebtedness Debt or to require that all collateral shall continue to secure all of the Indebtedness Debt owing to Lender in accordance with the Loan Documents, and (B) the Debt shall be fully recourse to Borrower in the event that: (i) a Bankruptcy Event occurs, (ii) the first full monthly payment of principal (if any) and interest under the Note is not paid when due; (iii) any representation, warranty or covenant contained in Article 5 is violated or breached and such breach or violation results in, or is a substantial factor in, a substantive consolidation of Borrower, Mezzanine A Borrower, Mortgage Borrower and/or any Applicable SPE Component Entity with any other Person in a bankruptcy or similar proceedings; (iv) if Borrower, Mortgage Borrower, Mezzanine A Borrower and/or any Applicable SPE Component Entity fails to obtain Lender’s prior written consent to (A) any voluntary indebtedness or (B) voluntary monetary lien encumbering any Individual Property or any Applicable Collateral to the extent such lien required Lender’s consent under this Agreement or the other Loan Documents; or (v) if Borrower, Mezzanine A Borrower, Mortgage Borrower and/or any Applicable SPE Component Entity fails to obtain Lender’s prior written consent to any voluntary transfer of any material portion of any Individual Property or any Applicable Collateral or to any voluntary act that causes a change in the ownership of Borrower, Mezzanine A Borrower, Mortgage Borrower and/or any Applicable SPE Component Entity to the extent such ownership change required Lender’s consent under this Agreement; provided, however, for the avoidance of doubt, a Sale or Pledge resulting from the consummation of an enforcement action by Lender, Mortgage Lender or the holder of any Mezzanine Loan shall not be a Sale or Pledge in violation of Article 6 hereof. Notwithstanding any provision contained herein or in any other Loan Document, no direct or indirect shareholder, partner, member, principal, affiliate, employee, officer, director, agent or representative of Borrower (each, a “Related Party”) (other than (a) Guarantor in accordance with the Guaranty and the Environmental Indemnity and (b) any Manager that is an Affiliate of Borrower in accordance with any Loan Document to which such Manager may be a party) shall have any personal liability for, nor be joined as a party to any action with respect to (i) the payment of any sum of money which is or may be payable hereunder or under any other Loan Documents, including, but not limited to, the repayment of the Loan or (ii) the performance or discharge of any covenants, obligations or undertakings of Guarantor or any Related Party with respect thereto. In addition to the foregoing, anything contained herein or in the other Loan Documents notwithstanding, in no event will the assets of any Related Party (other than Guarantor in accordance with the Guaranty and the Environmental Indemnity) be available to satisfy any obligation of Borrower hereunder.
Appears in 2 contracts
Sources: Mezzanine Loan Agreement (NorthStar Healthcare Income, Inc.), Mezzanine Loan Agreement (Northstar Realty Finance 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 ▇▇▇ 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:
(i) fraud or intentional misrepresentation by any Borrower, Mortgage Borrowerany Manager, Senior Mezzanine Borrower, any Operating Company or any Guarantor in connection with the execution and delivery of the Loan Documents and/or the Loan;
(ii) the misappropriation, conversion or misapplication in contravention of the Loan Documents by any Borrower, Mortgage Borrowerany Manager, Senior Mezzanine Borrower, any Operating Company or any Guarantor of any funds of any Borrower, Senior Mezzanine Borrower, Mortgage Borrower any Manager or any Operating Company, including, without limitation, (A) any Revenues, (B) any Net Liquidation Insurance Proceeds or Insurance Proceedspaid by reason of any Casualty, (C) any Awards received in connection with a Condemnation, or (D) any Rents or security deposits (or any item of Revenue, from whatever source) following an Event of Default, or (E) any distribution or other payments made in connection with any part of the Collateral or Senior Mezzanine Collateral;
(iii) the misappropriation, conversion or misapplication by any Borrower, Mortgage Borrowerany Manager, Senior Mezzanine Borrower, any Operating Company or any Guarantor of any security deposits or Rents paid more than one (1) month in advance;
(iv) any act of actual intentional physical waste by any Borrower, Mortgage Borrowerany Manager, Senior Mezzanine Borrower, any Operating Company or any Guarantor;
(v) the breach of any representation, warranty, covenant or indemnification provision in the Environmental Indemnity Agreement or in the Mortgages concerning environmental laws, hazardous substances and asbestos and any indemnification of Lender Lender, Servicer or Collateral Agent with respect thereto in either document;
(vi) if Borrower, Mortgage Borrower, Senior Mezzanine any Borrower or any Operating Company fails to obtain Lender’s prior consent to any voluntary intentional Transfer as required by this Agreement, the Mortgage Loan Agreement or the Mortgages, as applicable;
(vii) any security deposits, advance deposits or any other deposits collected with respect to any of the Properties which are not delivered to Mortgage Lender upon a foreclosure of any of the Properties or action in lieu thereof, except to the extent any such security deposits were applied in accordance with the terms and conditions of any of the Leases prior to the occurrence of the Event of Default that gave rise to such foreclosure or action in lieu thereof;
(viii) in the event of:
: (A) any Borrower, Mortgage Borrower, Senior Mezzanine Borrower, any Operating Company or any Guarantor filing a voluntary petition under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (B) the filing of an involuntary petition against any Borrower, Mortgage Borrower, Senior Mezzanine Borrower, any Operating Company or any Guarantor under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law by any Person in which such Borrower, Mortgage Borrower, Senior Mezzanine Borrower, such Operating Company or any such Guarantor or any of their respective Affiliates, agents or employees colludes with or such other Person, or such Borrower, Mortgage Borrower, Senior Mezzanine Borrower, such Operating Company or any such Guarantor soliciting or causing to be solicited petitioning creditors for any involuntary petition against such Borrower, such Operating Company or any such Guarantor from any Person; (C) any Borrower, Mortgage Borrower, Senior Mezzanine Borrower, any Operating Company or any Guarantor filing an answer consenting to or otherwise acquiescing in or joining in any involuntary petition filed against it by any other Person, other than Lender, under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (D) any Borrower, Mortgage Borrower, Senior Mezzanine Borrower, any Operating Company or any Guarantor consenting to or acquiescing in or joining in an application for the appointment of a custodian, receiver, trustee, or examiner for such Borrower, Mortgage Borrower, Senior Mezzanine Borrower, such Operating Company or any such Guarantor or any of the Properties, the Collateral, the Senior Mezzanine Collateral Properties or any portion thereof, other than at the request of Lender; or (E) any Borrower, Mortgage Borrower, Senior Mezzanine Borrower, any Operating Company or any Guarantor making an assignment for the benefit of creditors (other than Lender), or admitting, in writing or in any legal proceeding, its insolvency or inability to pay its debts as they become due;
(ix) if Borrower, Senior Mezzanine Borrower or Mortgage any Borrower fails to maintain its status as a Special Purpose Entity or breaches any material representation or warranty set forth in Section 4.1.30 of this Agreement; and
(x) if Borrower, Mortgage Borrower, Senior Mezzanine any Borrower or any Operating Company fails to obtain Lender’s prior consent to any voluntary Indebtedness (other than (x) with respect to Mortgage Borrower, Permitted Indebtedness and (y) with respect to Operating Company, or Permitted Indebtedness (Operating Company), as applicable) or voluntary Lien (other than Permitted Encumbrances) encumbering any of the Properties, Senior Mezzanine Collateral or Collateral Properties as required by this Agreement, the Senior Mezzanine Loan Agreement, the Mortgage Loan Agreement, the Pledge Agreement or the Mortgages. Notwithstanding anything to the contrary under this Agreement, neither any present or future Affiliate of any Borrower (other than Guarantor, to the extent provided under the Guaranty) nor any present or future shareholder, officer, director, employee, trustee, beneficiary, advisor, partner, member, principal, participant or agent of or in any Borrower or of or in any person or entity that is or becomes an Affiliate of any Borrower shall have any personal liability, directly or indirectly, under or in connection with the Loan Documents. Neither the negative capital account of any Affiliate of any Borrower in such Borrower, or in any other Affiliate of Borrower in any other Affiliate of such Borrower, nor any obligation of any Affiliate of any Borrower in any such Borrower to restore a negative capital account or to contribute or loan capital to any such Borrower or to any other Affiliate of such Borrower shall at any time be deemed to be the property or an asset of any such Borrower (or any other Affiliate of such Borrower) and neither Lender nor its successors or assigns shall have any right to collect, enforce or proceed against any such negative capital account or obligation to restore, contribute or loan capital.
(b) Notwithstanding anything to the contrary in this Agreement, the Note or any of the Loan Documents, Lender shall not be deemed to have waived any right which Lender may have under Section 506(a), 506(b), 1111(b) or any other provisions of the Bankruptcy Code to file a claim for the full amount of the Indebtedness or to require that all collateral shall continue to secure all of the Indebtedness owing to Lender in accordance with the Loan Documents.
Appears in 2 contracts
Sources: Loan Agreement, 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 ▇▇▇ 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; Properties.
(b) Nothing contained herein shall in any manner or (g) constitute a waiver of way release, affect or impair the right of Lender to enforce the liability recover, and obligation of BorrowerBorrower shall be fully and personally liable and subject to legal action, by money judgment or otherwise, to the extent of for any actual loss, damage, cost, expense, liabilitydamage, claim or other obligation incurred by Lender (including without limitation reasonable and documented attorneys’ fees and costs reasonably incurredcourt costs) incurred or suffered by Lender arising out of or in connection with the following:
(i) fraud or intentional misrepresentation by any Individual Borrower, Mortgage BorrowerSole Member, Senior Mezzanine Borrowerany Master Tenant, Operating Company any Lineage Subtenant or any Guarantor in connection with the execution and delivery of the Loan Documents and/or the Loan;
(ii) the misappropriation, conversion gross negligence or misapplication in contravention willful misconduct of the Loan Documents by any Individual Borrower, Mortgage BorrowerSole Member, Senior Mezzanine Borrowerany Master Tenant, Operating Company any Lineage Subtenant or any Guarantor of any funds of Borrower, Senior Mezzanine Borrower, Mortgage Borrower or Operating Company, including, without limitation, (A) any Revenues, (B) any Net Liquidation Proceeds or Insurance Proceeds, (C) any Awards received in connection with a Condemnation, (D) any Rents the Loan or security deposits (or any item of Revenue, from whatever source) following an Event of Default, or (E) any distribution or other payments made in connection with any part of the Collateral or Senior Mezzanine CollateralProperties;
(iii) the misappropriation, conversion or misapplication by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any security deposits or Rents paid more than one (1) month in advance;
(iv) any act of actual intentional physical waste by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor;
(v) the breach of any representation, warranty, covenant or indemnification provision in the Environmental Indemnity Agreement or in the Mortgages concerning environmental laws, hazardous substances and asbestos and any indemnification of Lender with respect thereto in either any such document;
(iv) the removal or disposal of any portion of any Individual Property during the continuance of an Event of Default (unless such portion of the Individual Property is replaced by an item of equal or greater value);
(v) material physical waste of any Individual Property caused by the intentional acts or intentional omissions of any Individual Borrower, Sole Member, any Master Tenant, any Lineage Subtenant or Guarantor (provided that physical waste shall not include normal and reasonable wear and tear to any Individual Property that occurs in the ordinary course of business);
(vi) if the misapplication or conversion by any Individual Borrower, Mortgage BorrowerSole Member, Senior Mezzanine Borrower any Master Tenant or Operating Company fails to obtain Lender’s prior consent to Guarantor of (A) any voluntary intentional Transfer as required Insurance Proceeds paid by this Agreementreason of any Casualty, (B) any Awards received in connection with a Condemnation, (C) any Rents following the Mortgage Loan Agreement occurrence and during the continuance of an Event of Default, or the Mortgages, as applicable(D) any Rents paid more than one (1) month in advance;
(vii) failure to pay charges for labor or materials or other charges or judgments that can create Liens on any portion of any Individual Property unless (A) such charges or other judgments are being contested as permitted hereunder, (B) funds for payment of such charges or judgments are being held by Lender in any Reserve Fund or (C) there are insufficient Rents to pay the same;
(viii) any security deposits, advance deposits or any other deposits collected by Borrower with respect to any of the Properties Individual Property which are not delivered to Mortgage Lender upon a foreclosure of any of the Properties such Individual Property or action in lieu thereof, except to the extent any such security deposits were applied in accordance with the terms and conditions of any of the Leases prior to the occurrence of the Event of Default that gave rise to such foreclosure or action in lieu thereof;
(viii) in the event of:
(A) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing a voluntary petition under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (B) the filing of an involuntary petition against Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law by any Person in which Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of their respective Affiliates, agents or employees colludes with or such other Person, or Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor soliciting or causing to be solicited petitioning creditors for any involuntary petition against Borrower, Operating Company or any Guarantor from any Person; (C) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing an answer consenting to or otherwise acquiescing in or joining in any involuntary petition filed against it by any other Person, other than Lender, under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (D) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor consenting to or acquiescing in or joining in an application for the appointment of a custodian, receiver, trustee, or examiner for Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of the Properties, the Collateral, the Senior Mezzanine Collateral or any portion thereof, other than at the request of Lender; or (E) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor making an assignment for the benefit of creditors (other than Lender), or admitting, in writing or in any legal proceeding, its insolvency or inability to pay its debts as they become dueLeases;
(ix) except with respect to the release of Condemnation Parcel pursuant to Section 2.5.5 hereof, the difference, if Borrowerany, Senior Mezzanine Borrower or Mortgage Borrower fails between (A) the actual amount of any prepayment of the Loan paid to maintain its status as Lender in connection with a Special Purpose Entity or breaches deemed sale of such Individual Property pursuant to Section 2.4.2(b) and (B) the Adjusted Release Amount of such Individual Property, provided that any material representation or warranty set forth in Section 4.1.30 liability incurred pursuant to this clause (ix) shall not exceed ten percent (10%) of this Agreement; andthe Original Principal Indebtedness;
(x) if a breach of Section 9.2 hereof;
(xi) any physical damage to any Property resulting from the removal of equipment, personalty, fixtures or improvements therefrom in connection with a foreclosure by any lender to any Master Tenant or any Lineage Subtenant having a security interest in such equipment, personalty, fixtures or improvements;
(xii) any Individual Borrower failing, or at any time having failed to be a Special Purpose Entity, including, without limitation, by virtue of owning any property other than the Property;
(xiii) the failure of the representations contained in Section 4.1.38(v) or 4.1.38(xi) to be true, without giving effect to any exceptions to such representations;
(xiv) a breach of the first sentence of Section 5.1.20(e);
(xv) any act or omission of any Individual Borrower, Mortgage BorrowerSole Member, Senior Mezzanine Borrower Guarantor, any Master Tenant, any Lineage Subtenant or Operating Company fails to obtain their respective Affiliates which hinders, delays or interferes with Lender’s prior consent to enforcement of its rights under the Loan Documents or the realization on any voluntary Indebtedness (collateral for the Loan, other than acts or omissions taken (xor not taken) in good faith; or
(xvi) to the extent that the Earn-Out Property (▇▇▇▇▇▇ ▇▇▇▇ SW) becomes collateral for the Loan, all amounts set forth on Schedule 7.5.1 with respect to Mortgage Borrower, Permitted Indebtedness and Unfunded Obligations related to the Earn-Out Property (y▇▇▇▇▇▇ ▇▇▇▇ SW) with respect to Operating Company, Permitted Indebtedness (Operating Company), that have not been previously satisfied by the seller of such Property as applicable) or voluntary Lien (other than Permitted Encumbrances) encumbering any of the Propertiesdate on which the applicable Individual Borrower acquired the same, Senior Mezzanine Collateral or Collateral for so long as required by this Agreementsuch Unfunded Obligations remain unsatisfied; provided, the Senior Mezzanine Loan Agreementhowever, the Mortgage Loan Agreement, the Pledge Agreement or the Mortgages. Notwithstanding anything to the contrary that there shall be no liability under this Agreement, neither any present or future Affiliate of Borrower clause (other than Guarantor, xvi) to the extent provided under that the Guaranty) nor any present Tenant at such Individual Property delivers an executed notice of commencement of its Lease confirming the satisfaction of such Unfunded Obligations or future shareholder, officer, director, employee, trustee, beneficiary, advisor, partner, member, principal, participant or agent of or in any Borrower or of or in any person or entity that is or becomes an Affiliate of any Borrower shall have any personal liability, directly or indirectly, under or in connection with such other notice by such Tenant confirming the Loan Documents. Neither the negative capital account of any Affiliate of Borrower in Borrower, or in any other Affiliate of Borrower in any other Affiliate of Borrower, nor any obligation of any Affiliate of Borrower in any Borrower to restore a negative capital account or to contribute or loan capital to any Borrower or to any other Affiliate of Borrower shall at any time be deemed to be the property or an asset of any Borrower (or any other Affiliate of Borrower) and neither Lender nor its successors or assigns shall have any right to collect, enforce or proceed against any such negative capital account or obligation to restore, contribute or loan capitalsame).
(bc) Notwithstanding anything to the contrary in this Agreement, the Note or any of the Loan Documents, (A) Lender shall not be deemed to have waived any right which Lender may have under Section 506(a), 506(b), 1111(b) or any other provisions of the Bankruptcy Code to file a claim for the full amount of the Indebtedness Debt secured by the Mortgages or to require that all collateral shall continue to secure all of the Indebtedness Debt owing to Lender in accordance with the Loan Documents, and (B) the Debt shall be fully recourse to Borrower (1) in the event of: (aa) any Individual Borrower filing a voluntary petition under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (bb) the filing of an involuntary petition against any Individual Borrower under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law in which Borrower, Sole Member or Guarantor colludes with, or otherwise assists such Person, or solicits or causes to be solicited petitioning creditors for any involuntary petition against Borrower from any Person; (cc) Borrower filing an answer consenting to or otherwise acquiescing in or joining in any involuntary petition filed against it, by any other Person under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (dd) Borrower consenting to or acquiescing in or joining in an application for the appointment of a custodian, receiver, trustee, or examiner for Borrower or any portion of any Individual Property; or (ee) Borrower making an assignment for the benefit of creditors; (2) if any Individual Borrower fails to comply in any material respect with any representation, warranty or covenant set forth in Section 4.1.30 hereof; (3) if Borrower fails to obtain Lender’s prior written consent to any Indebtedness or voluntary Lien encumbering any of the Properties except Indebtedness and Liens permitted pursuant to this Agreement; provided, however, to the extent any such Indebtedness results from the recharacterization of an operating lease to a capital lease, Borrower’s liability hereunder shall be limited to any loss, cost, expense, damage, claim or other obligation (including without limitation reasonable and documented attorneys’ fees and court costs) incurred or suffered by Lender in connection therewith; or (4) if Borrower fails to obtain ▇▇▇▇▇▇’s prior written consent to any Transfer, to the extent such consent is required by this Agreement.
Appears in 2 contracts
Sources: Loan Agreement (Lineage, Inc.), Loan Agreement (Lineage, 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/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) ▇▇▇ 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:
(i) fraud or intentional misrepresentation by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor in connection with the execution and delivery of the Loan Documents Insurance Proceeds and/or the Loan;
(ii) the misappropriation, conversion or misapplication in contravention of the Loan Documents by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any funds of Borrower, Senior Mezzanine Borrower, Mortgage Borrower or Operating Company, including, without limitation, (A) any Revenues, (B) any Net Liquidation Proceeds or Insurance Proceeds, (C) any Awards received in connection with a Condemnation, (D) any Rents or security deposits (or any item of Revenue, from whatever source) following an Event of Default, or (E) any distribution or other payments made in connection with any part of the Collateral or Senior Mezzanine Collateral;
(iii) the misappropriation, conversion or misapplication by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any security deposits or Rents paid more than one (1) month in advance;
(iv) any act of actual intentional physical waste by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor;
(v) the breach of any representation, warranty, covenant or indemnification provision in the Environmental Indemnity Agreement concerning environmental laws, hazardous substances and asbestos and any indemnification of Lender with respect thereto in either document;
(vi) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company fails to obtain Lender’s prior consent to any voluntary intentional Transfer as required by this Agreement, the Mortgage Loan Agreement or the Mortgages, as applicable;
(vii) any security deposits, advance deposits or any other deposits collected with respect to any of the Properties which are not delivered to Mortgage Lender upon a foreclosure of any of the Properties or action in lieu thereof, except to the extent any such security deposits were applied in accordance with the terms and conditions of any of the Leases prior to the occurrence of the Event of Default that gave rise to such foreclosure or action in lieu thereof;
(viii) in the event of:
(A) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing a voluntary petition under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (B) the filing of an involuntary petition against Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law by any Person in which Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of their respective Affiliates, agents or employees colludes with or such other Person, or Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor soliciting or causing to be solicited petitioning creditors for any involuntary petition against Borrower, Operating Company or any Guarantor from any Person; (C) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing an answer consenting to or otherwise acquiescing in or joining in any involuntary petition filed against it by any other Person, other than Lender, under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (D) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor consenting to or acquiescing in or joining in an application for the appointment of a custodian, receiver, trustee, or examiner for Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of the Properties, the Collateral, the Senior Mezzanine Collateral or any portion thereof, other than at the request of Lender; or (E) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor making an assignment for the benefit of creditors (other than Lender), or admitting, in writing or in any legal proceeding, its insolvency or inability to pay its debts as they become due;
(ix) if Borrower, Senior Mezzanine Borrower or Mortgage Borrower fails to maintain its status as a Special Purpose Entity or breaches any material representation or warranty set forth in Section 4.1.30 of this Agreement; and
(x) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company fails to obtain Lender’s prior consent to any voluntary Indebtedness (other than (x) with respect to Mortgage Borrower, Permitted Indebtedness and (y) with respect to Operating Company, Permitted Indebtedness (Operating Company), as applicable) or voluntary Lien (other than Permitted Encumbrances) encumbering any of the Properties, Senior Mezzanine Collateral or Collateral as required by this Agreement, the Senior Mezzanine Loan Agreement, the Mortgage Loan Agreement, the Pledge Agreement or the Mortgages. Notwithstanding anything to the contrary under this Agreement, neither any present or future Affiliate of Borrower (other than Guarantor, to the extent provided under the Guaranty) nor any present or future shareholder, officer, director, employee, trustee, beneficiary, advisor, partner, member, principal, participant or agent of or in any Borrower or of or in any person or entity that is or becomes an Affiliate of any Borrower shall have any personal liability, directly or indirectly, under or in connection with the Loan Documents. Neither the negative capital account of any Affiliate of Borrower in Borrower, or in any other Affiliate of Borrower in any other Affiliate of Borrower, nor any obligation of any Affiliate of Borrower in any Borrower to restore a negative capital account or to contribute or loan capital to any Borrower or to any other Affiliate of Borrower shall at any time be deemed to be the property or an asset of any Borrower (or any other Affiliate of Borrower) and neither Lender nor its successors or assigns shall have any right to collect, enforce or proceed against any such negative capital account or obligation to restore, contribute or loan capitalAwards.
(b) Notwithstanding anything to the contrary in this Agreement, the Note or any of the Loan Documents, Lender shall not be deemed to have waived any right which Lender may have under Section 506(a), 506(b), 1111(b) or any other provisions of the Bankruptcy Code to file a claim for the full amount of the Indebtedness or to require that all collateral shall continue to secure all of the Indebtedness owing to Lender in accordance with the Loan Documents.
Appears in 2 contracts
Sources: 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 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, 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, 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 and the Qualified Preferred Equity Recognition 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 only to the extent of 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 Mortgage and the other Loan Documents, agrees that it shall not ▇▇▇ 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 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 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 and the Qualified Preferred Equity Recognition 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 Borrower, 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 for any or all of the following being referred to herein as “Borrower’s Recourse Liabilities”):
(i) fraud or intentional misrepresentation committed by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company any Guarantor or any Affiliate of Borrower or any Guarantor in connection with the execution and delivery of the Loan Documents and/or the Loan;
(ii) intentional failure to disclose a material fact known to Borrower, any Guarantor, or any Affiliate of Borrower or any Guarantor in connection with the misappropriation, conversion or misapplication in contravention origination of the Loan Documents by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any funds of Borrower, Senior Mezzanine Borrower, Mortgage Borrower or Operating Company, including, without limitation, (A) any Revenues, (B) any Net Liquidation Proceeds or Insurance Proceeds, (C) any Awards received that if disclosed would be reasonably expected to have had a material adverse effect on the Lender’s determination to provide the Loan in connection with a Condemnation, (D) any Rents or security deposits (or any item of Revenue, from whatever source) following an Event of Default, or (E) any distribution or other payments made the amount and on the terms set forth in connection with any part of the Collateral or Senior Mezzanine CollateralLoan Documents;
(iii) the misappropriation, conversion or misapplication by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any security deposits or Rents paid more than one (1) month in advance[reserved];
(iv) wrongful removal of personal property from the Properties during an Event of Default by Borrower or on behalf of Borrower by any act Guarantor or any Affiliate of actual Borrower or any Guarantor, unless replaced with personal property of substantially the same or greater utility and of the same or greater value;
(v) any intentional physical waste Waste at any Individual Property committed by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company Borrower or on behalf of Borrower by any Guarantor or any Affiliate of Borrower or any Guarantor;
(vvi) the misappropriation by Borrower or on behalf of Borrower by any Guarantor or any Affiliate of Borrower or any Guarantor of (A) any Insurance Proceeds paid by reason of any Casualty to any Individual Property, (B) any Awards in connection with the Condemnation of any Individual Property and (C) any Gross Revenues after (or that results in) an Event of Default, in each case, in violation of the Loan Documents;
(vii) failure to obtain and maintain the fully paid for Policies in accordance with Section 5.1.1 to the extent that adequate funds were available to Borrower from the income of the Properties for the payment of the premiums thereof;
(viii) any breach of any representationprovision of Section 4.4 or Schedule V of this Agreement (other than with respect to clause (d) of Schedule V (with respect to trade payables only), warrantyclause (f) of Schedule V, covenant or indemnification provision clause (j) of Schedule V, clause (o) of Schedule V (with respect to trade payables only), clause (v) of Schedule V and clause (w) of Schedule V) that does not result in the Environmental Indemnity Agreement concerning environmental laws, hazardous substances substantive consolidation of the assets and asbestos and liabilities of Borrower with any indemnification other Person (other than another Individual Borrower or the Liquor Subsidiary) as a result of Lender with respect thereto in either documentsuch breach;
(viix) any and all Divested Property Liabilities; and/or
(x) the modification of any Ground Lease if Borrower, such modification is prohibited under this Agreement or under any Mortgage Borrower, Senior Mezzanine and such modification has a material adverse effect on the related Individual Property or the leasehold interest therein (including the value or operation thereof) or Lender’s ability to exercise its rights and remedies under the Loan Documents.
(i) Borrower or Operating Company fails to obtain Lender’s prior consent to any financing for borrowed money secured by any Individual Property, or any voluntary intentional Transfer conveyance of a mortgage, deed of trust, security deed, security agreement or similar grant by Borrower of a voluntary Lien upon any Individual Property, or any voluntary granting of a security interest in, voluntary pledge of or other voluntary Lien upon any direct or indirect equity interest in any Individual Borrower, any SPC Party or any Mezzanine Borrower, in each case, as required by this Agreementsecurity for any obligations or liabilities that is not permitted under the Loan Documents (excluding, for the avoidance of doubt, the Mortgage security interests, pledges or Liens granted under the Loan Agreement Documents or Mezzanine Loan Documents securing the Mortgages, as applicable;
Loan or any Mezzanine Loan); (viiii) Borrower fails to obtain Lender’s prior consent to (a) any security depositsvoluntary transfer of any Individual Property that is not permitted under the Loan Documents or (b) any voluntary transfer of a direct or indirect interest in Borrower that results in a change of control of Borrower that is not permitted under the Loan Documents (specifically excluding from this clause (ii), advance deposits (x) any transfer of the direct ownership interests in any Individual Borrower, any SPC Party, or any other deposits collected with respect Mezzanine Borrower to any Mezzanine Lender or its designee as result of any foreclosure upon such ownership interests (or transfer-in-lieu of foreclosure of the Properties which ownership interests that are not delivered to Mortgage Lender upon a foreclosure of any of the Properties or action in lieu thereofcollateral for the applicable Mezzanine Loan), except to the extent any such security deposits were applied consummated in accordance with the terms applicable Mezzanine Loan Documents and conditions (y) any Qualified Preferred Equity Vehicle Change of any of the Leases prior to the occurrence of the Event of Default that gave rise to such foreclosure or action Control consummated in lieu thereof;
accordance with Section 7.2(k) hereof); (viii) in the event of:
(Aiii) Borrower, Mortgage Borrowerany SPC Party, Senior and/or any Mezzanine Borrower, Operating Company or any Guarantor filing files a voluntary petition under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law, subject to a maximum aggregate liability equal to the BK Cap; (Biv) the filing of an involuntary petition against Borrower, Mortgage Borrowerany SPC Party, Senior and/or any Mezzanine Borrower, Operating Company or any Guarantor Borrower under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law by any other Person in which Borrower, Mortgage Borrowerany SPC Party, Senior and/or any Mezzanine Borrower, Operating Company or any Guarantor or any of their respective Affiliates, agents or employees Borrower colludes with or otherwise assists such other Person, or and/or Borrower, Mortgage Borrowerany SPC Party, Senior and/or any Mezzanine Borrower, Operating Company Borrower solicits or any Guarantor soliciting or causing causes to be solicited petitioning creditors for any involuntary petition against Borrower, Operating Company or any Guarantor from SPC Party and/or any Mezzanine Borrower by any Person, subject to a maximum aggregate liability equal to the BK Cap; (Cv) Borrower, Mortgage Borrower, Senior any SPC Party and/or any Mezzanine Borrower, Operating Company or any Guarantor filing Borrower files an answer consenting to or otherwise acquiescing in to, or joining in in, any involuntary petition filed against it by any other Person, other than Lender, Person under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law, subject to a maximum aggregate liability equal to the BK Cap; (Dvi) BorrowerBorrower or any Mezzanine Borrower or any Affiliate, Mortgage Borrowerofficer, Senior director or representative which controls Borrower or such Mezzanine Borrower, Operating Company as the case may be, consents to, or any Guarantor consenting to or acquiescing in or joining in joins in, an application for the appointment of a custodian, receiver, trustee, trustee or examiner for BorrowerBorrower and/or any portion of any Individual Property, Mortgage Borrower, Senior or such Mezzanine Borrower, Operating Company or any Guarantor or any of as the Propertiescase may be, subject to a maximum aggregate liability equal to the Collateral, the Senior Mezzanine Collateral or any portion thereof, other than at the request of LenderBK Cap; or (Evii) Borrower, Mortgage Borrower, Senior any SPC Party and/or any Mezzanine Borrower, Operating Company or any Guarantor making Borrower makes an assignment for the benefit of creditors (other than Lender)or admits, or admitting, in writing or in any legal proceeding, its insolvency or inability to pay its debts as they become due;
, subject to a maximum aggregate liability equal to the BK Cap; or (ixviii) if Borrower, Senior Mezzanine Borrower or Mortgage Borrower fails to maintain its status as a Special Purpose Entity comply with the provisions of Section 4.4 or breaches any material representation or warranty set forth in Section 4.1.30 Schedule V of this Agreement; and
(x) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company fails to obtain Lender’s prior consent to any voluntary Indebtedness Agreement (other than (x) with respect those relating to Mortgage Borrower, Permitted Indebtedness and (y) with respect to Operating Company, Permitted Indebtedness (Operating Companysolvency or adequacy of capital or adequacy of cash flow), as applicableand such failure results in an order of substantive consolidation of one (1) or voluntary Lien more of the Individual Borrowers with any other Person (other than Permitted Encumbrances) encumbering any of the Properties, Senior Mezzanine Collateral or Collateral as required by this Agreement, the Senior Mezzanine Loan Agreement, the Mortgage Loan Agreement, the Pledge Agreement another Individual Borrower or the Mortgages. Notwithstanding anything to the contrary under this Agreement, neither any present Liquor Subsidiary) in a bankruptcy or future Affiliate of Borrower (other than Guarantor, to the extent provided similar proceeding under the Guaranty) nor any present or future shareholder, officer, director, employee, trustee, beneficiary, advisor, partner, member, principal, participant or agent of or in any Borrower or of or in any person or entity that is or becomes an Affiliate of any Borrower shall have any personal liability, directly or indirectly, under or in connection with the Loan Documents. Neither the negative capital account of any Affiliate of Borrower in Borrower, or in any other Affiliate of Borrower in any other Affiliate of Borrower, nor any obligation of any Affiliate of Borrower in any Borrower to restore a negative capital account or to contribute or loan capital to any Borrower or to any other Affiliate of Borrower shall at any time be deemed to be the property or an asset of any Borrower (Bankruptcy Code or any other Affiliate of Borrower) and neither Lender nor its successors federal or assigns shall have any right state bankruptcy or insolvency law, subject to collect, enforce or proceed against any such negative capital account or obligation to restore, contribute or loan capital.
(b) Notwithstanding anything a maximum liability equal to the contrary in this Agreement, the Note or any of the Loan Documents, Lender shall not be deemed to have waived any right which Lender may have under Section 506(a), 506(b), 1111(b) or any other provisions of the Bankruptcy Code to file a claim for the full amount of the Indebtedness or to require that all collateral shall continue to secure all of the Indebtedness owing to Lender in accordance with the Loan DocumentsBK Cap.
Appears in 2 contracts
Sources: Loan Agreement (W2007 Grace Acquisition I Inc), Loan Agreement (American Realty Capital 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 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 ▇▇▇ 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:
(i) fraud or intentional misrepresentation by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor in connection with the execution and delivery of the Loan Documents and/or the Loan;
(ii) the misappropriation, conversion or misapplication in contravention of the Loan Documents by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any funds of Borrower, Senior Mezzanine Borrower, Mortgage Borrower or Operating Company, including, without limitation, (A) any Revenues, (B) any Net Liquidation Proceeds or Insurance Proceeds, (C) any Awards received in connection with a Condemnation, (D) any Rents or security deposits (or any item of Revenue, from whatever source) following an Event of Default, or (E) any distribution or other payments made in connection with any part of the Collateral or Senior Mezzanine Collateral;
(iii) the misappropriation, conversion or misapplication by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any security deposits or Rents paid more than one (1) month in advance;
(iv) any act of actual intentional physical waste by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor;
(v) the breach of any representation, warranty, covenant or indemnification provision in the Environmental Indemnity Agreement concerning environmental laws, hazardous substances and asbestos and any indemnification of Lender with respect thereto in either document;
(vi) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company fails to obtain Lender’s prior consent to any voluntary intentional Transfer as required by this Agreement, the Mortgage Loan Agreement or the Mortgages, as applicable;
(vii) any security deposits, advance deposits or any other deposits collected with respect to any of the Properties which are not delivered to Mortgage Lender upon a foreclosure of any of the Properties or action in lieu thereof, except to the extent any such security deposits were applied in accordance with the terms and conditions of any of the Leases prior to the occurrence of the Event of Default that gave rise to such foreclosure or action in lieu thereof;
(viii) in the event of:
(A) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing a voluntary petition under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (B) the filing of an involuntary petition against Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law by any Person in which Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of their respective Affiliates, agents or employees colludes with or such other Person, or Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor soliciting or causing to be solicited petitioning creditors for any involuntary petition against Borrower, Operating Company or any Guarantor from any Person; (C) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing an answer consenting to or otherwise acquiescing in or joining in any involuntary petition filed against it by any other Person, other than Lender, under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (D) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor consenting to or acquiescing in or joining in an application for the appointment of a custodian, receiver, trustee, or examiner for Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of the Properties, the Collateral, the Senior Mezzanine Collateral or any portion thereof, other than at the request of Lender; or (E) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor making an assignment for the benefit of creditors (other than Lender), or admitting, in writing or in any legal proceeding, its insolvency or inability to pay its debts as they become due;
(ix) if Borrower, Senior Mezzanine Borrower or Mortgage Borrower fails to maintain its status as a Special Purpose Entity or breaches any material representation or warranty set forth in Section 4.1.30 of this Agreement; and
(x) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company fails to obtain Lender’s prior consent to any voluntary Indebtedness (other than (x) with respect to Mortgage Borrower, Permitted Indebtedness and (y) with respect to Operating Company, Permitted Indebtedness (Operating Company), as applicable) or voluntary Lien (other than Permitted Encumbrances) encumbering any of the Properties, Senior Mezzanine Collateral or Collateral as required by this Agreement, the Senior Mezzanine Loan Agreement, the Mortgage Loan Agreement, the Pledge Agreement or the Mortgages. Notwithstanding anything to the contrary under this Agreement, neither any present or future Affiliate of Borrower (other than Guarantor, to the extent provided under the Guaranty) nor any present or future shareholder, officer, director, employee, trustee, beneficiary, advisor, partner, member, principal, participant or agent of or in any Borrower or of or in any person or entity that is or becomes an Affiliate of any Borrower shall have any personal liability, directly or indirectly, under or in connection with the Loan Documents. Neither the negative capital account of any Affiliate of Borrower in Borrower, or in any other Affiliate of Borrower in any other Affiliate of Borrower, nor any obligation of any Affiliate of Borrower in any Borrower to restore a negative capital account or to contribute or loan capital to any Borrower or to any other Affiliate of Borrower shall at any time be deemed to be the property or an asset of any Borrower (or any other Affiliate of Borrower) and neither Lender nor its successors or assigns shall have any right to collect, enforce or proceed against any such negative capital account or obligation to restore, contribute or loan capital.
(b) Notwithstanding anything to the contrary in this Agreement, the Note or any of the Loan Documents, Lender shall not be deemed to have waived any right which Lender may have under Section 506(a), 506(b), 1111(b) or any other provisions of the Bankruptcy Code to file a claim for the full amount of the Indebtedness or to require that all collateral shall continue to secure all of the Indebtedness owing to Lender in accordance with the Loan Documents.: 97
Appears in 2 contracts
Sources: Loan Agreement (MPG Office Trust, Inc.), Loan Agreement (MPG Office 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 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 ▇s▇▇ 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”):
(i) fraud fraud, willful misconduct, misrepresentation or intentional misrepresentation failure to disclose a material fact by or on behalf of Borrower, Mortgage BorrowerGuarantor, Senior Mezzanine Borrowerany Affiliate of Borrower or Guarantor, Operating Company or any Guarantor of their respective agents or representatives in connection with the execution and delivery of the Loan Documents and/or the Loan;
(ii) the misappropriation, conversion or misapplication in contravention of the Loan Documents by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any funds of Borrower, Senior Mezzanine Borrower, Mortgage Borrower or Operating Company, including, without limitation, (A) any Revenues, (B) any Net Liquidation Proceeds or Insurance Proceeds, (C) any Awards received in connection with a Condemnation, (D) any Rents or security deposits (or any item of Revenue, from whatever source) following an Event of Default, or (E) any distribution or other payments made in connection with any part of the Collateral or Senior Mezzanine Collateral;
(iii) the misappropriation, conversion or misapplication by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any security deposits or Rents paid more than one (1) month in advance;
(iv) any act of actual intentional physical waste by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor;
(v) the breach of any representation, warranty, covenant or indemnification provision in the Environmental Indemnity Agreement or in any other Loan Document concerning environmental laws, hazardous substances and and/or asbestos and any indemnification of Lender with respect thereto in either document;
(iii) wrongful removal or destruction of any portion of the Property or damage to the Property caused by willful misconduct or gross negligence;
(iv) any physical waste of the Property;
(v) the forfeiture by Borrower of the Property, or any portion thereof, because of the conduct or purported conduct of criminal activity by Borrower or Guarantor or any of their respective agents or representatives in connection therewith, including by reason of any claim under the Racketeer Influenced and Corrupt Organizations Act (RICO);
(vi) if Borrowerthe misappropriation or conversion by or on behalf of Borrower of (A) any Insurance Proceeds paid by reason of any loss, Mortgage Borrowerdamage or destruction to the Property, Senior Mezzanine Borrower or Operating Company fails (B) any Awards or other amounts received in connection with the Condemnation of all or a portion of the Property, or (C) any Gross Revenues (including Rents, Insurance Proceeds, security deposits, advance deposits or any other deposits and Lease Sweep Lease Termination Payments and Lease Termination Payments) or (D) any other funds due under the Loan Documents, including, in connection with any of the foregoing, by reason of failure to obtain Lender’s prior consent to any voluntary intentional Transfer as required by this Agreement, comply with Section 6.1 hereof or breach of the Mortgage Loan Clearing Account Agreement or the MortgagesCash Management Agreement or (E) following the occurrence of the first Trigger Period, as applicableBorrower’s failure to establish a Clearing Account pursuant to a Clearing Account Agreement as, when and to the extent required by Section 6.1 hereof;
(vii) subject to Borrower’s right to contest set forth in Section 4.3 hereof, failure to pay charges for labor or materials or other charges that can create Liens on any portion of the Property;
(viii) any security deposits, advance deposits or any other deposits collected with respect to any of the Properties Property which are not delivered to Mortgage Lender upon in accordance with the provisions of the Loan Documents;
(ix) the failure to pay Taxes or transfer taxes;
(x) failure to obtain and maintain the fully paid for Policies in accordance with Section 5.1.1 hereof, including, without limitation, any failure of the Borrower to obtain and maintain the Required Excess Flood Coverage Policy pursuant to and in accordance with Section 5.1.1(j) hereof;
(xi) if there is (A) any default by Borrower, any Borrower Affiliated Tenant (including, without limitation, PUREgraphite Tenant), and/or their respective successors and/or assigns under the PILOT Documents, (B) any surrender, termination, cancellation, modification, change, supplement, alteration or amendment of any PILOT Document, including, without limitation, in each case, any increase in Real Estate Taxes as a foreclosure result of any of the Properties or action in lieu thereofforegoing, except to the extent and/or (C) any such security deposits were applied in accordance with the terms and conditions breach of any of the Leases prior representation, warranty and/or covenant set forth in Sections 3.1.34 and/or 4.15 hereof, in each case, with respect to the occurrence of the Event of Default that gave rise to such foreclosure or action in lieu thereofany PILOT Document;
(viiixii) the failure of Manager (if any) to comply with the transition obligations under the applicable Assignment of Management Agreement;
(xiii) Borrower’s indemnification of Lender set forth in Section 9.2 hereof;
(xiv) any cost or expense incurred by Lender in connection with the event of:enforcement of its rights and remedies under this Section 10.1, under the Guaranty and/or under the Environmental Indemnity;
(xv) if (A) Borrowerany Borrower Affiliated Lease Default Event occurs; (B) Borrower Affiliated Lease Guarantor shall be in monetary or material non-monetary default pursuant to the applicable Borrower Affiliated Lease Guaranty following any applicable cure period expressly set forth in such Borrower Affiliated Lease Guaranty, Mortgage Borrowerbut without taking into account any requirement to deliver any applicable notice of such default; and/or (C) there is any failure by Borrower to enforce the terms, Senior Mezzanine Borrower, Operating Company covenants and conditions contained in any Borrower Affiliated Lease or any Guarantor filing Borrower Affiliated Lease Guaranty upon the part of the Borrower Affiliated Tenant or Borrower Affiliated Lease Guarantor, as applicable, thereunder to be observed or performed;
(xvi) if any Monthly OpEx Certification shall be false or misleading in any material respect;
(i) any Borrower Affiliated Tenant files a voluntary petition under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law;
(ii) any Borrower Affiliated Tenant is substantively consolidated with any other Person (including, without limitation, any substantive consolidation or other similar doctrine under the laws of any foreign jurisdiction, including, without limitation, any reconstruction, amalgamation, pooling and/or piercing the corporate veil under Australian law); unless such consolidation was involuntary and not consented to by Borrower, Guarantor, any Borrower Affiliated Lease Guarantor, and/or such Borrower Affiliated Tenant and is discharged, stayed or dismissed within thirty (B30) days following the occurrence of such consolidation;
(iii) the filing of an involuntary petition against Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor Borrower Affiliated Tenant under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law by any other Person in which Borrower, Mortgage BorrowerGuarantor, Senior Mezzanine Borrower, Operating Company Borrower Affiliated Tenant or any Borrower Affiliated Lease Guarantor or any of their respective Affiliates, agents or employees colludes with or otherwise intentionally assists such other Person, or and/or Borrower, Mortgage BorrowerGuarantor, Senior Mezzanine Borrower, Operating Company Borrower Affiliated Tenant or any Borrower Affiliated Lease Guarantor soliciting solicits or causing causes to be solicited petitioning creditors for any involuntary petition against Borrower, Operating Company or any Guarantor from Borrower Affiliated Tenant by any Person; ;
(Civ) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing Borrower Affiliated Tenant files an answer consenting to to, or otherwise acquiescing in in, or joining in in, any involuntary petition filed against it by any other Person, other than Lender, Person under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; ;
(Dv) Borrower, Mortgage Guarantor, any Borrower Affiliated Tenant or any Borrower Affiliated Lease Guarantor or any Affiliate, officer, director or representative which controls Borrower, Senior Mezzanine BorrowerGuarantor, Operating Company Borrower Affiliated Tenant or any Borrower Affiliated Lease Guarantor consenting to consents to, or acquiescing in acquiesces in, or joining in joins in, an application for the appointment of a custodian, receiver, trustee, trustee or examiner for Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of the Properties, the Collateral, the Senior Mezzanine Collateral Borrower Affiliated Tenant or any portion thereof, other than at of the request of Lender; or Property;
(Evi) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor making Borrower Affiliated Tenant makes an assignment for the benefit of creditors (other than Lender), or admittingadmits, in writing or in any legal proceeding, its insolvency or inability to pay its debts as they become due;
(ixvii) if Borrowerany failure of the Property to have access to, Senior Mezzanine Borrower or Mortgage Borrower fails and/or to maintain its status as a Special Purpose Entity or breaches be served by, the Affected Underground Utilities, any material representation or warranty curtailment and/or interruption of the Affected Underground Utilities, and/or any breach of the covenants set forth in Section 4.1.30 of this Agreement4.38 hereto; andand/or
(xviii) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company fails to obtain Lender’s prior consent to any voluntary Indebtedness (other than (x) with respect to Mortgage Borrower, Permitted Indebtedness and (y) with respect to Operating Company, Permitted Indebtedness (Operating Company), as applicable) or voluntary Lien (other than Permitted Encumbrances) encumbering any failure of the Properties, Senior Mezzanine Collateral or Collateral as required by this Agreement, the Senior Mezzanine Loan Agreement, the Mortgage Loan Agreement, the Pledge Agreement or the Mortgages. Notwithstanding anything Required Excess Flood Coverage Policy to be in full force and effect prior to the contrary under this Agreement, neither any present or future Affiliate of Borrower (other than Guarantor, date on which such Required Excess Flood Coverage Policy is obtained pursuant to the extent provided under the Guarantyand in accordance with Section 5.1.1(j) nor any present or future shareholder, officer, director, employee, trustee, beneficiary, advisor, partner, member, principal, participant or agent of or in any Borrower or of or in any person or entity that is or becomes an Affiliate of any Borrower shall have any personal liability, directly or indirectly, under or in connection with the Loan Documentshereof. Neither the negative capital account of any Affiliate of Borrower in Borrower, or in any other Affiliate of Borrower in any other Affiliate of Borrower, nor any obligation of any Affiliate of Borrower in any Borrower to restore a negative capital account or to contribute or loan capital to any Borrower or to any other Affiliate of Borrower shall at any time be deemed to be the property or an asset of any Borrower (or any other Affiliate of Borrower) and neither Lender nor its successors or assigns shall have any right to collect, enforce or proceed against any such negative capital account or obligation to restore, contribute or loan capital.
(b) Notwithstanding anything to the contrary in this Agreement, the Note Agreement or any of the other Loan Documents, (A) Lender shall not be deemed to have waived any right which Lender may have under Section 506(a), 506(b), 1111(b) or any other provisions of the Bankruptcy Code to file a claim for the full amount of the Indebtedness Obligations or to require that all collateral shall continue to secure all of the Indebtedness Obligations owing to Lender in accordance with the Loan Documents., and (B) the Obligations shall be fully recourse to Borrower in the event that any of the following occur (each, a “Springing Recourse Event”):
(ix) a breach of the covenants set forth in Section 4.4 hereof;
(x) Borrower fails to obtain Lender’s prior consent to any subordinate financing secured by the Property or other voluntary Lien encumbering the Property;
(xi) Borrower fails to obtain Lender’s prior consent to any Transfer of the Property or any interest therein or any Transfer of any direct or indirect interest in Borrower, in either case as required by the Mortgage or this Agreement other than a Permitted Transfer;
(xii) any termination, rejection, cancellation, change, amendment, supplementation or other modification to or of the Ground Lease or any surrender of the leasehold estate created by the Ground Lease unless, in each case, such action was consented to by Lender in writing;
(xiii) Borrower files a voluntary petition under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law;
(xiv) Borrower is substantively consolidated with any other Person (including, without limitation, any substantive consolidation or other similar doctrine under the laws of any foreign jurisdiction, including, without limitation, any reconstruction, amalgamation, pooling and/or piercing the corporate veil under Australian law); unless such consolidation was involuntary and not consented to by Borrower or Guarantor and is discharged, stayed or dismissed within thirty (30) days following the occurrence of such consolidation;
(xv) the filing of an involuntary petition against Borrower under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law by any other Person in which Borrower and/or Guarantor colludes with or otherwise intentionally assists such Person, and/or Borrower and/or Guarantor solicits or causes to be solicited petitioning creditors for any involuntary petition against Borrower by any Person;
(xvi) Borrower files an answer consenting to, or otherwise acquiescing in, or joining in, any involuntary petition filed against it by any other Person under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law;
(xvii) Borrower, Guarantor or any Affiliate, officer, director or representative which controls Borrower or Guarantor consents to, or acquiesces in, or joins in, an application for the appointment of a custodian, receiver, trustee or examiner for Borrower or any portion of the Property;
(xviii) Borrower makes an assignment for the benefit of creditors or admits, in writing or in any legal proceeding, its insolvency or inability to pay its debts as they become due;
(xix) if Guarantor (or any Person comprising Guarantor), Borrower or any Affiliate of any of the foregoing, in connection with any enforcement action or exercise or assertion of any right or remedy by or on behalf of Lender under or in connection with the Guaranty, the Note, the Mortgage or any other Loan Document, seeks a defense, judicial intervention or injunctive or other equitable relief of any kind, or asserts in a pleading filed in connection with a judicial proceeding any defense against Lender or any right in connection with any security for the Loan;
(xx) (A) Borrower voluntarily avails itself of the benefits of any Emergency Law or otherwise voluntarily exercises any right or option under any Emergency Law and (B) such Emergency Law either (X) permits (I) Borrower to defer payment of, or otherwise elect not to pay, any amounts as and when due under the Loan Documents or (II) Borrower to delay performance of, or otherwise elect not to perform, any non-monetary obligation of Borrower as and when required under the Loan Documents or (Y) prevents Lender, or requires Lender to forbear, from exercising (at such time or another time in the future) any one or more rights or remedies that, in the absence of such Emergency Law, could otherwise be available to Lender under the Loan Documents or applicable Legal Requirements;
(xxi) Borrower fails to comply promptly (and in any event within any applicable timeframe provided under the relevant Emergency Law) with any request made by Lender pursuant to an Emergency Law for Borrower to take any action that, in Lender’s reasonable judgment, is necessary or reasonably necessary in order to permit Lender to exercise (at such time or another time in the future) any one or more rights or remedies that, in the absence of such Emergency Law, could otherwise be available to Lender under the Loan Documents or applicable Legal Requirements;
(xxii) any termination, rejection, cancellation, change, amendment, modification, release, surrender, supplementation or other modification to or of any Borrower Affiliated Lease or any Borrower Affiliated Lease Guaranty, any assignment or sublease by any Borrower Affiliated Tenant of its applicable Borrower Affiliated Lease, and/or any assignment by any Borrower Affiliated Lease Guarantor of its applicable Borrower Affiliated Lease Guaranty, in each case, unless the same was consented to by Lender in writing; or
(xxiii) there is any failure by any Borrower Affiliated Tenant to promptly vacate the Property if requested by Lender following a Borrower Affiliated Lease Default Event and/or Event of Default. In addition, Borrower hereby guarantees and shall be fully personally liable for (without the benefit of any exculpation provision contained herein and/or in any other Loan Documents) (I) the payment in full of any and all amounts payable pursuant to Section 6(e) of the PILOT Agreement (all such liability and obligation of Borrower, the “PILOT Clawback Liabilities”), including, without limitation, any amounts payable thereunder on or following the date on which Lender, its designee or nominee, or any purchaser at a foreclosure sale, acquire
Appears in 2 contracts
Sources: 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 (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 ▇▇▇ 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 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 including, without limitation, attorneys’ fees and costs reasonably incurred) ), arising out of or in connection with the following:
(i) fraud or intentional misrepresentation by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company Borrower or any Guarantor in connection with the execution and delivery Loan, including by reason of the Loan Documents and/or the Loanany claim under RICO;
(ii) the misappropriation, conversion gross negligence or misapplication in contravention of the Loan Documents by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any funds willful misconduct of Borrower, Senior Mezzanine BorrowerGuarantor, Mortgage Borrower or Operating Company, including, without limitation, (A) any Revenues, (B) any Net Liquidation Proceeds or Insurance Proceeds, (C) any Awards received in connection with a Condemnation, (D) any Rents or security deposits (Principal or any item of Revenue, from whatever source) following an Event of Default, or (E) any distribution or other payments made in connection with any part of the Collateral or Senior Mezzanine CollateralRestricted Party;
(iii) the misappropriation, conversion or misapplication by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any security deposits or Rents paid more than one (1) month in advance;
(iv) any act of actual intentional physical waste by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor;
(v) the breach of any representation, warranty, covenant or indemnification provision in the Environmental Indemnity Agreement concerning environmental laws, hazardous substances and or asbestos and any indemnification of Lender with respect thereto in either documentany Loan Document;
(iv) wrongful removal or destruction by Borrower or any Affiliate of Borrower of any portion of the Property after the occurrence of an Event of Default or any intentional physical waste of the Property by Borrower of any Affiliate thereof, provided, however, that such physical waste shall exclude wear and tear to the Property that occurs in the ordinary course of business of the Property;
(v) any Legal Requirement (including RICO) mandating the forfeiture by Borrower of the Property, or any portion thereof, because of the conduct or purported conduct of criminal activity by Borrower or any Restricted Party in connection therewith;
(vi) if Borrowerany misrepresentation, Mortgage Borrower, Senior Mezzanine miscertification or breach of warranty by Borrower or Operating Company fails to obtain Lender’s prior consent Guarantor with respect to any voluntary intentional Transfer as required by representation, warranty or certification contained in this Agreement, the Mortgage Loan Agreement or any other Loan Document or in any document executed in connection therewith, pursuant to any of the MortgagesLoan Documents or otherwise to induce Lender to make the Loan, or any advance thereof, or to release monies from any account held by Lender (including any reserve or escrow) or to take other action with respect to the Collateral (as applicabledefined in the Mortgage);
(vii) the misappropriation or conversion by Borrower or any of its Affiliates of (A) any Insurance Proceeds paid by reason of any Casualty, (B) any Awards received in connection with a Condemnation, (C) any Rents following an Event of Default, or (D) any Rents paid more than one (1) month in advance; provided such amounts are not applied to the payment of the Loan or the Operating Expenses of the Property;
(viii) failure to pay charges for labor or materials or other charges that can create Liens on any portion of the Property that are superior to the Lien of the Mortgage, unless such charges are being contested in accordance herewith;
(ix) any security deposits, advance deposits or any other deposits collected by Borrower or any Affiliate thereof with respect to any of the Properties Property which are not delivered to Mortgage Lender upon a foreclosure of any of the Properties Property or action in lieu thereof, except to the extent any such security deposits were applied in accordance with the terms and conditions of any of the Leases prior to the occurrence of the Event of Default that gave rise to such foreclosure or action in lieu thereof;
(viiix) if Borrower fails to permit on-site inspections of the Property, fails to provide financial information specifically required by this Agreement or fails to appoint a new property manager upon the request of Lender, each as required by, and in accordance with, the event of:terms and provisions of this Agreement or the Mortgage; or
(Axi) Borrowerif the Operating Partnership shall default under the Vacant Space Master Lease beyond any applicable notice and/or cure period contained therein, Mortgage Borrowerif the Vacant Space Master Lease shall have been amended or modified (except as specified in Section 3.1.21 hereof) without Lender’s prior written consent, Senior Mezzanine Borroweror if the Vacant Space Master Lease shall have been terminated, cancelled or surrendered without Lender’s prior written consent, (except as specified in Section 3.1.21 hereof), or if the Operating Company or any Guarantor Partnership is the subject of a Bankruptcy Action, other than an involuntary Bankruptcy Action which is dismissed within ninety (90) days.
(a) Borrower filing a voluntary petition under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (Bb) the filing of an involuntary petition against Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law by any Person in which Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of their respective Affiliates, agents or employees colludes with or such other Person, or Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor soliciting or causing to be solicited petitioning creditors for any involuntary petition against Borrower, Operating Company or any Guarantor from any Person; (C) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor Borrower filing an answer consenting to or otherwise acquiescing in or joining in any involuntary petition filed against it it, by any other Person, other than Lender, Person under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law, or soliciting or causing to be solicited petitioning creditors for any involuntary petition from any Person; (Dc) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor Borrower consenting to or acquiescing in or joining in an application for the appointment of a custodian, receiver, trustee, or examiner for Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of the Properties, the Collateral, the Senior Mezzanine Collateral Borrower or any portion thereof, other than at the request of Lender; or (E) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor making an assignment for the benefit of creditors (other than Lender), or admitting, in writing or in any legal proceeding, its insolvency or inability to pay its debts as they become due;
(ix) if Borrower, Senior Mezzanine Borrower or Mortgage Borrower fails to maintain its status as a Special Purpose Entity or breaches any material representation or warranty set forth in Section 4.1.30 of this Agreement; and
(x) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company fails to obtain Lender’s prior consent to any voluntary Indebtedness (other than (x) with respect to Mortgage Borrower, Permitted Indebtedness and (y) with respect to Operating Company, Permitted Indebtedness (Operating Company), as applicable) or voluntary Lien (other than Permitted Encumbrances) encumbering any of the Properties, Senior Mezzanine Collateral or Collateral as required by this Agreement, the Senior Mezzanine Loan Agreement, the Mortgage Loan Agreement, the Pledge Agreement or the Mortgages. Notwithstanding anything to the contrary under this Agreement, neither any present or future Affiliate of Borrower (other than Guarantor, to the extent provided under the Guaranty) nor any present or future shareholder, officer, director, employee, trustee, beneficiary, advisor, partner, member, principal, participant or agent of or in any Borrower or of or in any person or entity that is or becomes an Affiliate of any Borrower shall have any personal liability, directly or indirectly, under or in connection with the Loan Documents. Neither the negative capital account of any Affiliate of Borrower in Borrower, or in any other Affiliate of Borrower in any other Affiliate of Borrower, nor any obligation of any Affiliate of Borrower in any Borrower to restore a negative capital account or to contribute or loan capital to any Borrower or to any other Affiliate of Borrower shall at any time be deemed to be the property or an asset of any Borrower (or any other Affiliate of Borrower) and neither Lender nor its successors or assigns shall have any right to collect, enforce or proceed against any such negative capital account or obligation to restore, contribute or loan capital.
(b) Notwithstanding anything to the contrary in this Agreement, the Note or any of the Loan Documents, Lender shall not be deemed to have waived any right which Lender may have under Section 506(a), 506(b), 1111(b) or any other provisions of the Bankruptcy Code to file a claim for the full amount of the Indebtedness or to require that all collateral shall continue to secure all of the Indebtedness owing to Lender in accordance with the Loan Documents.Property; or
Appears in 2 contracts
Sources: Loan Agreement (Maguire Properties Inc), Loan Agreement (Maguire Properties 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 ▇▇▇ 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:
(i) fraud or intentional misrepresentation by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company Borrower or any Guarantor guarantor in connection with the execution and delivery of the Loan Documents and/or the Loan;
(ii) the misappropriation, conversion gross negligence or misapplication in contravention of the Loan Documents by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any funds willful misconduct of Borrower, Senior Mezzanine Borrower, Mortgage Borrower or Operating Company, including, without limitation, (A) any Revenues, (B) any Net Liquidation Proceeds or Insurance Proceeds, (C) any Awards received in connection with a Condemnation, (D) any Rents or security deposits (or any item of Revenue, from whatever source) following an Event of Default, or (E) any distribution or other payments made in connection with any part of the Collateral or Senior Mezzanine Collateral;
(iii) the misappropriation, conversion or misapplication by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any security deposits or Rents paid more than one (1) month in advance;
(iv) any act of actual intentional physical waste by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor;
(v) the breach of any representation, warranty, covenant or indemnification provision in the Environmental Indemnity Agreement or in the Mortgage concerning environmental laws, hazardous substances and asbestos and any indemnification of Lender with respect thereto in either document;
(iv) the removal or disposal of any portion of the Property after an Event of Default without replacing the same with an item or items of comparable value;
(v) the misapplication or conversion by Borrower of (A) any insurance proceeds paid by reason of any loss, damage or destruction to the Property, (B) any Awards or other amounts received in connection with the Condemnation of all or a portion of the Property, or (C) any Rents following an Event of Default;
(vi) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower failure to pay charges for labor or Operating Company fails to obtain Lender’s prior consent to materials or other charges that can create liens on any voluntary intentional Transfer as required by this Agreement, portion of the Mortgage Loan Agreement or the Mortgages, as applicableProperty;
(vii) any security deposits, advance deposits or any other deposits collected with respect to any of the Properties Property which are not delivered to Mortgage Lender upon a foreclosure of any of the Properties Property or action in lieu thereof, except to the extent any such security deposits were applied in accordance with the terms and conditions of any of the Leases prior to the occurrence of the Event of Default that gave rise to such foreclosure or action in lieu thereof;
(viii) Borrower's indemnification of Lender set forth in the event of:
(A) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing a voluntary petition under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (B) the filing of an involuntary petition against Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law by any Person in which Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of their respective Affiliates, agents or employees colludes with or such other Person, or Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor soliciting or causing to be solicited petitioning creditors for any involuntary petition against Borrower, Operating Company or any Guarantor from any Person; (C) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing an answer consenting to or otherwise acquiescing in or joining in any involuntary petition filed against it by any other Person, other than Lender, under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (D) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor consenting to or acquiescing in or joining in an application for the appointment of a custodian, receiver, trustee, or examiner for Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of the Properties, the Collateral, the Senior Mezzanine Collateral or any portion thereof, other than at the request of Lender; or (E) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor making an assignment for the benefit of creditors (other than Lender), or admitting, in writing or in any legal proceeding, its insolvency or inability to pay its debts as they become dueSection 9.2 hereof;
(ix) if Borrower, Senior Mezzanine Borrower or Mortgage Borrower fails failure to maintain its Borrower's status as a Special Purpose Entity or breaches any material representation or warranty set forth in Section 4.1.30 of this Agreementsingle purpose entity; and
(x) failure to permit on-site inspections of the Property, failure to provide financial information or failure to appoint a new Manager in accordance with the terms of this Agreement upon the request of Lender after an Event of Default, each as required by, and in accordance with, the terms and provisions of, this Agreement and the Mortgage, if Borrower, Mortgage Borrower, Senior Mezzanine such condition shall continue for five (5) Business Days after notice thereof.
(i) Borrower or Operating Company fails to obtain Lender’s 's prior written consent to any subordinate financing or other voluntary Indebtedness lien encumbering the Property; or
(other than (xii) with respect Borrower fails to Mortgage Borrowerobtain Lender's prior written consent to any assignment, Permitted Indebtedness and (y) with respect to Operating Companytransfer, Permitted Indebtedness (Operating Company), as applicable) or voluntary Lien (other than Permitted Encumbrances) encumbering any conveyance of the Properties, Senior Mezzanine Collateral Property or Collateral any interest therein as required by the Mortgage or this Agreement, the Senior Mezzanine Loan Agreement, the Mortgage Loan Agreement, the Pledge Agreement or the Mortgages. Notwithstanding anything to the contrary under this Agreement, neither any present or future Affiliate of Borrower (other than Guarantor, to the extent provided under the Guaranty) nor any present or future shareholder, officer, director, employee, trustee, beneficiary, advisor, partner, member, principal, participant or agent of or in any Borrower or of or in any person or entity that is or becomes an Affiliate of any Borrower shall have any personal liability, directly or indirectly, under or in connection with the Loan Documents. Neither the negative capital account of any Affiliate of Borrower in Borrower, or in any other Affiliate of Borrower in any other Affiliate of Borrower, nor any obligation of any Affiliate of Borrower in any Borrower to restore a negative capital account or to contribute or loan capital to any Borrower or to any other Affiliate of Borrower shall at any time be deemed to be the property or an asset of any Borrower (or any other Affiliate of Borrower) and neither Lender nor its successors or assigns shall have any right to collect, enforce or proceed against any such negative capital account or obligation to restore, contribute or loan capital.
(b) Notwithstanding anything to the contrary in this Agreement, the Note or any of the Loan Documents, Lender shall not be deemed to have waived any right which Lender may have under Section 506(a), 506(b), 1111(b) or any other provisions of the Bankruptcy Code to file a claim for the full amount of the Indebtedness or to require that all collateral shall continue to secure all of the Indebtedness owing to Lender in accordance with the Loan Documents.
Appears in 2 contracts
Sources: Loan Agreement (Reckson Associates Realty Corp), Loan Agreement (Reckson Operating Partnership Lp)
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 ▇▇▇ 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:
(i) fraud or intentional misrepresentation by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor in connection with the execution and delivery of the Loan Documents and/or the Loan;
(ii) the misappropriation, conversion or misapplication in contravention of the Loan Documents by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any funds of Borrower, Senior Mezzanine Borrower, Mortgage Borrower or Operating Company, including, without limitation, (A) any Revenues, (B) any Net Liquidation Proceeds or Insurance Proceeds, (C) any Awards received in connection with a Condemnation, (D) any Rents or security deposits (or any item of Revenue, from whatever source) following an Event of Default, or (E) any distribution or other payments made in connection with any part of the Collateral or Senior Mezzanine Collateral;
(iii) the misappropriation, conversion or misapplication by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any security deposits or Rents paid more than one (1) month in advance;
(iv) any act of actual intentional physical waste by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor;
(v) the breach of any representation, warranty, covenant or indemnification provision in the Environmental Indemnity Agreement concerning environmental laws, hazardous substances and asbestos and any indemnification of Lender with respect thereto in either document;
(vi) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company fails to obtain Lender’s prior consent to any voluntary intentional Transfer as required by this Agreement, the Mortgage Loan Agreement or the Mortgages, as applicable;
(vii) any security deposits, advance deposits or any other deposits collected with respect to any of the Properties which are not delivered to Mortgage Lender upon a foreclosure of any of the Properties or action in lieu thereof, except to the extent any such security deposits were applied in accordance with the terms and conditions of any of the Leases prior to the occurrence of the Event of Default that gave rise to such foreclosure or action in lieu thereof;
(viii) in the event of:
(A) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing a voluntary petition under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (B) the filing of an involuntary petition against Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law by any Person in which Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of their respective Affiliates, agents or employees colludes with or such other Person, or Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor soliciting or causing to be solicited petitioning creditors for any involuntary petition against Borrower, Operating Company or any Guarantor from any Person; (C) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing an answer consenting to or otherwise acquiescing in or joining in any involuntary petition filed against it by any other Person, other than Lender, under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (D) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor consenting to or acquiescing in or joining in an application for the appointment of a custodian, receiver, trustee, or examiner for Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of the Properties, the Collateral, the Senior Mezzanine Collateral or any portion thereof, other than at the request of Lender; or (E) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor making an assignment for the benefit of creditors (other than Lender), or admitting, in writing or in any legal proceeding, its insolvency or inability to pay its debts as they become due;
(ix) if Borrower, Senior Mezzanine Borrower or Mortgage Borrower fails to maintain its status as a Special Purpose Entity or breaches any material representation or warranty set forth in Section 4.1.30 of this Agreement; and
(x) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company fails to obtain Lender’s prior consent to any voluntary Indebtedness (other than (x) with respect to Mortgage Borrower, Permitted Indebtedness and (y) with respect to Operating Company, Permitted Indebtedness (Operating Company), as applicable) or voluntary Lien (other than Permitted Encumbrances) encumbering any of the Properties, Senior Mezzanine Collateral or Collateral as required by this Agreement, the Senior Mezzanine Loan Agreement, the Mortgage Loan Agreement, the Pledge Agreement or the Mortgages. Notwithstanding anything to the contrary under this Agreement, neither any present or future Affiliate of Borrower (other than Guarantor, to the extent provided under the Guaranty) nor any present or future shareholder, officer, director, employee, trustee, beneficiary, advisor, partner, member, principal, participant or agent of or in any Borrower or of or in any person or entity that is or becomes an Affiliate of any Borrower shall have any personal liability, directly or indirectly, under or in connection with the Loan Documents. Neither the negative capital account of any Affiliate of Borrower in Borrower, or in any other Affiliate of Borrower in any other Affiliate of Borrower, nor any obligation of any Affiliate of Borrower in any Borrower to restore a negative capital account or to contribute or loan capital to any Borrower or to any other Affiliate of Borrower shall at any time be deemed to be the property or an asset of any Borrower (or any other Affiliate of Borrower) and neither Lender nor its successors or assigns shall have any right to collect, enforce or proceed against any such negative capital account or obligation to restore, contribute or loan capital.
(b) Notwithstanding anything to the contrary in this Agreement, the Note or any of the Loan Documents, Lender shall not be deemed to have waived any right which Lender may have under Section 506(a), 506(b), 1111(b) or any other provisions of the Bankruptcy Code to file a claim for the full amount of the Indebtedness or to require that all collateral shall continue to secure all of the Indebtedness owing to Lender in accordance with the Loan Documents.obligation
Appears in 2 contracts
Sources: Loan Agreement (Hines Global REIT, 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 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 ▇▇▇ 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 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 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 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 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:
(i) fraud or intentional misrepresentation by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company Borrower or any Guarantor in connection with the execution and delivery of the Loan Documents and/or the Loan;
(ii) the misappropriation, conversion gross negligence or misapplication in contravention of the Loan Documents by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any funds willful misconduct of Borrower, Senior Mezzanine Borrower, Mortgage Borrower or Operating Company, including, without limitation, (A) any Revenues, (B) any Net Liquidation Proceeds or Insurance Proceeds, (C) any Awards received in connection with a Condemnation, (D) any Rents or security deposits (or any item of Revenue, from whatever source) following an Event of Default, or (E) any distribution or other payments made in connection with any part of the Collateral or Senior Mezzanine Collateral;
(iii) the misappropriation, conversion or misapplication by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any security deposits or Rents paid more than one (1) month in advance;
(iv) any act of actual intentional physical waste by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor;
(v) the breach of any representation, warranty, covenant or indemnification provision in the Environmental Indemnity Agreement or in the Security Instrument concerning environmental laws, hazardous substances and asbestos and any indemnification of Lender with respect thereto in either document;
(iv) the removal or disposal of any portion of the Property after an Event of Default to the extent not replaced with items of comparable utility, quality and value;
(v) the misappropriation, misapplication or conversion by Borrower of (A) any Insurance Proceeds paid by reason of any Casualty, (B) any Awards received in connection with a Condemnation, (C) any Rents following an Event of Default, or (D) any Rents paid more than one (1) month in advance;
(vi) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower failure to pay charges for labor or Operating Company fails to obtain Lender’s prior consent to materials or other charges that can create Liens on any voluntary intentional Transfer as required by this Agreement, portion of the Mortgage Loan Agreement or the Mortgages, as applicableProperty;
(vii) any security deposits, advance deposits or any other deposits collected with respect to any of the Properties Property which are not delivered to Mortgage Lender upon a foreclosure of any of the Properties Property or action in lieu thereof, except to the extent any such security deposits were applied in accordance with the terms and conditions of any of the Leases prior to the occurrence of the Event of Default that gave rise to such foreclosure or action in lieu thereof;; and
(viii) failure of Borrower to permit on site inspections of the Property, provide financial information, or to appoint a new property manager upon the request of Lender, each as required by, and in accordance with, the event of:terms and provisions of this Agreement or the Security Instrument.
(Aa) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor Borrower filing a voluntary petition under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (Bb) the filing of an Borrower soliciting or causing to be solicited petitioning creditors for any involuntary petition against Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or Borrower from any Guarantor Person under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law by any Person in which Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of their respective Affiliates, agents or employees colludes with or such other Person, or Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor soliciting or causing to be solicited petitioning creditors for any involuntary petition against Borrower, Operating Company or any Guarantor from any Personlaw; (Cc) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor Borrower filing an answer consenting to or otherwise acquiescing in or joining in any involuntary petition filed against it it, by any other Person, other than Lender, Person under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law, or soliciting or causing to be solicited petitioning creditors for any involuntary petition from any Person; (Dd) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor Borrower consenting to or acquiescing in or joining in an application for the appointment of a custodian, receiver, trustee, or examiner for Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of the Properties, the Collateral, the Senior Mezzanine Collateral Borrower or any portion thereof, other than at the request of Lender; or (E) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor making an assignment for the benefit of creditors (other than Lender), or admitting, in writing or in any legal proceeding, its insolvency or inability to pay its debts as they become due;
(ix) if Borrower, Senior Mezzanine Borrower or Mortgage Borrower fails to maintain its status as a Special Purpose Entity or breaches any material representation or warranty set forth in Section 4.1.30 of this Agreement; and
(x) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company fails to obtain Lender’s prior consent to any voluntary Indebtedness (other than (x) with respect to Mortgage Borrower, Permitted Indebtedness and (y) with respect to Operating Company, Permitted Indebtedness (Operating Company), as applicable) or voluntary Lien (other than Permitted Encumbrances) encumbering any of the Properties, Senior Mezzanine Collateral or Collateral as required by this Agreement, the Senior Mezzanine Loan Agreement, the Mortgage Loan Agreement, the Pledge Agreement or the Mortgages. Notwithstanding anything to the contrary under this Agreement, neither any present or future Affiliate of Borrower (other than Guarantor, to the extent provided under the Guaranty) nor any present or future shareholder, officer, director, employee, trustee, beneficiary, advisor, partner, member, principal, participant or agent of or in any Borrower or of or in any person or entity that is or becomes an Affiliate of any Borrower shall have any personal liability, directly or indirectly, under or in connection with the Loan Documents. Neither the negative capital account of any Affiliate of Borrower in Borrower, or in any other Affiliate of Borrower in any other Affiliate of Borrower, nor any obligation of any Affiliate of Borrower in any Borrower to restore a negative capital account or to contribute or loan capital to any Borrower or to any other Affiliate of Borrower shall at any time be deemed to be the property or an asset of any Borrower (or any other Affiliate of Borrower) and neither Lender nor its successors or assigns shall have any right to collect, enforce or proceed against any such negative capital account or obligation to restore, contribute or loan capital.
(b) Notwithstanding anything to the contrary in this Agreement, the Note or any of the Loan Documents, Lender shall not be deemed to have waived any right which Lender may have under Section 506(a), 506(b), 1111(b) or any other provisions of the Bankruptcy Code to file a claim for the full amount of the Indebtedness or to require that all collateral shall continue to secure all of the Indebtedness owing to Lender in accordance with the Loan Documents.Property;
Appears in 2 contracts
Sources: Loan Agreement (Thomas Properties Group Inc), Loan Agreement (Thomas Properties Group 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 ▇▇▇ 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 the liability and obligation of Borrower, by money judgment or otherwise, bring suit with respect 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:
(i) fraud or intentional misrepresentation by BorrowerMaker, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company the Exculpated Parties or any Guarantor other person or entity in connection with the execution and delivery Mortgage, this Note or the Other Security Documents; (vii) impair the right of Payee to obtain the Rents received by any of the Loan Documents and/or Exculpated Parties after the Loan;
(ii) the misappropriation, conversion or misapplication in contravention occurrence of the Loan Documents by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any funds of Borrower, Senior Mezzanine Borrower, Mortgage Borrower or Operating Company, including, without limitation, (A) any Revenues, (B) any Net Liquidation Proceeds or Insurance Proceeds, (C) any Awards received in connection with a Condemnation, (D) any Rents or security deposits (or any item of Revenue, from whatever source) following 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 (Exi) any distribution or other payments made in connection with impair the right of Payee to recover any part of the Collateral or Senior Mezzanine Collateral;
Debt from the Maker (iiiexcluding the general and limited partners of Maker) the misappropriation, conversion or misapplication by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any security deposits or Rents paid more than one (1) month in advance;
(iv) any act of actual intentional physical waste by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor;
(v) following the breach of any representation, warranty, covenant contained in paragraphs 9 or indemnification provision in the Environmental Indemnity Agreement concerning environmental laws, hazardous substances and asbestos and any indemnification of Lender with respect thereto in either document;
(vi) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company fails to obtain Lender’s prior consent to any voluntary intentional Transfer as required by this Agreement, the Mortgage Loan Agreement or the Mortgages, as applicable;
(vii) any security deposits, advance deposits or any other deposits collected with respect to any 56 of the Properties which are not delivered to Mortgage Lender upon a foreclosure of any of the Properties or action in lieu thereof, except to the extent any such security deposits were applied in accordance with the terms and conditions of any of the Leases prior to the occurrence of the Event of Default that gave rise to such foreclosure or action in lieu thereof;
(viii) in the event of:
(A) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing a voluntary petition under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (B) the filing of an involuntary petition against Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law by any Person in which Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of their respective Affiliates, agents or employees colludes with or such other Person, or Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor soliciting or causing to be solicited petitioning creditors for any involuntary petition against Borrower, Operating Company or any Guarantor from any Person; (C) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing an answer consenting to or otherwise acquiescing in or joining in any involuntary petition filed against it by any other Person, other than Lender, under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (D) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor consenting to or acquiescing in or joining in an application for the appointment of a custodian, receiver, trustee, or examiner for Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of the Properties, the Collateral, the Senior Mezzanine Collateral or any portion thereof, other than at the request of Lender; or (E) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor making an assignment for the benefit of creditors (other than Lender), or admitting, in writing or in any legal proceeding, its insolvency or inability to pay its debts as they become due;
(ix) if Borrower, Senior Mezzanine Borrower or Mortgage Borrower fails to maintain its status as a Special Purpose Entity or breaches any material representation or warranty set forth in Section 4.1.30 of this Agreement; and
(x) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company fails to obtain Lender’s prior consent to any voluntary Indebtedness (other than (x) with respect to Mortgage Borrower, Permitted Indebtedness and (y) with respect to Operating Company, Permitted Indebtedness (Operating Company), as applicable) or voluntary Lien (other than Permitted Encumbrances) encumbering any of the Properties, Senior Mezzanine Collateral or Collateral as required by this Agreement, the Senior Mezzanine Loan Agreement, the Mortgage Loan Agreement, the Pledge Agreement or the Mortgages. Notwithstanding anything to the contrary under this Agreement, neither any present or future Affiliate of Borrower (other than Guarantor, to the extent provided under the Guaranty) nor any present or future shareholder, officer, director, employee, trustee, beneficiary, advisor, partner, member, principal, participant or agent of or in any Borrower or of or in any person or entity that is or becomes an Affiliate of any Borrower shall have any personal liability, directly or indirectly, under or in connection with the Loan Documents. Neither the negative capital account of any Affiliate of Borrower in Borrower, or in any other Affiliate of Borrower in any other Affiliate of Borrower, nor any obligation of any Affiliate of Borrower in any Borrower to restore a negative capital account or to contribute or loan capital to any Borrower or to any other Affiliate of Borrower shall at any time be deemed to be the property or an asset of any Borrower (or any other Affiliate of Borrower) and neither Lender nor its successors or assigns shall have any right to collect, enforce or proceed against any such negative capital account or obligation to restore, contribute or loan capitalMortgage.
(b) Notwithstanding anything to the contrary in this Agreement, the Note or any of the Loan Documents, Lender shall not be deemed to have waived any right which Lender may have under Section 506(a), 506(b), 1111(b) or any other provisions of the Bankruptcy Code to file a claim for the full amount of the Indebtedness or to require that all collateral shall continue to secure all of the Indebtedness owing to Lender in accordance with the Loan Documents.
Appears in 2 contracts
Sources: First Mortgage Note (Century Properties Fund Xii), First Mortgage Note (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 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 ▇▇▇ 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:
(i) fraud or intentional misrepresentation by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor in connection with the execution and delivery of the Loan Documents and/or the Loan;
(ii) the misappropriation, conversion or misapplication in contravention of the Loan Documents by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any funds of Borrower, Senior Mezzanine Borrower, Mortgage Borrower or Operating Company, including, without limitation, (A) any Revenues, (B) any Net Liquidation Proceeds or Insurance Proceeds, (C) any Awards received in connection with a Condemnation, (D) any Rents or security deposits (or any item of Revenue, from whatever source) following an Event of Default, or (E) any distribution or other payments made in connection with any part of the Collateral or Senior Mezzanine Collateral;
(iii) the misappropriation, conversion or misapplication by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any security deposits or Rents paid more than one (1) month in advance;
(iv) any act of actual intentional physical waste by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor;
(v) the breach of any representation, warranty, covenant or indemnification provision in the Environmental Indemnity Agreement concerning environmental laws, hazardous substances and asbestos and any indemnification of Lender with respect thereto in either document;
(vi) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company fails to obtain Lender’s prior consent to any voluntary intentional Transfer as required by this Agreement, the Mortgage Loan Agreement or the Mortgages, as applicable;
(vii) any security deposits, advance deposits or any other deposits collected with respect to any of the Properties which are not delivered to Mortgage Lender upon a foreclosure of any of the Properties or action in lieu thereof, except to the extent any such security deposits were applied in accordance with the terms and conditions of any of the Leases prior to the occurrence of the Event of Default that gave rise to such foreclosure or action in lieu thereof;
(viii) in the event of:
: (A) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing a voluntary petition under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (B) the filing of an involuntary petition against Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law by any Person in which Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of their respective Affiliates, agents or employees colludes with or such other Person, or Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor soliciting or causing to be solicited petitioning creditors for any involuntary petition against Borrower, Operating Company or any Guarantor from any Person; (C) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing an answer consenting to or otherwise acquiescing in or joining in any involuntary petition filed against it by any other Person, other than Lender, under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (D) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor consenting to or acquiescing in or joining in an application for the appointment of a custodian, receiver, trustee, or examiner for Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of the Properties, the Collateral, the Senior Mezzanine Collateral or any portion thereof, other than at the request of Lender; or (E) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor making an assignment for the benefit of creditors (other than Lender), or admitting, in writing or in any legal proceeding, its insolvency or inability to pay its debts as they become due;
(ix) if Borrower, Senior Mezzanine Borrower or Mortgage Borrower fails to maintain its status as a Special Purpose Entity or breaches any material representation or warranty set forth in Section 4.1.30 of this Agreement; and
(x) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company fails to obtain Lender’s prior consent to any voluntary Indebtedness (other than (x) with respect to Mortgage Borrower, Permitted Indebtedness and (y) with respect to Operating Company, Permitted Indebtedness (Operating Company), as applicable) or voluntary Lien (other than Permitted Encumbrances) encumbering any of the Properties, Senior Mezzanine Collateral or Collateral as required by this Agreement, the Senior Mezzanine Loan Agreement, the Mortgage Loan Agreement, the Pledge Agreement or the Mortgages. Notwithstanding anything to the contrary under this Agreement, neither any present or future Affiliate of Borrower (other than Guarantor, to the extent provided under the Guaranty) nor any present or future shareholder, officer, director, employee, trustee, beneficiary, advisor, partner, member, principal, participant or agent of or in any Borrower or of or in any person or entity that is or becomes an Affiliate of any Borrower shall have any personal liability, directly or indirectly, under or in connection with the Loan Documents. Neither the negative capital account of any Affiliate of Borrower in Borrower, or in any other Affiliate of Borrower in any other Affiliate of Borrower, nor any obligation of any Affiliate of Borrower in any Borrower to restore a negative capital account or to contribute or loan capital to any Borrower or to any other Affiliate of Borrower shall at any time be deemed to be the property or an asset of any Borrower (or any other Affiliate of Borrower) and neither Lender nor its successors or assigns shall have any right to collect, enforce or proceed against any such negative capital account or obligation to restore, contribute or loan capital.
(b) Notwithstanding anything to the contrary in this Agreement, the Note or any of the Loan Documents, Lender shall not be deemed to have waived any right which Lender may have under Section 506(a), 506(b), 1111(b) or any other provisions of the Bankruptcy Code to file a claim for the full amount of the Indebtedness or to require that all collateral shall continue to secure all of the Indebtedness owing to Lender in accordance with the Loan Documents.Operating
Appears in 2 contracts
Sources: Mezzanine Loan Agreement (Harrahs Entertainment Inc), Mezzanine Loan Agreement (Harrahs Entertainment Inc)
Exculpation. Notwithstanding any provision in this Agreement to the contrary (other than the proviso below), it is agreed and understood that Purchaser shall look solely to the assets of Seller in the event of any breach or default by Seller under this Agreement, and not to the assets of: (a) Subject to the qualifications belowany person or entity which is a member, Lender shall not enforce the manager or partner in Seller, if Seller is a limited liability and obligation of Borrower to perform and observe the obligations contained in the Note, this Agreement, the Pledge Agreement company 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 Documentspartnership, or which otherwise owns or holds any ownership interest in the CollateralSeller, directly or indirectly (each such partner or other holder or owner of any other collateral given interest in Seller being referred to Lender pursuant to the Loan Documentsherein as a “Subtier Owner”); (b) any person or entity which is a member, manager or partner in or otherwise owns or holds any ownership interest in any Subtier Owner, whether directly or indirectly; (c) any person or entity serving as an officer, director, employee or otherwise for or in Seller; or (d) any person or entity serving as an officer, director, employee or otherwise for or in any Subtier Owner; provided, however, thatthis provision does not limit the liability of Guarantor (as hereinafter defined) under Section 12.20 hereof or under the Master Lease Guaranty. This Agreement is executed by one or more persons (the “Signatories”, except whether one or more) of Seller solely in their capacities as specifically provided herein, representatives of the Seller or a Subtier Owner of Seller and not in their own individual capacities. Purchaser hereby releases and relinquishes the Signatories from any judgment in and all personal liability for any such action matters 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 ▇▇▇ 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 claims 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:
(i) fraud or intentional misrepresentation by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor in connection with the execution and delivery of the Loan Documents and/or the Loan;
(ii) the misappropriation, conversion or misapplication in contravention of the Loan Documents by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any funds of Borrower, Senior Mezzanine Borrower, Mortgage Borrower or Operating Company, including, without limitation, (A) any Revenues, (B) any Net Liquidation Proceeds or Insurance Proceeds, (C) any Awards received in connection with a Condemnation, (D) any Rents or security deposits (or any item of Revenue, from whatever source) following an Event of Default, or (E) any distribution or other payments made in connection with any part of the Collateral or Senior Mezzanine Collateral;
(iii) the misappropriation, conversion or misapplication by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any security deposits or Rents paid more than one (1) month in advance;
(iv) any act of actual intentional physical waste by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor;
(v) the breach of any representation, warranty, covenant or indemnification provision in the Environmental Indemnity Agreement concerning environmental laws, hazardous substances and asbestos and any indemnification of Lender with respect thereto in either document;
(vi) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company fails to obtain Lender’s prior consent to any voluntary intentional Transfer as required by this Agreement, the Mortgage Loan Agreement or the Mortgages, as applicable;
(vii) any security deposits, advance deposits or any other deposits collected with respect to any of the Properties kind which are not delivered to Mortgage Lender upon a foreclosure of any of the Properties or action in lieu thereof, except to the extent any such security deposits were applied in accordance with the terms and conditions of any of the Leases prior to the occurrence of the Event of Default that gave rise to such foreclosure or action in lieu thereof;
(viii) in the event of:
(A) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing a voluntary petition under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (B) the filing of an involuntary petition against Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law by any Person in which Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of their respective Affiliates, agents or employees colludes with or such other Person, or Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor soliciting or causing to be solicited petitioning creditors for any involuntary petition against Borrower, Operating Company or any Guarantor from any Person; (C) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing an answer consenting to or otherwise acquiescing in or joining in any involuntary petition filed against it by any other Person, other than Lender, under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (D) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor consenting to or acquiescing in or joining in an application for the appointment of a custodian, receiver, trustee, or examiner for Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of the Properties, the Collateral, the Senior Mezzanine Collateral or any portion thereof, other than at the request of Lender; or (E) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor making an assignment for the benefit of creditors (other than Lender), or admitting, in writing or in any legal proceeding, its insolvency or inability to pay its debts as they become due;
(ix) if Borrower, Senior Mezzanine Borrower or Mortgage Borrower fails to maintain its status as a Special Purpose Entity or breaches any material representation or warranty set forth in Section 4.1.30 of this Agreement; and
(x) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company fails to obtain Lender’s prior consent to any voluntary Indebtedness (other than (x) with respect to Mortgage Borrower, Permitted Indebtedness and (y) with respect to Operating Company, Permitted Indebtedness (Operating Company), as applicable) or voluntary Lien (other than Permitted Encumbrances) encumbering any of the Properties, Senior Mezzanine Collateral or Collateral as required by this Agreement, the Senior Mezzanine Loan Agreement, the Mortgage Loan Agreement, the Pledge Agreement or the Mortgages. Notwithstanding anything to the contrary under this Agreement, neither any present or future Affiliate of Borrower (other than Guarantor, to the extent provided under the Guaranty) nor any present or future shareholder, officer, director, employee, trustee, beneficiary, advisor, partner, member, principal, participant or agent of or in any Borrower or of or in any person or entity that is or becomes an Affiliate of any Borrower shall have any personal liability, directly or indirectly, arise under or in connection with the Loan Documentsor as a result of this Agreement. Neither the negative capital account The foregoing release of liability shall be effective with respect to and shall apply to all claims against any members, managers and partners of Seller (if Seller is a limited liability company or a partnership) and any members, managers and partners of any Affiliate Subtier Owner (if such Subtier Owner is a limited liability company or a partnership) regardless of Borrower in Borrowerwhether such claims arise as a result of any liability which the Signatories may have as members, managers or partners of the Seller or any Subtier Owner, or in otherwise. Seller acknowledges that Seller’s obligations with respect to any other Affiliate of Borrower in any other Affiliate of Borrowercovenant, nor any obligation indemnity, representation or warranty under this Agreement which expressly survives the Closing shall be considered a liability for purposes of any Affiliate of Borrower in any Borrower to restore a negative capital account or to contribute or loan capital to any Borrower or to any other Affiliate of Borrower shall at any time be deemed to be the property or an asset of any Borrower (or any other Affiliate of Borrower) and neither Lender nor its successors or assigns shall have any right to collect, enforce or proceed against any such negative capital account or obligation to restore, contribute or loan capitalmember distribution limitation imposed under applicable Texas limited liability laws.
(b) Notwithstanding anything to the contrary in this Agreement, the Note or any of the Loan Documents, Lender shall not be deemed to have waived any right which Lender may have under Section 506(a), 506(b), 1111(b) or any other provisions of the Bankruptcy Code to file a claim for the full amount of the Indebtedness or to require that all collateral shall continue to secure all of the Indebtedness owing to Lender in accordance with the Loan Documents.
Appears in 2 contracts
Sources: Agreement of Sale and Purchase, Agreement of Sale and Purchase (Stratus 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, Note or this Agreement, the Pledge Agreement or the other Loan Documents Security Instrument by any action or proceeding wherein a money judgment shall be sought against BorrowerBorrower or any general or limited partner or member of Borrower (hereafter collectively referred to as 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 AgreementSecurity Instrument, the Pledge Agreement Other Security Documents, and the other Loan Documents, or interest in the CollateralProperty, or the Rents and any other collateral given to Lender pursuant to created by this Security Instrument 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 's interest in the Collateral Property, in the Rents and in any other collateral given to Lender, and Lender. ▇▇▇▇▇▇, by accepting the Note, Note and this Agreement, the Pledge Agreement and the other Loan DocumentsSecurity Instrument, agrees that it shall not ▇▇▇ 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 in connection with, with the Note, the Other Security Documents or this Agreement, the Pledge Agreement or the other Loan DocumentsSecurity Instrument. 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 Security Instrument; (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 Agreementthis Security Instrument; (ciii) affect the validity or enforceability of or any Guaranty guaranty made in connection with the Loan Note, this Security Instrument, or any of the rights and remedies of Lender thereunderOther Security Documents; (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 executed in connection herewith; (fvi) constitute a prohibition against impair the right of Lender to seek a deficiency judgment against Borrower in order bring suit with respect to fully realize the security granted fraud or intentional misrepresentation by the Pledge Agreement Exculpated Parties or to commence any other appropriate action person or proceeding entity in order for connection with the Note, this Security Instrument or the Other Security Documents; (vii) impair the right of Lender to exercise its remedies against all obtain the Rents received, and not applied to the operating expenses of the CollateralProperty, by any of the Exculpated Parties after the occurrence of an Event of Default; (viii) impair the right of Lender to bring suit with respect to the Exculpated Parties' misappropriation of tenant security deposits or Rents collected in advance; (gix) constitute a waiver impair the right of Lender to obtain insurance proceeds or condemnation awards due to Lender under this Security Instrument; (x) impair the right of Lender to enforce the liability provisions of sub-paragraphs 36(g) through 36 (k), inclusive and obligation paragraphs 34 and 35 of Borrower, by money judgment this Security Instrument against the Borrower (excluding any general or otherwise, to the extent of any actual loss, damage, cost, expense, liability, claim limited partner or other obligation incurred by Lender (including attorneys’ fees and costs reasonably incurred) arising out of or in connection with the following:
(i) fraud or intentional misrepresentation by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor in connection with the execution and delivery of the Loan Documents and/or the Loan;
(ii) the misappropriation, conversion or misapplication in contravention of the Loan Documents by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any funds of Borrower, Senior Mezzanine Borrower, Mortgage Borrower or Operating Company, including, without limitation, (A) any Revenues, (B) any Net Liquidation Proceeds or Insurance Proceeds, (C) any Awards received in connection with a Condemnation, (D) any Rents or security deposits (or any item of Revenue, from whatever source) following an Event of Default, member thereof); or (Exi) any distribution or other payments made in connection with impair the right of Lender to recover any part of the Collateral or Senior Mezzanine Collateral;
Debt from the Borrower (iii) excluding the misappropriationgeneral and limited partners and members of Borrower), conversion or misapplication by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any security deposits or Rents paid more than one (1) month in advance;
(iv) any act of actual intentional physical waste by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor;
(v) following the breach of any representation, warranty, covenant contained in paragraph 9 or indemnification provision in the Environmental Indemnity Agreement concerning environmental laws, hazardous substances and asbestos and any indemnification of Lender with respect thereto in either document;
(vi) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company fails to obtain Lender’s prior consent to any voluntary intentional Transfer as required by this Agreement, the Mortgage Loan Agreement or the Mortgages, as applicable;
(vii) any security deposits, advance deposits or any other deposits collected with respect to any of the Properties which are not delivered to Mortgage Lender upon a foreclosure of any of the Properties or action in lieu thereof, except to the extent any such security deposits were applied in accordance with the terms and conditions of any of the Leases prior to the occurrence of the Event of Default that gave rise to such foreclosure or action in lieu thereof;
(viii) in the event of:
(A) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing a voluntary petition under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (B) the filing of an involuntary petition against Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law by any Person in which Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of their respective Affiliates, agents or employees colludes with or such other Person, or Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor soliciting or causing to be solicited petitioning creditors for any involuntary petition against Borrower, Operating Company or any Guarantor from any Person; (C) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing an answer consenting to or otherwise acquiescing in or joining in any involuntary petition filed against it by any other Person, other than Lender, under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (D) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor consenting to or acquiescing in or joining in an application for the appointment of a custodian, receiver, trustee, or examiner for Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of the Properties, the Collateral, the Senior Mezzanine Collateral or any portion thereof, other than at the request of Lender; or (E) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor making an assignment for the benefit of creditors (other than Lender), or admitting, in writing or in any legal proceeding, its insolvency or inability to pay its debts as they become due;
(ix) if Borrower, Senior Mezzanine Borrower or Mortgage Borrower fails to maintain its status as a Special Purpose Entity or breaches any material representation or warranty set forth in Section 4.1.30 of this Agreement; and
(x) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company fails to obtain Lender’s prior consent to any voluntary Indebtedness (other than (x) with respect to Mortgage Borrower, Permitted Indebtedness and (y) with respect to Operating Company, Permitted Indebtedness (Operating Company), as applicable) or voluntary Lien (other than Permitted Encumbrances) encumbering any of the Properties, Senior Mezzanine Collateral or Collateral as required by this Agreement, the Senior Mezzanine Loan Agreement, the Mortgage Loan Agreement, the Pledge Agreement or the Mortgages. Notwithstanding anything to the contrary under this Agreement, neither any present or future Affiliate of Borrower (other than Guarantor, to the extent provided under the Guaranty) nor any present or future shareholder, officer, director, employee, trustee, beneficiary, advisor, partner, member, principal, participant or agent of or in any Borrower or of or in any person or entity that is or becomes an Affiliate of any Borrower shall have any personal liability, directly or indirectly, under or in connection with the Loan Documents. Neither the negative capital account of any Affiliate of Borrower in Borrower, or in any other Affiliate of Borrower in any other Affiliate of Borrower, nor any obligation of any Affiliate of Borrower in any Borrower to restore a negative capital account or to contribute or loan capital to any Borrower or to any other Affiliate of Borrower shall at any time be deemed to be the property or an asset of any Borrower (or any other Affiliate of Borrower) and neither Lender nor its successors or assigns shall have any right to collect, enforce or proceed against any such negative capital account or obligation to restore, contribute or loan capital55 hereof.
(b) Notwithstanding anything to the contrary in this Agreement, the Note or any of the Loan Documents, Lender shall not be deemed to have waived any right which Lender may have under Section 506(a), 506(b), 1111(b) or any other provisions of the Bankruptcy Code to file a claim for the full amount of the Indebtedness or to require that all collateral shall continue to secure all of the Indebtedness owing to Lender in accordance with the Loan Documents.
Appears in 2 contracts
Sources: Deed of Trust, Security Agreement, Fixture Filing and Assignment of Leases and Rents (Investors First Staged Equity L P), Deed of Trust, Security Agreement, Fixture Filing and Assignment of Leases and Rents (Investors First Staged Equity L P)
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 ▇▇▇ forhave and will not have any claims or causes of action against any disclosed or undisclosed officer, seek or demand any deficiency judgment against Borrower in any such action or proceeding underdirector, or by reason ofemployee, or in connection withtrustee, the Noteshareholder, this Agreementpartner, the Pledge Agreement or the other Loan Documents. The provisions of this Section shall notprincipal, however,
(a) constitute a waiverparent, 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 (including attorneys’ fees and costs reasonably incurred) arising out affiliate of or in connection with the following:
(i) fraud or intentional misrepresentation by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor in connection with the execution and delivery of the Loan Documents and/or the Loan;
(ii) the misappropriation, conversion or misapplication in contravention of the Loan Documents by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any funds of Borrower, Senior Mezzanine Borrower, Mortgage Borrower or Operating CompanySeller, including, without limitation, (A) any Revenuesmember, (B) any Net Liquidation Proceeds or Insurance Proceeds, (C) any Awards received in connection with a Condemnation, (D) any Rents or security deposits (or any item of Revenue, from whatever source) following an Event of Default, or (E) any distribution or other payments made in connection with any part of the Collateral or Senior Mezzanine Collateral;
(iii) the misappropriation, conversion or misapplication by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any security deposits or Rents paid more than one (1) month in advance;
(iv) any act of actual intentional physical waste by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor;
(v) the breach of any representation, warranty, covenant or indemnification provision in the Environmental Indemnity Agreement concerning environmental laws, hazardous substances and asbestos and any indemnification of Lender with respect thereto in either document;
(vi) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company fails to obtain Lender’s prior consent to any voluntary intentional Transfer as required by this Agreement, the Mortgage Loan Agreement or the Mortgages, as applicable;
(vii) any security deposits, advance deposits or any other deposits collected with respect to any of the Properties which are not delivered to Mortgage Lender upon a foreclosure of any of the Properties or action in lieu thereof, except to the extent any such security deposits were applied in accordance with the terms and conditions of any of the Leases prior to the occurrence of the Event of Default that gave rise to such foreclosure or action in lieu thereof;
(viii) in the event of:
(A) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing a voluntary petition under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (B) the filing of an involuntary petition against Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law by any Person in which Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of their respective Affiliates, agents or employees colludes with or such other Person, or Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor soliciting or causing to be solicited petitioning creditors for any involuntary petition against Borrower, Operating Company or any Guarantor from any Person; (C) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing an answer consenting to or otherwise acquiescing in or joining in any involuntary petition filed against it by any other Person, other than Lender, under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (D) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor consenting to or acquiescing in or joining in an application for the appointment of a custodian, receiver, trustee, or examiner for Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of the Properties, the Collateral, the Senior Mezzanine Collateral or any portion thereof, other than at the request of Lender; or (E) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor making an assignment for the benefit of creditors (other than Lender), or admitting, in writing or in any legal proceeding, its insolvency or inability to pay its debts as they become due;
(ix) if Borrower, Senior Mezzanine Borrower or Mortgage Borrower fails to maintain its status as a Special Purpose Entity or breaches any material representation or warranty set forth in Section 4.1.30 of this Agreement; and
(x) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company fails to obtain Lender’s prior consent to any voluntary Indebtedness (other than (x) with respect to Mortgage Borrower, Permitted Indebtedness and (y) with respect to Operating Company, Permitted Indebtedness (Operating Company), as applicable) or voluntary Lien (other than Permitted Encumbrances) encumbering any of the Properties, Senior Mezzanine Collateral or Collateral as required by this Agreement, the Senior Mezzanine Loan Agreement, the Mortgage Loan Agreement, the Pledge Agreement or the Mortgages. Notwithstanding anything to the contrary under this Agreement, neither any present or future Affiliate of Borrower (other than Guarantor, to the extent provided under the Guaranty) nor any present or future shareholdermanager, officer, director, employee, trustee, beneficiaryshareholder, advisor, partner, member, principal, participant partner or agent of or in any Borrower or of or in any person or entity that is or becomes an Affiliate principal of any Borrower shall have any personal liabilitysuch parent, directly subsidiary or indirectlyother affiliate (collectively, under “Seller’s Affiliates”), arising out of or in connection with this Agreement or the Loan Documents. Neither transactions contemplated hereby; provided, however, that the negative capital account of foregoing shall not limit any liability that any Seller’s Affiliate of Borrower in Borrowermay have, or in any other Affiliate of Borrower in any other Affiliate of Borrower, nor any obligation of any Affiliate of Borrower in any Borrower to restore a negative capital account or to contribute or loan capital and the foregoing waiver shall not extend to any Borrower or to any other Affiliate of Borrower shall at any time be deemed to be the property or an asset of any Borrower (or any other Affiliate of Borrower) and neither Lender nor its successors or assigns shall claim that Purchaser may have any right to collect, enforce or proceed against any Seller’s Affiliate under applicable law, for or with respect to: (a) distributions actually received by any Seller’s Affiliate from Seller to the extent such negative capital account or obligation to restoredistributions rendered Seller insolvent, contribute or loan capital.
(b) Notwithstanding anything distributions, payments or other transfers actually received by any Seller’s Affiliate from Seller to the contrary extent constituting a preference or fraudulent conveyance, (c) fraud or fraudulent inducement on the part of Seller or any Seller’s Affiliate in connection with this Agreement, the Note Property or the transactions contemplated hereunder, (d) any contractual liability of such Seller’s Affiliate under any other agreement with or for the benefit of Purchaser to which such Seller’s Affiliate is a party, or (e) any liability any Seller’s Affiliate may have to Purchaser in tort or under any applicable statutory law. Subject to the foregoing proviso, ▇▇▇▇▇▇▇▇▇ agrees to look solely to Seller 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 Loan Documentscovenants, Lender shall warranties or other agreements contained herein, and further agrees not be deemed to have waived sue or otherwise seek to enforce any right which Lender may have under Section 506(a), 506(b), 1111(b) personal obligation against any of Seller’s Affiliates with respect to any matters arising out of or any other in connection with this Agreement or the transactions contemplated hereby. Without limiting the generality of the foregoing provisions of this Section 36, but subject to the Bankruptcy Code to file a claim for proviso set forth in the full amount first sentence of this Section 36, 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 Seller’s Affiliates, and hereby unconditionally and irrevocably releases and discharges Seller’s Affiliates from any and all liability whatsoever which may now or hereafter accrue in favor of Purchaser against Seller’s Affiliates, in connection with or arising out of this Agreement or the Indebtedness or to require that all collateral transactions contemplated hereby. The provisions of this Section 36 shall continue to secure all survive the termination of this Agreement and the Indebtedness owing to Lender in accordance with the Loan DocumentsClosing.
Appears in 2 contracts
Sources: Purchase and Sale Agreement, Purchase and Sale 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 ▇▇▇ 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:
(i) fraud or intentional misrepresentation by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company Principal or any Guarantor in connection with the execution and delivery of the Loan Documents and/or the Loan;
(ii) the misappropriationgross negligence or willful misconduct of Borrower, conversion Principal or misapplication in contravention Guarantor;
(iii) material physical waste of the Loan Documents Property;
(iv) the removal or disposal of any portion of the Property after an Event of Default;
(v) the misapplication or conversion by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company Principal or any Guarantor of any funds of Borrower, Senior Mezzanine Borrower, Mortgage Borrower or Operating Company, including, without limitation, (A) any RevenuesInsurance Proceeds paid by reason of any loss, damage or destruction to the Property which are not applied by Borrower in accordance with this Agreement, (B) any Net Liquidation Proceeds or Insurance Proceeds, (C) any Awards received in connection with a CondemnationCondemnation of all or a portion of the Property which are not applied by Borrower in accordance with this Agreement, (DC) any Rents or security deposits (or any item of Revenue, from whatever source) following an Event of Default, or (ED) any distribution or other payments made in connection with any part of the Collateral or Senior Mezzanine Collateral;
(iii) the misappropriation, conversion or misapplication by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any security deposits or Rents paid more than one (1) month in advance;
(ivvi) failure to pay charges for labor or materials or other charges or judgments that can create Liens on any act portion of actual intentional physical waste by Borrowerthe Property (other than resulting from Lender’s failure to pay Taxes from the Tax and Insurance Escrow Fund provided that (A) no other Event of Default shall then exist, Mortgage Borrower(B) each of Borrower has performed all of its respective obligations under Sections 5.1.2 and 7.2 hereof, Senior Mezzanine Borrowerand (C) sufficient funds are then on deposit therein and such funds are allocated for the payment of such Taxes), Operating Company or any Guarantor;
provided, that, if (vi) such Lien is fully bonded to the breach of any representation, warranty, covenant or indemnification provision in the Environmental Indemnity Agreement concerning environmental laws, hazardous substances and asbestos and any indemnification satisfaction of Lender with respect thereto in either document;
(viwhich bond shall create no obligations on the part of Borrower), and (ii) if Borrowersuch Lien is discharged of record, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company fails shall not have any liability to obtain Lender’s prior consent to any voluntary intentional Transfer as required by Lender for such Lien under this Agreement, the Mortgage Loan Agreement or the Mortgages, as applicableSection 9.3;
(vii) failure to appoint a new property manager upon the request of Lender as permitted under this Agreement; or
(viii) any security deposits, advance deposits or any other deposits collected with respect to any of the Properties Property which are not delivered to Mortgage Lender upon a foreclosure of any of the Properties Property or action in lieu thereof, except to the extent any such security deposits were applied in accordance with the terms and conditions of any of the Leases prior to the occurrence of the Event of Default that gave rise to such foreclosure or action in lieu thereof;.
(viiia) in the event of:
(A) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company Borrower or any Guarantor Principal filing a voluntary petition under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (Bb) the filing of an involuntary petition against Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company Borrower or any Guarantor Principal under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law by any Person in which Borrower, Mortgage BorrowerPrincipal or Guarantor colludes with, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of their respective Affiliates, agents or employees colludes with or otherwise assists such other Person, or Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company solicits or any Guarantor soliciting or causing causes to be solicited petitioning creditors for any involuntary petition against Borrower, Operating Company Borrower or any Guarantor Principal from any Person; (Cc) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company Borrower or any Guarantor Principal filing an answer consenting to or otherwise acquiescing in or joining in any involuntary petition filed against it it, by any other Person, other than Lender, Person under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (Dd) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company Borrower or any Guarantor Principal consenting to or acquiescing in or joining in an application for the appointment of a custodian, receiver, trustee, or examiner for Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company Borrower or any Guarantor or any of the Properties, the Collateral, the Senior Mezzanine Collateral Principal or any portion thereof, other than at of the request of LenderProperty; (e) Borrower or (E) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor Principal making an assignment for the benefit of creditors (other than Lender)creditors, or admitting, admitting in writing or in any legal insolvency or bankruptcy proceeding, its insolvency or inability to pay its debts as they become due;
; (ixii) if the first full monthly payment under the Note not being paid within five (5) days of notice that such payment is late (provided, however, that such grace period relates only to the recourse trigger described in this paragraph); (iii) if Borrower fails to permit on-site inspections of the Property (subject to the rights of tenants), or fails to provide financial information subject to any applicable cure period (except for financial information required to be delivered by a tenant pursuant to the applicable Lease that has not been delivered to Borrower, Senior Mezzanine provided Borrower or Mortgage has requested such financial information from such tenant); (iv) if Borrower fails to maintain its status as a Special Purpose Entity or Entity, breaches any material representation or fails to comply with any warranty or covenant set forth in Section 4.1.30 of this Agreementhereof; and
(xv) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company any Principal fails to obtain Lender’s prior written consent (to extent such consent is required) to any Indebtedness or other voluntary Indebtedness Lien; or (other than vi) if Borrower fails to obtain Lender’s prior written consent (xto extent such consent is required) with respect to Mortgage Borrower, Permitted Indebtedness and (y) with respect to Operating Company, Permitted Indebtedness (Operating Company), as applicable) or voluntary Lien (other than Permitted Encumbrances) encumbering any of the Properties, Senior Mezzanine Collateral or Collateral Transfer as required by this Agreement, the Senior Mezzanine Loan Agreement, the Mortgage Loan Agreement, the Pledge Agreement or the MortgagesMortgage. Notwithstanding anything the provision set forth in clause (v) of this paragraph, a voluntary Lien other than a Lien securing an extension of credit filed against the Property shall not constitute a full recourse trigger for purposes of this paragraph provided such Lien (A) is fully bonded to the contrary under this Agreementsatisfaction of Lender and discharged of record within ninety (90) days of filing, neither or (B) within such ninety (90) day period, Lender receives affirmative title insurance from the title insurance company insuring the lien of the Mortgage that such Lien is subject and subordinate to the lien of the Mortgage and no enforcement action is commenced by the applicable Lien holder. Upon the satisfaction of the conditions set forth in the preceding sentence with respect to the recourse trigger described in clause (v) above, or the acceptance by Lender of any present cure by Borrower of a recourse trigger described in clauses (ii), (iii) or future Affiliate (vi) above (which Lender is not obligated to accept and may reject or accept in its sole and absolute discretion), the Debt shall no longer be fully recourse to Borrower solely as a result of such trigger, provided, however, Borrower (other than Guarantor, shall remain liable to the extent provided under the Guaranty) nor any present or future shareholder, officer, director, employee, trustee, beneficiary, advisor, partner, member, principal, participant or agent of or in any Borrower or of or in any person or entity that is or becomes an Affiliate of any Borrower shall have any personal loss, damage, cost, expense, liability, directly claim or indirectly, under other obligation incurred by Lender (including attorneys’ fees and costs reasonably incurred) arising out of or in connection with such trigger. Notwithstanding the Loan Documents. Neither foregoing, provided that any natural person serving as an Independent Director has agreed in writing that it is not, and will not become, a stockholder in Borrower, Guarantor or any Affiliate, the negative capital account disqualification of such person from serving as an Independent Director because (1) such person became a stockholder in Guarantor or any publicly held Affiliate of Borrower in or Guarantor without the knowledge or consent of Borrower, Guarantor or the applicable Affiliate, or (2) a member of such natural person’s immediate family is, or became, a stockholder in Guarantor or any other publicly traded Affiliate of Borrower in any other Affiliate or Guarantor without the knowledge or consent of Borrower, nor any obligation of any Affiliate of Borrower in any Borrower to restore a negative capital account Guarantor or to contribute or loan capital to any Borrower or to any other Affiliate of Borrower shall at any time be deemed to be the property or an asset of any Borrower (or any other Affiliate of Borrower) and neither Lender nor its successors or assigns shall have any right to collectapplicable Affiliate, enforce or proceed against any such negative capital account or obligation to restore, contribute or loan capital.
(b) Notwithstanding anything to the contrary in this Agreement, the Note or any of the Loan Documents, Lender shall not be deemed trigger recourse under this Section 9.3 provided Borrower, upon obtaining knowledge of such person’s ineligibility to have waived any right which Lender may have under Section 506(a)serve as an Independent Director, 506(b), 1111(b) or any other provisions of the Bankruptcy Code promptly causes such person to file a claim for the full amount of the Indebtedness or to require that all collateral shall continue to secure all of the Indebtedness owing to Lender resign and replaces such person with an eligible Independent Director in accordance with the Loan Documentsterms hereof.
Appears in 2 contracts
Sources: Loan Agreement (Inland Diversified Real Estate Trust, Inc.), Loan Agreement (Inland Diversified Real Estate Trust, Inc.)
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 ▇▇▇ 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. Paducah transition planning and RD&D Program to be discussed and reasonably acceptable to the Majority Consenting Noteholders. 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 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:
(i) fraud or intentional misrepresentation by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor in connection with the execution and delivery Plan Support Agreement as of the Loan Documents and/or the Loan;
(ii) the misappropriationdate thereof. Transferee hereby represents that, conversion or misapplication in contravention after giving effect to its acquisition of the Loan Documents by BorrowerNew Notes, Mortgage BorrowerTransferee, Senior Mezzanine Borrower, Operating Company or any Guarantor of any funds of Borrower, Senior Mezzanine Borrower, Mortgage Borrower or Operating Company, including, without limitation, (A) any Revenues, (B) any Net Liquidation Proceeds or Insurance Proceeds, (C) any Awards received in connection together with a Condemnation, (D) any Rents or security deposits (or any item of Revenue, from whatever source) following an Event of Default, or (E) any distribution or other payments made in connection with any part of the Collateral or Senior Mezzanine Collateral;
(iii) the misappropriation, conversion or misapplication by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any security deposits or Rents paid more than one (1) month in advance;
(iv) any act of actual intentional physical waste by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor;
(v) the breach of any representation, warranty, covenant or indemnification provision in the Environmental Indemnity Agreement concerning environmental laws, hazardous substances and asbestos and any indemnification of Lender with respect thereto in either document;
(vi) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company fails to obtain Lender’s prior consent to any voluntary intentional Transfer as required by this Agreement, the Mortgage Loan Agreement or the Mortgages, as applicable;
(vii) any security deposits, advance deposits or any other deposits collected with respect to any of the Properties which are not delivered to Mortgage Lender upon a foreclosure of any of the Properties or action in lieu thereof, except to the extent any such security deposits were applied in accordance with the terms and conditions of any of the Leases prior to the occurrence of the Event of Default that gave rise to such foreclosure or action in lieu thereof;
(viii) in the event of:
(A) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing a voluntary petition under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (B) the filing of an involuntary petition against Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law by any Person in which Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of their respective its Affiliates, agents or employees colludes with or such other Person, or Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor soliciting or causing to be solicited petitioning creditors for any involuntary petition against Borrower, Operating Company or any Guarantor from any Person; (C) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing an answer consenting to or otherwise acquiescing in or joining in any involuntary petition filed against it by any other Person, other than Lender, under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (D) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor consenting to or acquiescing in or joining in an application for the appointment of a custodian, receiver, trustee, or examiner for Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of the Properties, the Collateral, the Senior Mezzanine Collateral or any portion thereof, other than at the request of Lender; or (E) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor making an assignment for the benefit of creditors (other than Lender), or admitting, in writing or in any legal proceeding, its insolvency or inability to pay its debts as they become due;
(ix) if Borrower, Senior Mezzanine Borrower or Mortgage Borrower fails to maintain its status as a Special Purpose Entity or breaches any material representation or warranty set forth in Section 4.1.30 of this Agreement; and
(x) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company fails to obtain Lender’s prior consent to any voluntary Indebtedness (other than (x) with respect to Mortgage Borrower, Permitted Indebtedness and (y) with respect to Operating Company, Permitted Indebtedness (Operating Company), as applicable) or voluntary Lien (other than Permitted Encumbrances) encumbering any of the Properties, Senior Mezzanine Collateral or Collateral as required by this Agreement, the Senior Mezzanine Loan Agreement, the Mortgage Loan Agreement, the Pledge Agreement or the Mortgages. Notwithstanding anything to the contrary under this Agreement, neither any present or future Affiliate of Borrower (other than Guarantor, to the extent provided under the Guaranty) nor any present or future shareholder, officer, director, employee, trustee, beneficiary, advisor, partner, member, principal, participant or agent of or in any Borrower or of or in any person or entity that is or becomes an Affiliate of any Borrower shall have any personal liability, directly or indirectly, under legally or beneficially owns or holds $[___] in connection with the Loan Documents. Neither the negative capital account of any Affiliate of Borrower in Borrower, or in any other Affiliate of Borrower in any other Affiliate of Borrower, nor any obligation of any Affiliate of Borrower in any Borrower to restore a negative capital account or to contribute or loan capital to any Borrower or to any other Affiliate of Borrower shall at any time be deemed to be the property or an asset of any Borrower (or any other Affiliate of Borrower) and neither Lender nor its successors or assigns shall have any right to collect, enforce or proceed against any such negative capital account or obligation to restore, contribute or loan capital.
(b) Notwithstanding anything to the contrary in this Agreement, the Note or any of the Loan Documents, Lender shall not be deemed to have waived any right which Lender may have under Section 506(a), 506(b), 1111(b) or any other provisions of the Bankruptcy Code to file a claim for the full principal amount of the Indebtedness or to require that all collateral shall continue to secure all of the Indebtedness owing to Lender in accordance with the Loan DocumentsNotes.
Appears in 2 contracts
Sources: Plan Support Agreement (Usec Inc), Plan Support Agreement (Usec 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 ▇▇▇ 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:
(i) fraud or intentional misrepresentation by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company Borrower or any Guarantor in connection with the execution and delivery of the Loan Documents and/or the Loan;
(ii) the misappropriation, conversion willful misconduct of Borrower or misapplication in contravention Guarantor;
(iii) voluntary material physical waste of the Loan Documents Property by Borrower, Mortgage Guarantor or any Affiliate thereof (except if the cash flow from the Property is not sufficient to prevent such material physical waste (so long as such insufficiency does not arise from the intentional misappropriation or conversion of revenues by Borrower, Senior Mezzanine Guarantor or any Affiliates thereof));
(iv) the removal or disposal of any portion of the Property by Borrower, Operating Company Guarantor or any Guarantor of any funds its Affiliates after an Event of Default, unless such Personal Property is replaced with property of the same utility and of the same or greater value and such removal or disposal of such Personal Property is in the ordinary course of Borrower, Senior Mezzanine ’s business;
(v) the misappropriation or conversion by Borrower, Mortgage Borrower Guarantor or Operating Company, including, without limitation, any Affiliate thereof of (A) any RevenuesInsurance Proceeds paid by reason of any loss, damage or destruction to the Property, (B) any Net Liquidation Proceeds or Insurance Proceeds, (C) any Awards received in connection with a CondemnationCondemnation of all or a portion of the Property, (DC) any CPLV Rents or security deposits (or any item of Revenue, from whatever source) following an Event of Default, or (ED) any distribution or other payments made in connection with any part of the Collateral or Senior Mezzanine Collateral;
(iii) the misappropriation, conversion or misapplication by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any security deposits or CPLV Rents paid more than one (1) month in advance;
(ivvi) failure to pay charges for labor or materials or other charges or judgments incurred by or on behalf of Borrower that can create Liens on any act portion of actual intentional physical waste by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor;
the Property (v) except to the breach of any representation, warranty, covenant or indemnification provision in the Environmental Indemnity Agreement concerning environmental laws, hazardous substances and asbestos and any indemnification extent such failure occurs solely as a result of Lender with applying CPLV Rents to the Debt, or holding CPLV Rents as additional collateral for the Loan, during the continuance of an Event of Default or a Cash Sweep Period, and such charges or judgments relate to or otherwise arose in respect thereto in either document;
(vi) if Borrowerof work, Mortgage Borrower, Senior Mezzanine Borrower matters or Operating Company fails other actions that commenced prior to obtain Lender’s prior consent to any voluntary intentional Transfer as required by this Agreement, the Mortgage Loan Agreement occurrence of such Event of Default or the Mortgages, as applicableCash Sweep Event);
(vii) any security deposits, advance deposits or any other deposits collected by Borrower with respect to any of the Properties Property which are not delivered to Mortgage Lender upon a foreclosure of any of the Properties Property or action in lieu thereof, except to the extent any such security deposits were applied in accordance with the terms and conditions of any of the Leases prior to the occurrence of the Event of Default that gave rise to such foreclosure or action in lieu thereof;
(viii) failure by Borrower to maintain its status as a Single Purpose Entity or comply with any representation, warranty or covenant set forth in the event of:Section 4.1.30;
(Aix) Borrowerif Borrower fails to obtain Lender’s prior written consent to any Indebtedness or voluntary Lien encumbering the Property (other than a Permitted Encumbrance);
(x) any material modification or termination of the CPLV Lease, Mortgage BorrowerCPLV Lease Guaranty or Ground Lease by Borrower without Lender’s consent in violation of the terms hereunder;
(xi) any termination or cancellation of the Management Agreement by Borrower without Lender’s prior written consent in violation of the terms hereunder and Borrower fails to enter into a Replacement Management Agreement in accordance with the terms hereunder; and/or
(xii) if Guarantor, Senior Mezzanine Borrower, Operating Company Borrower or any Guarantor Affiliate of any of the foregoing, in connection with any enforcement action or exercise or assertion of any right or remedy by or on behalf of Lender under or in connection with the Guaranty, the Note, the Mortgage or any other Loan Document, raises a defense or seeks judicial intervention or injunctive or other equitable relief of any kind, or asserts in a pleading filed in connection with a judicial proceeding any defense against Lender or any right in connection with any security for the Loan (other than any defense that is raised in good faith by Borrower or Guarantor).
(a) Borrower filing a voluntary petition under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (Bb) the filing of an involuntary petition against Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor Borrower under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law by any Person in which Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company Borrower or any Guarantor or any of their respective Affiliates, agents or employees colludes with or such other Personwith, or Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company otherwise solicits or any Guarantor soliciting or causing causes to be solicited petitioning creditors for any involuntary petition against Borrower, Operating Company or any Guarantor Borrower from any Person; (Cc) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor Borrower filing an answer consenting to or otherwise acquiescing in or joining in any involuntary petition filed against it it, by any other Person, other than Lender, Person under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency lawlaw (except as may be required to avoid violating Rule 9011 of the Federal Rules of Bankruptcy Procedure); (Dd) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor Borrower consenting to or acquiescing in or joining in an application for the appointment of a custodian, receiver, trustee, or examiner for Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of the Properties, the Collateral, the Senior Mezzanine Collateral or any portion thereof, other than Borrower (except at the request of Lender; or (E) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor making an assignment for the benefit of creditors (other than Lender), or admitting, in writing or in any legal proceeding, its insolvency or inability to pay its debts as they become due;
(ix) if Borrower, Senior Mezzanine Borrower or Mortgage Borrower fails to maintain its status as a Special Purpose Entity or breaches any material representation or warranty set forth in Section 4.1.30 of this Agreement; and
(x) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company fails to obtain Lender’s prior consent to any voluntary Indebtedness (other than (x) with respect to Mortgage Borrower, Permitted Indebtedness and (y) with respect to Operating Company, Permitted Indebtedness (Operating Company), as applicable) or voluntary Lien (other than Permitted Encumbrances) encumbering any of the Properties, Senior Mezzanine Collateral or Collateral as required by this Agreement, the Senior Mezzanine Loan Agreement, the Mortgage Loan Agreement, the Pledge Agreement or the Mortgages. Notwithstanding anything to the contrary under this Agreement, neither any present or future Affiliate of Borrower (other than Guarantor, to the extent provided under the Guaranty) nor any present or future shareholder, officer, director, employee, trustee, beneficiary, advisor, partner, member, principal, participant or agent of or in any Borrower or of or in any person or entity that is or becomes an Affiliate of any Borrower shall have any personal liability, directly or indirectly, under or in connection with the Loan Documents. Neither the negative capital account of any Affiliate of Borrower in Borrower, or in any other Affiliate of Borrower in any other Affiliate of Borrower, nor any obligation of any Affiliate of Borrower in any Borrower to restore a negative capital account or to contribute or loan capital to any Borrower or to any other Affiliate of Borrower shall at any time be deemed to be the property or an asset of any Borrower (or any other Affiliate of Borrower) and neither Lender nor its successors or assigns shall have any right to collect, enforce or proceed against any such negative capital account or obligation to restore, contribute or loan capital.
(b) Notwithstanding anything to the contrary in this Agreement, the Note or any of the Loan Documents, Lender shall not be deemed to have waived any right which Lender may have under Section 506(a), 506(b), 1111(b) or any other provisions of the Bankruptcy Code to file a claim for the full amount of the Indebtedness or to require that all collateral shall continue to secure all of the Indebtedness owing to Lender in accordance with the Loan Documents.
Appears in 2 contracts
Sources: Loan Agreement, Loan Agreement (Vici Properties Inc.)
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 ▇▇▇ 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:
(i) fraud or intentional misrepresentation by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor in connection with the execution and delivery of the Loan Documents and/or the Loan;
(ii) the misappropriation, conversion or misapplication in contravention of the Loan Documents by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any funds of Borrower, Senior Mezzanine Borrower, Mortgage Borrower or Operating Company, including, without limitation, (A) any Revenues, (B) any Net Liquidation Proceeds or Insurance Proceeds, (C) any Awards received in connection with a Condemnation, (D) any Rents or security deposits (or any item of Revenue, from whatever source) following an Event of Default, or (E) any distribution or other payments made in connection with any part of the Collateral or Senior Mezzanine Collateral;
(iii) the misappropriation, conversion or misapplication by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any security deposits or Rents paid more than one (1) month in advance;
(iv) any act of actual intentional physical waste by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor;
(v) the breach of any representation, warranty, covenant or indemnification provision in the Environmental Indemnity Agreement concerning environmental laws, hazardous substances and asbestos and any indemnification of Lender with respect thereto in either document;
(vi) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company fails to obtain Lender’s prior consent to any voluntary intentional Transfer as required by this Agreement, the Mortgage Loan Agreement or the Mortgages, as applicable;
(vii) any security deposits, advance deposits or any other deposits collected with respect to any of the Properties which are not delivered to Mortgage Lender upon a foreclosure of any of the Properties or action in lieu thereof, except to the extent any such security deposits were applied in accordance with the terms and conditions of any of the Leases prior to the occurrence of the Event of Default that gave rise to such foreclosure or action in lieu thereof;
(viii) in the event of:
(A) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing a voluntary petition under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (B) the filing of an involuntary petition against Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law by any Person in which Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of their respective Affiliates, agents or employees colludes with or such other Person, or Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor soliciting or causing to be solicited petitioning creditors for any involuntary petition against Borrower, Operating Company or any Guarantor from any Person; (C) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing an answer consenting to or otherwise acquiescing in or joining in any involuntary petition filed against it by any other Person, other than Lender, under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (D) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor consenting to or acquiescing in or joining in an application for the appointment of a custodian, receiver, trustee, or examiner for Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of the Properties, the Collateral, the Senior Mezzanine Collateral or any portion thereof, other than at the request of Lender; or (E) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor making an assignment for the benefit of creditors (other than Lender), or admitting, in writing or in any legal proceeding, its insolvency or inability to pay its debts as they become due;
(ix) if Borrower, Senior Mezzanine Borrower or Mortgage Borrower fails to maintain its status as a Special Purpose Entity or breaches any material representation or warranty set forth in Section 4.1.30 of this Agreement; and
(x) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company fails to obtain Lender’s prior consent to any voluntary Indebtedness (other than (x) with respect to Mortgage Borrower, Permitted Indebtedness and (y) with respect to Operating Company, Permitted Indebtedness (Operating Company), as applicable) or voluntary Lien (other than Permitted Encumbrances) encumbering any of the Properties, Senior Mezzanine Collateral or Collateral as required by this Agreement, the Senior Mezzanine Loan Agreement, the Mortgage Loan Agreement, the Pledge Agreement or the Mortgages. Notwithstanding anything to the contrary under this Agreement, neither any present or future Affiliate of Borrower (other than Guarantor, to the extent provided under the Guaranty) nor any present or future shareholder, officer, director, employee, trustee, beneficiary, advisor, partner, member, principal, participant or agent of or in any Borrower or of or in any person or entity that is or becomes an Affiliate of any Borrower shall have any personal liability, directly or indirectly, under or in connection with the Loan Documents. Neither the negative capital account of any Affiliate of Borrower in Borrower, or in any other Affiliate of Borrower in any other Affiliate of Borrower, nor any obligation of any Affiliate of Borrower in any Borrower to restore a negative capital account or to contribute or loan capital to any Borrower or to any other Affiliate of Borrower shall at any time be deemed to be the property or an asset of any Borrower (or any other Affiliate of Borrower) and neither Lender nor its successors or assigns shall have any right to collect, enforce or proceed against any such negative capital account or obligation to restore, contribute or loan capital.
(b) Notwithstanding anything to the contrary in this Agreement, the Note or any of the Loan Documents, Lender shall not be deemed to have waived any right which Lender may have under Section 506(a), 506(b), 1111(b) or any other provisions of the Bankruptcy Code to file a claim for the full amount of the Indebtedness or to require that all collateral shall continue to secure all of the Indebtedness owing to Lender in accordance with the Loan Documents.
Appears in 2 contracts
Sources: Junior Mezzanine Loan Agreement (Ashford Hospitality Prime, Inc.), Senior Mezzanine Loan Agreement (Ashford Hospitality Prime, Inc.)
Exculpation. (a) Subject to the qualifications belowprovisions of this Section, Borrower’s liability under this Note, the Security Instruments or the Other Security Documents shall only extend to the Mortgaged Property and other collateral given to secure the Debt, and Lender shall not enforce the such liability and obligation against any other asset, property or funds 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 person 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 Documentsentity constituting Borrower; 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 ▇▇▇ 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 foregoing shall not, however,
: (a) constitute a waiverimpair the right of lender to bring suit and obtain personal, release recourse judgment against any person or impairment entity (including Borrower or any person or entity constituting Borrower) relating to any losses sustained by Lender in connection with any fraud, intentional misrepresentation, waste, or misappropriation of any obligation evidenced tenant security deposits or secured rents collected more than one (1) month in advance by any of the Loan DocumentsBorrower; (b) impair the right of Lender to name name, and obtain a judgment against any person or entity (including Borrower as or any person or entity constituting Borrower) to the extent required by law to either obtain a party defendant in judgment of specific performance with respect to any action of the provisions of this Note, the Security Instruments or suit for foreclosure any of the Other Security Documents, or to foreclose the Security Instruments and sale under obtain title to the Pledge AgreementMortgaged Property and other collateral given to secure the Debt; (c) affect the validity or enforceability of, or impair the right of Lender to bring suit and obtain personal, recourse judgment against any person or entity (including Borrower or any Guaranty person or entity constituting Borrower) to enforce any guaranty, indemnity or release of liability made by such person or entity (whether made in connection with this Note, the Loan or Security Instruments, any of the rights and remedies of Lender thereunderOther Security Documents or in any other separate agreement); (d) impair the right of Lender to obtain the appointment of a receiver; (e) intentionally omittedimpair the enforcement of any Assignment of Leases and Rents executed in connection herewith; or (f) constitute a prohibition against affect the validity or enforceability of, or impair the right of Lender to seek a deficiency bring suit and obtain personal, recourse judgment against any person or entity (including Borrower or any person or entity constituting Borrower) relating to any losses sustained by Lender in order to fully realize the security granted by the Pledge Agreement or to commence connection with any other appropriate action or proceeding in order for Lender to exercise its remedies against all of the Collateralprovisions of this Note, the Security Instruments or any of the Other Security Documents requiring that: (i) any person or entity maintain any insurance over any of the Mortgaged Property, or (ii) any insurance proceeds or condemnation awards be paid to Lender; or (g) constitute a waiver of impair the right of Lender to enforce the liability bring suit and obligation of Borrowerobtain personal, by money recourse judgment against any person or otherwise, to the extent of any actual loss, damage, cost, expense, liability, claim or other obligation incurred by Lender entity (including attorneys’ fees and costs reasonably incurredBorrower or any person or entity constituting Borrower) arising out for the full amount of the Debt if the Mortgaged Property or in connection with the following:
any part thereof shall become an asset in: (i) fraud a voluntary bankruptcy or intentional misrepresentation by Borrowerinsolvency proceeding, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor in connection with the execution and delivery of the Loan Documents and/or the Loan;
(ii) the misappropriation, conversion an involuntary bankruptcy or misapplication in contravention of the Loan Documents by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any funds of Borrower, Senior Mezzanine Borrower, Mortgage Borrower or Operating Company, including, without limitation, insolvency proceeding: (A) which is commenced by any Revenuesperson or entity controlling, controlled by or under common control with borrower (the “Borrowing Group”) or (B) in which any Net Liquidation Proceeds or Insurance Proceeds, (C) any Awards received in connection with a Condemnation, (D) any Rents or security deposits (or any item of Revenue, from whatever source) following an Event of Default, or (E) any distribution or other payments made in connection with any part member of the Collateral Borrowing Group objects to a motion by Lender for relief from any stay or Senior Mezzanine Collateral;
(iii) injunction from the misappropriation, conversion or misapplication by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor foreclosure of any security deposits or Rents paid more than one (1) month in advance;
(iv) any act of actual intentional physical waste by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor;
(v) the breach of any representation, warranty, covenant or indemnification provision in the Environmental Indemnity Agreement concerning environmental laws, hazardous substances and asbestos and any indemnification of Lender with respect thereto in either document;
(vi) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company fails to obtain Lender’s prior consent to any voluntary intentional Transfer as required by this Agreement, the Mortgage Loan Agreement or the Mortgages, as applicable;
(vii) any security deposits, advance deposits Security Instruments or any other deposits collected with respect to any of remedial action permitted under this Note, the Properties which are not delivered to Mortgage Lender upon a foreclosure of any of the Properties or action in lieu thereof, except to the extent any such security deposits were applied in accordance with the terms and conditions of any of the Leases prior to the occurrence of the Event of Default that gave rise to such foreclosure or action in lieu thereof;
(viii) in the event of:
(A) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing a voluntary petition under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (B) the filing of an involuntary petition against Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law by any Person in which Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of their respective Affiliates, agents or employees colludes with or such other Person, or Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor soliciting or causing to be solicited petitioning creditors for any involuntary petition against Borrower, Operating Company or any Guarantor from any Person; (C) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing an answer consenting to or otherwise acquiescing in or joining in any involuntary petition filed against it by any other Person, other than Lender, under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (D) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor consenting to or acquiescing in or joining in an application for the appointment of a custodian, receiver, trustee, or examiner for Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor Security Instruments or any of the PropertiesOther Security Documents. Items (a) through (g) above are collectively the “Non-Recourse Exceptions”. Borrower’s liability under the Non-Recourse Exceptions, the Collateral, the Senior Mezzanine Collateral or any portion thereof, other than at the request of Lender; or excepting item (E) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor making an assignment for the benefit of creditors (other than Lenderg), or admitting, in writing or in any legal proceeding, its insolvency or inability to pay its debts as they become due;
(ix) if Borrower, Senior Mezzanine Borrower or Mortgage Borrower fails to maintain its status as a Special Purpose Entity or breaches any material representation or warranty set forth in Section 4.1.30 of this Agreement; and
(x) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company fails to obtain Lender’s prior consent to any voluntary Indebtedness (other than (x) with respect to Mortgage Borrower, Permitted Indebtedness and (y) with respect to Operating Company, Permitted Indebtedness (Operating Company), as applicable) or voluntary Lien (other than Permitted Encumbrances) encumbering any of the Properties, Senior Mezzanine Collateral or Collateral as required by this Agreement, the Senior Mezzanine Loan Agreement, the Mortgage Loan Agreement, the Pledge Agreement or the Mortgages. Notwithstanding anything shall be limited to the contrary under this Agreement, neither any present or future Affiliate of Borrower (other than Guarantor, to the extent provided under the Guaranty) nor any present or future shareholder, officer, director, employee, trustee, beneficiary, advisor, partner, member, principal, participant or agent of or in any Borrower or of or in any person or entity that is or becomes an Affiliate amount of any Borrower shall have any personal liability, directly losses or indirectly, under or damages sustained by Lender in connection with the Loan Documentssuch Non-Recourse Exceptions. Neither the negative capital account of any Affiliate of Borrower in Borrower, or in any other Affiliate of Borrower in any other Affiliate of Borrower, nor any obligation of any Affiliate of Borrower in any Borrower to restore a negative capital account or to contribute or loan capital to any Borrower or to any other Affiliate of Borrower Nothing herein shall at any time be deemed to be the property or an asset a waiver of any Borrower (or any other Affiliate of Borrower) and neither Lender nor its successors or assigns shall have any right to collect, enforce or proceed against any such negative capital account or obligation to restore, contribute or loan capital.
(b) Notwithstanding anything to the contrary in this Agreement, the Note or any of the Loan Documents, Lender shall not be deemed to have waived any right which Lender may have under Section Sections 506(a), 506(b), 1111(b) or any other provisions of the U.S. Bankruptcy Code to file a claim for the full amount of the Indebtedness Debt secured by the Security Instruments or to require that all of the Mortgaged Property and other collateral given to secure the Debt shall continue to secure all of the Indebtedness owing to Lender in accordance with the Loan DocumentsDebt.
Appears in 2 contracts
Sources: Promissory Note (Sovran Self Storage Inc), Promissory Note (Sovran Acquisition LTD Partnership)
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 ▇▇▇ 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"):
(i) fraud fraud, gross negligence, willful misconduct, misrepresentation or intentional misrepresentation failure to disclose a material fact by or on behalf of Borrower, Mortgage BorrowerGuarantor, Senior Mezzanine Borrowerany Affiliate of Borrower or Guarantor, Operating Company or any Guarantor of their respective agents or representatives in connection with the execution and delivery of the Loan Documents and/or the Loan;
(ii) the misappropriation, conversion or misapplication in contravention of the Loan Documents by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any funds of Borrower, Senior Mezzanine Borrower, Mortgage Borrower or Operating Company, including, without limitation, (A) any Revenues, (B) any Net Liquidation Proceeds or Insurance Proceeds, (C) any Awards received in connection with a Condemnation, (D) any Rents or security deposits (or any item of Revenue, from whatever source) following an Event of Default, or (E) any distribution or other payments made in connection with any part of the Collateral or Senior Mezzanine Collateral;
(iii) the misappropriation, conversion or misapplication by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any security deposits or Rents paid more than one (1) month in advance;
(iv) any act of actual intentional physical waste by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor;
(v) the breach of any representation, warranty, covenant or indemnification provision in the Environmental Indemnity Agreement or in any other Loan Document concerning environmental laws, hazardous substances and and/or asbestos and any indemnification of Lender with respect thereto in either document;
(viiii) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower wrongful removal or Operating Company fails destruction of any portion of the Property or damage to obtain Lender’s prior consent to any voluntary intentional Transfer as required the Property caused by this Agreement, the Mortgage Loan Agreement willful misconduct or the Mortgages, as applicablegross negligence;
(viiiv) any security depositsmaterial, advance deposits or any other deposits collected with respect to any of physical waste at the Properties which are not delivered to Mortgage Lender upon a foreclosure of any of the Properties or action in lieu thereof, except to the extent any such security deposits were applied in accordance with the terms and conditions of any of the Leases prior to the occurrence of the Event of Default that gave rise to such foreclosure or action in lieu thereofProperty;
(viiiv) in the event of:
(A) Borrowerforfeiture by Borrower of the Property, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing a voluntary petition under portion thereof, because of the Bankruptcy Code conduct or any other Federal purported conduct of criminal activity by Borrower or state bankruptcy or insolvency law; (B) the filing of an involuntary petition against Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law by any Person in which Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of their respective Affiliates, agents or employees colludes with or such other Personrepresentatives in connection therewith, or Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or including by reason of any Guarantor soliciting or causing to be solicited petitioning creditors for any involuntary petition against Borrower, Operating Company or any Guarantor from any Person; (C) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing an answer consenting to or otherwise acquiescing in or joining in any involuntary petition filed against it by any other Person, other than Lender, claim under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; Racketeer Influenced and Corrupt Organizations Act (D) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor consenting to or acquiescing in or joining in an application for the appointment of a custodian, receiver, trustee, or examiner for Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of the Properties, the Collateral, the Senior Mezzanine Collateral or any portion thereof, other than at the request of Lender; or (E) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor making an assignment for the benefit of creditors (other than Lender"RICO"), or admitting, in writing or in any legal proceeding, its insolvency or inability to pay its debts as they become due;
(ixvi) if Borrowerthe misapplication, Senior Mezzanine Borrower misappropriation or Mortgage Borrower fails to maintain its status as a Special Purpose Entity conversion by or breaches any material representation or warranty set forth in Section 4.1.30 of this Agreement; and
(x) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company fails to obtain Lender’s prior consent to any voluntary Indebtedness (other than (x) with respect to Mortgage Borrower, Permitted Indebtedness and (y) with respect to Operating Company, Permitted Indebtedness (Operating Company), as applicable) or voluntary Lien (other than Permitted Encumbrances) encumbering any of the Properties, Senior Mezzanine Collateral or Collateral as required by this Agreement, the Senior Mezzanine Loan Agreement, the Mortgage Loan Agreement, the Pledge Agreement or the Mortgages. Notwithstanding anything to the contrary under this Agreement, neither any present or future Affiliate on behalf of Borrower (other than Guarantorincluding, to the extent provided under the Guaranty) nor any present or future shareholderwithout limitation, officer, director, employee, trustee, beneficiary, advisor, partner, member, principal, participant or agent of or in any Borrower or of or in any person or entity that is or becomes an Affiliate of any Borrower shall have any personal liability, directly or indirectly, under or in connection with the Loan Documents. Neither the negative capital account institution or operation of any Affiliate of Borrower cash management as provided in Borrower, or in any other Affiliate of Borrower in any other Affiliate of Borrower, nor any obligation of any Affiliate of Borrower in any Borrower to restore a negative capital account or to contribute or loan capital to any Borrower or to any other Affiliate of Borrower shall at any time be deemed to be the property or an asset of any Borrower (or any other Affiliate of Borrower) and neither Lender nor its successors or assigns shall have any right to collect, enforce or proceed against any such negative capital account or obligation to restore, contribute or loan capital.
(b) Notwithstanding anything to the contrary in this Agreement, the Note or any of the Loan Documents) of (A) any Insurance Proceeds actually received by or on behalf of Borrower which were paid by reason of any loss, Lender shall not be deemed damage or destruction to have waived any right which Lender may have under Section 506(a), 506(b), 1111(b) or any other provisions of the Bankruptcy Code to file a claim for the full amount of the Indebtedness or to require that all collateral shall continue to secure all of the Indebtedness owing to Lender in accordance with the Loan Documents.Property,
Appears in 2 contracts
Sources: Loan Agreement (Lodging Fund REIT III, Inc.), Loan Agreement (Lodging Fund REIT III, Inc.)
Exculpation. (a) Subject to In exercising its duties and powers hereunder, the qualifications belowSecured Party shall exercise the same care that it would exercise in dealing with loans for its own account, Lender but neither Secured Party nor any of its directors, officers, employees or attorneys shall not enforce be responsible for the liability and obligation truth or accuracy of Borrower to perform and observe any representations or warranties given or made herein or for the obligations contained in the Notevalidity, effectiveness, sufficiency or enforceability of this Loan 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 Loan Documents, and Secured Party or any of its directors, officers, employees or attorneys shall not be liable to any of the Holders for any action taken or proceeding omitted to enable Lender and each Noteholder to enforce and realize upon its interest be taken by it or any of them under the NoteLoan Documents, except in the case of its or their willful misconduct or gross negligence. Each of the Holders represents and warrants to Secured Party that it has made its own independent judgment with respect to entering into this Agreement, the Pledge Loan Agreement and the other Loan DocumentsDocuments and undertaking its obligations hereunder and thereunder. Each Holder also acknowledges that it will, or in independently and without reliance upon the Collateral, Secured Party or any other collateral given Holder and based on such documents and information as it shall deem appropriate at the time, continue to Lender pursuant to make its own credit decisions in taking or not taking action under this Loan Agreement and 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 . The powers conferred by this Loan Agreement on Secured Party hereunder are solely to protect the extent of Borrower’s Holders’ interest in the Collateral and shall not impose any duty upon Secured Party to exercise any such powers. Except for the safe custody of any Collateral in its possession and the accounting for monies actually received by it hereunder, Secured Party shall have no duty as to any Collateral or as to the taking of any necessary steps to preserve rights against prior parties or any other collateral given rights pertaining to Lenderthe Collateral. Neither Secured Party nor any of its directors, and Lenderofficers, employees (excluding any independent contractors employed by accepting Secured Party) or attorneys shall have any responsibility (1) to the Note, this Agreement, Company on account of the Pledge Agreement and the other Loan Documents, agrees that it shall not ▇▇▇ for, seek failure or demand any deficiency judgment against Borrower delay in any such action performance 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 breach of any obligation evidenced or secured by Holder of 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:
(i) fraud or intentional misrepresentation by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor in connection with the execution and delivery of the Loan Documents and/or the Loan;
(ii) the misappropriation, conversion or misapplication in contravention of the Loan Documents by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any funds of Borrower, Senior Mezzanine Borrower, Mortgage Borrower or Operating Company, including, without limitation, (A) any Revenues, (B) any Net Liquidation Proceeds or Insurance Proceeds, (C) any Awards received in connection with a Condemnation, (D) any Rents or security deposits (or any item of Revenue, from whatever source) following an Event of Defaultobligations hereunder, or (E2) to any distribution or other payments made in connection with any part Holder on account of the Collateral failure of or Senior Mezzanine Collateral;
(iii) the misappropriation, conversion delay in performance or misapplication breach by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any security deposits or Rents paid more than one (1) month in advance;
(iv) any act of actual intentional physical waste by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor;
(v) the breach of any representation, warranty, covenant or indemnification provision in the Environmental Indemnity Agreement concerning environmental laws, hazardous substances and asbestos and any indemnification of Lender with respect thereto in either document;
(vi) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company fails to obtain Lender’s prior consent to any voluntary intentional Transfer as required by this Agreement, the Mortgage Loan Agreement other Holder or the Mortgages, as applicable;
(vii) any security deposits, advance deposits or any other deposits collected with respect to any of the Properties which are not delivered to Mortgage Lender upon a foreclosure Company of any of the Properties or action in lieu thereof, except to the extent any such security deposits were applied in accordance with the terms and conditions of any of the Leases prior to the occurrence of the Event of Default that gave rise to such foreclosure or action in lieu thereof;
(viii) in the event of:
(A) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing a voluntary petition under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (B) the filing of an involuntary petition against Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law by any Person in which Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of their respective Affiliates, agents or employees colludes with or such other Person, or Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor soliciting or causing to be solicited petitioning creditors for any involuntary petition against Borrower, Operating Company or any Guarantor from any Person; (C) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing an answer consenting to or otherwise acquiescing in or joining in any involuntary petition filed against it by any other Person, other than Lender, under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (D) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor consenting to or acquiescing in or joining in an application for the appointment of a custodian, receiver, trustee, or examiner for Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of the Properties, the Collateral, the Senior Mezzanine Collateral or any portion thereof, other than at the request of Lender; or (E) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor making an assignment for the benefit of creditors (other than Lender), or admitting, in writing or in any legal proceeding, its insolvency or inability to pay its debts as they become due;
(ix) if Borrower, Senior Mezzanine Borrower or Mortgage Borrower fails to maintain its status as a Special Purpose Entity or breaches any material representation or warranty set forth in Section 4.1.30 of this Agreement; and
(x) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company fails to obtain Lender’s prior consent to any voluntary Indebtedness (other than (x) with respect to Mortgage Borrower, Permitted Indebtedness and (y) with respect to Operating Company, Permitted Indebtedness (Operating Company), as applicable) or voluntary Lien (other than Permitted Encumbrances) encumbering any of the Properties, Senior Mezzanine Collateral or Collateral as required by this Agreement, the Senior Mezzanine Loan Agreement, the Mortgage Loan Agreement, the Pledge Agreement or the Mortgages. Notwithstanding anything to the contrary under this Agreement, neither any present or future Affiliate of Borrower (other than Guarantor, to the extent provided under the Guaranty) nor any present or future shareholder, officer, director, employee, trustee, beneficiary, advisor, partner, member, principal, participant or agent of or in any Borrower or of or in any person or entity that is or becomes an Affiliate of any Borrower shall have any personal liability, directly or indirectly, under or in connection with the Loan Documents. Neither the negative capital account of any Affiliate of Borrower in Borrower, or in any other Affiliate of Borrower in any other Affiliate of Borrower, nor any obligation of any Affiliate of Borrower in any Borrower to restore a negative capital account or to contribute or loan capital to any Borrower or to any other Affiliate of Borrower shall at any time be deemed to be the property or an asset of any Borrower (or any other Affiliate of Borrower) and neither Lender nor its successors or assigns shall have any right to collect, enforce or proceed against any such negative capital account or obligation to restore, contribute or loan capitalobligations hereunder.
(b) Notwithstanding anything to the contrary in this Agreement, the Note or any of the Loan Documents, Lender shall not be deemed to have waived any right which Lender may have under Section 506(a), 506(b), 1111(b) or any other provisions of the Bankruptcy Code to file a claim for the full amount of the Indebtedness or to require that all collateral shall continue to secure all of the Indebtedness owing to Lender in accordance with the Loan Documents.
Appears in 2 contracts
Sources: Loan and Security Agreement (Starinvest Group, Inc.), Loan and Security Agreement (Starinvest Group, 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 ▇▇▇ 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:
(i) fraud or intentional misrepresentation by Borrower, either of the Borrowers or either Mortgage Borrower, Senior Mezzanine Borrower, Operating Company Borrowers or any Guarantor in connection with the execution and delivery Loan, including by reason of the Loan Documents and/or the Loanany claim under RICO;
(ii) the misappropriation, conversion gross negligence or misapplication in contravention willful misconduct of either of the Loan Documents by BorrowerMortgage Borrowers, Mortgage Borrowereither of the Borrowers, Senior Mezzanine Borrowerany Guarantor, Operating Company Principal or any Guarantor of any funds of Borrower, Senior Mezzanine Borrower, Mortgage Borrower or Operating Company, including, without limitation, (A) any Revenues, (B) any Net Liquidation Proceeds or Insurance Proceeds, (C) any Awards received in connection with a Condemnation, (D) any Rents or security deposits (or any item of Revenue, from whatever source) following an Event of Default, or (E) any distribution or other payments made in connection with any part of the Collateral or Senior Mezzanine CollateralRestricted Party;
(iii) the misappropriation, conversion or misapplication by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any security deposits or Rents paid more than one (1) month in advance;
(iv) any act of actual intentional physical waste by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor;
(v) the breach of any representation, warranty, covenant or indemnification provision in the Environmental Indemnity Agreement concerning environmental laws, hazardous substances and or asbestos and any indemnification of Lender with respect thereto in any Loan Document;
(iv) wrongful removal or destruction by either documentof the Mortgage Borrowers, either of the Borrowers or any Affiliate of either of the Mortgage Borrowers or Borrowers of any portion of the Properties after the occurrence of an Event of Default or any intentional physical waste of the Properties or any portion thereof by either Borrower, either Mortgage Borrower or any Affiliate of any of them, provided, however, that such physical waste shall exclude wear and tear to the Properties or any portion thereof that occurs in the ordinary course of business of the Properties;
(v) any Legal Requirement (including RICO) mandating the forfeiture by either Borrower or either Mortgage Borrower of any Property or the Collateral, or any portion thereof, because of the conduct or purported conduct of criminal activity by any Borrower, any Mortgage Borrower, or any Restricted Party in connection therewith;
(vi) if Borrowerany misrepresentation, Mortgage Borrower, Senior Mezzanine miscertification or breach of warranty by either Borrower or Operating Company fails to obtain Lender’s prior consent any Guarantor with respect to any voluntary intentional Transfer as required by representation, warranty or certification contained in this Agreement, the Mortgage Loan Agreement or any other Loan Document or in any document executed in connection therewith, pursuant to any of the MortgagesLoan Documents or otherwise to induce Lender to make the Loan, as applicableor any advance thereof, or to release monies from any account held by Lender (including any reserve or escrow) or to take other action with respect to the Collateral;
(vii) the misappropriation or conversion by or on behalf of either Borrower, either Mortgage Borrower, or any of their respective Affiliates of (A) any Insurance Proceeds, (B) any Condemnation Proceeds, (C) any Rents and/or Vacant Space Rent following an Event of Default, (D) any Rents and/or Vacant Space Rent paid more than one (1) month in advance, (E) Net Liquidation Proceeds After Debt Service or (F) any distribution or other payments made in connection with all or any part of the Collateral; provided such amounts are not applied to the payment of the Loan or the Operating Expenses of either Property;
(viii) failure to pay charges for labor or materials or other charges that can create Liens on any portion of the Properties that are superior to the Lien of the Mortgage, unless such charges are being contested in accordance herewith;
(ix) any security deposits, advance deposits or any other deposits collected by either Borrower, either Mortgage Borrower, or any Affiliate thereof with respect to either Property or any of the Properties part thereof which are not delivered to Mortgage Lender upon a foreclosure of any of the Properties or any part thereof or action in lieu thereof, except to the extent any such security deposits were applied in accordance with the terms and conditions of any of the Leases prior to the occurrence of the Event of Default that gave rise to such foreclosure or action in lieu thereof;
(viiix) any breach of any representation, warranty or covenant contained in Section 3 of the event of:Pledge Agreements;
(xi) if either Borrower or Mortgage Borrower fails to permit on-site inspections of the Properties or any part thereof, fails to provide financial information specifically required by this Agreement or fails to appoint a new Manager upon the request of Lender, each as required by, and in accordance with, the terms and provisions of this Agreement or the other Loan Documents;
(A) Borrowerif the Operating Partnership shall default under either of the Master Leases beyond any applicable notice and/or cure period contained therein, or (B) if either Master Lease shall have been amended or modified (except as specified in Section 3.1.21 hereof) without Lender’s prior written consent, or (C) if either Master Lease shall have been terminated, cancelled or surrendered without Lender’s prior written consent in violation of Section 5.2.12 or Section 5.2.13 hereof (except as specified in Section 3.1.21 hereof), or (D) if the Operating Partnership is the subject of a Bankruptcy Action, other than an involuntary Bankruptcy Action which is dismissed within ninety (90) days; or
(xiii) (A) if there shall exist an event of default by Tower Mortgage BorrowerBorrower under the Parking Easement beyond any applicable notice and/or cure period contained therein, Senior Mezzanine Borroweror (B) if the Parking Easement shall have been amended or modified in violation of Section 5.2.11 hereof) without Lender’s prior written consent, Operating Company or any Guarantor (C) if the Parking Easement shall have been terminated, cancelled or surrendered (other than by the terms of the Parking Easement) without Lender’s prior written consent in violation of Section 5.2.11 hereof.
(a) either Borrower or either Mortgage Borrower filing a voluntary petition under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (Bb) the filing of an involuntary petition against Borrower, either Borrower or either Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor Borrower under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law by any other Person in which Borrower, either Borrower or either Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of their respective Affiliates, agents or employees Borrower colludes with or otherwise assists such other Person, or Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company solicits or any Guarantor soliciting or causing causes to be solicited petitioning creditors for any involuntary petition against Borrower, Operating Company either Borrower or any Guarantor either Mortgage Borrower from any Person; (Cc) Borrower, either Borrower or Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor Borrower filing an answer consenting to or otherwise acquiescing in or joining in any involuntary petition filed against it it, by any other Person, other than Lender, Person under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (Dd) Borrower, either Borrower or Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor Borrower consenting to or acquiescing in or joining in an application for the appointment of a custodian, receiver, trustee, or examiner for either Borrower, either Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any portion of the Properties, . or the Collateral, the Senior Mezzanine Collateral or any portion thereof, other than at the request of Lender; or (Ee) Borrower, either Borrower or Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor Borrower making an assignment for the benefit of creditors (other than Lender)creditors, or admitting, in writing or in any legal proceeding, its insolvency or inability to pay its debts as they become due;
; (ix2) if Borrower, Senior Mezzanine the first Monthly Interest Payment is not paid when due; (3) if either Borrower or either Mortgage Borrower fails to maintain its status as a Special Purpose Entity or breaches any material representation or warranty set forth as required by and in Section 4.1.30 accordance with the terms of this AgreementAgreement and there is a substantive consolidation of either Borrower or either Mortgage Borrower with any other Person; and
(x4) if Borrower, Mortgage Borrower, Senior Mezzanine either Borrower or Operating Company fails to obtain Lender’s prior consent to any voluntary Indebtedness (other than (x) with respect to Mortgage Borrower, Permitted Indebtedness and (y) with respect to Operating Company, Permitted Indebtedness (Operating Company), as applicable) or voluntary Lien (other than Permitted Encumbrances) encumbering any of the Properties, Senior Mezzanine Properties or the Collateral or Collateral any part thereof as required by this Agreement, the Senior Mezzanine Loan Agreement, the Mortgage Loan Agreement, the Pledge Agreement or the Mortgages. Notwithstanding anything to the contrary under this Agreement, neither any present or future Affiliate of Borrower (other than Guarantor, to the extent provided under the Guaranty) nor any present or future shareholder, officer, director, employee, trustee, beneficiary, advisor, partner, member, principal, participant or agent of or in any Borrower or of or in any person or entity that is or becomes an Affiliate of any Borrower shall have any personal liability, directly or indirectly, under or in connection with the Loan Documents. Neither the negative capital account of any Affiliate of ; or (5) if either Borrower in Borrower, or in any other Affiliate of Borrower in any other Affiliate of Borrower, nor any obligation of any Affiliate of Borrower in any Borrower fails to restore a negative capital account or to contribute or loan capital obtain Lender’s prior consent to any Borrower Transfer as required by this Agreement or to any the other Affiliate of Borrower shall at any time be deemed to be the property or an asset of any Borrower (or any other Affiliate of Borrower) and neither Lender nor its successors or assigns shall have any right to collect, enforce or proceed against any such negative capital account or obligation to restore, contribute or loan capital.
(b) Notwithstanding anything to the contrary in this Agreement, the Note or any of the Loan Documents, Lender shall not be deemed to have waived any right which Lender may have under Section 506(a), 506(b), 1111(b) or any other provisions of the Bankruptcy Code to file a claim for the full amount of the Indebtedness or to require that all collateral shall continue to secure all of the Indebtedness owing to Lender in accordance with the Loan Documents.
Appears in 2 contracts
Sources: Loan Agreement (MPG Office Trust, Inc.), Loan Agreement (MPG Office 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 '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 ▇▇▇ sue for, seek or demand any deficiency judgment against Borrower in any ▇▇y 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 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 Borrower, but only 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:
(i) fraud or intentional misrepresentation by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company Borrower or any Guarantor guarantor in connection with the execution and delivery of the Loan Documents and/or the Loan;
(ii) the misappropriation, conversion or misapplication in contravention willful misconduct of the Loan Documents by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company Borrower or any Guarantor of any funds of Borrower, Senior Mezzanine Borrower, Mortgage Borrower or Operating Company, including, without limitation, (A) any Revenues, (B) any Net Liquidation Proceeds or Insurance Proceeds, (C) any Awards received guarantor in connection with a Condemnation, (D) any Rents or security deposits (or any item of Revenue, from whatever source) following an Event of Default, or (E) any distribution or other payments made in connection with any part of the Collateral or Senior Mezzanine CollateralLoan;
(iii) the misappropriation, conversion or misapplication by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any security deposits or Rents paid more than one (1) month in advance;
(iv) any act of actual intentional physical waste by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor;
(v) the breach of any representation, warranty, covenant or indemnification provision in the Environmental Indemnity Agreement or in the Mortgage concerning environmental laws, hazardous substances and asbestos and any indemnification of Lender with respect thereto in either document;
(iv) the wrongful removal or destruction of any portion of the Property after an Event of Default that adversely affects the value of the Property;
(v) the misapplication or conversion by Borrower of (A) any insurance proceeds paid by reason of any loss, damage or destruction to the Property, (B) any awards or other amounts received in connection with the condemnation of all or a portion of the Property, or (C) any Rents following an Event of Default;
(vi) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower failure to pay charges for labor or Operating Company fails to obtain Lender’s prior consent to materials or other charges that can create Liens on any voluntary intentional Transfer as required by this Agreement, portion of the Mortgage Loan Agreement or the Mortgages, as applicableProperty;
(vii) any security deposits, advance deposits or any other deposits collected with respect to any of the Properties Property which are not delivered to Mortgage Lender upon a foreclosure of any of the Properties Property or action in lieu thereof, except to the extent any such security deposits were applied in accordance with the terms and conditions of any of the Leases prior to the occurrence of the Event of Default that gave rise to such foreclosure or action in lieu thereofLeases;
(viii) Borrower's indemnifications of Lender set forth in the event of:
(A) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing a voluntary petition under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (B) the filing of an involuntary petition against Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law by any Person in which Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of their respective Affiliates, agents or employees colludes with or such other Person, or Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor soliciting or causing to be solicited petitioning creditors for any involuntary petition against Borrower, Operating Company or any Guarantor from any Person; (C) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing an answer consenting to or otherwise acquiescing in or joining in any involuntary petition filed against it by any other Person, other than Lender, under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (D) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor consenting to or acquiescing in or joining in an application for the appointment of a custodian, receiver, trustee, or examiner for Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of the Properties, the Collateral, the Senior Mezzanine Collateral or any portion thereof, other than at the request of Lender; or (E) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor making an assignment for the benefit of creditors (other than Lender), or admitting, in writing or in any legal proceeding, its insolvency or inability to pay its debts as they become dueSection 9.2 hereof;
(ix) if Borrowerthe first full monthly payment of principal and interest under the Note is not paid when due;
(x) failure of Borrower to (A) permit on-site inspections of the Property, Senior Mezzanine Borrower or Mortgage Borrower fails to (B) provide financial information, (C) maintain its status as a Special Purpose Entity single purpose entity or breaches any material representation or warranty set forth (D) appoint a new property manager upon the request of Lender after an Event of Default, each as required by, and in Section 4.1.30 of accordance with the terms and provisions of, this Agreement; andAgreement and the Mortgage;
(xxi) if Borrower, Mortgage Borrower, Senior Mezzanine failure of Borrower or Operating Company fails to obtain Lender’s 's prior written consent to any voluntary Indebtedness (subordinate financing or other than (x) with respect to Mortgage Borrower, Permitted Indebtedness and (y) with respect to Operating Company, Permitted Indebtedness (Operating Company), as applicable) or voluntary Lien encumbering the Property; or
(other than Permitted Encumbrancesxii) encumbering failure of Borrower to obtain Lender's prior written consent to any assignment, transfer, or conveyance of the Properties, Senior Mezzanine Collateral Property or Collateral any interest therein as required by this Agreement, the Senior Mezzanine Loan Agreement, the Mortgage Loan Agreement, the Pledge Agreement or the Mortgageshereunder. Notwithstanding anything to the contrary under this Agreement, neither any present or future Affiliate of Borrower (other than Guarantor, to the extent provided under the Guaranty) nor any present or future shareholder, officer, director, employee, trustee, beneficiary, advisor, partner, member, principal, participant or agent of or in any Borrower or of or in any person or entity that is or becomes an Affiliate of any Borrower shall have any personal liability, directly or indirectly, under or in connection with the Loan Documents. Neither the negative capital account of any Affiliate of Borrower in Borrower, or in any other Affiliate of Borrower in any other Affiliate of Borrower, nor any obligation of any Affiliate of Borrower in any Borrower to restore a negative capital account or to contribute or loan capital to any Borrower or to any other Affiliate of Borrower shall at any time be deemed to be the property or an asset of any Borrower (or any other Affiliate of Borrower) and neither Lender nor its successors or assigns shall have any right to collect, enforce or proceed against any such negative capital account or obligation to restore, contribute or loan capital.
(b) Notwithstanding anything to the contrary in this Agreement, the Note or any of the Loan Documents, (A) Lender shall not be deemed to have waived any right which Lender may have under Section 506(a), 506(b), 1111(b) or any other provisions of the U.S. Bankruptcy Code to file a claim for the full amount of the Indebtedness Debt secured by the Mortgage or to require that all collateral shall continue to secure all of the Indebtedness Debt owing to Lender in accordance with the Loan Documents, and (B) the Debt shall be fully recourse to Borrower in the event that any petition for bankruptcy, reorganization or arrangement pursuant to federal bankruptcy law, or any similar federal or state law, shall be filed by or consented to by Borrower.
Appears in 2 contracts
Sources: Loan Agreement (Glimcher Realty Trust), Loan Agreement (Glimcher Realty Trust)
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 ▇s▇▇ 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”):
(i) fraud or fraud, willful misconduct, intentional misrepresentation of a material fact known to Borrower or Guarantor or failure to disclose a material fact known to Borrower or Guarantor by or on behalf of Borrower, Mortgage BorrowerGuarantor, Senior Mezzanine Borrowerany Affiliate of Borrower or Guarantor, Operating Company or including by reason of any Guarantor in connection with claim under the execution Racketeer Influenced and delivery of the Loan Documents and/or the LoanCorrupt Organizations Act (RICO);
(ii) the misappropriation, conversion or misapplication in contravention of the Loan Documents by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any funds of Borrower, Senior Mezzanine Borrower, Mortgage Borrower or Operating Company, including, without limitation, (A) any Revenues, (B) any Net Liquidation Proceeds or Insurance Proceeds, (C) any Awards received in connection with a Condemnation, (D) any Rents or security deposits (or any item of Revenue, from whatever source) following an Event of Default, or (E) any distribution or other payments made in connection with any part of the Collateral or Senior Mezzanine Collateral;
(iii) the misappropriation, conversion or misapplication by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any security deposits or Rents paid more than one (1) month in advance;
(iv) any act of actual intentional physical waste by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor;
(v) the breach of any representation, warranty, covenant or indemnification provision in the Environmental Indemnity Agreement concerning environmental lawsIndemnity, hazardous substances subject to the terms and asbestos and provisions of the Environmental Indemnity;
(iii) wrongful removal or destruction of any indemnification portion of Lender with respect thereto any Property or damage to any Property caused by willful misconduct or gross negligence of Borrower, Guarantor or their respective Affiliates;
(iv) any physical waste of any of the Properties by Borrower, Guarantor or their respective Affiliates;
(v) the forfeiture by Borrower of any Property, or any portion thereof, because of the conduct or purported conduct of criminal activity by Borrower or Guarantor or any of their respective agents or representatives in either documentconnection therewith;
(vi) if Borrowerthe misappropriation or conversion by or on behalf of Borrower of (A) any Insurance Proceeds paid by reason of any loss, Mortgage Borrower, Senior Mezzanine Borrower damage or Operating Company fails to obtain Lender’s prior consent destruction to any voluntary intentional Transfer as required by this AgreementProperty, the Mortgage Loan Agreement or the Mortgages, as applicable;
(viiB) any Awards or other amounts received in connection with the Condemnation of all or a portion of any Property, or (C) any Gross Revenues (including Rents, Insurance Proceeds, security deposits, advance deposits or any other deposits collected and Lease Termination Payments) or (D) any other funds due under the Loan Documents, including, in connection with respect to any of the Properties which are not delivered foregoing, by reason of failure to Mortgage Lender upon comply with Section 6.1 hereof or breach of the Clearing Account Agreement or the Cash Management Agreement;
(vii) failure to pay charges for labor or materials or other charges (other than Taxes) that can create Liens on any portion of any Property, other than (i) charges incurred by or on behalf of Agent or a receiver put in place by Agent, subject to Permitted Encumbrances or (ii) charges that relate to a period from and after a foreclosure of any the Loan or a conveyance in lieu of foreclosure of the Properties Loan, unless such charges were incurred by Borrower, Guarantor or action in lieu thereof, except to the extent any such security deposits were applied in accordance with the terms and conditions an Affiliate of any of the Leases prior to the occurrence of the Event of Default that gave rise to such foreclosure Borrower or action in lieu thereofGuarantor;
(viii) in the event of:
(A) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company failure to pay Taxes or any Guarantor filing a voluntary petition under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (B) the filing of an involuntary petition against Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law by any Person in which Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of their respective Affiliates, agents or employees colludes with or such other Person, or Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor soliciting or causing to be solicited petitioning creditors for any involuntary petition against Borrower, Operating Company or any Guarantor from any Person; (C) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing an answer consenting to or otherwise acquiescing in or joining in any involuntary petition filed against it by any other Persontransfer taxes, other than Lender, under the Bankruptcy Code those Taxes or any other Federal or state bankruptcy or insolvency law; (D) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor consenting transfer taxes that relate to or acquiescing in or joining in an application for the appointment of a custodian, receiver, trustee, or examiner for Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any period from and after a foreclosure of the PropertiesLoan or a conveyance in lieu of foreclosure of the Loan; unless (x) Rents received during the tax period in question are insufficient to pay all of Borrower’s current and/or past due liabilities (including such Taxes) with respect to the Properties or (y) funds to pay such Taxes were, the Collateral, the Senior Mezzanine Collateral or any portion thereof, other than at the request of Lender; or (E) Borrowertime in question, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor making an assignment for available in the benefit of creditors (other than Lender), or admitting, in writing or in any legal proceeding, its insolvency or inability Tax Account and Agent failed to pay its debts as they become due(or make such Tax Funds available to pay) such Taxes;
(ix) if failure to obtain and maintain the fully paid for Policies in accordance with Section 5.1.1 hereof, other than the failure to obtain or maintain Policies that relate to a period from and after a foreclosure of the Loan or a conveyance in lieu of foreclosure of the Loan; unless (x) Rents received during the period in question are insufficient to pay all of Borrower’s current and/or past due liabilities (including such Policies) with respect to the Properties or (y) funds to pay such Insurance Premiums were, Senior Mezzanine Borrower at the time in question, available in the Insurance Account and Agent failed to pay (or Mortgage Borrower fails make such Insurance Funds available to maintain its status as a Special Purpose Entity or breaches any material representation or warranty pay) such Insurance Premiums;
(x) Borrower’s indemnification of Agent set forth in Section 4.1.30 9.2 hereof;
(xi) any (A) actual or alleged violation or breach of any applicable Rent Regulation Laws (including any actual or alleged overcharges in, or rollback to, rent payable by any current or former Tenant) and/or (B) any breach of the covenants set forth in Section 4.34 hereof;
(xii) a breach of the covenants set forth in Section 4.4 hereof or a breach by any New Mezzanine Borrower of the “special purpose entity” covenants contained in the applicable New Mezzanine Loan Documents (other than those breaches covered by clause (i) of the Springing Recourse Events below, and breaches of the covenants set forth in clauses (f) and (i) in the definition of “Special Purpose Bankruptcy Remote Entity” attached hereto as Schedule V);
(xiii) any failure of Borrower and/or Clipper Manager to comply in all respects with Section 4.14.4 hereof, including any failure of the Rose Termination Date to occur by the ninety fifth (95th) day after the Closing Date and, in consideration of Agent’s agreement to waive the requirement to cause Borrower to obtain from Rose Manager a new assignment and subordination of the Management Agreement with Rose Manager in reliance on the termination of Rose Manager, any costs or expenses incurred by Agent to terminate Rose Manager following an Event of Default under this Agreement; andand/or
(xxiv) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower any cost or Operating Company fails to obtain Lender’s prior consent to expense incurred by Agent or any voluntary Indebtedness (other than (x) with respect to Mortgage Borrower, Permitted Indebtedness and (y) with respect to Operating Company, Permitted Indebtedness (Operating Company), as applicable) or voluntary Lien (other than Permitted Encumbrances) encumbering any of the Properties, Senior Mezzanine Collateral or Collateral as required by this Agreement, the Senior Mezzanine Loan Agreement, the Mortgage Loan Agreement, the Pledge Agreement or the Mortgages. Notwithstanding anything to the contrary under this Agreement, neither any present or future Affiliate of Borrower (other than Guarantor, to the extent provided under the Guaranty) nor any present or future shareholder, officer, director, employee, trustee, beneficiary, advisor, partner, member, principal, participant or agent of or in any Borrower or of or in any person or entity that is or becomes an Affiliate of any Borrower shall have any personal liability, directly or indirectly, under or Lender in connection with the Loan Documents. Neither the negative capital account enforcement of any Affiliate of Borrower in Borrower, its rights and remedies hereunder or in under any other Affiliate of Borrower in any other Affiliate of Borrower, nor any obligation of any Affiliate of Borrower in any Borrower to restore a negative capital account or to contribute or loan capital to any Borrower or to any other Affiliate of Borrower shall at any time be deemed to be the property or an asset of any Borrower (or any other Affiliate of Borrower) and neither Lender nor its successors or assigns shall have any right to collect, enforce or proceed against any such negative capital account or obligation to restore, contribute or loan capitalLoan Document.
(b) Notwithstanding anything to the contrary in this Agreement, the Note or any of the Loan Documents, Lender shall not be deemed to have waived any right which Lender may have under Section 506(a), 506(b), 1111(b) or any other provisions of the Bankruptcy Code to file a claim for the full amount of the Indebtedness or to require that all collateral shall continue to secure all of the Indebtedness owing to Lender in accordance with the Loan Documents.
Appears in 2 contracts
Sources: Loan Agreement (Clipper Realty Inc.), 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 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 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 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, the Reserve Funds, the Rents, Net Proceeds 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 ▇▇▇ 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 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 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 Recourse Guarantee and the ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ U.S. Bank Tower Lease Guarantee) or any of the rights and remedies of Lender thereunderthereunder or the rights of Lender under any other certificate or agreement delivered by Guarantor; (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:
(i) fraud or intentional misrepresentation by BorrowerBorrower Guarantor, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor their affiliates in connection with the execution and delivery of the Loan Documents and/or the Loan;
(ii) the misappropriation, conversion or misapplication in contravention of the Loan Documents by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any funds willful misconduct of Borrower, Senior Mezzanine Borrower, Mortgage Borrower Guarantor or Operating Company, including, without limitation, (A) any Revenues, (B) any Net Liquidation Proceeds or Insurance Proceeds, (C) any Awards received in connection with a Condemnation, (D) any Rents or security deposits (or any item of Revenue, from whatever source) following an Event of Default, or (E) any distribution or other payments made in connection with any part of the Collateral or Senior Mezzanine Collateraltheir affiliates;
(iii) the misappropriation, conversion or misapplication by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any security deposits or Rents paid more than one (1) month in advance;
(iv) any act of actual intentional physical waste by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor;
(v) the breach of any representation, warranty, covenant or indemnification provision in the Environmental Indemnity Agreement or in the Mortgage concerning environmental laws, hazardous substances and asbestos and any indemnification of Lender with respect thereto in either documentdocument to the extent not otherwise covered by an environmental insurance policy obtained by Borrower and approved by Lender;
(iv) the removal or disposal by Borrower, Guarantor or their affiliates of any portion of the Property following the occurrence and during the continuance of an Event of Default;
(v) the misapplication or misappropriation by Borrower, Guarantor or their affiliates of (A) any insurance proceeds paid by reason of any Casualty to the Property, (B) any Awards received in connection with the Condemnation of all or a portion of the Property, (C) any Rents following the occurrence and during the continuance of an Event of Default and not applied to the Debt, or (D) any Rents paid more than one (1) month in advance to the extent such Rents or any other payments in respect of the Leases and other income of the Property or any other collateral are not applied to the costs of maintenance and operation of the Property and to the payment of taxes, lien claims, insurance premiums, debt service and other amounts due under the Loan Documents;
(vi) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower failure to pay (or Operating Company fails otherwise bond) charges for labor or materials or other charges for work performed at the Property prior to obtain Lender’s prior consent foreclosure and transfer of title to the Property and resulting in Liens on any voluntary intentional Transfer as required by this Agreement, portion of the Mortgage Loan Agreement Property (excluding such unpaid work performed for Lender or the Mortgages, as applicableany receiver);
(vii) any security deposits, advance deposits deposits, Tenant Letter of Credit or any other deposits collected with respect to any of the Properties Property which are not delivered to Mortgage Lender upon a foreclosure of any of the Properties Property or action in lieu thereof, except to the extent any such security deposits were applied in accordance with the terms and conditions of any of the Leases prior to the occurrence of the Event of Default that gave rise to such foreclosure or action in lieu thereof;
(viii) in the event of:
(A) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing a voluntary petition under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (B) the filing breach by Borrower of an involuntary petition against Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law by any Person in which Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of their respective Affiliates, agents its indemnification obligations set forth in Section 9.2 of this Agreement or employees colludes with or such other Person, or Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor soliciting or causing referred to be solicited petitioning creditors for any involuntary petition against Borrower, Operating Company or any Guarantor from any Person; (C) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing an answer consenting to or otherwise acquiescing in or joining in any involuntary petition filed against it by any other Person, other than Lender, under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (D) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor consenting to or acquiescing in or joining in an application for the appointment of a custodian, receiver, trustee, or examiner for Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any Section 7.10 of the Properties, the Collateral, the Senior Mezzanine Collateral or any portion thereof, other than at the request of Lender; or (E) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor making an assignment for the benefit of creditors (other than Lender), or admitting, in writing or in any legal proceeding, its insolvency or inability to pay its debts as they become dueMortgage;
(ix) Borrower’s failure to maintain insurance as required by this Agreement or to pay any taxes or assessments affecting the Property but only (A) to the extent that the Property generates cash flow sufficient to permit (and that is available to) Borrower to pay the same when due and (B) if Borrowersuch failure does not result from the failure of Lender, Senior Mezzanine in violation of this Agreement, to release to Borrower Insurance Funds or Tax Funds, respectively, for the payment of applicable insurance premiums or taxes or assessments;
(x) intentional, physical waste, damage or destruction of any portion of the Property caused by the acts or omissions of Borrower or Mortgage Guarantor or their respective affiliates, agents, employees or contractors;
(xi) commission of a criminal act by Borrower fails Guarantor or their affiliates;
(xii) Borrower’s failure to appoint a new property manager upon the request of Lender after an Event of Default as required by, and in accordance with the terms and provisions of, this Agreement and the Mortgage;
(xiii) Borrower’s failure to provide financial information in accordance with, and required by, this Agreement (which damages will be limited to Lender’s cost for accountants and other consultants to prepare such financial information);
(xiv) Borrower’s failure to maintain its status as a Special Purpose Entity single purpose entity as required by, and in accordance with, the terms and provisions of, this Agreement and the Mortgage, excluding Borrower’s obligations under Section 3.1.24(f) or breaches (j);
(xv) any material representation defenses, offset rights or warranty set forth counterclaims that KPMG LLP, a Delaware limited liability partnership or its successors (“KPMG”) assert at any time subsequent to the date Lender takes possession of the Property or a receiver is appointed therefor, or the date Lender or another purchaser becomes the owner of the Property by reason of a foreclosure, deed in Section 4.1.30 lieu of this Agreement; and
foreclosure or otherwise (the “Turnover Date”)) arising from the following: (x) if Borrowerliability for certain real estate taxes pursuant to Section 10.2 of that certain KPMG Lease arising from acts or events prior to the Turnover Date, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company fails to obtain Lender’s prior consent to any voluntary Indebtedness (other than (x) with respect to Mortgage Borrower, Permitted Indebtedness and (y) with respect the process of reconciliation of Additional Rent (as such term is defined in the KPMG Lease) for Operating Expenses (as such term is defined in the KPMG Lease) and Real Property Taxes (as such term is defined in the KPMG Lease) for the years 2002 through and including 2007 or any other period prior to Operating Company, Permitted Indebtedness the Turnover Date or (Operating Company), z) liability for any “Additional Tenant Improvement Allowance” (as applicablesuch term is defined in the KPMG Lease) or voluntary Lien (other than Permitted Encumbrances) encumbering any pursuant to Section 5.4 of the Properties, Senior Mezzanine Collateral or Collateral as required by this Agreement, the Senior Mezzanine Loan Agreement, the Mortgage Loan Agreement, the Pledge Agreement or the Mortgages. Notwithstanding anything to the contrary under this Agreement, neither any present or future Affiliate KPMG Lease; or
(xvi) failure of Borrower (other than Guarantor, A) to cause the extent provided under completion of the Guaranty▇▇▇▇▇▇ Landlord Work in accordance with Section 6.7 or (B) nor to fund to Lender any present or future shareholder, officer, director, employee, trustee, beneficiary, advisor, partner, member, principal, participant or agent of or in any Borrower or of or in any person or entity that is or becomes an Affiliate of any Borrower shall have any personal liability, directly or indirectly, under or in connection with the Loan Documents. Neither the negative capital account of any Affiliate of Borrower in Borrower, or in any other Affiliate of Borrower in any other Affiliate of Borrower, nor any obligation of any Affiliate of Borrower in any Borrower to restore a negative capital account or to contribute or loan capital to any Borrower or to any other Affiliate of Borrower shall at any time be deemed amounts required to be the property or an asset of any Borrower (or any other Affiliate of Borrower) and neither deposited with Lender nor its successors or assigns shall have any right to collect, enforce or proceed against any such negative capital account or obligation to restore, contribute or loan capital.
(b) in accordance with Section 6.7.2. Notwithstanding anything to the contrary in this Agreement, the Note Notes or any of the Loan Documents, (A) Lender shall not be deemed to have waived any right which Lender may have under Section 506(a), 506(b), 1111(b) or any other provisions of the Bankruptcy Code to file a claim for the full amount of the Indebtedness Debt or to require that all collateral shall continue to secure all of the Indebtedness Debt owing to Lender in accordance with the Loan Documents, and (B) the Debt shall be fully recourse to Borrower in the event that: (i) [reserved]; (ii) Borrower fails to obtain Lender’s prior consent to any subordinate financing or other voluntary Lien encumbering the Property, to the extent such consent is required by the terms of the Loan Documents; (iii) Borrower fails to obtain Lender’s prior consent to any transfer prohibited by Section 8.1 hereof, as required by the Mortgage or this Agreement, to the extent such consent is required by the Loan Documents; (iv) Borrower or Guarantor files a voluntary petition under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (v) an Affiliate, officer, director, or representative which controls, directly or indirectly, Borrower or Guarantor files, or joins in the filing of, an involuntary petition against Borrower or Guarantor under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law, or solicits or causes to be solicited petitioning creditors for any involuntary petition against Borrower or Guarantor from any Person; (vi) Borrower or Guarantor files an answer consenting to or otherwise acquiescing in or joining in any involuntary petition filed against it, by any other Person under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law, or solicits or causes to be solicited petitioning creditors for any involuntary petition from any Person; (vii) any Affiliate, officer, director, or representative which controls Borrower or Guarantor consents to or acquiesces in or joins in an application for the appointment of a custodian, receiver, trustee, or examiner for Borrower or any portion of the Property; or (vii) Borrower or Guarantor makes an assignment for the benefit of creditors, or admits, in writing or in any legal proceeding, its insolvency or inability to pay its debts as they become due.
Appears in 2 contracts
Sources: 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 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 sue ▇▇▇ for▇, 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:
(i) fraud or intentional misrepresentation by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor Borrower Party in connection with the execution and delivery of the Loan Documents and/or the Loan;
(ii) the misappropriation, conversion gross negligence or misapplication in contravention willful misconduct of any Borrower Party;
(iii) material physical waste to any Individual Property arising from the Loan Documents intentional acts or omissions of any Borrower Party (it being acknowledged that omissions to perform acts for which sufficient cash flow is not available from the Properties shall not be deemed an intentional omission for purposes of this clause (iii));
(iv) the removal or disposal by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company any Borrower Party or any Guarantor of its respective Affiliates of any funds portion of Borrower, Senior Mezzanine Borrower, Mortgage any Individual Property after an Event of Default unless such portion of any Individual Property so removed or so disposed of is replaced with property of equal utility and value or such removal or disposal was otherwise permitted pursuant to the terms and conditions hereof;
(v) the misapplication or conversion by any Borrower or Operating Company, including, without limitation, Party of (A) any Revenuesinsurance proceeds paid by reason of any loss, damage or destruction to any Individual Property (or any portion thereof), (B) any Net Liquidation Proceeds Awards or Insurance Proceedsother amounts received in connection with the Condemnation of all or a portion of any Individual Property, (C) any Awards received in connection with a CondemnationRents following an Event of Default, (D) any Rents paid more than one month in advance and/or (E) any Net Liquidation Proceeds After Debt Service;
(vi) failure to pay Taxes, charges for labor or security deposits materials or other charges that can create liens on any portion of any Individual Property in accordance with the terms and provisions hereof; provided, however, Borrower shall have no liability under this subsection (vi) if (A) such Taxes, charges for labor or materials or other charges that can create liens are being contested in accordance with the terms and conditions hereof or (B) sufficient cash flow is not available from the Properties to pay such amounts; provided, that, in no instance shall Borrower be released from any item liability pursuant to this clause (vi) to the extent (1) such insufficiency of Revenue, cash flow arises from whatever sourcethe intentional misappropriation or conversion of Rent by any Borrower Party or (2) following Borrower or Mortgage Borrower incurred such charges after the occurrence and during the continuance of an Event of Default, except to the extent such charges were (I) necessary to protect against imminent danger to the health or safety of any Tenant or any Person at or in the immediate vicinity of any Individual Property or to prevent any imminent defect, damage or harm to any Individual Property, (II) contracted for prior to such Event of Default or (EIII) any distribution or other payments made consented to in connection with any part of the Collateral or Senior Mezzanine Collateral;
(iii) the misappropriation, conversion or misapplication writing by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any security deposits or Rents paid more than one (1) month in advance;
(iv) any act of actual intentional physical waste by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor;
(v) the breach of any representation, warranty, covenant or indemnification provision in the Environmental Indemnity Agreement concerning environmental laws, hazardous substances and asbestos and any indemnification of Lender with respect thereto in either document;
(vi) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company fails to obtain Lender’s prior consent to any voluntary intentional Transfer as required by this Agreement, the Mortgage Loan Agreement or the Mortgages, as applicable;
(vii) any security deposits, advance deposits or any other deposits collected with respect to any of the Properties Individual Property which are not delivered to Mortgage Lender upon a foreclosure of any of the Properties Collateral or action in lieu thereof, except to the extent any such security deposits were applied in accordance with the terms and conditions of any of the Leases prior to the occurrence of the Event of Default that gave rise to such foreclosure or action in lieu thereof;
(viii) in the event of:
(A) breach or violation by Borrower, Mezzanine A Borrower, Mezzanine B Borrower, Mortgage BorrowerBorrower and/or any Applicable SPE Component Entity of any representation, Senior Mezzanine Borrower, Operating Company warranty or any Guarantor filing a voluntary petition under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (B) the filing of an involuntary petition against Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law by any Person covenant contained in which Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of their respective Affiliates, agents or employees colludes with or such other Person, or Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor soliciting or causing to be solicited petitioning creditors for any involuntary petition against Borrower, Operating Company or any Guarantor from any Person; (C) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing an answer consenting to or otherwise acquiescing in or joining in any involuntary petition filed against it by any other Person, other than Lender, under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (D) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor consenting to or acquiescing in or joining in an application for the appointment of a custodian, receiver, trustee, or examiner for Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of the Properties, the Collateral, the Senior Mezzanine Collateral or any portion thereof, other than at the request of Lender; or (E) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor making an assignment for the benefit of creditors (other than Lender), or admitting, in writing or in any legal proceeding, its insolvency or inability to pay its debts as they become dueArticle 5 hereof;
(ix) if the failure by Borrower to (A) permit (or cause Mortgage Borrower, Senior Mezzanine A Borrower or Mezzanine B Borrower to permit) on-site inspections of any Individual Property, (B) provide any financial information regarding hereunder and/or pursuant to the other Loan Documents and/or (C) appoint (or cause Mortgage Borrower to appoint) a Qualified Manager pursuant to a Qualified Management Agreement upon the request of Lender which failure constitutes an Event of Default;
(x) a breach of Section 11.1 and/or Section 11.2 hereof, which breach continues for three (3) Business Days after notice from Lender;
(xi) any material amendment, material modification or voluntary termination of any Ground Lease by any Borrower, Mezzanine A Borrower, Mezzanine B Borrower or any Mortgage Borrower without Lender’s consent other than as expressly permitted pursuant to the terms hereof;
(xii) the termination or suspension of any Health Care License arising in connection with any grossly negligent or willful material violation of any Health Care Requirement or otherwise by Borrower, Mezzanine A Borrower, Mezzanine B Borrower or Mortgage Borrower fails to maintain its status as a Special Purpose Entity or breaches any material representation voluntary termination or warranty set forth in Section 4.1.30 rejection of this Agreement; and
(x) if any such Health Care License by Borrower, Mezzanine A Borrower, Mezzanine B Borrower or Mortgage Borrower, Senior in each instance, which termination, suspension or rejection constitutes an Event of Default;
(xiii) any violation of Article 6 hereof not otherwise covered pursuant to clauses (b)(iv) and (b)(v) immediately below, provided, however, for the avoidance of doubt, a Sale or Pledge resulting from the consummation of an enforcement action by Lender, Mortgage Lender or the holder of any Mezzanine Loan shall not be a Sale or Pledge in violation of Article 6 hereof; or
(xiv) the incurrence by Mortgage Borrower or Operating Company fails to obtain Lender’s prior consent to of any voluntary Indebtedness (other than (x) with respect to Mortgage Borrower, Permitted Indebtedness and (y) with respect to Operating Company, Permitted Indebtedness (Operating Company), as applicable) or voluntary Lien (other than Permitted Encumbrances) encumbering any of the Properties, Senior Mezzanine Collateral or Collateral as required indebtedness prohibited by this Agreement, the Senior Mezzanine Loan Agreement, the Mortgage Loan Agreement, the Pledge Agreement or the Mortgages. Notwithstanding anything to the contrary under this Agreement, neither any present or future Affiliate of by Mezzanine A Borrower (other than Guarantor, to the extent provided under the Guaranty) nor any present or future shareholder, officer, director, employee, trustee, beneficiary, advisor, partner, member, principal, participant or agent of or in any Borrower or of or in any person or entity that is or becomes an Affiliate of any voluntary indebtedness prohibited by the Mezzanine A Loan Agreement or by Mezzanine B Borrower shall have any personal liability, directly or indirectly, under or in connection with the Loan Documents. Neither the negative capital account of any Affiliate of Borrower in Borrower, or in any other Affiliate of Borrower in any other Affiliate of Borrower, nor any obligation of any Affiliate of Borrower in any Borrower to restore a negative capital account or to contribute or loan capital to any Borrower or to any other Affiliate of Borrower shall at any time be deemed to be voluntary indebtedness prohibited by the property or an asset of any Borrower (or any other Affiliate of Borrower) and neither Lender nor its successors or assigns shall have any right to collect, enforce or proceed against any such negative capital account or obligation to restore, contribute or loan capitalMezzanine B Loan Agreement.
(b) Notwithstanding anything to the contrary in this Agreement, the Note or any of the Loan Documents, (A) Lender shall not be deemed to have waived any right which Lender may have under Section 506(a), 506(b), 1111(b) or any other provisions of the Bankruptcy Code to file a claim for the full amount of the Indebtedness Debt or to require that all collateral shall continue to secure all of the Indebtedness Debt owing to Lender in accordance with the Loan Documents, and (B) the Debt shall be fully recourse to Borrower in the event that: (i) a Bankruptcy Event occurs, (ii) the first full monthly payment of principal (if any) and interest under the Note is not paid when due; (iii) any representation, warranty or covenant contained in Article 5 is violated or breached and such breach or violation results in, or is a substantial factor in, a substantive consolidation of Borrower, Mezzanine A Borrower, Mezzanine B Borrower, Mortgage Borrower and/or any Applicable SPE Component Entity with any other Person in a bankruptcy or similar proceedings; (iv) if Borrower, Mortgage Borrower, Mezzanine A Borrower, Mezzanine B Borrower and/or any Applicable SPE Component Entity fails to obtain Lender’s prior written consent to (A) any voluntary indebtedness or (B) voluntary monetary lien encumbering any Individual Property or any Applicable Collateral to the extent such lien required Lender’s consent under this Agreement or the other Loan Documents; or (v) if Borrower, Mezzanine A Borrower, Mezzanine B Borrower, Mortgage Borrower and/or any Applicable SPE Component Entity fails to obtain Lender’s prior written consent to any voluntary transfer of any material portion of any Individual Property or any Applicable Collateral or to any voluntary act that causes a change in the ownership of Borrower, Mezzanine A Borrower, Mezzanine B Borrower, Mortgage Borrower and/or any Applicable SPE Component Entity to the extent such ownership change required Lender’s consent under this Agreement; provided, however, for the avoidance of doubt, a Sale or Pledge resulting from the consummation of an enforcement action by Lender, Mortgage Lender or the holder of any Mezzanine Loan shall not be a Sale or Pledge in violation of Article 6 hereof. Notwithstanding any provision contained herein or in any other Loan Document, no direct or indirect shareholder, partner, member, principal, affiliate, employee, officer, director, agent or representative of Borrower (each, a “Related Party”) (other than (a) Guarantor in accordance with the Guaranty and the Environmental Indemnity and (b) any Manager that is an Affiliate of Borrower in accordance with any Loan Document to which such Manager may be a party) shall have any personal liability for, nor be joined as a party to any action with respect to (i) the payment of any sum of money which is or may be payable hereunder or under any other Loan Documents, including, but not limited to, the repayment of the Loan or (ii) the performance or discharge of any covenants, obligations or undertakings of Guarantor or any Related Party with respect thereto. In addition to the foregoing, anything contained herein or in the other Loan Documents notwithstanding, in no event will the assets of any Related Party (other than Guarantor in accordance with the Guaranty and the Environmental Indemnity) be available to satisfy any obligation of Borrower hereunder.
Appears in 2 contracts
Sources: Mezzanine Loan Agreement (Northstar Realty Finance Corp.), Mezzanine Loan Agreement (NorthStar Healthcare Income, 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 ▇▇▇ 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:
(i) fraud or intentional misrepresentation by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor in connection with the execution and delivery of the Loan Documents and/or the Loan;
(ii) the misappropriation, conversion or misapplication in contravention of the Loan Documents by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any funds of Borrower, Senior Mezzanine Borrower, Mortgage Borrower or Operating Company, including, without limitation, (A) any Revenues, (B) any Net Liquidation Insurance Proceeds or Insurance Proceedspaid by reason of any Casualty, (C) any Awards received in connection with a Condemnation, or (D) any Rents or security deposits (or any item of Revenue, from whatever source) following an Event of Default, or (E) any distribution or other payments made in connection with any part of the Collateral or Senior Mezzanine Collateral;
(iii) the misappropriation, conversion or misapplication by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any security deposits or Rents paid more than one (1) month in advance;
(iv) any act of actual intentional physical waste by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor;
(v) the breach of any representation, warranty, covenant or indemnification provision in the Environmental Indemnity Agreement or in the Mortgages concerning environmental laws, hazardous substances and asbestos and any indemnification of Lender with respect thereto in either document;
(vi) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company fails to obtain Lender’s prior consent to any voluntary intentional Transfer as required by this Agreement, the Mortgage Loan Agreement or the Mortgages, as applicable;
(vii) any security deposits, advance deposits or any other deposits collected with respect to any of the Properties which are not delivered to Mortgage Lender upon a foreclosure of any of the Properties or action in lieu thereof, except to the extent any such security deposits were applied in accordance with the terms and conditions of any of the Leases prior to the occurrence of the Event of Default that gave rise to such foreclosure or action in lieu thereof;
(viii) in the event of:
: (A) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing a voluntary petition under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (B) the filing of an involuntary petition against Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law by any Person in which Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of their respective Affiliates, agents or employees colludes with or such other Person, or Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor soliciting or causing to be solicited petitioning creditors for any involuntary petition against Borrower, Operating Company or any Guarantor from any Person; (C) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing an answer consenting to or otherwise acquiescing in or joining in any involuntary petition filed against it by any other Person, other than Lender, under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (D) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor consenting to or acquiescing in or joining in an application for the appointment of a custodian, receiver, trustee, or examiner for Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of the Properties, the Collateral, the Senior Mezzanine Collateral Properties or any portion thereof, other than at the request of Lender; or (E) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor making an assignment for the benefit of creditors (other than Lender), or admitting, in writing or in any legal proceeding, its insolvency or inability to pay its debts as they become due;
(ix) if Borrower, Senior Mezzanine Borrower or Mortgage Borrower fails to maintain its status as a Special Purpose Entity or breaches any material representation or warranty set forth in Section 4.1.30 of this Agreement; and
(x) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company fails to obtain Lender’s prior consent to any voluntary Indebtedness (other than (x) with respect to Mortgage Borrower, Permitted Indebtedness and (y) with respect to Operating Company, or Permitted Indebtedness (Operating Company), as applicable) or voluntary Lien (other than Permitted Encumbrances) encumbering any of the Properties, Senior Mezzanine Collateral or Collateral Properties as required by this Agreement, the Senior Mezzanine Loan Agreement, the Mortgage Loan Agreement, the Pledge Agreement or the Mortgages. Notwithstanding anything to the contrary under this Agreement, neither any present or future Affiliate of Borrower (other than Guarantor, to the extent provided under the Guaranty) nor any present or future shareholder, officer, director, employee, trustee, beneficiary, advisor, partner, member, principal, participant or agent of or in any Borrower or of or in any person or entity that is or becomes an Affiliate of any Borrower shall have any personal liability, directly or indirectly, under or in connection with the Loan Documents. Neither the negative capital account of any Affiliate of Borrower in Borrower, or in any other Affiliate of Borrower in any other Affiliate of Borrower, nor any obligation of any Affiliate of Borrower in any Borrower to restore a negative capital account or to contribute or loan capital to any Borrower or to any other Affiliate of Borrower shall at any time be deemed to be the property or an asset of any Borrower (or any other Affiliate of Borrower) and neither Lender nor its successors or assigns shall have any right to collect, enforce or proceed against any such negative capital account or obligation to restore, contribute or loan capital.
(b) Notwithstanding anything to the contrary in this Agreement, the Note or any of the Loan Documents, Lender shall not be deemed to have waived any right which Lender may have under Section 506(a), 506(b), 1111(b) or any other provisions of the Bankruptcy Code to file a claim for the full amount of the Indebtedness or to require that all collateral shall continue to secure all of the Indebtedness owing to Lender in accordance with the Loan Documents.
Appears in 2 contracts
Sources: 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 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 ▇s▇▇ 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 "):
(ia) fraud fraud, willful misconduct, misrepresentation or intentional misrepresentation failure to disclose a material fact by or on behalf of Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company Guarantor or any Guarantor Affiliate of Borrower or Guarantor, or any of their respective agents or representatives in connection with the execution Loan, including by reason of any claim under the Racketeer Influenced and delivery of the Loan Documents and/or the LoanCorrupt Organizations Act (RICO);
(iib) the misappropriation, conversion or misapplication in contravention forfeiture by Borrower of the Loan Documents by BorrowerProperty, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any portion thereof, because of the conduct or purported conduct of criminal activity by Borrower or Guarantor or any of their respective agents or representatives in connection therewith;
(c) material physical waste of the Property or any portion thereof, or after an Event of Default the removal or disposal of any funds portion of Borrower, Senior Mezzanine Borrower, Mortgage Borrower or Operating Company, including, without limitation, the Property;
(Ad) any Revenues, (B) Proceeds paid by reason of any Net Liquidation Proceeds Insured Casualty or Insurance Proceeds, (C) any Awards Award received in connection with a CondemnationCondemnation or other sums or payments attributable to the Property not applied in accordance with the provisions of the Loan Documents (except to the extent that Borrower did not have the legal right, because of a bankruptcy, receivership or similar judicial proceeding, to direct disbursement of such sums or payments);
(De) any all Rents of the Property received or security deposits collected by or on behalf of 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 (except to the extent that such application of such funds is prevented by bankruptcy, receivership, or any item similar judicial proceeding in which Borrower is legally prevented from directing the disbursement of Revenue, from whatever sourcesuch sums);
(f) misappropriation or conversion by or on behalf of Borrower (including failure to turn over to Lender on demand following an Event of Default) of any gross revenues (including Rents, or (E) advance deposits, any distribution or other payments made deposits, rents collected in connection with any part advance, funds held by Borrower for the benefit of the Collateral or Senior Mezzanine Collateralanother party and Lease Termination Payments);
(iiig) the misappropriationfailure to pay Taxes, conversion or misapplication by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any security deposits or Rents paid more than one (1) month provided Borrower shall not be liable to the extent funds to pay such amounts are available in advancethe Tax and Insurance Subaccount and Lender failed to pay same;
(iv) any act of actual intentional physical waste by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor;
(vh) the breach of any representation, warranty, covenant or indemnification provision in the any Loan Document concerning Environmental Indemnity Agreement concerning environmental lawsLaws or Hazardous Substances, hazardous substances including Section 4.21 hereof and asbestos Section 5.8 hereof, and any indemnification clauses (viii) through (xi) of Lender with respect thereto in either documentSection 5.30 hereof;
(vii) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower the failure to pay charges for labor or Operating Company fails to obtain Lender’s prior consent to materials or other charges that can create Liens on any voluntary intentional Transfer as required by this Agreement, portion of the Mortgage Loan Agreement or the Mortgages, as applicableProperty;
(viij) any security deposits, advance deposits or any other deposits collected with respect to any of the Properties Property which are not delivered to Mortgage Lender upon a foreclosure of any of the Properties or action in lieu thereof, except to the extent any such security deposits were applied in accordance with the terms and conditions of any provisions of the Leases prior to the occurrence of the Event of Default that gave rise to such foreclosure or action in lieu thereofLoan Documents;
(viii) in the event of:
(A) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing a voluntary petition under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (Bk) the filing of an involuntary petition against Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor under failure to obtain and maintain the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law by any Person fully paid for Policies in which Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of their respective Affiliates, agents or employees colludes accordance with or such other Person, or Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor soliciting or causing to be solicited petitioning creditors for any involuntary petition against Borrower, Operating Company or any Guarantor from any Person; (C) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing an answer consenting to or otherwise acquiescing in or joining in any involuntary petition filed against it by any other Person, other than Lender, under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (D) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor consenting to or acquiescing in or joining in an application for the appointment of a custodian, receiver, trustee, or examiner for Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of the Properties, the Collateral, the Senior Mezzanine Collateral or any portion thereof, other than at the request of Lender; or (E) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor making an assignment for the benefit of creditors (other than Lender), or admitting, in writing or in any legal proceeding, its insolvency or inability to pay its debts as they become dueSection 7.1.1 hereof;
(ixl) if Borrower, Senior Mezzanine Borrower or Mortgage Borrower fails to maintain its status as a Special Purpose Entity or breaches any material representation or warranty 's indemnification of Lender set forth in Section 4.1.30 of this Agreement9.1 hereof; andand/or
(xm) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower any cost or Operating Company fails to obtain Lender’s prior consent to any voluntary Indebtedness (other than (x) with respect to Mortgage Borrower, Permitted Indebtedness and (y) with respect to Operating Company, Permitted Indebtedness (Operating Company), as applicable) or voluntary Lien (other than Permitted Encumbrances) encumbering any of the Properties, Senior Mezzanine Collateral or Collateral as required expense incurred by this Agreement, the Senior Mezzanine Loan Agreement, the Mortgage Loan Agreement, the Pledge Agreement or the Mortgages. Notwithstanding anything to the contrary under this Agreement, neither any present or future Affiliate of Borrower (other than Guarantor, to the extent provided under the Guaranty) nor any present or future shareholder, officer, director, employee, trustee, beneficiary, advisor, partner, member, principal, participant or agent of or in any Borrower or of or in any person or entity that is or becomes an Affiliate of any Borrower shall have any personal liability, directly or indirectly, under or Lender in connection with the Loan Documents. Neither the negative capital account enforcement of any Affiliate of Borrower in Borrower, or in any other Affiliate of Borrower in any other Affiliate of Borrower, nor any obligation of any Affiliate of Borrower in any Borrower to restore a negative capital account or to contribute or loan capital to any Borrower or to any other Affiliate of Borrower shall at any time be deemed to be the property or an asset of any Borrower (its rights and remedies hereunder or any other Affiliate of Borrower) and neither Lender nor its successors or assigns shall have any right to collect, enforce or proceed against any such negative capital account or obligation to restore, contribute or loan capital.
(b) Loan Document. Notwithstanding anything to the contrary in this Agreement, the Note Agreement or any of the Loan Documents, (A) Lender shall not be deemed to have waived any right which Lender may have under Section 506(a), 506(b), 1111(bI I I I (b) or any other provisions of the U.S. Bankruptcy Code to file a claim for the full amount of the Indebtedness Debt or to require that all collateral shall continue to secure all of the Indebtedness owing to Lender Debt in accordance with the Loan Documents, and (B) Lender's agreement not to pursue personal liability of Borrower as set forth above SHALL BECOME NULL AND VOID and shall be of no further force and effect, and the Debt shall be fully recourse to Borrower in the event that one or more of the following occurs (each, a "Springing Recourse Event"):
(i) an Event of Default described in Section 8. I (d) hereof shall have occurred;
(ii) a breach of any of the representations set forth in the "Recycled SPE Certificate" delivered to Lender in connection with the Loan or a breach of the representation set forth in Section 4. I (b) hereof or a breach of the covenants set forth in Section 5.13 hereof;
(iii) Borrower files a voluntary petition under the Bankruptcy Code or files a petition for bankruptcy, reorganization or similar proceeding pursuant to any other Federal or state bankruptcy, insolvency or similar law;
(iv) Borrower is substantively consolidated with any other Person; unless such consolidation was involuntary and not consented to by Borrower, or Guarantor and is discharged, stayed or dismissed within thirty (30) days following the occurrence of such consolidation;
(v) the filing of an involuntary petition against Borrower under the Bankruptcy Code or an involuntary petition for bankruptcy, reorganization or similar proceeding pursuant to any other Federal or state bankruptcy, insolvency or similar law by any other Person in which (x) Borrower or any Affiliate, officer, director or representative which, directly or indirectly, Controls Borrower colludes with or otherwise assists such Person, and/or (y) Borrower or any Affiliate, officer, director or representative which, directly or indirectly, Controls Borrower solicits or causes to be solicited petitioning creditors for any involuntary petition against Borrower by any Person;
(vi) Borrower or any Affiliate, officer, director or representative which, directly or indirectly, Controls Borrower files an answer consenting to, or otherwise acquiescing in, or joining in, any involuntary petition filed against it by any other Person under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law;
(vii) Borrower or any Affiliate, officer, director or representative which, directly or indirectly, Controls Borrower consents to, or acquiesces in, or joins in, an application for the appointment of a custodian, receiver, liquidator, trustee or examiner for Borrower or any portion of the Property;
(viii) Borrower makes an assignment for the benefit of creditors or admits, in writing or in any legal proceeding, its insolvency or inability to pay its debts as they become due; and/or
(ix) if Guarantor, Borrower or any Affiliate of any of the foregoing, in connection with any enforcement action or exercise or assertion of any right or remedy by or on behalf of Lender under or in connection with the Note, the Mortgage or any other Loan Document, seeks a defense, judicial intervention or injunctive or other equitable relief of any kind or asserts in a pleading filed in connection with a judicial proceeding any defense against Lender or any right in connection with any security for the Loan.
Appears in 2 contracts
Sources: 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 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 ▇▇▇ 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:
(i) fraud or intentional misrepresentation by any Borrower, any Mortgage Borrower, any Senior Mezzanine Borrower, any Manager, any Operating Company or any Guarantor in connection with the execution and delivery of the Loan Documents and/or the Loan;
(ii) the misappropriation, conversion or misapplication in contravention of the Loan Documents by any Borrower, any Mortgage Borrower, any Senior Mezzanine Borrower, any Manager, any Operating Company or any Guarantor of any funds of any Borrower, any Mortgage Borrower, any Senior Mezzanine Borrower, Mortgage Borrower any Manager or any Operating Company, including, without limitation, (A) any Revenues, (B) any Net Liquidation Insurance Proceeds or Insurance Proceedspaid by reason of any Casualty, (C) any Awards received in connection with a Condemnation, or (D) any Rents or security deposits (or any item of Revenue, from whatever source) following an Event of Default, or (E) any distribution or other payments made in connection with any part of the Collateral or Senior Mezzanine Collateral;
(iii) the misappropriation, conversion or misapplication by any Borrower, any Mortgage Borrower, any Senior Mezzanine Borrower, any Manager, any Operating Company or any Guarantor of any security deposits or Rents paid more than one (1) month in advance;
(iv) any act of actual intentional physical waste by any Borrower, any Mortgage Borrower, any Senior Mezzanine Borrower, any Manager, any Operating Company or any Guarantor;
(v) the breach of any representation, warranty, covenant or indemnification provision in the Environmental Indemnity Agreement concerning environmental laws, hazardous substances and asbestos and any indemnification of Lender Lender, Servicer or Collateral Agent with respect thereto in either document;
(vi) if any Borrower, any Mortgage Borrower, any Senior Mezzanine Borrower or any Operating Company fails to obtain Lender’s prior consent to any voluntary intentional Transfer (whether by any Borrower, any Mortgage Borrower, any Senior Mezzanine Borrower or any Operating Company) as required by this Agreement, the Mortgage Loan Agreement Agreement, the Senior Mezzanine Loan Agreement, the Pledge Agreement, any pledge agreement constituting a Senior Mezzanine Loan Document or the Mortgages, as applicable;
(vii) any security deposits, advance deposits or any other deposits collected with respect to any of the Properties which are not delivered to Mortgage Lender Lender, Mortgage Loan Collateral Agent or the Servicer (as defined in the Mortgage Loan Agreement) upon a foreclosure of any of the Properties or action in lieu thereof, except to the extent any such security deposits were applied in accordance with the terms and conditions of any of the Leases prior to the occurrence of the Event of Default that gave rise to such foreclosure or action in lieu thereof;
(viii) in the event of:
: (A) any Borrower, any Mortgage Borrower, any Senior Mezzanine Borrower, any Operating Company or any Guarantor filing a voluntary petition under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (B) the filing of an involuntary petition against any Borrower, any Mortgage Borrower, any Senior Mezzanine Borrower, any Operating Company or any Guarantor under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law by any Person in which such Borrower, such Mortgage Borrower, such Senior Mezzanine Borrower, such Operating Company or any such Guarantor or any of their respective Affiliates, agents or employees colludes with or such other Person, or Borrower, Mortgage such Borrower, Senior Mezzanine Borrower, such Operating Company or any such Guarantor soliciting or causing to be solicited petitioning creditors for any involuntary petition against such Borrower, such Mortgage Borrower, Senior Mezzanine Borrower, such Operating Company or any such Guarantor from any Person; (C) any Borrower, any Mortgage Borrower, Senior Mezzanine Borrower, any Operating Company or any Guarantor filing an answer consenting to or otherwise acquiescing in or joining in any involuntary petition filed against it by any other Person, other than Lender, under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (D) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor consenting to or acquiescing in or joining in an application for the appointment of a custodian, receiver, trustee, or examiner for Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of the Properties, the Collateral, the Senior Mezzanine Collateral or any portion thereof, other than at the request of Lender; or (E) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor making an assignment for the benefit of creditors (other than Lender), or admitting, in writing or in any legal proceeding, its insolvency or inability to pay its debts as they become due;
(ix) if Borrower, Senior Mezzanine Borrower or Mortgage Borrower fails to maintain its status as a Special Purpose Entity or breaches any material representation or warranty set forth in Section 4.1.30 of this Agreement; and
(x) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company fails to obtain Lender’s prior consent to any voluntary Indebtedness (other than (x) with respect to Mortgage Borrower, Permitted Indebtedness and (y) with respect to Operating Company, Permitted Indebtedness (Operating Company), as applicable) or voluntary Lien (other than Permitted Encumbrances) encumbering any of the Properties, Senior Mezzanine Collateral or Collateral as required by this Agreement, the Senior Mezzanine Loan Agreement, the Mortgage Loan Agreement, the Pledge Agreement or the Mortgages. Notwithstanding anything to the contrary under this Agreement, neither any present or future Affiliate of Borrower (other than Guarantor, to the extent provided under the Guaranty) nor any present or future shareholder, officer, director, employee, trustee, beneficiary, advisor, partner, member, principal, participant or agent of or in any Borrower or of or in any person or entity that is or becomes an Affiliate of any Borrower shall have any personal liability, directly or indirectly, under or in connection with the Loan Documents. Neither the negative capital account of any Affiliate of Borrower in Borrower, or in any other Affiliate of Borrower in any other Affiliate of Borrower, nor any obligation of any Affiliate of Borrower in any Borrower to restore a negative capital account or to contribute or loan capital to any Borrower or to any other Affiliate of Borrower shall at any time be deemed to be the property or an asset of any Borrower (or any other Affiliate of Borrower) and neither Lender nor its successors or assigns shall have any right to collect, enforce or proceed against any such negative capital account or obligation to restore, contribute or loan capital.
(b) Notwithstanding anything to the contrary in this Agreement, the Note or any of the Loan Documents, Lender shall not be deemed to have waived any right which Lender may have under Section 506(a), 506(b), 1111(b) or any other provisions of the Bankruptcy Code to file a claim for the full amount of the Indebtedness or to require that all collateral shall continue to secure all of the Indebtedness owing to Lender in accordance with the Loan Documents.any
Appears in 2 contracts
Sources: Mezzanine Loan Agreement (Harrahs Entertainment Inc), Fourth 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 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 ▇▇▇ 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 any portion thereof).
(gb) constitute a waiver of Nothing contained herein shall in any manner or way release, affect or impair the right of Lender to enforce the liability recover, and obligation of BorrowerBorrower shall be fully and personally liable and subject to legal action, by money judgment or otherwise, to the extent of for any actual loss, damage, cost, expense, liabilitydamage, claim or other obligation incurred by Lender (including reasonable attorneys’ fees and costs reasonably incurredcourt costs) incurred or suffered by Lender arising out of or in connection with the following:
(i) fraud or intentional willful misrepresentation by Borrower or any of its affiliates, or Guarantor or any agent, employee or other person with actual or apparent authority to make statements or representations on behalf of Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company any affiliate of Borrower or any Guarantor in connection with the execution and delivery of Loan (“apparent authority” meaning such authority as the Loan Documents and/or principal knowingly or negligently permits the Loanagent to assume, or which he holds the agent out as possessing);
(ii) the misappropriationgross negligence or willful misconduct of Borrower or Guarantor, conversion or misapplication any affiliate, agent, or employee of the foregoing;
(iii) material physical waste of the Property (or any portion thereof);
(iv) the removal or disposal of any portion of the Property in contravention violation of the terms of the Loan Documents Documents;
(v) the misapplication, misappropriation, or conversion by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company Borrower or any Guarantor of any funds of Borrower, Senior Mezzanine Borrower, Mortgage Borrower or Operating Company, including, without limitation, (A) any RevenuesInsurance Proceeds paid by reason of any loss, damage or destruction to the Property (or any portion thereof), (B) any Net Liquidation Proceeds or Insurance Proceeds, (C) any Awards received in connection with a CondemnationCondemnation of all or a portion of the Property, (C) any Rents or other Property income or collateral proceeds, or (D) any Rents paid more than one month in advance (including, but not limited to, security deposits);
(vi) following the occurrence of an Event of Default, the failure to either apply rents or security deposits other Property income, whether collected before or after such Event of Default, to the ordinary, customary, and necessary expenses of operating the Property or, upon demand, to deliver such rents or other Property income to Lender;
(vii) failure to maintain insurance or to pay taxes and assessments, or to pay charges for labor or materials or other charges or judgments that can create Liens on any item portion of Revenue, from whatever source) the Property (unless Lender is escrowing funds therefor and fails to make such payments or has taken possession of the Property following an Event of Default, or (E) any distribution has received all Rents from the Property applicable to the period for which such insurance, taxes or other payments made in connection with any part of the Collateral or Senior Mezzanine Collateralitems are due, and thereafter fails to make such payments);
(iii) the misappropriation, conversion or misapplication by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any security deposits or Rents paid more than one (1) month in advance;
(iv) any act of actual intentional physical waste by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor;
(v) the breach of any representation, warranty, covenant or indemnification provision in the Environmental Indemnity Agreement concerning environmental laws, hazardous substances and asbestos and any indemnification of Lender with respect thereto in either document;
(vi) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company fails to obtain Lender’s prior consent to any voluntary intentional Transfer as required by this Agreement, the Mortgage Loan Agreement or the Mortgages, as applicable;
(viiviii) any security deposits, advance deposits or any other deposits collected with respect to the Property (or any of the Properties portion thereof) which are not delivered to Mortgage Lender upon a foreclosure of the Property (or any of the Properties portion thereof) or action in lieu thereof, except to the extent any such security deposits were applied in accordance with the terms and conditions of any of the Leases prior to the occurrence of the Event of Default that gave rise to such foreclosure or action in lieu thereof;
(viiiix) the breach of the representation by Borrower that on the Closing Date, the Property and all Improvements at the Property were in material compliance with applicable laws; or
(x) any failure by Borrower to comply with any of the event of:representations, warranties or covenants set forth in Sections 4.1.37 or 5.1.19 hereof.
(c) Notwithstanding anything to the contrary in this Agreement, the Note or any of the other Loan Documents,
(i) Borrower and any general partner of Borrower shall be personally liable for the Debt if (A) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company Borrower fails to obtain Lender’s prior written consent to any Transfer as required by this Agreement or any Guarantor filing a voluntary petition under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency lawSecurity Instrument; (B) Borrower fails to obtain Lender’s prior written consent to any Indebtedness or voluntary Lien encumbering the filing of an involuntary petition against Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company Property (or any Guarantor under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law by any Person in which Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of their respective Affiliates, agents or employees colludes with or such other Person, or Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor soliciting or causing to be solicited petitioning creditors for any involuntary petition against Borrower, Operating Company or any Guarantor from any Personportion thereof); (C) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or Borrower shall at any Guarantor filing an answer consenting to or otherwise acquiescing in or joining in any involuntary petition filed against it by any other Person, other than Lender, under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (D) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor consenting to or acquiescing in or joining in an application for the appointment of a custodian, receiver, trustee, or examiner for Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of the Properties, the Collateral, the Senior Mezzanine Collateral or any portion thereof, other than at the request of Lender; or (E) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor making time hereafter make an assignment for the benefit of creditors its creditors; (other than Lender)D) Borrower fails to permit on-site inspections of any Individual Property, fails to maintain its status as a Single Purpose Entity or admittingcomply with any representation, warranty or covenant set forth in Section 4.1.30 hereof or fails to appoint a new property manager upon the request of Lender as permitted under this Agreement, each as required by, and in accordance with, the terms and provisions of this Agreement or the Security Instrument; (E) Borrower admits, in writing or in any legal proceeding, its insolvency or inability to pay its debts as they become due;
; (ixF) if Borrower, Senior Mezzanine Borrower or Mortgage Borrower fails to maintain its status as make the first full monthly payment of principal and interest on or before the first Payment Date; (G) Borrower files, consents to, or acquiesces in a Special Purpose Entity petition for bankruptcy, insolvency, dissolution or breaches liquidation under the Bankruptcy Code or any material representation other Federal or warranty set forth State bankruptcy or insolvency law, or there is a filing of an involuntary petition against Borrower under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law in Section 4.1.30 of this Agreement; and
(x) if Borrower, Mortgage Borrower, Senior Mezzanine which Borrower or Operating Company fails to obtain Lender’s prior consent to Guarantor colludes with, or otherwise assists any voluntary Indebtedness (other than (x) with respect to Mortgage Borrower, Permitted Indebtedness and (y) with respect to Operating Company, Permitted Indebtedness (Operating Company), as applicable) or voluntary Lien (other than Permitted Encumbrances) encumbering any of the Properties, Senior Mezzanine Collateral or Collateral as required by this Agreement, the Senior Mezzanine Loan Agreement, the Mortgage Loan Agreement, the Pledge Agreement or the Mortgages. Notwithstanding anything to the contrary under this Agreement, neither any present or future Affiliate of Borrower (other than Guarantor, to the extent provided under the Guaranty) nor any present or future shareholder, officer, director, employee, trustee, beneficiary, advisor, partner, member, principal, participant or agent of or in any Borrower or of or in any person or entity that is or becomes an Affiliate of any Borrower shall have any personal liability, directly or indirectly, under or party in connection with the Loan Documents. Neither the negative capital account of any Affiliate of Borrower in Borrowersuch filing, or in solicits or causes to be solicited petitioning creditors for any other Affiliate of involuntary petition against Borrower in from any other Affiliate of Borrower, nor party; or (H) the Property or any obligation of any Affiliate of Borrower in any Borrower to restore a negative capital account or to contribute or loan capital to any Borrower or to any other Affiliate of Borrower part thereof shall at any time hereafter become property of the estate or an asset in (1) a voluntary bankruptcy, insolvency, receivership, liquidation, winding up, or other similar type of proceeding, or (2) an involuntary bankruptcy or insolvency proceeding (other than one filed by Lender) that is not dismissed within sixty (60) days of filing.
(d) Nothing herein shall be deemed to be the property or an asset constitute a waiver by Lender of any Borrower (or any other Affiliate of Borrower) and neither Lender nor its successors or assigns shall have any right to collect, enforce or proceed against any such negative capital account or obligation to restore, contribute or loan capital.
(b) Notwithstanding anything to the contrary in this Agreement, the Note or any of the Loan Documents, Lender shall not be deemed to have waived any right which Lender may have under Section Sections 506(a), 506(b), 1111(b) or any other provisions provision of the Bankruptcy Code to file a claim for the full amount of the Indebtedness Debt or to require that all collateral shall continue to secure all of the Indebtedness owing to Lender in accordance with the Loan DocumentsDebt.
Appears in 2 contracts
Sources: Loan Agreement (TNP Strategic Retail Trust, Inc.), Loan Agreement (TNP Strategic Retail Trust, Inc.)
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 ▇▇▇ 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 (iall 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, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor in connection with obtaining the execution and delivery Loan; (b) physical waste of the Loan Documents and/or Property or any portion thereof (other than acts committed by a third party non-affiliated property manager), or after an Event of Default the Loan;
(ii) the misappropriation, conversion removal or misapplication in contravention disposal of any portion of the Loan Documents Property (other than acts committed by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company a third party non-affiliated property manager); (c) any Proceeds paid by reason of any Insured Casualty or any Guarantor of any funds of Borrower, Senior Mezzanine Borrower, Mortgage Borrower or Operating Company, including, without limitation, (A) any Revenues, (B) any Net Liquidation Proceeds or Insurance Proceeds, (C) any Awards Award received in connection with a CondemnationCondemnation 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); (Dd) all Rents of the Property received or collected by or on behalf of any Rents 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 security deposits 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 any item similar judicial proceeding in which such Borrower is legally prevented from directing the disbursement of Revenue, from whatever sourcesuch 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 (E) any distribution or other payments made in connection with any part of the Collateral or Senior Mezzanine Collateral;
than acts committed by a third party non-affiliated property manager); (iiif) the misappropriationfailure to pay Taxes, conversion 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 misapplication by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company has elected not to pay the same pursuant to Section 3.3 or any Guarantor of any security deposits or (B) Rents paid more than one are insufficient to yield sufficient funds to pay such amounts; (1) month in advance;
(iv) any act of actual intentional physical waste by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor;
(vg) the breach of any representation, warranty, covenant or indemnification provision 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 Environmental Indemnity Agreement concerning environmental lawsdefinition of "Special Purpose Bankruptcy Remote Entity" on Schedule 5, hazardous substances and asbestos and if the same occurs as a result of the economic performance of the Property); (i) any indemnification of Lender with respect thereto in either document;
(vi) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company fails 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 obtain Lender’s prior consent hinder, delay, impair or prevent Lender in or from enforcing any and all of its rights and remedies under or pursuant to any voluntary intentional Transfer as required by this Agreementthe 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 Mortgage Loan termination of the Management Agreement or the Mortgagesremoval of Behringer Harvard TIC Management Services, L.P. as applicable;
property manager thereunder without Lender's consent (viiprovided 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 security depositsBorrower 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), advance deposits or 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 deposits collected 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 Properties which are not delivered to Mortgage Lender upon a foreclosure of any of Loan and (2) the Properties or action applicable Borrower's respective undivided tenant in lieu thereof, except to the extent any such security deposits were applied in accordance with the terms and conditions of any of the Leases prior to the occurrence of the Event of Default that gave rise to such foreclosure or action in lieu thereof;
(viii) common interest in the event of:
Property (A) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing a voluntary petition under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (B) the filing of an involuntary petition against Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law by any Person in which Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of their respective Affiliates, agents or employees colludes with or such other Person, or Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor soliciting or causing to be solicited petitioning creditors for any involuntary petition against Borrower, Operating Company or any Guarantor from any Person; (C) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing an answer consenting to or otherwise acquiescing in or joining in any involuntary petition filed against it by any other Person, other than Lender, under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (D) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor consenting to or acquiescing in or joining in an application for the appointment of a custodian, receiver, trustee, or examiner for Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of the Properties, the Collateral, the Senior Mezzanine Collateral or any portion thereof, other than at the request of Lender; or (E) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor making an assignment for the benefit of creditors (other than Lender), or admitting, in writing or in any legal proceeding, its insolvency or inability to pay its debts as they become due;
(ix) if Borrower, Senior Mezzanine Borrower or Mortgage Borrower fails to maintain its status expressed as a Special Purpose Entity or breaches any material representation or warranty set forth in Section 4.1.30 of this Agreement; and
(x) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company fails to obtain Lender’s prior consent to any voluntary Indebtedness (other than (x) with respect to Mortgage Borrower, Permitted Indebtedness and (y) with respect to Operating Company, Permitted Indebtedness (Operating Companypercentage), as applicable) or voluntary Lien (other than Permitted Encumbrances) encumbering any of the Properties, Senior Mezzanine Collateral or Collateral as required by this Agreement, the Senior Mezzanine Loan Agreement, the Mortgage Loan Agreement, the Pledge Agreement or the Mortgages. Notwithstanding anything to the contrary under this Agreement, neither any present or future Affiliate of Borrower (other than Guarantor, to the extent provided under the Guaranty) nor any present or future shareholder, officer, director, employee, trustee, beneficiary, advisor, partner, member, principal, participant or agent of or in any Borrower or of or in any person or entity that is or becomes an Affiliate of any Borrower shall have any personal liability, directly or indirectly, under or in connection with the Loan Documents. Neither the negative capital account of any Affiliate of Borrower in Borrower, or in any other Affiliate of Borrower in any other Affiliate of Borrower, nor any obligation of any Affiliate of Borrower in any Borrower to restore a negative capital account or to contribute or loan capital to any Borrower or to any other Affiliate of Borrower shall at any time be deemed to be the property or an asset of any Borrower (or any other Affiliate of Borrower) and neither Lender nor its successors or assigns shall have any right to collect, enforce or proceed against any such negative capital account or obligation to restore, contribute or loan capital.
(b) Notwithstanding anything to the contrary in this Agreement, the Note Agreement or any of the Loan Documents, (A) Lender shall not be deemed to have waived any right which Lender may have under Section 506(a), 506(b), 1111(b) or any other provisions of the U.S. Bankruptcy Code to file a claim for the full amount of the Indebtedness Debt or to require that all collateral shall continue to secure all of the Indebtedness owing to Lender Debt in accordance with the Loan Documents., and (B) Lender's agreement not to pursue personal liability of Borrowers as set forth above SHALL BECOME NULL AND VOID and shall be of no further force and effect, and the Debt shall be fully recourse to the applicable Borrower or Borrowers in an amount equal to the greater of (x) Lender's Losses arising out of or in connection with the following matters or (y) an amount equal to the product of (1) the unpaid balance of the Debt and (2) the applicable Borrower's respective undivided tenant in common interest in the Property (expressed as a percentage), in the event that one or more of the following occurs (each, a "SPRINGING RECOURSE EVENT"): (i) an Event of Default described in Section 8.1(d) shall have occurred, (ii) the occurrence of any condition or event described in either Section 8.1(f) (with respect to Borrowers only) or Section 8.1(g) (with respect to Borrowers only) (each, an "INSOLVENCY ACTION") and, with respect to such Insolvency Action described in Section 8.1(g), either any Borrower, Guarantor or any Person owning an interest (directly or indirectly) in any Borrower, or Guarantor consents to, aids, solicits, supports, or otherwise cooperates or colludes to cause such Insolvency Action or fails to contest such Insolvency Action, except in the event that any such party has a fiduciary or legal duty to take such action, (iii) any involuntary bankruptcy proceeding is brought by any Borrower or its Guarantor or any of such Borrower's or its Guarantor's Affiliates against any other Borrower; (iv) if subsequent to the commencement of any voluntary bankruptcy proceeding with respect to any Borrower, any involuntary bankruptcy proceeding is brought by Lender against one or more Borrowers and any Borrower or such Borrower's Guarantor files any motion contesting the same; or
Appears in 2 contracts
Sources: 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 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 ▇▇▇ 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; Property.
(b) Nothing contained herein shall in any manner or (g) constitute a waiver of way release, affect or impair the right of Lender to enforce the liability recover, and obligation of BorrowerBorrower shall be fully and personally liable and subject to legal action, by money judgment for any losses, damages (including, without limitation, punitive or otherwiseexemplary damages), to the extent costs, expenses, liabilities (including, without limitation, strict liability), claims, obligations, settlement payments, penalties, fines, assessments, citations, litigation, demands, defenses, judgments, suits, proceedings or other expenses of any actual loss, damage, cost, expense, liability, claim kind whatsoever incurred or other obligation incurred suffered by Lender (including reasonable attorneys’ fees and costs reasonably incurredexpenses and court costs) arising out of or in connection with the following:
(i) fraud or intentional knowing misrepresentation by Borrower, Mortgage BorrowerGuarantor, Senior Mezzanine Borrower, Operating Company or any Guarantor Key Principal in connection with the execution and delivery of Loan or the Loan Documents and/or the LoanProperty;
(ii) gross negligence or willful misconduct of Borrower, Sole Member, Guarantor or Key Principal in connection with the misappropriationLoan or the Property;
(iii) breach of any material representation, conversion warranty, covenant or misapplication indemnification provision concerning Environmental Statutes or Hazardous Substances in contravention the Environmental Indemnity, the Loan Agreement or the Security Instrument;
(iv) material physical waste of the Property;
(v) removal or disposal of any material portion of the Property after an Event of Default;
(vi) breach of any Legal Requirement (including RICO) mandating the forfeiture by Borrower of the Property, or any portion thereof, because of the conduct or purported conduct of criminal activity by Borrower or any Restricted Party in connection therewith;
(vii) any intentional misrepresentation, misleading or incorrect certification or breach of any material representation, warranty or certification contained in this Agreement or any other Loan Document or in any document executed in connection therewith, pursuant to any of the Loan Documents or otherwise to induce Lender to make the Loan, or any advance thereof, or to release monies from any account held by Lender (including any reserve or escrow) or to take other action with respect to the Collateral;
(viii) misapplication, misappropriation or conversion by Borrower, Mortgage BorrowerSole Member, Senior Mezzanine Borrower, Operating Company Guarantor or any Guarantor Key Principal of any funds of Borrower, Senior Mezzanine Borrower, Mortgage Borrower or Operating Company, including, without limitation, (A) any RevenuesInsurance Proceeds which are not applied by Borrower or any Affiliated Manager in accordance with the terms of this Agreement, (B) any Net Liquidation Proceeds or Insurance ProceedsAwards which are not applied by Borrower in accordance with the terms of this Agreement, (C) any Awards received in connection with a Condemnation, (D) any Rents or security deposits (or any item of Revenue, from whatever source) following an Event of Default, or (ED) any distribution or other payments made in connection with any part of the Collateral or Senior Mezzanine Collateral;
(iii) the misappropriation, conversion or misapplication by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any security deposits or Rents paid more than one (1) month in advance, or (E) any other monetary collateral for the Loan;
(ivix) any act failure to pay (or cause to be paid) charges for Taxes or Other Charges before the same become delinquent unless (A) such Taxes or Other Charges are the subject of actual intentional physical waste by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company a bona fide dispute in which Borrower or a Tenant is contesting the amount or validity thereof in accordance with the terms of this Agreement (or any Guarantorapplicable Lease, as applicable), or (B) Borrower is depositing or has deposited required funds into the Tax and Insurance Escrow Account and Lender fails to apply such Tax and Insurance Escrow Funds to Taxes and Other Charges to the extent there are sufficient funds in the Tax and Insurance Escrow Account, or (C) such failure is due to the failure of the Property to generate sufficient Rents to pay such amounts but only so long as Borrower has not applied Rents in violation of the terms hereof or the other Loan Documents, or (D) such failure is due to the failure of Lender after the occurrence and during the continuance of an Event of Default to make Rents available to pay such amounts;
(vx) failure to pay charges for labor or materials or other charges or judgments that can create Liens on any portion of the breach of any representationProperty, warrantyprovided, covenant or indemnification provision in that (i) if such Lien is fully bonded to the Environmental Indemnity Agreement concerning environmental laws, hazardous substances and asbestos and any indemnification satisfaction of Lender (which bond shall have no resort to the Property for payment) and such Lien is discharged of record, or (ii) for so long as such Lien is being contested in good faith and in accordance with respect thereto in either documentthe terms of this Agreement, Borrower shall not have any liability to Lender for such Lien under this Section 3.1(b)(x);
(vixi) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company fails failure to obtain Lender’s prior consent deliver to any voluntary intentional Transfer as required by this Agreement, the Mortgage Loan Agreement or the Mortgages, as applicable;
(vii) Lender any security deposits, advance deposits or any other deposits collected by or on behalf of Borrower with respect to any of the Properties which are not delivered to Mortgage Lender upon Property after a foreclosure of any of the Properties Property or action in lieu thereof, except to the extent any such security deposits were applied in accordance with the terms and conditions of any of the Leases prior to the occurrence of the Event of Default that gave rise to such foreclosure or action in lieu thereof;
(viiixii) failure by Borrower to obtain and maintain, from time to time, the fully paid for insurance policies in accordance with the terms of this Agreement unless Borrower is depositing or has deposited required funds into the Tax and Insurance Escrow Account and Lender fails to apply such Tax and Insurance Escrow Funds to Insurance Premiums to the extent there are sufficient funds in the event of:Tax and Insurance Escrow Account;
(Axiii) any of Borrower, Mortgage BorrowerSole Member, Senior Mezzanine Borrower, Operating Company Key Principal or any Guarantor filing a voluntary petition under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (B) the filing of an involuntary petition against Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law by any Person in which Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any Affiliate of their respective Affiliates, agents or employees colludes with or such other Person, or Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor soliciting or causing to be solicited petitioning creditors for any involuntary petition against Borrower, Operating Company or any Guarantor from any Person; (C) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing an answer consenting to or otherwise acquiescing in or joining in any involuntary petition filed against it by any other Person, other than Lender, under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (D) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor consenting to or acquiescing in or joining in an application for the appointment of a custodian, receiver, trustee, or examiner for Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of the Properties, the Collateral, the Senior Mezzanine Collateral or any portion thereof, other than at the request of Lender; or (E) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor making an assignment for the benefit of creditors (other than Lender), or admittingforegoing, in writing connection with any enforcement action or in any legal proceeding, its insolvency exercise or inability to pay its debts as they become due;
(ix) if Borrower, Senior Mezzanine Borrower or Mortgage Borrower fails to maintain its status as a Special Purpose Entity or breaches any material representation or warranty set forth in Section 4.1.30 of this Agreement; and
(x) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company fails to obtain Lender’s prior consent to any voluntary Indebtedness (other than (x) with respect to Mortgage Borrower, Permitted Indebtedness and (y) with respect to Operating Company, Permitted Indebtedness (Operating Company), as applicable) or voluntary Lien (other than Permitted Encumbrances) encumbering any of the Properties, Senior Mezzanine Collateral or Collateral as required by this Agreement, the Senior Mezzanine Loan Agreement, the Mortgage Loan Agreement, the Pledge Agreement or the Mortgages. Notwithstanding anything to the contrary under this Agreement, neither any present or future Affiliate of Borrower (other than Guarantor, to the extent provided under the Guaranty) nor any present or future shareholder, officer, director, employee, trustee, beneficiary, advisor, partner, member, principal, participant or agent of or in any Borrower or of or in any person or entity that is or becomes an Affiliate assertion of any Borrower shall have any personal liability, directly right or indirectly, remedy by or on behalf of Lender under or in connection with the Loan Documents. Neither Guaranty, the negative capital account of any Affiliate of Borrower in BorrowerNote, or in any other Affiliate of Borrower in any other Affiliate of Borrower, nor any obligation of any Affiliate of Borrower in any Borrower to restore a negative capital account or to contribute or loan capital to any Borrower or to any other Affiliate of Borrower shall at any time be deemed to be the property or an asset of any Borrower (Security Instrument or any other Affiliate Loan Document, seeks a defense, judicial intervention or injunctive or other equitable relief of Borrower) any kind, or asserts in a pleading filed in connection with a duly exercised and neither prosecuted judicial proceeding any defense against Lender nor its successors or assigns shall have any right in connection with any security for the Loan, which a court determines is frivolous or in bad faith;
(xiv) Borrower’s indemnifications of Lender set forth in Section 9.2 of this Agreement;
(xv) the failure of Borrower to collectobtain and maintain the fully paid for Policies in accordance with Section 5.1.2 hereof, enforce except to the extent that Borrower’s failure to obtain and maintain the fully paid for Policies is due to (A) the failure of the Property to generate sufficient Rents to pay such amounts but only so long as Borrower has not applied Rents in violation of the terms hereof or proceed against any the other Loan Documents or (B) the failure of Lender after the occurrence and during the continuance of an Event of Default to make Rents available to pay such negative capital account or obligation amounts; or
(xvi) the failure of Borrower to restorecomply with its obligations and liabilities arising relating to Section 4.4 under that certain Agreement of Purchase and Sale and Contribution Agreement, contribute or loan capitaldated as of October 17, 2012, between Inland Real Estate Acquisition, Inc., Centennial Centre, L.L.C., Centennial Holdings, L.L.C., Eastern — Beltway, Ltd., Retail Development Partners, LLC, Virgin Territory LLC, and ▇▇▇▇▇ ▇▇▇▇▇ Corner, LLC, as amended by First Amendment to Agreement of Purchase and Sale and Contribution Agreement, dated as of December 20, 2012, and as partially assigned to and assumed by Borrower pursuant to Assignment and Assumption of Agreement, of even date herewith, by and between Inland Real Estate Acquisition, Inc. and Borrower, including, without limitation, obligations to make Earnout Payments as and when required under the terms thereof.
(bc) Notwithstanding anything to the contrary in this Agreement, the Note or any of the Loan Documents, (A) Lender shall not be deemed to have waived any right which Lender may have under Section 506(a), 506(b), 1111(b) or any other provisions of the U.S. Bankruptcy Code to file a claim for the full amount of the Indebtedness Debt secured by the Security Instrument or to require that all collateral shall continue to secure all of the Indebtedness owing to Lender Obligations in accordance with the Loan Documents., and (B) Borrower shall be personally liable for the payment of the Debt in the event of (each of the following, hereafter a “Springing Recourse Event”):
Appears in 2 contracts
Sources: Loan Agreement (Inland Diversified Real Estate Trust, Inc.), Loan Agreement (Inland Diversified Real Estate Trust, Inc.)
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 ▇▇▇ 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 the Property.
(b) The provisions of the Collateral; or (gSection 9.4(a) shall not 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 followingfollowing from and after the date hereof:
(i) fraud or intentional intentional, material misrepresentation by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company Guarantor or any Guarantor in connection with the execution and delivery of the Loan Documents and/or the Loantheir respective Affiliates;
(ii) the misappropriation, conversion or misapplication in contravention any willful act of material waste of the Loan Documents by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company Property or any Guarantor of any funds damage to the Property arising from the intentional misconduct or gross negligence of Borrower, Senior Mezzanine Borrower, Mortgage Borrower or Operating Company, including, without limitation, (A) any Revenues, (B) any Net Liquidation Proceeds or Insurance Proceeds, (C) any Awards received in connection with a Condemnation, (D) any Rents or security deposits (Guarantor or any item of Revenue, from whatever source) following an Event of Default, or (E) any distribution or other payments made in connection with any part of the Collateral or Senior Mezzanine Collateraltheir respective principals;
(iii) the misappropriation, conversion or misapplication by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any security deposits or Rents paid more than one (1) month in advance;
(iv) any act of actual intentional physical waste by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor;
(v) the breach of any representation, warranty, covenant or indemnification provision in the Environmental Indemnity Agreement or in the Security Instrument concerning environmental laws, hazardous substances and asbestos and any indemnification of Lender with respect thereto in either document;
(iv) the removal or disposal of any portion of the Property after an Event of Default;
(v) the misappropriation, intentional misapplication or conversion by Borrower or any of its Affiliates of (A) any Insurance Proceeds paid by reason of any Casualty, (B) any Awards received in connection with a Condemnation, (C) any Rents following an Event of Default and not applied to Debt Service, Operating Expenses or otherwise paid to Lender, or (D) any Rents paid more than one (1) month in advance;
(vi) failure to pay charges for labor or materials or other charges that can create Liens on any portion of the Property to the extent funds are available for such purpose in, or have been disbursed to Borrower for such purpose from, the Cash Management Account (it being understood that there shall be no recourse if Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company Lender is obligated to apply such funds held in any applicable Reserve Account to pay the foregoing and fails to obtain Lender’s prior consent to any voluntary intentional Transfer as required by this Agreement, the Mortgage Loan Agreement or the Mortgages, as applicabledo so);
(vii) intentional failure by Borrower and Manager to continue to operate the Casino Component at any time in accordance with the requirements of Section 5.1.26 and any voluntary relinquishment of any material Gaming License by Borrower or Manager;
(viii) any security deposits, advance deposits or any other deposits collected by Borrower or any Borrower Party with respect to any of the Properties Property which are not delivered to Mortgage Lender upon a foreclosure of any of the Properties Property or action in lieu thereof, except to the extent any such security deposits were applied in accordance with the terms and conditions of any of the Leases prior to the occurrence occurrence; of the Event of Default that gave rise to such foreclosure or action in lieu thereof;
(viiiix) in the event of:
(A) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing a voluntary petition under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (B) the filing of an involuntary petition against Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law failure by any Person in which Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of their respective Affiliates, agents or employees colludes with or such other Person, or Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor soliciting or causing to be solicited petitioning creditors for any involuntary petition against Borrower, Operating Company or any Guarantor from any Person; (C) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing an answer consenting to or otherwise acquiescing in or joining in any involuntary petition filed against it by any other Person, other than Lender, under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (D) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor consenting to or acquiescing in or joining in an application for the appointment of a custodian, receiver, trustee, or examiner for Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of the Properties, the Collateral, the Senior Mezzanine Collateral or any portion thereof, other than at the request of Lender; or (E) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor making an assignment for the benefit of creditors (other than Lender), or admitting, in writing or in any legal proceeding, its insolvency or inability to pay its debts as they become due;
(ix) if Borrower, Senior Mezzanine Borrower or Mortgage Borrower fails SPE Entity to maintain its status as a Special Single Purpose Entity or breaches any material representation or warranty set forth as required by, and in Section 4.1.30 accordance with, the terms and provisions of this Agreement; andAgreement or the Security Instrument if by reason thereof any of the assets of such SPE Entity are consolidated into the bankruptcy estate of any other Person;
(x) if Borrower, Mortgage Borrower, Senior Mezzanine failure by Borrower or Operating Company fails to obtain Lender’s prior consent to any voluntary Indebtedness (other than (x) with respect to Mortgage Borrower, Permitted Indebtedness and (y) with respect to Operating Company, Permitted Indebtedness (Operating Company), as applicable) or voluntary Lien encumbering the Property as required by this Agreement or the Security Instrument; and
(other than Permitted Encumbrancesxi) encumbering failure by Borrower to obtain Lender’s prior consent to any of the Properties, Senior Mezzanine Collateral or Collateral Transfer as required by this Agreement, the Senior Mezzanine Loan Agreement, the Mortgage Loan Agreement, the Pledge Agreement or the Mortgages. Notwithstanding anything to the contrary under this Agreement, neither any present or future Affiliate of Borrower (other than Guarantor, to the extent provided under the Guaranty) nor any present or future shareholder, officer, director, employee, trustee, beneficiary, advisor, partner, member, principal, participant or agent of or in any Borrower or of or in any person or entity that is or becomes an Affiliate of any Borrower shall have any personal liability, directly or indirectly, under or in connection with the Loan Documents. Neither the negative capital account of any Affiliate of Borrower in Borrower, or in any other Affiliate of Borrower in any other Affiliate of Borrower, nor any obligation of any Affiliate of Borrower in any Borrower to restore a negative capital account or to contribute or loan capital to any Borrower or to any other Affiliate of Borrower shall at any time be deemed to be the property or an asset of any Borrower (or any other Affiliate of Borrower) and neither Lender nor its successors or assigns shall have any right to collect, enforce or proceed against any such negative capital account or obligation to restore, contribute or loan capital.
(bc) Notwithstanding anything to the contrary in this Agreement, the Note or any of the Loan Documents, (i) Lender shall not be deemed to have waived any right which Lender may have under Section 506(a), 506(b), 1111(b) or any other provisions of the U.S. Bankruptcy Code to file a claim for the full amount of the Indebtedness Debt secured by the Security Instrument or to require that all collateral shall continue to secure all of the Indebtedness Debt owing to Lender in accordance with the Loan Documents, and (ii) the Debt shall be fully recourse to Borrower in the event of: (A) Borrower filing a voluntary petition under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (B) the filing of an involuntary petition against Borrower under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law by any other Person in which Borrower or Guarantor or any of their respective Affiliates, agents or employees colludes with or otherwise assists such other Person, or Borrower or Guarantor or any of their respective Affiliates, agents or employees soliciting, or causing to be solicited, petitioning creditors for an involuntary petition against Borrower under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (C) Borrower filing an answer consenting to or otherwise acquiescing in or joining in any involuntary petition filed against it, by any other Person under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (D) Borrower consenting to or acquiescing in or joining in an application for the appointment of a custodian, receiver, trustee, or examiner for Borrower or any portion of the Property; or (E) Borrower making an assignment for the benefit of creditors, or admitting, in writing or in any legal proceeding, its insolvency or inability to pay its debts as they become due.
Appears in 2 contracts
Sources: Loan Agreement (Caesars Acquisition Co), Loan Agreement (Harrahs Entertainment Inc)
Exculpation. (a) Subject to the qualifications provisions of (b) and (c) below, Lender shall not enforce the liability and obligation of Borrower any Loan Party to perform and observe the obligations contained in the Note, this Agreement, the Pledge Agreement Note or the Mortgages or any of the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against Borrowerany Loan Party or any direct or indirect member, shareholder, partner, manager, beneficiary or other owner of direct or indirect beneficial ownership interests in, or any Affiliate of, any Loan Party, or any director, officer, employees, trustee or agent of any Loan Party or any of the foregoing other than Guarantor pursuant to and in accordance with the terms and conditions of Guaranty and Environmental Indemnity, as applicable (each, an “Exculpated Party” and, 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 USActive 30748472.10 -119- upon its interest under the Note, this Agreement, the Pledge Agreement and Note, the Mortgage, the other Loan Documents, or and the interest in the CollateralProperty, or the Rents and 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 any Loan Party only to the extent of Borrowersuch Loan Party’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, Documents agrees that it shall not not, except as otherwise provided herein or in the Mortgage, ▇▇▇ for, seek or demand any deficiency judgment against Borrower any Loan Party or any Exculpated Party (subject, however, to the terms of the Guaranty and Environmental Indemnity) 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 Mortgage or the other Loan Documents. The provisions of this Section 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 Mortgage or the other Loan Documents; (bii) impair the right of Lender to name Borrower and Operating Lessee 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 any indemnity (including, without limitation, the Environmental Indemnity), guaranty (including, without limitation, the Guaranty), the Operating Lease or any Guaranty similar instrument made in connection with this Agreement, the Note, the Mortgage or the other Loan Documents 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; impair the enforcement of any assignment of leases contained in the Mortgage, or (fv) constitute a prohibition against impair the right of Lender to seek obtain a deficiency judgment or other judgment on the Note 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 if necessary to exercise (A) preserve or enforce its rights and remedies against all of the Collateral; Property or (gB) constitute a waiver obtain any Insurance Proceeds or Awards to which Lender would otherwise be entitled under the terms of this Agreement or the right of Mortgage; provided, however, that 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:
(i) fraud or intentional misrepresentation by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor in connection with the execution and delivery of the Loan Documents Insurance Proceeds and/or the Loan;
(ii) the misappropriation, conversion or misapplication in contravention of the Loan Documents by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any funds of Borrower, Senior Mezzanine Borrower, Mortgage Borrower or Operating Company, including, without limitation, (A) any Revenues, (B) any Net Liquidation Proceeds or Insurance Proceeds, (C) any Awards received in connection with a Condemnation, (D) any Rents or security deposits (or any item of Revenue, from whatever source) following an Event of Default, or (E) any distribution or other payments made in connection with any part of the Collateral or Senior Mezzanine Collateral;
(iii) the misappropriation, conversion or misapplication by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any security deposits or Rents paid more than one (1) month in advance;
(iv) any act of actual intentional physical waste by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor;
(v) the breach of any representation, warranty, covenant or indemnification provision in the Environmental Indemnity Agreement concerning environmental laws, hazardous substances and asbestos and any indemnification of Lender with respect thereto in either document;
(vi) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company fails to obtain Lender’s prior consent to any voluntary intentional Transfer as required by this Agreement, the Mortgage Loan Agreement or the Mortgages, as applicable;
(vii) any security deposits, advance deposits or any other deposits collected with respect to any of the Properties which are not delivered to Mortgage Lender upon a foreclosure of any of the Properties or action in lieu thereof, except to the extent any such security deposits were applied in accordance with the terms and conditions of any of the Leases prior to the occurrence of the Event of Default that gave rise to such foreclosure or action in lieu thereof;
(viii) in the event of:
(A) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing a voluntary petition under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (B) the filing of an involuntary petition against Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law by any Person in which Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of their respective Affiliates, agents or employees colludes with or such other Person, or Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor soliciting or causing to be solicited petitioning creditors for any involuntary petition against Borrower, Operating Company or any Guarantor from any Person; (C) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing an answer consenting to or otherwise acquiescing in or joining in any involuntary petition filed against it by any other Person, other than Lender, under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (D) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor consenting to or acquiescing in or joining in an application for the appointment of a custodian, receiver, trustee, or examiner for Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of the Properties, the Collateral, the Senior Mezzanine Collateral or any portion thereof, other than at the request of Lender; or (E) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor making an assignment for the benefit of creditors (other than Lender), or admitting, in writing or in any legal proceeding, its insolvency or inability to pay its debts as they become due;
(ix) if Borrower, Senior Mezzanine Borrower or Mortgage Borrower fails to maintain its status as a Special Purpose Entity or breaches any material representation or warranty set forth in Section 4.1.30 of this Agreement; and
(x) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company fails to obtain Lender’s prior consent to any voluntary Indebtedness (other than (x) with respect to Mortgage Borrower, Permitted Indebtedness and (y) with respect to Operating Company, Permitted Indebtedness (Operating Company), as applicable) or voluntary Lien (other than Permitted Encumbrances) encumbering any of the Properties, Senior Mezzanine Collateral or Collateral as required by this Agreement, the Senior Mezzanine Loan Agreement, the Mortgage Loan Agreement, the Pledge Agreement or the Mortgages. Notwithstanding anything to the contrary under this Agreement, neither any present or future Affiliate of Borrower (other than Guarantor, to the extent provided under the Guaranty) nor any present or future shareholder, officer, director, employee, trustee, beneficiary, advisor, partner, member, principal, participant or agent of or in any Borrower or of or in any person or entity that is or becomes an Affiliate of any Borrower shall have any personal liability, directly or indirectly, under or in connection with the Loan Documents. Neither the negative capital account of any Affiliate of Borrower in Borrower, or in any other Affiliate of Borrower in any other Affiliate of Borrower, nor any obligation of any Affiliate of Borrower in any Borrower to restore a negative capital account or to contribute or loan capital to any Borrower or to any other Affiliate of Borrower shall at any time be deemed to be the property or an asset of any Borrower (or any other Affiliate of Borrower) and neither Lender nor its successors or assigns shall have any right to collect, enforce or proceed against any such negative capital account or obligation to restore, contribute or loan capitalAwards.
(b) Notwithstanding anything to the contrary in this Agreement, the Note or any of the Loan Documents, Lender shall not be deemed to have waived any right which Lender may have under Section 506(a), 506(b), 1111(b) or any other provisions of the Bankruptcy Code to file a claim for the full amount of the Indebtedness or to require that all collateral shall continue to secure all of the Indebtedness owing to Lender in accordance with the Loan Documents.
Appears in 1 contract
Exculpation. (a) Subject to the qualifications below, Lender Buyer shall not enforce the liability and obligation of Borrower Seller to perform and observe the obligations contained in the Note, this Agreement, the Pledge Agreement or the other Loan Transaction Documents by any action or proceeding wherein a money judgment shall be sought against BorrowerSeller or its Affiliates (other than Sponsor, subject, however, to the terms of the Guaranty executed and delivered by Sponsor), except that Lender Buyer may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender and each Noteholder Buyer to enforce and realize upon its interest and rights under the Note, this Agreement, the Pledge Agreement and the other Loan Transaction Documents, or in all or any of the Collateral, Assets or any other collateral Collateral given to Lender Buyer pursuant to the Loan Transaction Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower Seller only to the extent of BorrowerSeller’s interest in the Collateral and in Assets, the Income therefrom or any other collateral Collateral given to LenderBuyer, and Lender, by accepting the Note, this Agreement, the Pledge Agreement and the other Loan Documents, agrees that it Buyer shall not sue ▇▇▇ for▇, seek or demand any deficiency judgment against Borrower Seller or its Affiliates (other than Sponsor, subject, however, to the terms of the Guaranty executed and delivered by Sponsor) 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 Loan Documentswith any Transaction Document. 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 DocumentsTransaction Document; (bii) impair the right of Lender Buyer to name Borrower Seller as a party defendant in any action or suit for foreclosure and sale under the Pledge Agreementany Transaction Document; (ciii) affect the validity or enforceability of any of the Transaction Documents or any Guaranty guaranty made in connection with the Loan Transactions or any of the rights and remedies of Lender Buyer hereunder or thereunder; (div) impair the right of Lender Buyer 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 Buyer to commence any other appropriate action or proceeding in order for Lender Buyer to fully realize the security granted under the Transaction Documents or to exercise its remedies against all or any of the Assets and other Collateral; or (gvii) constitute a waiver of the right of Lender Buyer to enforce the liability and obligation of BorrowerSeller, by money judgment or otherwise, to the extent of any actual loss, damage, cost, expense, liability, claim or other obligation incurred by Lender Buyer (including attorneys’ fees and costs reasonably incurred) arising out of or in connection with the following:
following (iall such liability and obligation of Sellers for any or all of the foregoing being referred to herein as “Sellers’ Recourse Liabilities”): (a) fraud or intentional misrepresentation by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company Seller or any Guarantor Sponsor in connection with the execution and delivery of the Loan Documents and/or the Loan;
Transactions; (iib) the misappropriation, conversion gross negligence or misapplication in contravention willful misconduct of the Loan Documents by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any funds of Borrower, Senior Mezzanine Borrower, Mortgage Borrower or Operating Company, including, without limitation, Seller; (A) any Revenues, (B) any Net Liquidation Proceeds or Insurance Proceeds, (C) any Awards received in connection with a Condemnation, (D) any Rents or security deposits (or any item of Revenue, from whatever source) following an Event of Default, or (E) any distribution or other payments made in connection with any part of the Collateral or Senior Mezzanine Collateral;
(iii) the misappropriation, conversion or misapplication by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any security deposits or Rents paid more than one (1) month in advance;
(iv) any act of actual intentional physical waste by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor;
(vc) the breach of any representation, warranty, covenant or indemnification provision in any Transaction Document concerning Environmental Laws; (d) the Environmental Indemnity Agreement concerning environmental laws, hazardous substances and asbestos and any indemnification of Lender with respect thereto in either document;
(vi) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower misappropriation or Operating Company fails to obtain Lender’s prior consent to any voluntary intentional Transfer as required conversion by this Agreement, the Mortgage Loan Agreement or the Mortgages, as applicable;
(vii) any security deposits, advance deposits or any other deposits collected with respect to any of the Properties which are not delivered to Mortgage Lender upon a foreclosure Seller of any Income during the continuance of the Properties or action in lieu thereof, except to the extent any such security deposits were applied in accordance with the terms and conditions of any of the Leases prior to the occurrence of the an Event of Default that gave rise to such foreclosure or action in lieu thereof;
CF Sweep Event; and (viiie) in an act or omission of Seller or Sponsor which unlawfully hinders, delays or interferes with Buyer’s enforcement of its rights hereunder or the event of:
(A) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing a voluntary petition under realization of the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (B) the filing of an involuntary petition against Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law by any Person in which Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of their respective Affiliates, agents or employees colludes with or such other Person, or Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor soliciting or causing to be solicited petitioning creditors for any involuntary petition against Borrower, Operating Company or any Guarantor from any Person; (C) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing an answer consenting to or otherwise acquiescing in or joining in any involuntary petition filed against it by any other PersonCollateral, other than Lender, under the Bankruptcy Code assertion by Seller or any other Federal Sponsor of defenses or state bankruptcy or insolvency law; (D) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor consenting to or acquiescing counterclaims raised in or joining in an application for the appointment of a custodian, receiver, trustee, or examiner for Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of the Properties, the Collateral, the Senior Mezzanine Collateral or any portion thereof, other than at the request of Lender; or (E) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor making an assignment for the benefit of creditors (other than Lender), or admitting, in writing or in any legal proceeding, its insolvency or inability to pay its debts as they become due;
(ix) if Borrower, Senior Mezzanine Borrower or Mortgage Borrower fails to maintain its status as a Special Purpose Entity or breaches any material representation or warranty set forth in Section 4.1.30 of this Agreement; and
(x) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company fails to obtain Lender’s prior consent to any voluntary Indebtedness (other than (x) with respect to Mortgage Borrower, Permitted Indebtedness and (y) with respect to Operating Company, Permitted Indebtedness (Operating Company), as applicable) or voluntary Lien (other than Permitted Encumbrances) encumbering any of the Properties, Senior Mezzanine Collateral or Collateral as required by this Agreement, the Senior Mezzanine Loan Agreement, the Mortgage Loan Agreement, the Pledge Agreement or the Mortgages. Notwithstanding anything to the contrary under this Agreement, neither any present or future Affiliate of Borrower (other than Guarantor, to the extent provided under the Guaranty) nor any present or future shareholder, officer, director, employee, trustee, beneficiary, advisor, partner, member, principal, participant or agent of or in any Borrower or of or in any person or entity that is or becomes an Affiliate of any Borrower shall have any personal liability, directly or indirectly, under or in connection with the Loan Documents. Neither the negative capital account of any Affiliate of Borrower in Borrower, or in any other Affiliate of Borrower in any other Affiliate of Borrower, nor any obligation of any Affiliate of Borrower in any Borrower to restore a negative capital account or to contribute or loan capital to any Borrower or to any other Affiliate of Borrower shall at any time be deemed to be the property or an asset of any Borrower (or any other Affiliate of Borrower) and neither Lender nor its successors or assigns shall have any right to collect, enforce or proceed against any such negative capital account or obligation to restore, contribute or loan capitalgood faith.
(b) Notwithstanding anything to the contrary in this Agreement, the Note Agreement or any of the Loan Transaction Documents, Lender (A) Buyer shall not be deemed to have waived any right which Lender Buyer may have under Section 506(a), 506(b), 1111(b) or any other provisions of the Bankruptcy Code to file a claim for the full amount Repurchase Price of all Assets subject to Transactions hereunder (collectively, the Indebtedness “Obligations”) or to require that all collateral shall continue to secure all of the Indebtedness owing to Lender Obligations in accordance with the Loan Transaction Documents, and (B) Buyer’s agreement not to pursue personal liability of Seller as set forth above SHALL BECOME NULL AND VOID and shall be of no further force and effect, and the Obligations shall be fully recourse to Seller in the event that one or more of the following occurs (each, a “Springing Recourse Event”): (i) an Event of Default described in Section 14(iv) or (v) shall have occurred (provided that with respect to any involuntary Insolvency Proceeding either Seller, Sponsor or any Person owning an interest (directly or indirectly) in Seller or Sponsor causes such event or condition to occur (by way of example, but not limitation, such Person seeks the appointment of a receiver or files a bankruptcy petition), consents to, aids, solicits, supports, or otherwise cooperates or colludes to cause such condition or event or fails to contest such condition or event) or (ii) a breach of the covenants set forth in Sections 11(b)(d) or (e).
Appears in 1 contract
Sources: Master Repurchase Agreement (Resource Capital 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 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 ▇s▇▇ 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 or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against all of the Collateral; Property (or any portion thereof).
(gb) constitute a waiver of Nothing contained herein shall in any manner or way release, affect or impair the right of Lender to enforce the liability and obligation of recover from Borrower, by money judgment or otherwiseand Borrower shall be fully and personally liable and subject to legal action, to the extent of for any actual out-of-pocket loss, damage, cost, expense, liabilitydamage, claim or other obligation incurred by Lender (including reasonable out-of-pocket attorneys’ fees and costs reasonably incurredexpenses and other collection and litigation expenses but in all events excluding consequential, punitive, special, indirect and exemplary damages) incurred or suffered by Lender arising out of or in connection with the following:
(i) fraud or intentional misrepresentation by BorrowerBorrower or Guarantor, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor in connection with the execution and delivery affiliate of the Loan Documents and/or the Loanforegoing;
(ii) the misappropriationgross negligence or willful misconduct of Borrower or Guarantor, conversion or misapplication any affiliate of the foregoing;
(iii) intentional material physical waste of the Property, provided, however, that if Borrower does not have sufficient cash flow on a current basis to prevent waste, any waste shall not be deemed intentional and Borrower shall have no liability under this clause (iii);
(iv) the removal or disposal of any portion of the Property in contravention violation of the terms of the Loan Documents Documents;
(v) the misappropriation or conversion by BorrowerBorrower or Guarantor, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor affiliate of any funds the foregoing, of Borrower, Senior Mezzanine Borrower, Mortgage Borrower or Operating Company, including, without limitation, (A) any RevenuesInsurance Proceeds paid by reason of any loss, damage or destruction to the Property, (B) any Net Liquidation Proceeds or Insurance Proceeds, (C) any Awards received in connection with a CondemnationCondemnation of all or a portion of the Property, (C) any Rents or other Property income or collateral proceeds, or (D) any Rents paid more than one month in advance (including security deposits);
(vi) following the occurrence of an Event of Default, the failure to either apply rents or security deposits other Property income, collected after such Event of Default, to the ordinary, customary, and necessary expenses of operating the Property or, upon demand, to deliver such rents or other Property income to Lender;
(vii) failure to maintain insurance or to pay taxes and assessments, or to pay charges for labor or materials or other charges or judgments that can create Liens on any item portion of Revenue, from whatever source) the Property (unless Lender is escrowing funds therefor and fails to make such payments or has taken possession of the Property following an Event of Default, or (E) any distribution has received all Rents from the Property applicable to the period for which such insurance, taxes or other payments made in connection with items are due, and thereafter fails to make such payments), it being acknowledged that if Borrower does not have sufficient cash flow on a current basis to maintain insurance or to pay taxes and assessments or to pay charges for labor or materials or other charges or judgments that create Liens on any part portion of the Collateral or Senior Mezzanine CollateralProperty, Borrower shall have no liability under this clause (vii);
(iii) the misappropriation, conversion or misapplication by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any security deposits or Rents paid more than one (1) month in advance;
(iv) any act of actual intentional physical waste by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor;
(v) the breach of any representation, warranty, covenant or indemnification provision in the Environmental Indemnity Agreement concerning environmental laws, hazardous substances and asbestos and any indemnification of Lender with respect thereto in either document;
(vi) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company fails to obtain Lender’s prior consent to any voluntary intentional Transfer as required by this Agreement, the Mortgage Loan Agreement or the Mortgages, as applicable;
(viiviii) any security deposits, advance deposits or any other deposits collected with respect to any of the Properties Property which are not delivered to Mortgage Lender upon a foreclosure of any of the Properties Property or action in lieu thereof, except to the extent any such security deposits were applied (A) in accordance with the terms and conditions of any of the Leases prior to the occurrence of the Event of Default that gave rise to such foreclosure or action in lieu thereofthereof or (B) previously delivered to Lender to be applied to repay the Loan;
(viiiix) any failure by Borrower to obtain Lender’s prior written consent (to the extent such consent is required pursuant to the terms of the Loan Documents) to any modification, amendment or terminations of any Lease;
(x) any failure by Borrower to comply with any of the representations, warranties or covenants set forth in Sections 4.1.37 or 5.1.19 hereof;
(xi) any failure by Borrower to permit on-site inspections of the Property in accordance with the terms and provisions of the Loan Documents;
(xii) the failure of Borrower to appoint a new Manager at Lender’s request, to the extent Borrower is expressly required to do so pursuant to this Agreement;
(xiii) any failure by Borrower to comply with any representation, warranty or covenant set forth in Section 4.1.30 hereof that does not result, in whole or in part, in the event of:substantive consolidation of the assets and liabilities of Borrower with those of any other Person or entity pursuant to the Bankruptcy Code;
(xiv) Borrower fails to obtain Lender’s prior written consent to any Transfer to the extent required pursuant to the terms of the Loan Documents that is not a Full Recourse Transfer; or
(xv) Borrower fails to obtain Lender’s prior written consent, to the extent required pursuant to the terms of the Loan Documents, to any Indebtedness or voluntary Lien encumbering the Property that is not a Full Recourse Lien.
(c) Notwithstanding anything to the contrary in this Agreement, the Note or any of the other Loan Documents, Borrower shall be personally liable for the Debt if (A) BorrowerBorrower fails to obtain Lender’s prior written consent (to the extent such consent is required pursuant to the terms of the Loan Documents) to any Transfer (a “Full Recourse Transfer”)
(1) that results in a change in Control over Borrower or (2) of any of the Property by deed, Mortgage Borrowerb▇▇▇ of sale, Senior Mezzanine Borrowerinstallment sales agreement, Operating Company ground lease (excluding any lease to a Tenant in the ordinary course of business) or any Guarantor filing a voluntary petition under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency lawsimilar agreement; (B) Borrower fails to obtain Lender’s prior written consent (to the filing extent such consent is required pursuant to the terms of an involuntary petition against Borrowerthe Loan Documents) to any voluntary mortgage, Mortgage Borrowerdeed of trust, Senior Mezzanine Borrower, Operating Company collateral assignment or any Guarantor under similar voluntary lien or interest encumbering all or a substantial portion of the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law by any Person in which Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of their respective Affiliates, agents or employees colludes with or such other Person, or Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor soliciting or causing to be solicited petitioning creditors for any involuntary petition against Borrower, Operating Company or any Guarantor from any PersonProperty (a “Full Recourse Lien”); (C) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or Borrower shall at any Guarantor filing an answer consenting to or otherwise acquiescing in or joining in any involuntary petition filed against it by any other Person, other than Lender, under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (D) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor consenting to or acquiescing in or joining in an application for the appointment of a custodian, receiver, trustee, or examiner for Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of the Properties, the Collateral, the Senior Mezzanine Collateral or any portion thereof, other than at the request of Lender; or (E) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor making time hereafter make an assignment for the benefit of creditors its creditors; (other than Lender)D) Borrower fails to comply with any representation, warranty or admittingcovenant set forth in Section 4.1.30 hereof, which failure results in a substantive consolidation of Borrower with another Person or entity pursuant to the Bankruptcy Code; (E) Borrower admits, in writing or in any legal proceeding, its insolvency or inability to pay its debts as they become due;
(ix) if Borrower, Senior Mezzanine provided that neither Borrower or Mortgage Borrower fails to maintain its status as a Special Purpose Entity or breaches any material representation or warranty set forth in Section 4.1.30 of this Agreement; and
(x) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company fails to obtain Lender’s prior consent to any voluntary Indebtedness (other than (x) with respect to Mortgage Borrower, Permitted Indebtedness and (y) with respect to Operating Company, Permitted Indebtedness (Operating Company), as applicable) or voluntary Lien (other than Permitted Encumbrances) encumbering any of the Properties, Senior Mezzanine Collateral or Collateral as required by this Agreement, the Senior Mezzanine Loan Agreement, the Mortgage Loan Agreement, the Pledge Agreement or the Mortgages. Notwithstanding anything to the contrary nor Guarantor shall have liability under this Agreement, neither any present or future Affiliate of Borrower clause (other than Guarantor, to the extent provided under the GuarantyE) nor any present or future shareholder, officer, director, employee, trustee, beneficiary, advisor, partner, member, principal, participant or agent of or in any Borrower or of or in any person or entity that is or becomes an Affiliate of any Borrower shall have any personal liability, directly or indirectly, under or in connection with the Loan Documents. Neither the negative capital account delivery of any Affiliate of Borrower in Borrower, financial statements or in any other Affiliate of Borrower filing required to be delivered pursuant to a subpoena or any order entered in a bankruptcy proceeding or required under applicable law in connection with any other such petition made by any Person which is not an Affiliate of Borrower; (F) intentionally omitted; (G) Borrower files, nor any obligation of any Affiliate of Borrower or consents in any Borrower to restore writing to, a negative capital account petition for bankruptcy, insolvency, dissolution or to contribute or loan capital to any Borrower or to any other Affiliate of Borrower shall at any time be deemed to be liquidation under the property or an asset of any Borrower (Bankruptcy Code or any other Affiliate Federal or state bankruptcy or insolvency law, or there is a filing of Borrower) and neither Lender nor its successors or assigns shall have any right to collect, enforce or proceed an involuntary petition against any such negative capital account or obligation to restore, contribute or loan capital.
(b) Notwithstanding anything to Borrower under the contrary in this Agreement, the Note Bankruptcy Code or any of other Federal or state bankruptcy or insolvency law in which Borrower or Guarantor colludes with, or otherwise assists any party in connection with such filing, or solicits or causes to be solicited petitioning creditors for any involuntary petition against Borrower from any party (provided, however, that the Loan Documents, Lender failure to defend such an involuntary petition where no meritorious defense exists shall not be deemed “assisting” for purposes hereof).
(d) Nothing herein shall be deemed to have waived constitute a waiver by Lender of any right which Lender may have under Section Sections 506(a), 506(b), 1111(b) or any other provisions provision of the Bankruptcy Code to file a claim for the full amount of the Indebtedness Debt or to require that all collateral shall continue to secure all of the Indebtedness owing to Lender in accordance with the Loan DocumentsDebt.
Appears in 1 contract
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 BorrowerBorrower or any of its officers, shareholders, members, partners, directors, employees, agents, representatives and managers, 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 ▇▇▇ 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 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 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 expenses reasonably incurred) arising out of or in connection with the following:
(i) fraud or intentional misrepresentation by Borrower, Mortgage BorrowerPrincipal, Senior Mezzanine Borrower, Operating Company Guarantor or any Guarantor of their Affiliates, managers, principals or officers in connection with the execution and delivery of the Loan Documents and/or the Loan;
(ii) the misappropriation, conversion gross negligence or misapplication in contravention of the Loan Documents by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any funds willful misconduct of Borrower, Senior Mezzanine BorrowerPrincipal, Mortgage Borrower Guarantor or Operating Companyany of their Affiliates, includingmanagers, without limitation, (A) any Revenues, (B) any Net Liquidation Proceeds principals or Insurance Proceeds, (C) any Awards received officers in connection with a Condemnation, (D) any Rents or security deposits (or any item of Revenue, from whatever source) following an Event of Default, or (E) any distribution or other payments made in connection with any part of the Collateral or Senior Mezzanine CollateralLoan;
(iii) the misappropriation, conversion or misapplication by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any security deposits or Rents paid more than one (1) month in advance;
(iv) any act of actual intentional physical waste by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor;
(v) the breach of any representation, warranty, covenant or indemnification provision in the Environmental Indemnity Agreement or in the Mortgage concerning environmental laws, hazardous substances and asbestos and any indemnification of Lender with respect thereto in either document;
(iv) the wrongful removal or disposal of any portion of the Property after an Event of Default outside the normal course of business, or intentional material physical waste of the Property excluding (i) the failure to make repairs on the Property to the extent that there was insufficient cash flow available from the Property to make such repairs and (ii) physical waste resulting from Lender failing to make funds available for such purpose in violation of the Loan Documents;
(v) the intentional misapplication, misappropriation or conversion by Borrower, Principal or Guarantor or any Affiliate of the foregoing of (A) any Insurance Proceeds paid by reason of any Casualty, (B) any Awards or other amounts received in connection with a Condemnation, (C) any Rents following an Event of Default, (D) any Rents paid more than one (1) month in advance, (E) any distribution or other payments made in connection with any part of the Property not permitted under the Loan Documents or (F) any funds due to the failure by Borrower to otherwise observe the provisions of the Cash Management Agreement;
(vi) if Borrowerfailure to pay charges for labor or materials or other charges or judgments that can create Liens on any portion of the Property to the extent such Liens are not bonded over or discharged in accordance with the Loan Documents, Mortgage Borrowerexcept to the extent that (i) there was not sufficient cash flow available from the Property to pay such charges related to labor and materials which were permitted under the Loan Documents pursuant to an Annual Budget, Senior Mezzanine Borrower Approved Annual Budget, or Operating Company fails to obtain otherwise approved by Lender’s prior consent to any voluntary intentional Transfer as required by this Agreement, the Mortgage Loan Agreement or the Mortgages, as applicable, or (ii) Lender failed to make funds available for such purpose in violation of the Loan Documents, and/or the failure to pay Insurance Premiums in accordance with the terms of the Loan Documents;
(vii) if, at any time after a Casualty or Condemnation has occurred, any of Borrower, Guarantor or Principal shall elect not to apply any Insurance Proceeds or Awards to Restoration and the amounts paid to Lender as Insurance Proceeds or Awards in respect of the Property shall be insufficient to satisfy all amounts then due and owing under the Loan Documents to Lender solely as a result of Borrower’s failure to maintain the insurance required under this Agreement;
(viii) any security deposits, advance deposits or any other deposits collected with respect to any of the Properties Property which are not delivered to Mortgage Lender upon a foreclosure of any of the Properties Property or action in lieu thereof, except to the extent any such security deposits were applied in accordance with the terms and conditions of any of the Leases prior to the occurrence of the Event of Default that gave rise to such foreclosure or action in lieu thereofLeases;
(viiiix) any litigation or other legal proceeding related to the Debt filed by Borrower, Principal, Guarantor or any Affiliate of any of the foregoing that delays, opposes, impedes, obstructs, hinders, enjoins or otherwise interferes with or frustrates the efforts of Lender to exercise any rights and remedies available to Lender as provided herein and in the event of:other Loan Documents, except to the extent such defenses are asserted in good faith by such party;
(Ax) Borrower’s failure to provide the indemnities or to comply with the indemnification provisions set forth in Sections 10.13(d) and 10.13(e) hereof;
(xi) the seizure or forfeiture of the Property, Mortgage or any portion thereof, or Borrower’s interest therein, resulting from criminal wrongdoing by Borrower, Senior Mezzanine BorrowerPrincipal, Operating Company or any Guarantor filing a voluntary petition under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (B) the filing of an involuntary petition against Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law by any Person in which Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of their respective members, managers, principals, officers, agents or employees;
(xii) any act of arson to the Property by Borrower, Principal, Guarantor or any of their members, managers, principals, officers, agents or employees;
(xiii) a distribution made by Borrower to its members in violation of applicable law;
(xiv) any fees or commissions paid by Borrower or on behalf of Borrower after the occurrence of an Event of Default to Guarantor or any of their Affiliates, members, managers, principals, officers, agents or employees colludes in violation of the terms hereof, the Note, the Mortgage or the other Loan Documents;
(xv) an Event of Default under the Mortgage due to the failure to repay any or all of the indebtedness thereunder in the event of the voluntary sale or transfer of the Property with or such other Personwithout the consent of the Lender;
(xvi) in the event Borrower fails to comply with the Cash Management Agreement; and/or
(xvii) if Borrower fails to permit on-site inspections of the Property, fails to provide financial information, in accordance with the Loan Documents, or Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor soliciting or causing fails to be solicited petitioning creditors for any involuntary petition against Borrower, Operating Company or any Guarantor from any Person; (C) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing an answer consenting to or otherwise acquiescing in or joining in any involuntary petition filed against it by any other Person, other than Lender, under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (D) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor consenting to or acquiescing in or joining in an application for the appointment of appoint a custodian, receiver, trustee, or examiner for Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of the Properties, the Collateral, the Senior Mezzanine Collateral or any portion thereof, other than at new property manager upon the request of Lender; or (E) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor making an assignment for the benefit of creditors (other than Lender), or admitting, in writing or in any legal proceeding, its insolvency or inability to pay its debts Lender as they become due;
(ix) if Borrower, Senior Mezzanine Borrower or Mortgage Borrower fails to maintain its status as a Special Purpose Entity or breaches any material representation or warranty set forth in Section 4.1.30 of this Agreement; and
(x) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company fails to obtain Lender’s prior consent to any voluntary Indebtedness (other than (x) with respect to Mortgage Borrower, Permitted Indebtedness and (y) with respect to Operating Company, Permitted Indebtedness (Operating Company), as applicable) or voluntary Lien (other than Permitted Encumbrances) encumbering any of the Properties, Senior Mezzanine Collateral or Collateral as required by this Agreement, the Senior Mezzanine Loan Agreement, the Mortgage Loan Agreement, the Pledge Agreement or the Mortgages. Notwithstanding anything to the contrary permitted under this Agreement, neither any present each as required by, and in accordance with, the terms and provisions of this Agreement or future Affiliate of Borrower (other than Guarantor, to the extent provided under the Guaranty) nor any present or future shareholder, officer, director, employee, trustee, beneficiary, advisor, partner, member, principal, participant or agent of or in any Borrower or of or in any person or entity that is or becomes an Affiliate of any Borrower shall have any personal liability, directly or indirectly, under or in connection with the Loan DocumentsMortgage. Neither the negative capital account of any Affiliate of Borrower in Borrower, or in any other Affiliate of Borrower in any other Affiliate of Borrower, nor any obligation of any Affiliate of Borrower in any Borrower to restore a negative capital account or to contribute or loan capital to any Borrower or to any other Affiliate of Borrower shall at any time be deemed to be the property or an asset of any Borrower (or any other Affiliate of Borrower) and neither Lender nor its successors or assigns shall have any right to collect, enforce or proceed against any such negative capital account or obligation to restore, contribute or loan capital.
(b) Notwithstanding anything to the contrary in this Agreement, the Note or any of the Loan Documents, (A) Lender shall not be deemed to have waived any right which Lender may have under Section 506(a), 506(b), 1111(b) or any other provisions of the U.S. Bankruptcy Code to file a claim for the full amount of the Indebtedness Debt secured by the Mortgage or to require that all collateral shall continue to secure all of the Indebtedness Debt owing to Lender in accordance with the Loan Documents, and (B) the Debt shall be fully recourse to Borrower
(i) in the event of:
(a) Borrower, Guarantor or Principal filing a voluntary petition under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (b) the filing of an involuntary petition against Borrower, Guarantor or Principal under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law in which Borrower, Principal or Guarantor colludes with, or otherwise assists such Person, or solicits or causes to be solicited petitioning creditors for any involuntary petition against Borrower from any Person; (c) Borrower, Guarantor or Principal filing an answer consenting to or otherwise colluding in, acquiescing in or joining in any involuntary petition filed against it, by any other Person under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; or soliciting or causing to be solicited petitioning creditors for any involuntary petition from any Person; (d) Borrower, Guarantor or Principal consenting to, colluding in, acquiescing in or joining in an application for the appointment of a custodian, receiver, trustee, or examiner for Borrower, Guarantor or Principal or any portion of the Property, other than at the request or petition of Lender; (e) Borrower making an assignment for the benefit of creditors, or admitting, in writing or in any legal proceeding, its insolvency or inability to pay its debts as they become due; (f) a substantive consolidation of Borrower with any other Person in connection with any federal or state bankruptcy proceeding involving the Guarantor or any Principal; (g) Borrower, Guarantor or Principal contests or opposes any motion made by Lender to obtain relief from the automatic stay or seeks to reinstate the automatic stay in the event of any federal or state bankruptcy or insolvency proceeding involving any Guarantor, Principal or Borrower; or (h) Borrower accepts from any Guarantor or Principal, or Guarantor or Principal solicits or provides, any debtor-in-possession financing to Borrower in the event Borrower is the subject of a bankruptcy or insolvency proceeding;
(ii) if Borrower fails to maintain its status as a Special Purpose Entity or comply with any representation, warranty or covenant set forth in Section 4.1.30 hereof;
(iii) if Borrower fails to obtain Lender’s prior written consent, to the extent required under the Loan Documents, to any indebtedness or voluntary Lien encumbering the Property; or
(iv) if Borrower fails to obtain Lender’s prior written consent to any Transfer to the extent required under the Loan Documents.
Appears in 1 contract
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, 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 ▇▇▇ 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 or to commence 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 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:
(i) fraud or intentional misrepresentation by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Mortgage Borrower 1 Principal, Operating Company Lessee, Limited Guarantor or any Guarantor in connection with the execution and delivery of the Loan Documents and/or the Loan;
(ii) the misappropriation, conversion or misapplication in contravention willful misconduct of the Loan Documents by Borrower, Mortgage Borrower, Senior Operating Lessee or Mezzanine Borrower, Operating Company or any Guarantor of any funds of Borrower, Senior Mezzanine Borrower, Mortgage Borrower or Operating Company, including, without limitation, (A) any Revenues, (B) any Net Liquidation Proceeds or Insurance Proceeds, (C) any Awards received in connection with a Condemnation, (D) any Rents or security deposits (or any item of Revenue, from whatever source) following an Event of Default, or (E) any distribution or other payments made in connection with any part of the Collateral or Senior Mezzanine Collateral;
(iii) the misappropriation, conversion or misapplication by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any security deposits or Rents paid more than one (1) month in advance;
(iv) any act of actual intentional physical waste by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor;
(v) the breach of any representation, warranty, covenant or indemnification provision in the Environmental Indemnity Agreement concerning environmental laws, hazardous substances and asbestos and any indemnification of Lender with respect thereto thereto;
(iv) the misappropriation or conversion in either documentviolation of the Loan Documents, the Mortgage Loan Documents or the Mezzanine Loan Documents by Borrower, Mortgage Borrower, Operating Lessee or Mezzanine Borrower of (A) any Net Liquidation Proceeds After Debt Service, or (B) any Rents while any an Event of Default is continuing;
(v) failure by Borrower to deposit any distributions or other payments received by Borrower in respect of the Collateral into the Junior Mezzanine Debt Service Account as required by the Loan Documents;
(vi) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company fails failure to obtain Lender’s prior consent to any voluntary intentional Transfer as required by this Agreement, and/or maintain the Mortgage Loan Interest Rate Cap Agreement or the MortgagesReplacement Interest Rate Cap Agreement, as applicable;, as required pursuant to Section 2.2.7 hereof; and
(vii) any security deposits, advance deposits or any other deposits collected with respect to any of the Properties which are not delivered to Mortgage Lender upon a foreclosure of any of the Properties or action in lieu thereofPhiladelphia West Property, except to the extent any such security deposits were applied in accordance with the terms and conditions of any of the Leases prior to the occurrence of the an Event of Default that gave rise to such foreclosure or action in lieu thereof;by Borrower beyond any applicable notice and cure period under Section 8.1(a)(xviii) hereof.
(viiia) in the event of:
(A) Mortgage Borrower, Mortgage BorrowerBorrower 1 Principal, Senior Mezzanine Borrower, Operating Company Lessee, Guarantor or any Guarantor Borrower filing a voluntary petition under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (Bb) the filing Mortgage Borrower, Mortgage Borrower 1 Principal, Mezzanine Borrower, Guarantor, Operating Lessee, Borrower or any Affiliate of an involuntary petition against Borrower, Mortgage Borrower, Senior Mortgage Borrower 1 Principal, Mezzanine Borrower, Operating Company or any Guarantor under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law by any Person in which Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of their respective Affiliates, agents or employees colludes with or such other PersonGuarantor, or BorrowerOperating Lessee, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company solicits or any Guarantor soliciting or causing causes to be solicited petitioning creditors for any involuntary petition against Borrower, Mortgage Borrower, Mortgage Borrower 1 Principal, Mezzanine Borrower, Guarantor, or Operating Company or any Guarantor Lessee from any Person; (C) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing an answer consenting to or otherwise acquiescing in or joining in any involuntary petition filed against it by any other Person, other than Lender, under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (D) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor consenting to or acquiescing in or joining in an application for the appointment of a custodian, receiver, trustee, or examiner for Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of the Properties, the Collateral, the Senior Mezzanine Collateral or any portion thereof, other than at the request of Lender; or (E) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor making an assignment for the benefit of creditors (other than Lender), or admitting, in writing or in any legal proceeding, its insolvency or inability to pay its debts as they become due;
(ix) if Borrower, Senior Mezzanine Borrower or Mortgage Borrower fails to maintain its status as a Special Purpose Entity or breaches any material representation or warranty set forth in Section 4.1.30 of this Agreement; and
(x) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company fails to obtain Lender’s prior consent to any voluntary Indebtedness (other than (x) with respect to Mortgage Borrower, Permitted Indebtedness and (y) with respect to Operating Company, Permitted Indebtedness (Operating Company), as applicable) or voluntary Lien (other than Permitted Encumbrances) encumbering any of the Properties, Senior Mezzanine Collateral or Collateral as required by this Agreement, the Senior Mezzanine Loan Agreement, the Mortgage Loan Agreement, the Pledge Agreement or the Mortgages. Notwithstanding anything to the contrary under this Agreement, neither any present or future Affiliate of Borrower (other than Guarantor, to the extent provided under the Guaranty) nor any present or future shareholder, officer, director, employee, trustee, beneficiary, advisor, partner, member, principal, participant or agent of or in any Borrower or of or in any person or entity that is or becomes an Affiliate of any Borrower shall have any personal liability, directly or indirectly, under or in connection with the Loan Documents. Neither the negative capital account of any Affiliate of Borrower in Borrower, or in any other Affiliate of Borrower in any other Affiliate of Borrower, nor any obligation of any Affiliate of Borrower in any Borrower to restore a negative capital account or to contribute or loan capital to any Borrower or to any other Affiliate of Borrower shall at any time be deemed to be the property or an asset of any Borrower (or any other Affiliate of Borrower) and neither Lender nor its successors or assigns shall have any right to collect, enforce or proceed against any such negative capital account or obligation to restore, contribute or loan capital.
(b) Notwithstanding anything to the contrary in this Agreement, the Note or any of the Loan Documents, Lender shall not be deemed to have waived any right which Lender may have under Section 506(a), 506(b), 1111(b) or any other provisions of the Bankruptcy Code to file a claim for the full amount of the Indebtedness or to require that all collateral shall continue to secure all of the Indebtedness owing to Lender in accordance with the Loan Documents.
Appears in 1 contract
Sources: Junior Mezzanine Loan Agreement (Sunstone Hotel Investors, Inc.)
Exculpation. (a) Subject to the qualifications below, Lender Note A Holder 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 hereinin this Section 9.4, 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 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 ▇▇▇ 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 the extent reasonably necessary 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:
(i) fraud or intentional misrepresentation by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company Borrower or any Guarantor in connection with the execution and delivery of the Loan Documents and/or the Loan;
(ii) the misappropriation, conversion gross negligence or misapplication willful misconduct of Borrower in contravention the operation of the Loan Documents by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any funds of Borrower, Senior Mezzanine Borrower, Mortgage Borrower or Operating Company, including, without limitation, (A) any Revenues, (B) any Net Liquidation Proceeds or Insurance Proceeds, (C) any Awards received in connection with a Condemnation, (D) any Rents or security deposits (or any item of Revenue, from whatever source) following an Event of Default, or (E) any distribution or other payments made in connection with any part of the Collateral or Senior Mezzanine CollateralProperties;
(iii) the misappropriation, conversion or misapplication by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any security deposits or Rents paid more than one (1) month in advance;
(iv) any act of actual intentional physical waste by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor;
(v) the breach of any representation, warranty, covenant or indemnification provision in the Environmental Indemnity Agreement or in the Mortgages concerning environmental laws, hazardous substances and asbestos and any indemnification of Lender with respect thereto in either document;
(iv) the removal or disposal of any material portion of the Properties after an Event of Default;
(v) the misappropriation or conversion by Borrower of (A) any Insurance Proceeds paid by reason of any Casualty, (B) any Awards received in connection with a Condemnation, (C) any Rents following an Event of Default, or (D) any Rents paid more than one (1) month in advance;
(vi) if Borrower, failure to pay charges for labor or materials or other charges that can create Liens on any portion of the Properties which are superior to the Lien of the Mortgage Borrower, Senior Mezzanine to the extent that Rents received by Borrower are not applied to Debt Service or Operating Company fails Expenses or to obtain pay any other amount to the Borrower has the obligation to pay under the Loan Documents or otherwise paid to Lender’s prior consent to any voluntary intentional Transfer as required by this Agreement, the Mortgage Loan Agreement or the Mortgages, as applicable;
(vii) any security deposits, advance deposits or any other deposits collected with respect to any of the Properties which are not delivered to Mortgage Lender upon a foreclosure of any of the Properties or action in lieu thereof, except to the extent any such security deposits were applied in accordance with the terms and conditions of any of the Leases prior to the occurrence of the Event of Default that gave rise to such foreclosure or action in lieu thereof;
(viii) in the event of:
(A) Borrowerlosses, Mortgage Borrowerdamages, Senior Mezzanine Borrowercosts and expenses relating to any audits, Operating Company surveys, investigations, actions, suits or proceedings including without limitation, audits, surveys, investigations, actions, suits or proceedings related to Medicare/Medicaid, false claim, neglect or mistreatment, fraud or abuse brought by any Guarantor filing a voluntary petition under the Bankruptcy Code federal, state or local government or quasi-governmental body, or by any intermediary, agency, board, authority, entity or any other Federal administrative or state bankruptcy investigative body or insolvency law; (B) the filing of an involuntary petition against Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor under the Bankruptcy Code entity or any other Federal or state bankruptcy or insolvency law by third party, including any Person in which Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of their respective Affiliates, agents or employees colludes with or such other Person, or Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor soliciting or causing to be solicited petitioning creditors for any involuntary petition against Borrower, Operating Company or any Guarantor from any Personresident; (C) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing an answer consenting to or otherwise acquiescing in or joining in any involuntary petition filed against it by any other Person, other than Lender, under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (D) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor consenting to or acquiescing in or joining in an application for the appointment of a custodian, receiver, trustee, or examiner for Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of the Properties, the Collateral, the Senior Mezzanine Collateral or any portion thereof, other than at the request of Lender; or (E) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor making an assignment for the benefit of creditors (other than Lender), or admitting, in writing or in any legal proceeding, its insolvency or inability to pay its debts as they become due;and
(ix) if Borrowerexcept as otherwise specifically permitted herein, Senior Mezzanine any amounts (a) received by Borrower or Mortgage Borrower fails to maintain its status as a Special Purpose Entity or breaches any material representation or warranty set forth in Section 4.1.30 of this Agreement; and
(x) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company fails to obtain Lender’s prior consent to any voluntary Indebtedness (other than (x) with respect to Mortgage Borrower, Permitted Indebtedness and (y) with respect to Operating Company, Permitted Indebtedness (Operating Company), as applicable) or voluntary Lien (other than Permitted Encumbrances) encumbering any of Affiliated Manager that are not deposited into the Properties, Senior Mezzanine Collateral or Collateral as required by this Agreement, the Senior Mezzanine Loan Agreement, the Mortgage Loan Agreement, the Pledge Agreement Lockbox Account or the Mortgages. Notwithstanding anything to the contrary under this Agreement, neither any present or future Affiliate of Borrower (other than Guarantor, Medicare/Medicaid Receivables Accounts to the extent provided required to be so deposited hereunder or under the GuarantyCash Management Agreement or (b) nor any present disbursed from the Lockbox Account or future shareholder, officer, director, employee, trustee, beneficiary, advisor, partner, member, principal, participant or agent of the Medicare/Medicaid Receivables Accounts other than as provided herein or in any Borrower or of or in any person or entity that is or becomes an Affiliate of any Borrower shall have any personal liability, directly or indirectly, under or in connection with the Loan Documents. Neither the negative capital account of any Affiliate of Borrower in Borrower, or in any other Affiliate of Borrower in any other Affiliate of Borrower, nor any obligation of any Affiliate of Borrower in any Borrower to restore a negative capital account or to contribute or loan capital to any Borrower or to any other Affiliate of Borrower shall at any time be deemed to be the property or an asset of any Borrower (or any other Affiliate of Borrower) and neither Lender nor its successors or assigns shall have any right to collect, enforce or proceed against any such negative capital account or obligation to restore, contribute or loan capitalCash Management Agreement.
(b) Notwithstanding anything to the contrary in this Agreement, the Note or any of the Loan Documents, (A) Lender shall not be deemed to have waived any right which Lender may have under Section 506(a), 506(b), 1111(b) or any other provisions of the U.S. Bankruptcy Code to file a claim for the full amount of the Indebtedness Debt secured by the Mortgages or to require that all collateral shall continue to secure all of the Indebtedness Debt owing to Lender in accordance with the Loan Documents., and (B) the Debt shall be fully recourse to Borrower
(i) in the event of:
(a) Borrower filing a voluntary petition under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (b) the filing of an involuntary petition against Borrower under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law, or soliciting or causing to be solicited petitioning creditors for any involuntary petition against Borrower from any Person;
(c) Borrower filing an answer consenting to or otherwise acquiescing in or joining in any involuntary petition filed against it, by any other Person under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law, or soliciting or causing to be solicited petitioning creditors for any involuntary petition from any Person; (d) Borrower consenting to or acquiescing in or joining in an application for the appointment of a custodian, receiver, trustee, or examiner for Borrower or any portion of the Property;
Appears in 1 contract
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 ▇▇▇ 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”):
(i) fraud or intentional or material misrepresentation by Borrower, Mortgage BorrowerGuarantor, Senior Mezzanine Borrower, Operating Company or any Guarantor Borrower Related Party in connection with the execution and delivery of the Loan Documents and/or the Loan;
(ii) the misappropriation, conversion willful misconduct by or misapplication in contravention of the Loan Documents by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any funds on behalf of Borrower, Senior Mezzanine BorrowerGuarantor, Mortgage or any Borrower or Operating Company, including, without limitation, (A) any Revenues, (B) any Net Liquidation Proceeds or Insurance Proceeds, (C) any Awards received Related Party in connection with a Condemnation, (D) any Rents or security deposits (or any item of Revenue, from whatever source) following an Event of Default, or (E) any distribution or other payments made in connection with any part of the Collateral or Senior Mezzanine CollateralLoan;
(iii) the misappropriation, conversion or misapplication by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any security deposits or Rents paid more than one (1) month in advance;
(iv) any act of actual intentional physical waste by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor;
(v) the breach of any representation, warranty, covenant or indemnification provision in the Environmental Indemnity Agreement or in the Security Instrument concerning environmental laws, hazardous substances Environmental Laws and asbestos Hazardous Substances;
(iv) the removal or disposal of any portion of the Property during the continuation of an Event of Default other than in the ordinary course of owning and any indemnification of Lender operating the Property with respect thereto to the portion of the Property that is either being replaced or that is no longer necessary in either documentconnection with the operation of the Property; provided that such removal or disposal will not (A) have a material adverse effect, (B) impair the utility or operation of the Property in any material respect or (C) result in a reduction or abatement of, or right of offset against, the rents under any Lease in respect of the Property;
(A) the misappropriation, misapplication or conversion by Borrower, Guarantor or any Borrower Related Party of any Insurance Proceeds paid by reason of any Casualty or any Awards or other amounts received in connection with a Condemnation of all or a portion of the Property, (B) the misappropriation or conversion by Borrower, Guarantor or any Borrower Related Party of Rents or (C) the misapplication by Borrower, Guarantor or any Borrower Related Party of any Rents during the continuation of an Event of Default;
(vi) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company fails to obtain Lender’s prior consent to any voluntary intentional Transfer as required by this Agreement, the Mortgage Loan Agreement or the Mortgages, as applicable;
(vii) any security deposits, advance deposits or any other deposits collected with respect to any of the Properties Property which are not delivered to Mortgage Lender upon a foreclosure of any of the Properties Property or action in lieu thereof, except except, if applicable, to the extent any such security deposits were applied in accordance with the terms and conditions of any of the applicable Leases prior to the occurrence of the Event of Default that gave rise to such foreclosure or action in lieu thereof;
(viiivii) Borrower’s failure to pay any Taxes or assessments affecting the Property, subject in all cases to Borrower's right to contest Taxes as set forth in, and in accordance with, the terms and conditions of the Loan Documents; provided that there shall be no liability hereunder if (A)(1) there are sufficient funds on deposit in the event of:
Tax Account that are fully available to Lender in accordance with the terms and conditions of the Loan Documents and (A2) BorrowerLender fails to apply the requisite portion of the Tax Funds, Mortgage Borrowerin accordance with the terms and conditions of the Loan Documents, Senior Mezzanine Borrower, Operating Company to the payment of such taxes or any Guarantor filing a voluntary petition under the Bankruptcy Code assessments or any other Federal or state bankruptcy or insolvency law; (B) there is insufficient Gross Income from Operations from the filing operation of an involuntary petition against Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law by any Person in which Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of their respective Affiliates, agents or employees colludes with or Property to pay such other Person, or Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor soliciting or causing to be solicited petitioning creditors for any involuntary petition against Borrower, Operating Company or any Guarantor from any Person; amounts;
(Cviii) Borrower’s failure to obtain and maintain in full force and effect fully paid for Policies as required by this Agreement; provided that there shall be no liability hereunder if, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing an answer consenting to or otherwise acquiescing in or joining in any involuntary petition filed against it by any other Person, other than Lender, under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (D) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor consenting extent such failure arises solely due to or acquiescing in or joining in an application for the appointment of a custodian, receiver, trustee, or examiner for Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any non-payment of the Propertiesapplicable Insurance Premiums, (A)(1) there are sufficient funds on deposit in the CollateralInsurance Account that are fully available to Lender in accordance with the terms and conditions of the Loan Documents and (2) Lender fails to apply the requisite portion of the Insurance Funds, in accordance with the Senior Mezzanine Collateral or any portion thereofterms and conditions of the Loan Documents, other than at to the request payment of Lender; such Insurance Premiums or (EB) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor making an assignment for the benefit of creditors (other than Lender), or admitting, in writing or in any legal proceeding, its insolvency or inability there is insufficient Gross Income from Operations to pay its debts as they become duethe applicable Insurance Premiums;
(ix) if Borrower's failure to pay charges for labor or materials or other charges that can create Liens on any portion of the Property, except, in the case of any such charges incurred in accordance with the provisions of the Loan Documents, (A) subject in all cases to Borrower's right to contest Liens as set forth in, and in accordance with, the terms and conditions of the Loan Documents and (B) except to the extent that (1) sums sufficient to pay such amounts have been deposited in escrow accounts with Lender pursuant to the terms hereof which accounts were established for the payment thereof, such escrowed sums are fully available to Lender in accordance with the terms and conditions of the Loan Documents, and Lender fails to apply the requisite portion thereof in accordance with the terms and conditions of the Loan Documents to the payment of such amounts or (2) there is insufficient Gross Income from Operations to pay such amounts);
(x) Borrower’s indemnification of Lender set forth in Section 9.2 hereof and Sections 9.2 and 9.3 of the Security Instrument;
(xi) any material physical waste at the Property caused by the intentional or willful acts or omissions of Borrower, Senior Mezzanine Guarantor or any Borrower Related Party, except, with respect to any such waste arising solely from omissions of Borrower, Guarantor or any Affiliate of Borrower or Mortgage Guarantor resulting from insufficient Gross Income from Operations to prevent such waste at the Property;
(xii) any matters relating to the completion of (1) the Existing Project and/or (2) any other alterations, improvements, additions or changes to the Property that have been commenced by Ionis, as tenant under the Ionis Lease;
(xiii) the payment of fees or other amounts by Borrower to any of its Affiliates in violation of the Loan Documents;
(xiv) subject to clause (9) below under Springing Recourse Events, any default occurs under the Ionis Lease beyond applicable notice and cure periods expressly set forth in the Ionis Lease;
(xv) commission of any criminal act by Borrower, Guarantor or any Borrower Related Party which results in the forfeiture of the Property or any portion thereof;
(xvi) the breach of any representation, warranty or covenant set forth in Section 3.1.8 or Section 4.2.10 hereof;
(xvii) subject to clause (1) in the immediately following paragraph, if Borrower fails to maintain its status as a Special Purpose Entity or breaches any material representation or warranty set forth single purpose entity as required by, and in Section 4.1.30 accordance with, the terms and provisions of this Agreement; and;
(xxviii) if [reserved]
(xix) Borrower fails to permit on-site inspections of the Property, fails to provide financial information or fails to appoint a new property manager upon the request of Lender, in each case as required by, and in accordance with, the terms and provisions of, this Agreement and the other Loan Documents; or
(xx) Borrower, Mortgage Borrower, Senior Mezzanine Borrower Guarantor or Operating Company fails to obtain Lender’s prior consent to any voluntary Indebtedness (other than (x) with respect to Mortgage Borrower, Permitted Indebtedness and (y) with respect to Operating Company, Permitted Indebtedness (Operating Company), as applicable) or voluntary Lien (other than Permitted Encumbrances) encumbering any of the Properties, Senior Mezzanine Collateral or Collateral as required by this Agreement, the Senior Mezzanine Loan Agreement, the Mortgage Loan Agreement, the Pledge Agreement or the Mortgages. Notwithstanding anything to the contrary under this Agreement, neither any present or future Affiliate of Borrower (other than Guarantoror Guarantor contests, to impedes, delays or opposes the extent provided under the Guaranty) nor any present or future shareholder, officer, director, employee, trustee, beneficiary, advisor, partner, member, principal, participant or agent of or in any Borrower or of or in any person or entity that is or becomes an Affiliate exercise by Lender of any Borrower shall have any personal liabilityenforcement actions, directly remedies or indirectly, other rights it has under or in connection with this Agreement or the other Loan Documents. Neither Documents or objects to any notice of strict foreclosure or similar notice; provided that neither Borrower nor Guarantor shall be liable to the negative capital account extent of any applicable loss, damage, cost, expense, liability, claim or other obligation arising solely from a defense of Borrower, Guarantor or any Affiliate of Borrower or Guarantor raised in Borrower, or in any other Affiliate of Borrower in any other Affiliate of Borrower, nor any obligation of any Affiliate of Borrower in any Borrower to restore a negative capital account or to contribute or loan capital to any Borrower or to any other Affiliate of Borrower shall at any time be deemed to be the property or an asset of any Borrower (or any other Affiliate of Borrower) and neither Lender nor its successors or assigns shall have any right to collect, enforce or proceed against any such negative capital account or obligation to restore, contribute or loan capitalgood faith.
(b) Notwithstanding anything to the contrary in this Agreement, the Note or any of the Loan Documents, Lender shall not be deemed to have waived any right which Lender may have under Section 506(a), 506(b), 1111(b) or any other provisions of the Bankruptcy Code to file a claim for the full amount of the Indebtedness or to require that all collateral shall continue to secure all of the Indebtedness owing to Lender in accordance with the Loan Documents.
Appears in 1 contract
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 ▇▇▇ 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:
(i) fraud or intentional misrepresentation by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor in connection with the execution and delivery of the Loan Documents and/or the Loan;
(ii) the misappropriation, conversion or misapplication in contravention of the Loan Documents by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any funds of Borrower, Senior Mezzanine Borrower, Mortgage Borrower or Operating Company, including, without limitation, (A) any Revenues, (B) any Net Liquidation Proceeds or Insurance Proceeds, (C) any Awards received in connection with a Condemnation, (D) any Rents or security deposits (or any item of Revenue, from whatever source) following an Event of Default, or (E) any distribution or other payments made in connection with any part of the Collateral or Senior Mezzanine Collateral;
(iii) the misappropriation, conversion or misapplication by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any security deposits or Rents paid more than one (1) month in advance;
(iv) any act of actual intentional physical waste by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor;
(v) the breach of any representation, warranty, covenant or indemnification provision in the Environmental Indemnity Agreement concerning environmental laws, hazardous substances and asbestos and any indemnification of Lender with respect thereto in either document;
(vi) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company fails to obtain Lender’s prior consent to any voluntary intentional Transfer as required by this Agreement, the Mortgage Loan Agreement or the Mortgages, as applicable;
(vii) any security deposits, advance deposits or any other deposits collected with respect to any of the Properties which are not delivered to Mortgage Lender upon a foreclosure of any of the Properties or action in lieu thereof, except to the extent any such security deposits were applied in accordance with the terms and conditions of any of the Leases prior to the occurrence of the Event of Default that gave rise to such foreclosure or action in lieu thereof;
(viii) in the event of:
: (A) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing a voluntary petition under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (B) the filing of an involuntary petition against Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law by any Person in which Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of their respective Affiliates, agents or employees colludes with or such other Person, or Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor soliciting or causing to be solicited petitioning creditors for any involuntary petition against Borrower, Operating Company or any Guarantor from any Person; (C) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing an answer consenting to or otherwise acquiescing in or joining in any involuntary petition filed against it by any other Person, other than Lender, under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (D) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor consenting to or acquiescing in or joining in an application for the appointment of a custodian, receiver, trustee, or examiner for Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of the Properties, the Collateral, the Senior Mezzanine Collateral or any portion thereof, other than at the request of Lender; or (E) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor making an assignment for the benefit of creditors (other than Lender), or admitting, in writing or in any legal proceeding, its insolvency or inability to pay its debts as they become due;
(ix) if Borrower, Senior Mezzanine Borrower or Mortgage Borrower fails to maintain its status as a Special Purpose Entity or breaches any material representation or warranty set forth in Section 4.1.30 of this Agreement; and
(x) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company fails to obtain Lender’s prior consent to any voluntary Indebtedness (other than (x) with respect to Mortgage Borrower, Permitted Indebtedness and (y) with respect to Operating Company, Permitted Indebtedness (Operating Company), as applicable) or voluntary Lien (other than Permitted Encumbrances) encumbering any of the Properties, Senior Mezzanine Collateral or Collateral as required by this Agreement, the Senior Mezzanine Loan Agreement, the Mortgage Loan Agreement, the Pledge Agreement or the Mortgages. Notwithstanding anything to the contrary under this Agreement, neither any present or future Affiliate of Borrower (other than Guarantor, to the extent provided under the Guaranty) nor any present or future shareholder, officer, director, employee, trustee, beneficiary, advisor, partner, member, principal, participant or agent of or in any Borrower or of or in any person or entity that is or becomes an Affiliate of any Borrower shall have any personal liability, directly or indirectly, under or in connection with the Loan Documents. Neither the negative capital account of any Affiliate of Borrower in Borrower, or in any other Affiliate of Borrower in any other Affiliate of Borrower, nor any obligation of any Affiliate of Borrower in any Borrower to restore a negative capital account or to contribute or loan capital to any Borrower or to any other Affiliate of Borrower shall at any time be deemed to be the property or an asset of any Borrower (or any other Affiliate of Borrower) and neither Lender nor its successors or assigns shall have any right to collect, enforce or proceed against any such negative capital account or obligation to restore, contribute or loan capital.
(b) Notwithstanding anything to the contrary in this Agreement, the Note or any of the Loan Documents, Lender shall not be deemed to have waived any right which Lender may have under Section 506(a), 506(b), 1111(b) or any other provisions of the Bankruptcy Code to file a claim for the full amount of the Indebtedness or to require that all collateral shall continue to secure all of the Indebtedness owing to Lender in accordance with the Loan Documents.the
Appears in 1 contract
Sources: Second Mezzanine Loan Agreement (Harrahs Entertainment 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 Borrowers 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 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 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 Borrowers only to the extent of each such 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 ▇▇▇ 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 Mortgages 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 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 the Assignments of Leases; (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 Mortgages or to commence commencing any other appropriate action or proceeding in order for Lender to exercise its remedies against all one or more 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:
(i) fraud or intentional willful misrepresentation by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or on behalf of any Borrower or Guarantor or any Guarantor Affiliate of any of them in connection with the execution and delivery Loan or any of the Loan Documents and/or the LoanProperties;
(ii) the misappropriation, conversion gross negligence or misapplication in contravention willful misconduct of the Loan Documents by any Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company Guarantor or any Guarantor Affiliate of any funds of Borrower, Senior Mezzanine Borrower, Mortgage Borrower or Operating Company, including, without limitation, (A) any Revenues, (B) any Net Liquidation Proceeds or Insurance Proceeds, (C) any Awards received them in connection with a Condemnation, (D) any Rents or security deposits (the Loan or any item of Revenue, from whatever source) following an Event of Default, or (E) any distribution or other payments made in connection with any part of the Collateral or Senior Mezzanine CollateralProperties;
(iii) the misappropriation, conversion or misapplication by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any security deposits or Rents paid more than one (1) month in advance;
(iv) any act of actual intentional physical waste by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor;
(v) the breach of any representation, warranty, covenant or indemnification provision in the Environmental Indemnity Indemnity, this Agreement or the Mortgages concerning environmental lawsEnvironmental Laws or Hazardous Substances;
(iv) wrongful removal or destruction of any portion of any of the Properties or any physical waste of any of the Properties, hazardous substances and asbestos and any indemnification of Lender with respect thereto in either documentcase by or on behalf of any Borrower, Guarantor or any Affiliate of any of them;
(v) the breach of any Legal Requirement (including, without limitation, RICO) mandating the forfeiture by any Borrower of any Property or Properties owned by such Borrower, or any portion thereof, because of the conduct or purported conduct of criminal activity by any Borrower or any Restricted Party in connection therewith;
(vi) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company fails to obtain Lender’s prior consent to any voluntary intentional Transfer as required by this Agreement, the Mortgage Loan Agreement or the Mortgages, as applicableintentionally omitted;
(vii) the misapplication or conversion by or on behalf of any Borrower of (A) any Insurance Proceeds paid by reason of any Casualty, (B) any Awards received in connection with a Condemnation, (C) any Rents collected during the continuance of an Event of Default, or (D) any Rents paid more than one (1) month in advance;
(viii) the failure to pay charges for labor or materials or other charges incurred by or on behalf of any Borrower, Guarantor or any Affiliate of any of them that can create Liens on one or all of the Properties (including any portion thereof) to the extent such Liens are not bonded over or discharged in accordance with this Agreement or the other Loan Documents;
(ix) the failure of any security deposits, advance deposits or any other deposits collected with respect to any of the Properties which are not to be delivered to Mortgage Lender upon a foreclosure of any one or more of the Properties or action in lieu thereof, except to the extent any such security deposits were applied in accordance with the terms and conditions of any of the Leases prior to the occurrence of the Event of Default that gave rise to such foreclosure or action in lieu thereof;; or
(viiix) the failure of any Borrower to maintain its status as a Single Purpose Entity.
(1) in the event of:
: (Aa) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor Borrower filing a voluntary petition under the Bankruptcy Code or any other federal or state bankruptcy or insolvency law; (b) the filing by any Person of an involuntary petition against any Borrower under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (B) the filing of an involuntary petition against Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law by any Person in which Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of their respective Affiliates, agents or employees such Borrower colludes with or such other Person, solicits or Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor soliciting or causing causes to be solicited petitioning creditors for any involuntary petition against Borrower, Operating Company or any Guarantor from any Personcreditors; (Cc) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor Borrower colluding to arrange and thereafter filing an answer consenting to or otherwise acquiescing in or joining in any involuntary petition filed against it it, by any other Person, other than Lender, Person under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (Dd) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor Borrower consenting to or acquiescing in or joining in an application for the appointment of a custodian, receiver, trustee, or examiner for Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company any Borrower or any Guarantor one or any more of the Properties, the Collateral, the Senior Mezzanine Collateral or any portion thereof, other than at the request of Lender; or (Ee) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor Borrower making an assignment for the benefit of creditors (other than Lender)creditors, or admitting, in writing or in any legal proceeding, its insolvency or inability to pay its debts as they become due;
; (ix2) if Borrower, Senior Mezzanine Borrower or Mortgage Borrower fails to maintain its status as a Special Purpose Entity or breaches any material representation or warranty set forth in Section 4.1.30 of this Agreementthe first Monthly Debt Service Payment Amount is not paid when due; and
(x3) if Borrower, Mortgage Borrower, Senior Mezzanine any Borrower or Operating Company fails to obtain Lender’s prior written consent to any voluntary Indebtedness (other than (x) with respect to Mortgage Borrower, Permitted Indebtedness and (y) with respect to Operating Company, Permitted Indebtedness (Operating Company), as applicable) or voluntary Lien (other than Permitted Encumbrances) encumbering any of Property to the Properties, Senior Mezzanine Collateral or Collateral as extent required by this Agreement, the Senior Mezzanine Loan Agreement, the Mortgage Loan Agreement, the Pledge Agreement or the Mortgages. Notwithstanding anything ; or (4) if any Borrower fails to the contrary under this Agreement, neither obtain Lender’s prior written consent to any present or future Affiliate of Borrower (other than GuarantorTransfer, to the extent provided under required by this Agreement or the Guaranty) nor any present or future shareholder, officer, director, employee, trustee, beneficiary, advisor, partner, member, principal, participant or agent of or in any Borrower or of or in any person or entity that is or becomes an Affiliate of any Borrower shall have any personal liability, directly or indirectly, under or in connection with the Loan Documents. Neither the negative capital account of any Affiliate of Borrower in Borrower, or in any other Affiliate of Borrower in any other Affiliate of Borrower, nor any obligation of any Affiliate of Borrower in any Borrower to restore a negative capital account or to contribute or loan capital to any Borrower or to any other Affiliate of Borrower shall at any time be deemed to be the property or an asset of any Borrower (or any other Affiliate of Borrower) and neither Lender nor its successors or assigns shall have any right to collect, enforce or proceed against any such negative capital account or obligation to restore, contribute or loan capitalMortgages.
(b) Notwithstanding anything to the contrary in this Agreement, the Note or any of the Loan Documents, Lender shall not be deemed to have waived any right which Lender may have under Section 506(a), 506(b), 1111(b) or any other provisions of the Bankruptcy Code to file a claim for the full amount of the Indebtedness or to require that all collateral shall continue to secure all of the Indebtedness owing to Lender in accordance with the Loan Documents.
Appears in 1 contract
Sources: Loan Agreement (Cole Credit Property Trust III, 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 or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against Borrower, or against Owner, 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, 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 and the Qualified Preferred Equity Recognition 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 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 ▇▇▇ 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)consdtute 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 receiver; (e) intentionally omittedimpair the enforcement of the Environmental Indemnity; (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 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 and the Qualified Preferred Equity Recognition 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 Borrower, 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 for any or all of the following being referred to herein as “Borrower’s Recourse Liabilities”):
(i) fraud or intentional misrepresentation committed by Borrower, Mortgage any Guarantor, any Individual Owner or any Affiliate of Borrower, Senior Mezzanine Borrower, Operating Company any Individual Owner or any Guarantor in connection with the execution and delivery of the Loan Documents and/or the Loan;
(ii) intentional failure to disclose a material fact known to Borrower, any Individual Owner, any Guarantor, or any Affiliate of Borrower, any Individual Owner or any Guarantor in connection with the misappropriation, conversion or misapplication in contravention origination of the Loan Documents by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any funds of Borrower, Senior Mezzanine Borrower, Mortgage Borrower or Operating Company, including, without limitation, (A) any Revenues, (B) any Net Liquidation Proceeds or Insurance Proceeds, (C) any Awards received that if disclosed would be reasonably expected to have had a material adverse effect on the Lender’s determination to provide the Loan in connection with a Condemnation, (D) any Rents or security deposits (or any item of Revenue, from whatever source) following an Event of Default, or (E) any distribution or other payments made the amount and on the terms set forth in connection with any part of the Collateral or Senior Mezzanine CollateralLoan Documents;
(iii) the misappropriation, conversion or misapplication by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any security deposits or Rents paid more than one (1) month in advance[Reserved];
(iv) wrongful removal of personal property from the Properties during an Event of Default by Borrower or on behalf of Borrower or any act Individual Owner, by any Guarantor or any Affiliate of actual Borrower, any Individual Owner or any Guarantor, unless replaced with personal property of substantially the same or greater utility and of the same or greater value;
(v) any intentional physical waste Waste at any Individual Property committed by Borrower or on behalf of Borrower or any Individual Owner by any Guarantor or any Affiliate of Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company any Individual Owner or any Guarantor;
(vvi) the misappropriation by Borrower or on behalf of Borrower or any Individual Owner, by any Guarantor or any Affiliate of Borrower, any Individual Owner or any Guarantor of (A) any Insurance Proceeds paid by reason of any Casualty to any Individual Property, (B) any Awards in connection with the Condemnation of any Individual Property and (C) any Gross Revenues after (or that results in) an Event of Default, in each case, in violation of the Loan Documents;
(vii) failure to obtain and maintain the fully paid for Policies in accordance with Section 5.1.1 to the extent that adequate funds were available to Borrower or Owner from the income of the Properties for the payment of the premiums thereof;
(viii) any breach of any representationprovision of Section 4.4 or Schedule V of this Agreement (other than with respect to clause (d) of Schedule V (with respect to trade payables only), warranty, covenant or indemnification provision clause (f) of Schedule V. clause (j) of Schedule V. clause (w) of Schedule V and clause (x) of Schedule V) that does not result in the Environmental Indemnity Agreement concerning environmental laws, hazardous substances substantive consolidation of the assets and asbestos and liabilities of Borrower or any indemnification Individual Owner with any other Person (other than another Individual Owner or the Liquor Subsidiary) as a result of Lender with respect thereto in either documentsuch breach;
(viix) any and all Divested Property Liabilities; and/or
(x) the modification of any Ground Lease if Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company fails to obtain Lender’s prior consent to any voluntary intentional Transfer as required by such modification is prohibited under this Agreement, the Mortgage Loan Agreement or under any Mortgage and such modification has a material adverse effect on the Mortgages, as applicable;
related Individual Property or the leasehold interest therein (viiincluding the value or operation thereof) any security deposits, advance deposits or any other deposits collected with respect to any of the Properties which are not delivered to Mortgage Lender upon a foreclosure of any of the Properties or action in lieu thereof, except to the extent any such security deposits were applied in accordance with the terms and conditions of any of the Leases prior to the occurrence of the Event of Default that gave rise to such foreclosure or action in lieu thereof;
(viii) in the event of:
(A) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing a voluntary petition under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (B) the filing of an involuntary petition against Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law by any Person in which Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of their respective Affiliates, agents or employees colludes with or such other Person, or Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor soliciting or causing to be solicited petitioning creditors for any involuntary petition against Borrower, Operating Company or any Guarantor from any Person; (C) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing an answer consenting to or otherwise acquiescing in or joining in any involuntary petition filed against it by any other Person, other than Lender, under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (D) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor consenting to or acquiescing in or joining in an application for the appointment of a custodian, receiver, trustee, or examiner for Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of the Properties, the Collateral, the Senior Mezzanine Collateral or any portion thereof, other than at the request of Lender; or (E) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor making an assignment for the benefit of creditors (other than Lender), or admitting, in writing or in any legal proceeding, its insolvency or inability to pay its debts as they become due;
(ix) if Borrower, Senior Mezzanine Borrower or Mortgage Borrower fails to maintain its status as a Special Purpose Entity or breaches any material representation or warranty set forth in Section 4.1.30 of this Agreement; and
(x) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company fails to obtain Lender’s prior consent ability to any voluntary Indebtedness (other than (x) with respect to Mortgage Borrower, Permitted Indebtedness exercise its rights and (y) with respect to Operating Company, Permitted Indebtedness (Operating Company), as applicable) or voluntary Lien (other than Permitted Encumbrances) encumbering any of the Properties, Senior Mezzanine Collateral or Collateral as required by this Agreement, the Senior Mezzanine Loan Agreement, the Mortgage Loan Agreement, the Pledge Agreement or the Mortgages. Notwithstanding anything to the contrary remedies under this Agreement, neither any present or future Affiliate of Borrower (other than Guarantor, to the extent provided under the Guaranty) nor any present or future shareholder, officer, director, employee, trustee, beneficiary, advisor, partner, member, principal, participant or agent of or in any Borrower or of or in any person or entity that is or becomes an Affiliate of any Borrower shall have any personal liability, directly or indirectly, under or in connection with the Loan Documents. Neither the negative capital account of any Affiliate of Borrower in Borrower, or in any other Affiliate of Borrower in any other Affiliate of Borrower, nor any obligation of any Affiliate of Borrower in any Borrower to restore a negative capital account or to contribute or loan capital to any Borrower or to any other Affiliate of Borrower shall at any time be deemed to be the property or an asset of any Borrower (or any other Affiliate of Borrower) and neither Lender nor its successors or assigns shall have any right to collect, enforce or proceed against any such negative capital account or obligation to restore, contribute or loan capital.
(b) Notwithstanding anything to the contrary in this Agreement, the Note or any of the Loan Documents, Lender shall not be deemed to have waived any right which Lender may have under Section 506(a), 506(b), 1111(b) or any other provisions of the Bankruptcy Code to file a claim for the full amount of the Indebtedness or to require that all collateral shall continue to secure all of the Indebtedness owing to Lender in accordance with the Loan Documents.
Appears in 1 contract
Sources: Mezzanine Loan Agreement (American Realty Capital 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 subject to the provisions of the Loan Documents governing remedies, 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 's interest in the Collateral Property Loan, the 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 ▇▇▇ 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 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 the Pledge AgreementLoan 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 the Pledge Agreement or to commence commencing 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 (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:
(i) fraud or intentional misrepresentation by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company Borrower or any Guarantor guarantor in connection with the execution and delivery of the Loan Documents and/or the Loan;
(ii) the misappropriation, conversion gross negligence or misapplication in contravention of the Loan Documents by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any funds willful misconduct of Borrower, Senior Mezzanine Borrower, Mortgage Borrower or Operating Company, including, without limitation, (A) any Revenues, (B) any Net Liquidation Proceeds or Insurance Proceeds, (C) any Awards received in connection with a Condemnation, (D) any Rents or security deposits (or any item of Revenue, from whatever source) following an Event of Default, or (E) any distribution or other payments made in connection with any part of the Collateral or Senior Mezzanine Collateral;
(iii) the misappropriation, misapplication or conversion or misapplication by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or Borrower of (A) any Guarantor insurance proceeds paid by reason of any security deposits loss, damage or destruction to the Property, (B) any awards or other amounts received in connection with the condemnation of all or a portion of the Property, or (C) any Rents paid more than one (1) month in advance;following an Event of Default; and
(iv) any act of actual intentional physical waste by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor;
(v) the breach of any representation, warranty, covenant or indemnification provision in the Environmental Indemnity Agreement concerning environmental laws, hazardous substances and asbestos and any 's indemnification of Lender with respect thereto in either document;
(vi) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company fails to obtain Lender’s prior consent to any voluntary intentional Transfer as required by this Agreement, the Mortgage Loan Agreement or the Mortgages, as applicable;
(vii) any security deposits, advance deposits or any other deposits collected with respect to any of the Properties which are not delivered to Mortgage Lender upon a foreclosure of any of the Properties or action in lieu thereof, except to the extent any such security deposits were applied in accordance with the terms and conditions of any of the Leases prior to the occurrence of the Event of Default that gave rise to such foreclosure or action in lieu thereof;
(viii) in the event of:
(A) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing a voluntary petition under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (B) the filing of an involuntary petition against Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law by any Person in which Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of their respective Affiliates, agents or employees colludes with or such other Person, or Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor soliciting or causing to be solicited petitioning creditors for any involuntary petition against Borrower, Operating Company or any Guarantor from any Person; (C) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing an answer consenting to or otherwise acquiescing in or joining in any involuntary petition filed against it by any other Person, other than Lender, under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (D) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor consenting to or acquiescing in or joining in an application for the appointment of a custodian, receiver, trustee, or examiner for Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of the Properties, the Collateral, the Senior Mezzanine Collateral or any portion thereof, other than at the request of Lender; or (E) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor making an assignment for the benefit of creditors (other than Lender), or admitting, in writing or in any legal proceeding, its insolvency or inability to pay its debts as they become due;
(ix) if Borrower, Senior Mezzanine Borrower or Mortgage Borrower fails to maintain its status as a Special Purpose Entity or breaches any material representation or warranty set forth in Section 4.1.30 of this Agreement; and
(x) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company fails to obtain Lender’s prior consent to any voluntary Indebtedness (other than (x) with respect to Mortgage Borrower, Permitted Indebtedness and (y) with respect to Operating Company, Permitted Indebtedness (Operating Company), as applicable) or voluntary Lien (other than Permitted Encumbrances) encumbering any of the Properties, Senior Mezzanine Collateral or Collateral as required by this Agreement, the Senior Mezzanine Loan Agreement, the Mortgage Loan Agreement, the Pledge Agreement or the Mortgages9.2. Notwithstanding anything to the contrary under this Agreement, neither any present or future Affiliate of Borrower (other than Guarantor, to the extent provided under the Guaranty) nor any present or future shareholder, officer, director, employee, trustee, beneficiary, advisor, partner, member, principal, participant or agent of or in any Borrower or of or in any person or entity that is or becomes an Affiliate of any Borrower shall have any personal liability, directly or indirectly, under or in connection with the Loan Documents. Neither the negative capital account of any Affiliate of Borrower in Borrower, or in any other Affiliate of Borrower in any other Affiliate of Borrower, nor any obligation of any Affiliate of Borrower in any Borrower to restore a negative capital account or to contribute or loan capital to any Borrower or to any other Affiliate of Borrower shall at any time be deemed to be the property or an asset of any Borrower (or any other Affiliate of Borrower) and neither Lender nor its successors or assigns shall have any right to collect, enforce or proceed against any such negative capital account or obligation to restore, contribute or loan capital.
(b) Notwithstanding anything to the contrary in this Agreement, the Note Agreement or any of the Loan Documents, (x) Lender shall not be deemed to have waived any right which Lender may have under Section Sections 506(a), 506(b), 1111(b) or any other provisions of the U.S. Bankruptcy Code to file a claim for the full amount of the Indebtedness Debt secured by the Mortgage or to require that all collateral shall continue to secure all of the Indebtedness Debt owing to Lender in accordance with the Loan Documents, and (y) the Debt shall be fully recourse to Borrower in the event that: (aa) the first full monthly payment of principal and interest under the Note is not paid when due; (bb) Borrower fails to permit on site inspections of the Property, fails to provide financial information, fails to maintain its status as a single purpose entity or fails to appoint a new property manager upon the request of Lender after an Event of Default, each as required by, and in accordance with the terms and provisions of, this Loan Agreement; (cc) Borrower fails to obtain Lender's prior written consent to any subordinate financing or other voluntary lien encumbering the Property Loan; or (dd) Borrower fails to obtain Lender's prior written consent to any assignment, transfer, or conveyance of the Property Loan or any interest therein.
Appears in 1 contract
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 ▇s▇▇ 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:
(i) fraud or intentional material misrepresentation by Borrower, Mortgage Borrower, Senior Mezzanine or on behalf of any Borrower, Operating Company Lessee or any Guarantor or any of their respective agents or representatives in connection with the execution Loan, including, without limitation, by reason of any claim under the Racketeer Influenced and delivery Corrupt Organizations Act (“RICO”) and including, without limitation, any misrepresentation by any Borrower pursuant to any of the Loan Documents and/or or otherwise to induce Lender to make the Loan, or any advance thereof, or to release monies from any account held by Lender (including any reserve or escrow) or to take other action with respect to any of the collateral for the Loan;
(ii) the misappropriation, conversion gross negligence or misapplication in contravention willful misconduct by or on behalf of the Loan Documents by Borrower, Mortgage Borrower, Senior Mezzanine any Borrower, Operating Company Lessee or any Guarantor or any of any funds of Borrower, Senior Mezzanine Borrower, Mortgage Borrower their respective authorized agents or Operating Company, including, without limitation, (A) any Revenues, (B) any Net Liquidation Proceeds or Insurance Proceeds, (C) any Awards received representatives in connection with a Condemnation, (D) any Rents or security deposits (or any item of Revenue, from whatever source) following an Event of Default, or (E) any distribution or other payments made in connection with any part of the Collateral or Senior Mezzanine CollateralLoan;
(iii) the misappropriation, conversion or misapplication by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any security deposits or Rents paid more than one (1) month in advance;
(iv) any act of actual intentional physical waste by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor;
(v) the breach of any representation, warranty, covenant or indemnification provision in the Environmental Indemnity Agreement or in any other Loan Document concerning environmental laws, hazardous substances and and/or asbestos and any indemnification of Lender with respect thereto in either any document;
(iv) wrongful removal or destruction of any portion of any Property after the occurrence of an Event of Default;
(v) any intentional, physical waste of any Property resulting from the action or inaction of any Borrower, Operating Lessee or any Manager which adversely affects the value of such Property;
(vi) if any Legal Requirement (including RICO) resulting in the forfeiture by any Borrower of its Property, or any portion thereof, because of the conduct or purported conduct of criminal activity by any Borrower, Mortgage Borrower, Senior Mezzanine Borrower Operating Lessee or Operating Company fails to obtain Lender’s prior consent to any voluntary intentional Transfer as required by this Agreement, the Mortgage Loan Agreement Guarantor or the Mortgages, as applicableany of their respective agents or representatives in connection therewith;
(vii) the misappropriation or conversion by or on behalf of any Borrower or Operating Lessee of (A) any Insurance Proceeds paid by reason of any loss, damage or destruction to any Property, (B) any Awards or other amounts received in connection with the Condemnation of all or a portion of any Property, or (C) any Gross Revenues (including Rents, security deposits, advance deposits or any other deposits);
(viii) failure to pay charges for labor or materials or other charges that create Liens on any portion of any Property, to the extent (A) such Liens are not bonded over or discharged in accordance with Section 3.6 of the applicable Mortgage and (B) Gross Revenue is sufficient for the payment of the same;
(ix) any security deposits, advance deposits or any other deposits collected with respect to any of the Properties which are not delivered to Mortgage Lender upon a foreclosure of any in accordance with the provisions of the Properties or action in lieu thereof, except Loan Documents;
(x) failure to pay Taxes to the extent Gross Revenue is sufficient for the payment of the same;
(xi) failure to obtain and maintain the fully paid for Policies in accordance with Section 5.1.1 hereof;
(xii) Borrowers’ indemnification of Lender set forth in Section 9.2 hereof;
(xiii) any such security deposits were applied delay in Lender’s right, or inability of Lender, upon the occurrence of an Event of Default to foreclose upon any Property or other collateral for Pool 1 the Loan, obtain a receiver for any Property or otherwise exercise any of its remedies or rights under the Loan Documents, which delay or inability would not have occurred but for the interference by any Borrower, Operating Lessee or any of their Affiliates with Lender’s rights under the Loan Documents;
(xiv) any Borrower or Operating Lessee fails to permit on-site inspections of any Property or fails to provide financial information as required by, and in accordance with the terms and conditions of any of provisions of, this Agreement and the Leases prior to the occurrence of the Event of Default that gave rise to such foreclosure or action in lieu thereofMortgages;
(viii) in the event of:
(A) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing a voluntary petition under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (Bxv) the filing failure of an involuntary petition against Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law by any Person in which Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of their respective Affiliates, agents or employees colludes with or such other Person, or Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor soliciting or causing to be solicited petitioning creditors for any involuntary petition against Borrower, Operating Company or any Guarantor from any Person; (C) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing an answer consenting to or otherwise acquiescing in or joining in any involuntary petition filed against it by any other Person, other than Lender, under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (D) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor consenting to or acquiescing in or joining in an application for the appointment of a custodian, receiver, trustee, or examiner for Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of the Properties, the Collateral, the Senior Mezzanine Collateral or any portion thereof, other than at the request of Lender; or (E) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor making an assignment for the benefit of creditors (other than Lender), or admitting, in writing or in any legal proceeding, its insolvency or inability to pay its debts as they become due;
(ix) if Borrower, Senior Mezzanine Borrower or Mortgage Borrower fails to maintain its status as a Special Purpose Entity single purpose entity prior to the Closing Date, as required by, and in accordance with the terms and provisions of, Sections 3.1.24 and 3.1.43 of this Agreement;
(xvi) the failure by any Borrower, SPE Party or breaches any material representation or warranty set forth Operating Lessee to maintain its status as a single purpose entity, as required by, and in accordance with the terms and provisions of, clauses (c), (e), (g), (h), (i), (j), (v), (w) and (x) of Section 4.1.30 3.1.24 of this Agreement; andand/or
(xxvii) if Borrower, Mortgage Borrower, Senior Mezzanine any Borrower or Operating Company fails to obtain Lender’s prior consent to Lessee initiates any voluntary Indebtedness (other than (x) wire transfer or ACH authorization with respect to Mortgage Borrowerany Clearing Account, Permitted Indebtedness and (y) closes any Clearing Account or performs any other transaction with respect to Operating Company, Permitted Indebtedness (Operating Company), as applicable) or voluntary Lien (other than Permitted Encumbrances) encumbering any of the Properties, Senior Mezzanine Collateral or Collateral as required by this Agreement, the Senior Mezzanine Loan Agreement, the Mortgage Loan Agreement, the Pledge Agreement or the Mortgages. Notwithstanding anything to the contrary under this Agreement, neither any present or future Affiliate of Borrower (other than Guarantor, to the extent provided under the Guaranty) nor any present or future shareholder, officer, director, employee, trustee, beneficiary, advisor, partner, member, principal, participant or agent of or in any Borrower or of or in any person or entity that is or becomes an Affiliate of any Borrower shall have any personal liability, directly or indirectly, under or in connection with the Loan Documents. Neither the negative capital account of any Affiliate of Borrower in BorrowerClearing Account, or in authorizes any other Affiliate of Borrower in any other Affiliate of Borrower, nor any obligation of any Affiliate of Borrower in any Borrower to restore a negative capital account or to contribute or loan capital to any Borrower or to any other Affiliate of Borrower shall at any time be deemed to be the property or an asset of any Borrower (Manager or any other Affiliate of Borrower) and neither Lender nor its successors Person to do so, or assigns shall have any adds the right to collect, enforce or proceed against any such negative capital account or obligation to restore, contribute or loan capitaldo so under the Clearing Bank’s electronic information reporting system.
(b) Notwithstanding anything to the contrary contained in this Agreement, the Note Agreement or any of the other Loan Documents, (A) Lender shall not be deemed to have waived any right which Lender may have under Section 506(a), 506(b), 1111(b) or any other provisions of the Bankruptcy Code to file a claim for the full amount of the Indebtedness Obligations or to require that all collateral shall continue to secure all of the Indebtedness Obligations owing to Lender in accordance with the Loan Documents, and (B) the Obligations shall be fully recourse to Borrowers in the event that: (i) the first full monthly payment of interest under the Note is not paid when due; (ii) any Borrower, SPE Party or Operating Lessee fails to maintain its status as a single purpose entity as required by, and in accordance with the terms and provisions of, this Agreement (except with respect to the terms and provisions of clauses (c), (e), (g), (h), (i), (j), (v), (w) and (x) of Section 3.1.24 of this Agreement); (iii) any Borrower fails to obtain Lender’s prior consent to any subordinate financing or other voluntary Lien encumbering any Property; (iv) Borrowers fail to obtain Lender’s prior consent to any Transfer of any Property or any interest therein or any Transfer of any direct or indirect interest in any Borrower, SPE Party or Operating Lessee, in any such case as required by the Mortgages or this Agreement; (v) any Borrower, SPE Party, the sole member of SPE Party, Operating Lessee or any Guarantor files a voluntary petition under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (vi) an Affiliate, officer, director or representative which controls, directly or indirectly, any Borrower, SPE Party, the sole member of SPE Party, Operating Lessee or any Guarantor files, or joins in the filing of, an involuntary petition against any Borrower, SPE Party, the sole member of SPE Party, Operating Lessee or any Guarantor under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law, or solicits or causes to be solicited petitioning creditors for any Pool 1 involuntary petition against any Borrower, SPE Party, the sole member of SPE Party, Operating Lessee or any Guarantor from any Person; (vii) any Borrower, SPE Party, the sole member of SPE Party, Operating Lessee or any Guarantor files an answer consenting to, or otherwise acquiescing in, or joining in, any involuntary petition filed against it by any other Person under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law, or solicits or causes to be solicited petitioning creditors for any involuntary petition from any Person; (viii) any Affiliate, officer, director or representative which controls any Borrower or Operating Lessee consents to, or acquiesces in, or joins in, an application for the appointment of a custodian, receiver, trustee or examiner for any Borrower, Operating Lessee or any portion of any Property; (ix) any Borrower, SPE Party, the sole member of SPE Party, Operating Lessee or any Guarantor makes an assignment for the benefit of creditors or admits, in writing or in any legal proceeding, its insolvency or inability to pay its debts as they become due; or (x) any Guarantor (or any Person comprising any Guarantor), any Borrower, Operating Lessee or any Affiliate of any of the foregoing, in connection with any enforcement action or exercise or assertion of any right or remedy by or on behalf of Lender under or in connection with any Carveout Guaranty, the Note, the Mortgages or any other Loan Document, seeks a defense, judicial intervention or injunctive or other equitable relief of any kind, or asserts in a pleading filed in connection with a judicial proceeding any defense against Lender or any right in connection with any security for the Loan, which the court in any such action or proceeding determines is without merit (in the case of a defense) or is unwarranted (in the case of a request for judicial intervention or injunctive or other equitable relief).
(c) Notwithstanding anything to the contrary contained in this Agreement or any of the other Loan Documents, if the Franchise Agreement for any Property is terminated or expires and the applicable Borrower or Operating Lessee has not entered into a replacement franchise agreement acceptable to Lender in its sole discretion with a comparable franchisor acceptable to Lender in its sole discretion prior to or concurrently with such termination or expiration, then the Obligations shall be fully recourse to Borrowers in an amount not to exceed the Allocated Loan Amount with respect to such Property, provided that the Obligations shall cease to be fully recourse to Borrowers as a result of the operation of this clause (c) at such time as the applicable Borrower or Operating Lessee has entered into a replacement franchise agreement acceptable to Lender in its sole discretion with a comparable franchisor acceptable to Lender in its sole discretion so long as such event occurs prior to the date that is one (1) year after the termination or expiration of the aforesaid Franchise Agreement.
Appears in 1 contract
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, covenants and obligations contained in the Note, this Agreement, the Pledge Agreement Security Instruments, or the other Loan Documents by any action or proceeding against Borrower wherein a money judgment shall be sought against Borrowersought, 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 and Security Instruments, the other Loan Documents, or in and the Collateral, or Collateral and any other collateral given to Lender pursuant to the Note, this Agreement, the Security Instruments or 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 interests in the Collateral 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 Security Instruments 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 DocumentsSecurity Instruments, agrees that it shall not not, except as otherwise provided herein, ▇▇▇ 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 Security Instruments. 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 Note, this Agreement, the other Loan Documents, the Security Instruments; (bii) impair the right of Lender to name Borrower Borrower(s) as a party defendant defendant(s) in any action or suit for judicial foreclosure and sale or other remedy under the Pledge AgreementSecurity Instruments; (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 the Note, this Agreement, the Security Instruments 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 omittedimpair the enforcement of the Security Instruments; (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 to enforce the liability provisions of Sections 4.1.8, 4.1.16(o), 4.1.26, 4.1.28, 5.1.9, 5.1.19 and obligation 5.2.8 of Borrower, by money this Agreement; or (vii) impair the right of Lender to obtain a deficiency judgment or otherwiseother judgment on the Note against Borrower if necessary to preserve or enforce its rights and remedies against any Collateral and/or Insurance Proceeds or Awards to which Lender would otherwise be entitled under the Loan Documents; provided, however, Lender shall only enforce such judgment against such Collateral and/or to the extent of any the Insurance Proceeds or Awards actually obtained by Borrower, as the case may be.
(b) Notwithstanding the provisions of this Section 9.4 to the contrary, Borrower shall be personally liable to Lender for the direct, 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:
Losses it incurs due to: (i) fraud or intentional misrepresentation by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company Borrower or any Guarantor Related Party in connection with the execution and the delivery of the Note, this Agreement, the Security Instruments or the other Loan Documents and/or the Loan;
Documents; (ii) any intentional misapplication or misappropriation by Borrower or Mortgage Borrower of Rents received by Borrower or Mortgage Borrower after the misappropriationoccurrence of an Event of Default; (iii) any intentional misapplication or misappropriation by Borrower or Mortgage Borrower of tenant security deposits or Rents collected more than one month in advance; (iv) the intentional misapplication or the misappropriation by Borrower or Mortgage Borrower of Insurance Proceeds or Awards; (v) any failure to pay Taxes, conversion Other Charges or misapplication in contravention Ground Rent, charges for labor or materials or other charges by Borrower or Mortgage Borrower that can create Liens on any of the Collateral or one or more of the Property (except to the extent that sums sufficient to pay such amounts have been deposited in the Lockbox Account or are otherwise in escrow with Lender or Mortgage Lender pursuant to the terms of this Agreement or the Mortgage Loan Documents Agreement) but only to the extent that the Net Operating Income from the Property available to Borrower was sufficient to permit Borrower to pay the same when due; (vi) any failure by Borrower to return or to reimburse Lender for all Personal Property taken from the Property by or on behalf of Borrower after the occurrence of an Event of Default and in violation of the terms of this Agreement and the Security Instruments and not replaced with Personal Property of the same utility and of the same or greater value; (vii) any act of actual intentional waste or arson by Borrower, Mortgage Borrower, Senior Mezzanine any Principal, Affiliate or general partner thereof or by any Indemnitor or Guarantor which is not attributable to a lack of sufficient Net Operating Income available to Borrower from the Property or Collateral to perform all of Borrower’s or such Affiliate’s obligations under the Note, Operating Company this Agreement, the Security Instruments or the other Loan Documents; (viii) any Guarantor of fees or commissions paid by Borrower to any funds Principal, Affiliate or of Borrower, Senior Mezzanine Indemnitor or Guarantor in violation of the terms of the Note, this Agreement, the Security Instruments or the other Loan Documents; (ix) any failure by Borrower to comply with the provisions of Sections 4.1.26 and 5.1.19 hereof; or (x) if the Property, the Collateral or any part thereof shall become an asset in an involuntary bankruptcy or insolvency proceeding commenced by any Person (other than Lender) and Borrower fails to use their respective commercially reasonable efforts to obtain a dismissal of such proceedings.
(c) Notwithstanding the foregoing, the agreement of Lender not to pursue recourse liability as set forth in Subsection (a) above SHALL BECOME NULL AND VOID and shall be of no further force and effect as to Borrower (but not to any Related Party other than pursuant to a written instrument executed by such Related Party specifically providing for such liability)
(i) in the event of willful default by Borrower to provide a report or information under Section 5.1.10(b), (c), (f), (i), (j), (k) and (l), but a failure to provide such reports and information shall not be deemed willful if such failure is the result of good faith error and is cured within ten (10) Business Days after notice is delivered to Borrower, provided, however, that if (x) Borrower is prevented by an unaffiliated third party from delivering such information, and (y) Borrower uses reasonable efforts (including the reasonable expenditure of money) to obtain such information, then such failure shall not be deemed willful so long as Borrower continuously endeavors in good faith to obtain the required financial reports and information and delivers same to Lender as soon as it becomes available to Borrower, (ii) in the event of a default under Section 4.1.22 of this Agreement such that either (A) such failure was considered by a court as a factor in the court’s finding for a consolidation of the assets of Borrower with the assets of another Person or (B) as a result thereof, Lender suffers any material damage, cost, liability, or expense (including reasonable attorneys’ fees and disbursements, whether or not litigation has commenced); provided, however, that in the absence of an actual consolidation, recourse may be had against any of the Borrower only to the extent of Losses
(a) (but Borrower shall be liable for all Losses related to such violation) so long as such Equipment lease or Equipment financing is terminated and released to Lender’s reasonable satisfaction within ten (10) Business Days of the earlier of (x) Lender’s notice to Borrower (or Mortgage Lender’s notice to Mortgage Borrower) of such violation or (y) the date that an executive officer of Borrower, Mortgage Borrower or Operating Companyany officer of Borrower or Mortgage Borrower or of Indemnitor or Guarantor actually becomes aware of such violation, including, without limitation, (A) any Revenues, (B) any Net Liquidation Proceeds or Insurance Proceeds, (C) any Awards received in connection with a Condemnation, (D) any Rents or security deposits (or any item of Revenue, from whatever source) following an Event of Default, or (E) any distribution or other payments made in connection with any part of the Collateral or Senior Mezzanine Collateral;
(iii) the misappropriation, conversion or misapplication by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any security deposits or Rents paid more than one (1) month in advance;
(iv) any act of actual intentional physical waste by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor;
(v) if the breach of Property or Collateral or any representation, warranty, covenant part thereof shall become an asset in a voluntary bankruptcy or indemnification provision in the Environmental Indemnity Agreement concerning environmental laws, hazardous substances and asbestos and any indemnification of Lender with respect thereto in either document;
insolvency proceeding or (vi) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company fails to obtain Lender’s prior consent to any voluntary intentional Transfer as required by this Agreement, the Mortgage Loan Agreement or the Mortgages, as applicable;first full Monthly Debt Service Payment Amount is not paid when due.
(viid) any security deposits, advance deposits or any other deposits collected with respect to any of the Properties which are not delivered to Mortgage Lender upon a foreclosure of any of the Properties or action in lieu thereof, except to the extent any such security deposits were applied in accordance with the terms and conditions of any of the Leases prior to the occurrence of the Event of Default that gave rise to such foreclosure or action in lieu thereof;
(viii) in the event of:
(A) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing a voluntary petition under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (B) the filing of an involuntary petition against Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law by any Person in which Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of their respective Affiliates, agents or employees colludes with or such other Person, or Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor soliciting or causing to be solicited petitioning creditors for any involuntary petition against Borrower, Operating Company or any Guarantor from any Person; (C) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing an answer consenting to or otherwise acquiescing in or joining in any involuntary petition filed against it by any other Person, other than Lender, under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (D) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor consenting to or acquiescing in or joining in an application for the appointment of a custodian, receiver, trustee, or examiner for Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of the Properties, the Collateral, the Senior Mezzanine Collateral or any portion thereof, other than at the request of Lender; or (E) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor making an assignment for the benefit of creditors (other than Lender), or admitting, in writing or in any legal proceeding, its insolvency or inability to pay its debts as they become due;
(ix) if Borrower, Senior Mezzanine Borrower or Mortgage Borrower fails to maintain its status as a Special Purpose Entity or breaches any material representation or warranty set forth in Section 4.1.30 of this Agreement; and
(x) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company fails to obtain Lender’s prior consent to any voluntary Indebtedness (other than (x) with respect to Mortgage Borrower, Permitted Indebtedness and (y) with respect to Operating Company, Permitted Indebtedness (Operating Company), as applicable) or voluntary Lien (other than Permitted Encumbrances) encumbering any of the Properties, Senior Mezzanine Collateral or Collateral as required by this Agreement, the Senior Mezzanine Loan Agreement, the Mortgage Loan Agreement, the Pledge Agreement or the Mortgages. Notwithstanding anything to the contrary under this Agreement, neither any present or future Affiliate of Borrower (other than Guarantor, to the extent provided under the Guaranty) nor any present or future shareholder, officer, director, employee, trustee, beneficiary, advisor, partner, member, principal, participant or agent of or in any Borrower or of or in any person or entity that is or becomes an Affiliate of any Borrower Nothing herein shall have any personal liability, directly or indirectly, under or in connection with the Loan Documents. Neither the negative capital account of any Affiliate of Borrower in Borrower, or in any other Affiliate of Borrower in any other Affiliate of Borrower, nor any obligation of any Affiliate of Borrower in any Borrower to restore a negative capital account or to contribute or loan capital to any Borrower or to any other Affiliate of Borrower shall at any time be deemed to be the property or an asset a waiver of any Borrower (or any other Affiliate of Borrower) and neither Lender nor its successors or assigns shall have any right to collect, enforce or proceed against any such negative capital account or obligation to restore, contribute or loan capital.
(b) Notwithstanding anything to the contrary in this Agreement, the Note or any of the Loan Documents, Lender shall not be deemed to have waived any right which Lender may have under Section 506(a), 506(b), 1111(b) or any other provisions provision of the Bankruptcy Code to file a claim for the full amount of the Indebtedness indebtedness secured by the Security Instruments or to require that all collateral shall continue to secure all of the Indebtedness indebtedness owing to Lender in accordance with the Note, this Agreement, the Security Instruments and the other Loan Documents.
Appears in 1 contract
Exculpation. (a) Subject to the qualifications belowbelow and except for the obligation of Guarantor as set forth in the Guaranty, 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, Principal, any member, manager, partner, shareholder, officer or director of Borrower or its constituent partners or members (“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 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 ▇s▇▇ 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 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; (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 Mortgages; (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 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 reasonable attorneys’ fees and costs expenses reasonably incurred) arising out of or in connection with the following:
(i) fraud or intentional misrepresentation by any Individual Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company Principal or any Guarantor in connection with the execution and delivery of the Loan Documents and/or the Loan;
(ii) the misappropriationgross negligence or willful misconduct of any Individual Borrower, conversion Principal or misapplication in contravention Guarantor;
(iii) material physical waste of the Loan Documents any Individual Property caused by Borrower, Mortgage BorrowerPrincipal, Senior Mezzanine Borrower, Operating Company Guarantor or any Guarantor of any funds Person that is an Affiliate of Borrower, Senior Mezzanine Principal or Guarantor;
(iv) the removal or disposal of any portion of the Properties after an Event of Default;
(v) the misapplication or conversion by any Individual Borrower, Mortgage Borrower Principal or Operating Company, including, without limitation, Guarantor of (A) any RevenuesInsurance Proceeds paid by reason of any loss, damage or destruction to any Individual Property, (B) any Net Liquidation Proceeds or Insurance Proceeds, (C) any Awards received in connection with a CondemnationCondemnation of all or a portion of any Individual Property, (DC) any Rents or security deposits (or any item of Revenue, from whatever source) following an Event of Default, or (ED) any distribution or other payments made in connection with any part of the Collateral or Senior Mezzanine Collateral;
(iii) the misappropriation, conversion or misapplication by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any security deposits or Rents paid more than one (1) month in advance;
(ivvi) failure to pay charges for labor or materials or other charges or judgments that can create Liens on any act of actual intentional physical waste by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor;
(v) the breach portion of any representation, warranty, covenant or indemnification provision in the Environmental Indemnity Agreement concerning environmental laws, hazardous substances and asbestos and any indemnification of Lender with respect thereto in either document;
Individual Property (vi) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company fails to obtain other than resulting from Lender’s prior consent failure to any voluntary intentional Transfer as required by this Agreementpay Taxes from the Tax and Insurance Escrow Fund or to pay for Replacements from the Replacement Reserve Fund provided that (A) no other Event of Default shall then exist, (B) Borrower has performed all of its obligations under Sections 5.1.2, 7.2 and 7.3 hereof, and (C) sufficient funds are then on deposit therein and such funds are allocated for the Mortgage Loan Agreement payment of such Taxes or the Mortgagessuch Replacements, as applicable;); or
(vii) any security deposits, advance deposits or any other deposits collected with respect to any of the Properties Individual Property which are not delivered to Mortgage Lender upon a foreclosure of any of the Properties such Individual Property or action in lieu thereof, except to the extent any such security deposits were applied in accordance with the terms and conditions of any of the Leases prior to the occurrence of the Event of Default that gave rise to such foreclosure or action in lieu thereof;
(viii) in any failure to comply with Section 3.1(d) of the event of:
(A) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company Cash Management Agreement or any Guarantor filing a voluntary petition under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (B) the filing of an involuntary petition against Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law by any Person in which Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of their respective Affiliates, agents or employees colludes if Borrower fails to cooperate with or such other Person, or Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor soliciting or causing otherwise interferes with Lender’s election to be solicited petitioning creditors for any involuntary petition against Borrower, Operating Company or any Guarantor from any Person; (Cdeliver Tenant Direction Letters pursuant to Section 3.1(e) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing an answer consenting to or otherwise acquiescing in or joining in any involuntary petition filed against it by any other Person, other than Lender, under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (D) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor consenting to or acquiescing in or joining in an application for the appointment of a custodian, receiver, trustee, or examiner for Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of the Properties, the Collateral, the Senior Mezzanine Collateral or any portion thereof, other than at the request of Lender; or (E) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor making an assignment for the benefit of creditors (other than Lender), or admitting, in writing or in any legal proceeding, its insolvency or inability to pay its debts as they become dueCash Management Agreement;
(ix) with respect to the Individual Property known as Four Seasons located in Elkhart, Indiana, if Borrowerthe License Agreement dated on or about of even date herewith by and between Sun Secured Financing LLC and Sun Four Seasons LLC shall be amended, Senior Mezzanine modified or terminated for any reason without Lender’s prior written consent, of if the Tenants at such Individual Property are denied the rights granted by such License Agreement, except that such License Agreement maybe terminated as specifically provided therein;
(x) if any Individual Borrower fails to permit on-site inspections of any Individual Property, fails to provide financial information, or fails to appoint a new property manager upon the request of Lender made in accordance with the terms and provisions of this Agreement;
(xi) if any Individual Borrower or Mortgage Borrower Principal fails to maintain its status as a Special Purpose Entity or breaches comply with any material representation representation, warranty or warranty covenant set forth in Section 4.1.30 or Section 4.1.39 hereof in accordance with the terms and provisions of this Agreement; andor
(xxii) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower applicable Legal Requirements relating to discontinuance or Operating Company fails to obtain Lender’s prior consent to any voluntary Indebtedness (other than (x) with respect to Mortgage Borrower, Permitted Indebtedness and (y) with respect to Operating Company, Permitted Indebtedness (Operating Company), as applicable) or voluntary Lien (other than Permitted Encumbrances) encumbering any destruction when the use of a property is legal nonconforming shall prohibit that portion of the PropertiesIndividual Property known as Lake San Marino located in Naples, Senior Mezzanine Collateral Florida, which is currently being used as a mobile home park, from being used as a mobile home park in the future as a result of a prior destruction or Collateral as required by this Agreement, the Senior Mezzanine Loan Agreement, the Mortgage Loan Agreement, the Pledge Agreement or the Mortgagesdiscontinuance of use. Notwithstanding anything to the contrary under this Agreement, neither any present or future Affiliate of Borrower (other than Guarantor, to the extent provided under the Guaranty) nor any present or future shareholder, officer, director, employee, trustee, beneficiary, advisor, partner, member, principal, participant or agent of or in any Borrower or of or in any person or entity that is or becomes an Affiliate of any Borrower shall have any personal liability, directly or indirectly, under or in connection with the Loan Documents. Neither the negative capital account of any Affiliate of Borrower in Borrower, or in any other Affiliate of Borrower in any other Affiliate of Borrower, nor any obligation of any Affiliate of Borrower in any Borrower to restore a negative capital account or to contribute or loan capital to any Borrower or to any other Affiliate of Borrower shall at any time be deemed to be the property or an asset of any Borrower (or any other Affiliate of Borrower) and neither Lender nor its successors or assigns shall have any right to collect, enforce or proceed against any such negative capital account or obligation to restore, contribute or loan capital.
(b) Notwithstanding anything to the contrary in this Agreement, the Note or any of the Loan Documents, (A) Lender shall not be deemed to have waived any right which Lender may have under Section 506(a), 506(b), 1111(b) or any other provisions of the Bankruptcy Code to file a claim for the full amount of the Indebtedness Debt secured by the Mortgages or to require that all collateral shall continue to secure all of the Indebtedness Debt owing to Lender in accordance with the Loan Documents, and (B) the Debt shall be fully recourse to Individual Borrower (i) in the event of: (a) any Individual Borrower or Principal filing a voluntary petition under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (b) the filing of an involuntary petition against any Individual Borrower or Principal under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law in which such Individual Borrower, Principal or Guarantor colludes with, or otherwise assists such Person, or solicits or causes to be solicited petitioning creditors for any involuntary petition against such Individual Borrower or Principal from any Person; (c) any Individual Borrower or Principal filing an answer consenting to or otherwise acquiescing in or joining in any involuntary petition filed against it, by any other Person under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (d) any Individual Borrower or Principal consenting to or acquiescing in or joining in an application for the appointment of a custodian, receiver, trustee, or examiner for such Individual Borrower or Principal or any portion of the Individual Property; (e) any Individual Borrower or Principal making an assignment for the benefit of creditors, or admitting, in writing or in any legal proceeding, its insolvency or inability to pay its debts as they become due; (ii) if the first full monthly payment of principal and interest on the Note is not paid when due; (iii) if any Individual Borrower or Principal fails to maintain its status as a Special Purpose Entity or comply with any representation, warranty or covenant set forth in Section 4.1.30 or Section 4.1.39 hereof and there is a substantive consolidation of the assets and liabilities of any such Individual Borrower or Principal with those of any Person other than Borrower or Principal; (iv) if Individual Borrower fails to obtain Lender’s prior written consent to any Indebtedness or voluntary Lien encumbering the Individual Property; (v) if Individual Borrower fails to obtain Lender’s prior written consent to any Transfer to the extent required by this Agreement or the Mortgages.
Appears in 1 contract
Sources: Loan Agreement (Sun Communities Inc)
Exculpation. (a) Subject to the qualifications below, Lender shall not enforce any of the liability liabilities or obligations of Borrower, Principal or Guarantor (except as set forth in the Guaranty and obligation the Environmental Indemnity), or any other Restricted Party or an Affiliate of Borrower any one of the foregoing (collectively, the "Exculpated Parties" and, individually, an "Exculpated Party") to perform and observe the obligations contained in the Note, this Agreement, the Pledge Agreement or any of the other Loan Documents (including, solely in the case of Borrower, any indemnification agreement delivered pursuant to Section 9.2(b) hereof), by any action or proceeding wherein a money judgment shall be sought against BorrowerBorrower or any other Exculpated Party, 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 and 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 or any other Exculpated Party only to the extent of Borrower’s the interest of Borrower or of such Exculpated Party, as the case may be, 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 ▇▇▇ for, seek or demand any deficiency judgment against Borrower or any Exculpated Party 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,
(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 Agreement; (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 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 (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 reasonable attorneys’ ' fees and costs disbursements reasonably incurred) arising out of or in connection with any of the following:
(iA) fraud or intentional misrepresentation by Borrower, Senior Mezzanine Borrower, Mortgage Borrower, Maryland Owner, Operator, Master Tenant or Guarantor in connection with the Loan;
(B) damage to the Properties caused by actual, physical waste by Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor in connection with the execution and delivery of the Loan Documents and/or the Loan;
(ii) the misappropriation, conversion or misapplication in contravention of the Loan Documents by Borrower, Mortgage Borrower, Senior Mezzanine BorrowerMaryland Owner, Operating Company Operator or any Guarantor of any funds Master Tenant or the gross negligence or willful misconduct of Borrower, Senior Mezzanine Borrower, Mortgage Borrower Borrower, Maryland Owner, Operator or Operating Company, including, without limitation, (A) any Revenues, (B) any Net Liquidation Proceeds or Insurance Proceeds, (C) any Awards received in connection with a Condemnation, (D) any Rents or security deposits (or any item of Revenue, from whatever source) following an Event of Default, or (E) any distribution or other payments made in connection with any part of the Collateral or Senior Mezzanine CollateralMaster Tenant;
(iii) the misappropriation, conversion or misapplication by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any security deposits or Rents paid more than one (1) month in advance;
(iv) any act of actual intentional physical waste by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor;
(vC) the breach of any representation, warranty, covenant or indemnification provision in the Environmental Indemnity or in the Pledge Agreement concerning any environmental laws, hazardous substances and asbestos and any indemnification of Lender with respect thereto in either document;
(viD) if Borrowerthe removal or disposal of any portion of the Properties, Mortgage Borrower, the Senior Mezzanine Borrower Collateral or Operating Company fails to obtain Lender’s prior consent to any voluntary intentional Transfer as required by this Agreementthe Collateral after and during the continuation of an Event of Default, the a Senior Mezzanine Loan Event of Default or a Mortgage Loan Agreement or the Mortgages, as applicableEvent of Default;
(viiE) any security deposits, advance deposits the misappropriation or any other deposits collected with respect to any of the Properties which are not delivered to Mortgage Lender upon a foreclosure of any of the Properties or action in lieu thereof, except to the extent any such security deposits were applied in accordance with the terms and conditions of any of the Leases prior to the occurrence of the Event of Default that gave rise to such foreclosure or action in lieu thereof;
(viii) in the event of:
(A) Borrower, Mortgage conversion by Borrower, Senior Mezzanine Borrower, Operating Company Mortgage Borrower, Maryland Owner, Operator or Master Tenant of (I) any Guarantor filing Insurance Proceeds paid by reason of any Casualty, (II) any Awards received in connection with a voluntary petition under Condemnation, (III) any Rents following and during the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (B) the filing continuation of an involuntary petition against Event of Default, (IV) any Rents paid more than one (1) month in advance, (V) any Net Liquidation Proceeds After Debt Service or (VI) any amounts disbursed from the Low DSCR Interest Floor Reserve Account such that they are not used or applied for the express purposes set forth in Section 7.1.2;
(F) if any or all of the limited liability companies constituting Borrower fails to (i) maintain its status as a Special Purpose Entity, as required by, and in accordance with, the terms and provisions of this Agreement or (ii) cause Senior Mezzanine Borrower, Mortgage Borrower, Senior Mezzanine BorrowerMaryland Owner, Operating Company Principal, Operator or any Guarantor under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law by any Person in which Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of their respective Affiliates, agents or employees colludes with or such other Person, or Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor soliciting or causing to be solicited petitioning creditors for any involuntary petition against Borrower, Operating Company or any Guarantor from any Person; (C) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing an answer consenting to or otherwise acquiescing in or joining in any involuntary petition filed against it by any other Person, other than Lender, under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (D) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor consenting to or acquiescing in or joining in an application for the appointment of a custodian, receiver, trustee, or examiner for Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of the Properties, the Collateral, the Senior Mezzanine Collateral or any portion thereof, other than at the request of Lender; or (E) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor making an assignment for the benefit of creditors (other than Lender), or admitting, in writing or in any legal proceeding, its insolvency or inability to pay its debts as they become due;
(ix) if Borrower, Senior Mezzanine Borrower or Mortgage Borrower fails Master Tenant to maintain its status as a Special Purpose Entity Entity, each as required by, and in accordance with, the terms and provisions of the applicable Senior Mezzanine Loan Agreement or breaches any material representation the Mortgage Loan Agreement or warranty set forth the Leases (in Section 4.1.30 of this Agreement; and
each case except with respect to the obligation to remain solvent, maintain adequate capital and pay its debts as they become due (x) if unless funds are available to pay such debts, and Borrower, Senior Mezzanine Borrower, Mortgage Borrower, Maryland Owner, Operator, Principal or Master Tenant, as applicable, fails to do so));
(G) any amounts actually received by (i) Senior Mezzanine Borrower, Mortgage Borrower, Maryland Owner, or Master Tenant that are not deposited into the applicable Senior Mezzanine Deposit Account or the Mortgage Cash Management Account to the extent required to be so deposited pursuant to the applicable Senior Mezzanine Loan Agreement or the Mortgage Loan Agreement or under the Rent Instruction, the Leases, the applicable Senior Mezzanine Cash Management Agreement or under the Mortgage Cash Management Agreement or (ii) Borrower that are not deposited into the Seventh Mezzanine Deposit Account to the extent required to be so deposited pursuant to any Loan Document;
(H) if any or all of the limited liability companies constituting Borrower, Senior Mezzanine Borrower, Mortgage Borrower or Operating Company Maryland Owner fails to obtain Lender’s 's prior consent to any Indebtedness for borrowed money or voluntary Indebtedness Liens encumbering the Collateral not otherwise permitted by any Loan Document; and
(other than (xI) with respect to Mortgage Borrowerany breach of any representation, Permitted Indebtedness and (y) with respect to Operating Company, Permitted Indebtedness (Operating Company), as applicablewarranty or covenant in Section 4(b) or voluntary Lien (other than Permitted Encumbrancesc) encumbering any of the Properties, Senior Mezzanine Collateral or Collateral as required by this Pledge Agreement, the Senior Mezzanine Loan Agreement, the Mortgage Loan Agreement, the Pledge Agreement or the Mortgages. Notwithstanding anything to the contrary under this Agreement, neither any present or future Affiliate of Borrower (other than Guarantor, to the extent provided under the Guaranty) nor any present or future shareholder, officer, director, employee, trustee, beneficiary, advisor, partner, member, principal, participant or agent of or in any Borrower or of or in any person or entity that is or becomes an Affiliate of any Borrower shall have any personal liability, directly or indirectly, under or in connection with the Loan Documents. Neither the negative capital account of any Affiliate of Borrower in Borrower, or in any other Affiliate of Borrower in any other Affiliate of Borrower, nor any obligation of any Affiliate of Borrower in any Borrower to restore a negative capital account or to contribute or loan capital to any Borrower or to any other Affiliate of Borrower shall at any time be deemed to be the property or an asset of any Borrower (or any other Affiliate of Borrower) and neither Lender nor its successors or assigns shall have any right to collect, enforce or proceed against any such negative capital account or obligation to restore, contribute or loan capital.
(b) Notwithstanding anything to the contrary in this Agreement, the Note or any of the Loan Documents, (i) Lender shall not be deemed to have waived any right which Lender may have under Section 506(a), 506(b), 1111(b) or any other provisions of the Bankruptcy Code to file a claim for the full amount of the Indebtedness Debt secured by the Pledge Agreement or to require that all collateral shall continue to secure all of the Indebtedness Debt owing to Lender in accordance with the Loan Documents, and (ii) the Debt shall be fully recourse to Borrower (A) in the event of: (I) any or all of the limited liability companies constituting Borrower, Senior Mezzanine Borrower, Mortgage Borrower, Maryland Owner, Requisite Operators, Master Tenant or Guarantor filing a voluntary petition under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (II) any or all of the limited liability companies constituting Borrower, Senior Mezzanine Borrower, Mortgage Borrower, Maryland Owner, Requisite Operator, Master Tenant or Guarantor filing an answer consenting to or soliciting or causing to be solicited or otherwise acquiescing in or joining in any involuntary petition filed against it, by any other Person under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law, or soliciting or causing to be solicited petitioning creditors for any involuntary petition from any Person; (III) any or all of the limited liability companies constituting Borrower, Senior Mezzanine Borrower, Mortgage Borrower, Maryland Owner, Requisite Operators, Master Tenant or Guarantor consenting to or acquiescing in or joining in an application for the appointment of a custodian, receiver, trustee, or examiner for any of the limited liability companies constituting Borrower, Senior Mezzanine Borrower, Mortgage Borrower, Maryland Owner, Requisite Operator, Master Tenant or Guarantor or any portion of the Properties; or (IV) any or all of the limited liability companies constituting Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Maryland Owner, Requisite Operators, Master Tenant or Guarantor making an assignment for the benefit of creditors, or admitting, in writing or in any legal proceeding, its insolvency or inability to pay its debts as they become due; (B) Intentionally Omitted; (C) if any or all of the limited liability companies constituting Borrower, Senior Mezzanine Borrower, Mortgage Borrower, Maryland Owner, Operator or Master Tenant fails to obtain Lender's prior consent to any Transfer as required by this Agreement or the Mortgages; or (D) if upon the occurrence and during the continuance of an Event of Default and Lender exercises its remedies on account thereof and accelerates the Loan, Borrower, Senior Mezzanine Borrower, Mortgage Borrower, Maryland Owner, Master Tenant, Operator, Guarantor or any other Restricted Party or any Affiliate thereof interferes in any manner with the exercise of any of the rights, powers, privileges and other remedies available to Lender or Servicer under the Loan Documents or otherwise fails to cooperate (in each case at no cost to Guarantor) to enable Lender to obtain the benefit of, including without limitation, the transfer to Lender or its qualified designee, or cooperation in each case with Lender with respect to the reissuance to Lender or its designee, of all material Health Care Licenses. As used herein "Requisite Operators" shall mean more than 10 individual Operators in the aggregate over the term of this Loan, and shall include in the aggregate all individual Operators that were subject to all subclauses of clause (A) above.
Appears in 1 contract
Sources: Loan Agreement (Hcp, Inc.)
Exculpation. (a) The Loan is non-recourse to Borrower and its direct and indirect partners, except as expressly provided below. 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 or against any holder of direct or indirect interests in 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 ▇▇▇ for, seek or demand any deficiency judgment against Borrower or against any holder of direct or indirect interests in 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) (but excluding any punitive, consequential or speculative damages) 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”):
(ia) fraud or intentional misrepresentation by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor the SPE Party in connection with the execution and delivery of the Loan Documents and/or obtaining the Loan;
(iib) the misappropriation, conversion or misapplication in contravention intentional physical waste of the Loan Documents Property or any portion thereof by Borrower, Mortgage the SPE Party or any Affiliate of Borrower or the SPE Party, or after an Event of Default the removal or disposal by Borrower, Senior Mezzanine Borrower, Operating Company the SPE Party or any Guarantor Affiliate of Borrower or the SPE Party of any funds portion of Borrower, Senior Mezzanine Borrower, Mortgage the Property without replacement;
(c) any Proceeds paid to Borrower or Operating Company, including, without limitation, the SPE Party (Aor any Affiliate of Borrower or the SPE Party) by reason of any Revenues, (B) Insured Casualty or any Net Liquidation Proceeds or Insurance Proceeds, (C) any Awards Award received in connection with a CondemnationCondemnation or other sums or payments attributable to the Property not applied by Borrower in accordance with the provisions of the Loan Documents (except to the extent that Borrower did not have the legal right, because of a bankruptcy, receivership or similar judicial proceeding, to direct disbursement of such sums or payments);
(Dd) any all Rents of the Property received or security deposits collected by or on behalf of the Borrower after an Event of Default and not deposited into the Deposit Account or 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 (except to the extent that such application of such funds is prevented by bankruptcy, receivership, or similar judicial proceeding in which Borrower is legally prevented from directing the disbursement of such sums);
(e) misappropriation by Borrower or the SPE Party (or any item Affiliate of Revenue, from whatever sourceBorrower or the SPE Party) (including failure to turn over to Lender on demand following an Event of Default) of tenant security deposits and rents collected in advance, or (E) any distribution or other payments made in connection with any part of funds held by Borrower for the Collateral or Senior Mezzanine Collateralbenefit of another party;
(iiif) the misappropriationfailure to pay Taxes, conversion provided Borrower 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 misapplication by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any security deposits or (B) Rents paid more than one (1) month in advance;during the tax payment period at issue are insufficient to yield sufficient funds to pay such amounts after the payment of all monthly payments due under the Loan Documents, insurance premiums and other operating and other expenses of the Property; or
(iv) any act of actual intentional physical waste by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor;
(vg) the breach of any representation, warranty, covenant or indemnification provision in the any Loan Document concerning Environmental Indemnity Agreement concerning environmental lawsLaws or Hazardous Substances, hazardous substances including Section 4.21 hereof and asbestos Section 5.8 hereof, and any indemnification of Lender with respect thereto in either document;
(vi) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company fails to obtain Lender’s prior consent to any voluntary intentional Transfer as required by this Agreement, the Mortgage Loan Agreement or the Mortgages, as applicable;
(vii) any security deposits, advance deposits or any other deposits collected with respect to any of the Properties which are not delivered to Mortgage Lender upon a foreclosure of any of the Properties or action in lieu thereof, except to the extent any such security deposits were applied in accordance with the terms and conditions of any of the Leases prior to the occurrence of the Event of Default that gave rise to such foreclosure or action in lieu thereof;
clauses (viii) in the event of:
through (Axi) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing a voluntary petition under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (B) the filing of an involuntary petition against Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law by any Person in which Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of their respective Affiliates, agents or employees colludes with or such other Person, or Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor soliciting or causing to be solicited petitioning creditors for any involuntary petition against Borrower, Operating Company or any Guarantor from any Person; (C) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing an answer consenting to or otherwise acquiescing in or joining in any involuntary petition filed against it by any other Person, other than Lender, under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (D) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor consenting to or acquiescing in or joining in an application for the appointment of a custodian, receiver, trustee, or examiner for Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of the Properties, the Collateral, the Senior Mezzanine Collateral or any portion thereof, other than at the request of Lender; or (E) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor making an assignment for the benefit of creditors (other than Lender), or admitting, in writing or in any legal proceeding, its insolvency or inability to pay its debts as they become due;
(ix) if Borrower, Senior Mezzanine Borrower or Mortgage Borrower fails to maintain its status as a Special Purpose Entity or breaches any material representation or warranty set forth in Section 4.1.30 of this Agreement; and
(x) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company fails to obtain Lender’s prior consent to any voluntary Indebtedness (other than (x) with respect to Mortgage Borrower, Permitted Indebtedness and (y) with respect to Operating Company, Permitted Indebtedness (Operating Company), as applicable) or voluntary Lien (other than Permitted Encumbrances) encumbering any of the Properties, Senior Mezzanine Collateral or Collateral as required by this Agreement, the Senior Mezzanine Loan Agreement, the Mortgage Loan Agreement, the Pledge Agreement or the Mortgages5.30 hereof. Notwithstanding anything to the contrary under this Agreement, neither any present or future Affiliate of Borrower (other than Guarantor, to the extent provided under the Guaranty) nor any present or future shareholder, officer, director, employee, trustee, beneficiary, advisor, partner, member, principal, participant or agent of or in any Borrower or of or in any person or entity that is or becomes an Affiliate of any Borrower shall have any personal liability, directly or indirectly, under or in connection with the Loan Documents. Neither the negative capital account of any Affiliate of Borrower in Borrower, or in any other Affiliate of Borrower in any other Affiliate of Borrower, nor any obligation of any Affiliate of Borrower in any Borrower to restore a negative capital account or to contribute or loan capital to any Borrower or to any other Affiliate of Borrower shall at any time be deemed to be the property or an asset of any Borrower (or any other Affiliate of Borrower) and neither Lender nor its successors or assigns shall have any right to collect, enforce or proceed against any such negative capital account or obligation to restore, contribute or loan capital.
(b) Notwithstanding anything to the contrary in this Agreement, the Note Agreement or any of the Loan Documents, (A) Lender shall not be deemed to have waived any right which Lender may have under Section 506(a), 506(b), 1111(b) or any other provisions of the U.S. Bankruptcy Code to file a claim for the full amount of the Indebtedness Debt or to require that all collateral shall continue to secure all of the Indebtedness owing to Lender Debt in accordance with the Loan Documents, and (B) Lender’s agreement not to pursue personal liability of Borrower as set forth above SHALL BECOME NULL AND VOID and shall be of no further force and effect, and the Debt shall be fully recourse to Borrower in the event that one or more of the following occurs (each, a “Springing Recourse Event”): (i) an Event of Default described in Section 8.1(d) hereof shall have occurred or (ii) a breach of the covenants set forth in Section 5.13 hereof, or (iii) the occurrence of any condition or event described in either Section 8.1(f) hereof or Section 8.1(g) hereof and, with respect to such condition or event described in Section 8.1(g) hereof, either Borrower, the SPE Party or any Person owning an interest (directly or indirectly) in Borrower or the SPE Party consents to, aids, solicits, supports, or otherwise cooperates or colludes to cause such condition or event or fails to contest such condition or event.
Appears in 1 contract
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 ▇s▇▇ 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(a) shall not, however,
, (aA) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (bB) 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; (cC) 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; (dD) impair the right of Lender to obtain the appointment of a receiver; (e) intentionally omitted; (fE) 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:
(i) fraud or intentional misrepresentation by Borrowerany Loan Party, Mortgage BorrowerHRHI, Senior Mezzanine Borrower, Operating Company any Guarantor or any Guarantor of their respective principals, officers, agents or employees in connection with the execution and delivery of the Loan Documents and/or the Loan;
(ii) physical waste to any Property arising from the misappropriationintentional misconduct or gross negligence of any Loan Party, conversion or misapplication in contravention of the Loan Documents by BorrowerHRHI, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company any Guarantor or any Guarantor of their respective principals, officers, agents or employees and/or any removal of any funds asset forming a part of Borrowerany Property in violation of this Agreement or the other Loan Documents;
(iii) Intentionally Omitted;
(iv) the misappropriation or conversion by any Loan Party, Senior Mezzanine Borrower, Mortgage Borrower or Operating Companyby any Person Controlled by any Loan Party, including, without limitation, any Affiliated Manager, a Liquor Manager who is an Affiliate of any Loan Party or a Gaming Operator who is an Affiliate of any Loan Party, by any agent of any Loan Party, or by any other Person with whom any Loan Party shall collude or cooperate, of (A) any RevenuesInsurance Proceeds paid by reason of any Casualty, to the extent so misappropriated or converted; (B) any Net Liquidation Proceeds or Insurance Proceeds, (C) any Awards received in connection with a Condemnation, to the extent so misappropriated or converted; (C) any Rents or other Gross Income from Operations not delivered to Lender following and during the continuance of an Event of Default and not otherwise used to pay actual, customary Operating Expenses reflected on the Approved Annual Budget then in effect, including, without limitation, (I) any income, proceeds or other amounts received by any Loan Party under the Gaming Sublease, and/or (II) without duplication of the foregoing clause (I), any income, proceeds or revenue generated from gaming activities at any Property, in each of the foregoing instances, to the extent so misappropriated or converted; (D) any Rents or security deposits (or any item of Revenue, from whatever source) following an Event of Default, or (E) any distribution or other payments made in connection with any part of the Collateral or Senior Mezzanine Collateral;
(iii) the misappropriation, conversion or misapplication by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any security deposits or Rents paid more than one (1) month in advance;
advance in violation of this Agreement or the other Loan Documents, to the extent so misappropriated or converted; and/or (ivE) any act of actual intentional physical waste by Borrowersecurity deposits, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company to the extent so misappropriated or any Guarantorconverted;
(v) the breach failure of any representationLoan Party to pay (or to deposit into the Mortgage Reserve Funds or the Reserve Funds, warrantyif applicable, covenant amounts sufficient to pay) all Taxes and all other costs giving rise to any Lien on any portion of the Collateral or indemnification provision any Property or the IP with priority over or equal to the Lien of the Loan Documents in violation of this Agreement or the Environmental Indemnity Agreement concerning environmental lawsother Loan Documents, hazardous substances and asbestos and any indemnification of Lender with respect thereto in either documentto the extent that there is sufficient Gross Income from Operations to make such payments (or deposits, as applicable);
(vi) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company fails to obtain Lender’s prior consent to any voluntary intentional Transfer as required by this Agreement, the Mortgage Loan Agreement or the Mortgages, as applicable;
(vii) any security deposits, advance deposits or any other deposits collected with respect to any of the Properties which are not delivered to Mortgage Lender upon a foreclosure of any of the Properties or action in lieu thereof, except to the extent any such security deposits were applied in accordance with the terms and conditions of any of the Leases prior to the occurrence of the Event of Default that gave rise to such foreclosure or action in lieu thereof;
(viii) in the event of:
(A) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing a voluntary petition under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (B) the filing of an involuntary petition against Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law by any Person in which Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of their respective Affiliates, agents or employees colludes with or such other Person, or Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor soliciting or causing to be solicited petitioning creditors for any involuntary petition against Borrower, Operating Company or any Guarantor from any Person; (C) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing an answer consenting to or otherwise acquiescing in or joining in any involuntary petition filed against it by any other Person, other than Lender, under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (D) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor consenting to or acquiescing in or joining in an application for the appointment of a custodian, receiver, trustee, or examiner for Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of the Properties, the Collateral, the Senior Mezzanine Collateral or any portion thereof, other than at the request of Lender; or (E) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor making an assignment for the benefit of creditors (other than Lender), or admitting, in writing or in any legal proceeding, its insolvency or inability to pay its debts as they become due;
(ix) if Borrower, Senior Mezzanine Borrower or Mortgage Borrower Party fails to maintain its status as a Special Purpose Entity as required pursuant to the terms hereof;
(vii) if any Loan Party fails to obtain Lender’s consent to any subordinate financing, mortgage or breaches other voluntary Lien encumbering the Collateral, any material representation Property or warranty the IP other than Permitted Encumbrances and Permitted IP Encumbrances;
(viii) the failure to maintain insurance coverage under blanket insurance policies to the extent permitted under this Agreement;
(ix) if any of the events set forth in clauses (a), (b) or (c) of Section 4.1.30 5.2.11 hereof shall occur without the prior approval of this Agreement; andLender;
(x) if Borrowerany of the restrictions to Transfer set forth in Section 5.2.10 hereof or in any of the other Loan Documents are violated;
(xi) if Lender or any Affiliate thereof shall succeed to the interest of HRHI under the Gaming Sublease following a foreclosure, Mortgage Borrowerdeed in lieu of foreclosure or similar transfer, Senior Mezzanine Borrower any actual loss, cost, damage or Operating Company fails expense (including, without limitation, reasonable attorneys’ fees and expenses) suffered by Lender or such Affiliate as a result of: (A) any act, omission, neglect or default of HRHI under the Gaming Sublease, (B) any claim, defense, counterclaim or offset which the Gaming Operator may have under the Gaming Sublease against HRHI, (C) any obligation to obtain Lendermake any payment to the Gaming Operator under the Gaming Sublease which was required to be made by or on behalf of HRHI prior to the time Lender or such Affiliate succeeded to HRHI’s prior consent interest under the Gaming Sublease, (D) any monies deposited with HRHI under the Gaming Sublease, except to the extent such monies are actually received by Lender or such Affiliate, (E) any voluntary Indebtedness obligation to complete or permit the construction of any improvements under the Gaming Sublease arising while HRHI was the sublandlord under the Gaming Sublease, and/or (other than F) any default by HRHI under the Gaming Lease beyond applicable notice and cure periods;
(xxii) if HRHI or any Affiliate thereof shall send a notice to Gaming Operator under Section 6(a), (c) or (d) of the Gaming Recognition Agreement which conflicts with respect any notice theretofore sent by Lender to Mortgage BorrowerGaming Operator under said Section 6(a), Permitted Indebtedness and (yc) with respect to Operating Company, Permitted Indebtedness or (Operating Companyd), as applicable, of the Gaming Recognition Agreement; provided, however, that the liability under this clause (xii) shall be limited to all fees and costs incurred by Gaming Operator in bringing and pursuing any interpleader action contemplated by said Section 6(a), (c) or voluntary Lien (other than Permitted Encumbrancesd), as applicable, and only to the extent that Gaming Operator seeks to recover and/or does recover such fees and expenses from Lender;
(xiii) encumbering any if HRHI shall fail to provide Gaming Employees for the operation of gaming activities at the Hotel/Casino Property as and to the extent required pursuant to Paragraph 7 of the PropertiesHRHI Gaming Agreement;
(xiv) in the event that Gaming Borrower shall ever become the Gaming Operator pursuant to Article XII hereof, Senior Mezzanine Collateral if Gaming Borrower thereafter shall fail to provide gaming operation services for the Hotel/Casino Property following an Event of Default or Collateral a foreclosure of the Mortgage as and to the extent required by this pursuant to Section 12.1(e) hereof;
(xv) in the event that HRHI, Gaming Borrower, any other Loan Party or any Affiliate thereof shall be the Liquor Manager, if HRHI, Gaming Borrower, such other Loan Party or such Affiliate thereof shall fail to provide liquor management services for the Hotel/Casino Property following an Event of Default or a foreclosure of the Mortgage as and to the extent required (A) as to HRHI, pursuant to Sections 5(a) or 5(b) of the Assignment of Liquor Management Agreement, as applicable, and (B) as to Gaming Borrower, any other Mortgage Borrower or any Affiliate thereof, pursuant to Section 5.1.23(c) hereof;
(xvi) in connection with the Senior Mezzanine Loan Agreement$250,000.00 lease termination fee pursuant to Section 3.2(B) of that certain Lease by and between PM Realty, LLC and HRHI, as landlord, and M▇. ▇▇▇▇ of Las Vegas, LLC, as tenant, dated December 24, 2004;
(xvii) as a result of the imposition of any tax provided in NRS §§375.020 and 375.023 with respect to the merger transaction contemplated under the Merger Agreement and/or the subsequent conveyance of the Hotel/Casino Property (A) to HRHH Gaming Junior Mezz, LLC, and then (B) to Gaming Mezz Borrower, and then (iii) to Hotel/Casino Borrower, provided, however, that any liability under this clause (xvii) shall terminate upon the payment in full of the Debt;
(xviii) as a result of Adjacent Borrower selling or attempting to sell any Partial Release Parcel or any Partial Adjacent Parcel in accordance with the procedures set forth in Section 2.5.1(f) or 2.5.2(f) of the Mortgage Loan Agreement, as applicable, rather than pursuant to a customary direct deed transfer, including, without limitation, (A) the Pledge Agreement or the Mortgages. Notwithstanding anything to the contrary under this Agreement, neither any present or future Affiliate of Borrower (other than Guarantor, to the extent provided under the Guaranty) nor any present or future shareholder, officer, director, employee, trustee, beneficiary, advisor, partner, member, principal, participant or agent of or in any Borrower or of or in any person or entity that is or becomes an Affiliate imposition of any Borrower shall have any personal liabilitytax (including interest and penalties) provided in NRS §§375.020 and 375.023, directly or indirectly, under or (B) in connection with the Loan Documents. Neither the negative capital account of any Affiliate of Borrower in Borrower, Bankruptcy Action filed by or in any other Affiliate of Borrower in any other Affiliate of Borrower, nor any obligation of any Affiliate of Borrower in any Borrower to restore a negative capital account or to contribute or loan capital to any Borrower or to any other Affiliate of Borrower shall at any time be deemed to be the property or an asset of any Borrower (or any other Affiliate of Borrower) and neither Lender nor its successors or assigns shall have any right to collect, enforce or proceed against any Subsidiary Transferee prior to or following the consummation of such negative capital account sale, and/or (C) in connection with any delay in accomplishing any of the steps identified in said Section 2.5.1(f) or obligation to restore2.5.2(f) of the Mortgage Loan Agreement, contribute or loan capital.as applicable; and/or
(bxix) any Interest Shortfall existing on any Payment Date (A) occurring after February 2, 2008, if on or after February 2, 2008 the Gaming Operating Condition is not satisfied, and (B) ending with (and including) the May 9, 2008 Payment Date. Notwithstanding anything to the contrary in this Agreement, the Note or any of the other Loan Documents, (A) Lender shall not be deemed to have waived any right which Lender may have under Section 506(a), 506(b), 1111(b) or any other provisions of the Bankruptcy Code to file a claim for the full amount of the Indebtedness Debt secured by the Pledge Agreement or to require that all collateral shall continue to secure all of the Indebtedness Debt owing to Lender in accordance with the Loan Documents., and (B) the Debt shall be fully recourse to Borrowers in the event of: (i) any Loan Party, HRHI or both Guarantors filing a voluntary petition under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (ii) the filing of an involuntary petition against any Loan Party, HRHI or both Guarantors under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law by or on behalf of any Person other than Lender, and such petition is not dismissed within ninety (90) days after filing, or any Loan Party, or any Affiliate of any of them who Controls any Loan Party, or HRHI or both Guarantors, solicit or cause to be solicited petitioning creditors for any involuntary petition against any Loan Party, HRHI or both Guarantors from any Person (other than if requested to do so by or on behalf of Lender); (iii) any Loan Party, HRHI or both Guarantors filing an answer consenting to, or any Loan Party, HRHI or both Guarantors, or any Affiliate of any of them who Controls any Loan Party, otherwise consenting to or acquiescing or joining in, any involuntary petition filed against any Loan Party, HRHI or both Guarantors, by any other Person (other than if filed by or on behalf of Lender) under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (iv) any Loan Party, HRHI or both Guarantors, or any Affiliate of any of them who Controls any Loan Party, consenting to or acquiescing or joining in an application for the appointment of a custodian, receiver, trustee or examiner for any Loan Party or any portion of any Property or any portion of the IP or the Collateral (other than any such appointment at the request or petition of Lender); (v) any Loan Party, HRHI or both Guarantors voluntarily making an assignment for the benefit of creditors (other than Lender), or admitting, in writing or in any legal proceeding, its insolvency or inability to pay its debts as they become due; and/or (vi) Gaming Mezz Borrower failing to comply, or cause compliance by the applicable Loan Party, with the requirements of the Gaming Laws to obtain the approval of the Gaming Authorities of the pledge of the Gaming Securities pursuant to Section 17(b) of the Pledge Agreement (it being understood and agreed that Borrowers shall have no liability under this clause (vi) to the extent arising from the failure of Lender to reasonably cooperate with the Gaming Authorities in connection with such Gaming Law requirements to the extent necessary); unless, in the case of any of the foregoing clauses (i), (ii), (iii), (iv), (v) or (vi) as it relates to or affects both Guarantors, one or more guarantors acceptable to Lender in its sole discretion remains or becomes a guarantor of the Loan. Notwithstanding anything to the contrary in this Agreement or any other Loan Document, and except for (1) Guarantors’ obligations under the Non-Recourse Guaranty, the Non-Qualified Prepayment Guaranty, the Closing Completion Guaranty and the Construction Completion Guaranty, (2) HRHI’s obligations under the HRHI Guaranty, and (3) with respect to the DLJ Guarantor, DLJ Merchant Banking Partners IV, L.P., MBP IV Plan Investors, L.P., DLJMB HRH Co-Investments, L.P., DLJ Offshore Partners IV, L.P., and DLJ Merchant Banking Partners IV (Pacific), L.P. (such limited partnerships, collectively, the “DLJMB Parties”) as provided in the DLJMB Commitment Letter, no present or future Constituent Member in any Borrower, nor any present or future shareholder, officer, director, employee, trustee, beneficiary, advisor, member, partner, principal, participant or agent of or in any Borrower or of or in any Person that is or becomes a Constituent Member in any Borrower, shall have any personal liability, directly or indirectly, under or in connection with this Agreement or any of the Loan Documents, or any amendment or amendments to any of the foregoing made at any time or times, heretofore or hereafter, and Lender on behalf of itself and its successors and assigns, hereby waives any and all such personal liability. In addition, Lender, for itself and its successors and assigns, acknowledges and agrees that neither Borrowers, nor any Constituent Member, nor any other party, is assuming any personal liability, directly or indirectly, under or in connection with any agreement, lease, instrument, claim or right constituting a part of any Property, the IP or the Collateral or to which any Property, the IP or the Collateral is now or hereafter subject, except as may be expressly set forth therein. For purposes of this Agreement and each of the other Loan Documents, neither the negative capital account of any Constituent Member in any Borrower nor any obligation of any Constituent Member in any Borrower to restore a negative capital account or to contribute or loan capital to any Borrower or to any other Constituent Member in any Borrower shall at any time be deemed to be the property or an asset of such Borrower (or any such other Constituent Member) and neither Lender nor any of its successors or assigns shall have any right to collect, enforce or proceed against any Constituent Member with respect to any such negative capital
Appears in 1 contract
Sources: Third Mezzanine Loan Agreement (Morgans Hotel Group Co.)
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 ▇▇▇ 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:
(i) fraud or intentional misrepresentation by any Individual Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company Principal or any Guarantor in connection with the execution and delivery of the Loan Documents and/or the Loan;
(ii) the misappropriation, conversion gross negligence or misapplication in contravention willful misconduct of the Loan Documents by any Individual Borrower, Mortgage Principal or Guarantor;
(iii) material physical waste of any Individual Property;
(iv) the removal or disposal of any portion of any Individual Property after an Event of Default;
(v) the misapplication or conversion by any Individual Borrower, Senior Mezzanine Borrower, Operating Company Principal or any Guarantor of any funds of Borrower, Senior Mezzanine Borrower, Mortgage Borrower or Operating Company, including, without limitation, (A) any RevenuesInsurance Proceeds paid by reason of any loss, damage or destruction to any Individual Property which are not applied by Borrower in accordance with this Agreement, (B) any Net Liquidation Proceeds or Insurance Proceeds, (C) any Awards received in connection with a CondemnationCondemnation of all or a portion of any Individual Property which are not applied by Borrower in accordance with this Agreement, (DC) any Rents or security deposits (or any item of Revenue, from whatever source) following an Event of Default, or (ED) any distribution or other payments made in connection with any part of the Collateral or Senior Mezzanine Collateral;
(iii) the misappropriation, conversion or misapplication by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any security deposits or Rents paid more than one (1) month in advance;
(ivvi) failure to pay charges for labor or materials or other charges or judgments that can create Liens on any act of actual intentional physical waste by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor;
(v) the breach portion of any representationIndividual Property (other than resulting from Lender’s failure to pay Taxes from the Tax and Insurance Escrow Fund provided that (A) no other Event of Default shall then exist, warranty(B) each of Borrower has performed all of its respective obligations under Sections 5.1.2 and 7.2 hereof, covenant or indemnification provision in and (C) sufficient funds are then on deposit therein and such funds are allocated for the Environmental Indemnity Agreement concerning environmental lawspayment of such Taxes), hazardous substances and asbestos and any indemnification provided, that, if (i) such Lien is fully bonded to the satisfaction of Lender with respect thereto in either document;
(viwhich bond shall create no obligations on the part of Borrower), and (ii) if Borrowersuch Lien is discharged of record, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company fails shall not have any liability to obtain Lender’s prior consent to any voluntary intentional Transfer as required by Lender for such Lien under this Agreement, the Mortgage Loan Agreement or the Mortgages, as applicableSection 9.3;
(vii) failure to appoint a new property manager upon the request of Lender as permitted under this Agreement;
(viii) any security deposits, advance deposits or any other deposits collected with respect to any of the Properties Individual Property which are not delivered to Mortgage Lender upon a foreclosure of any of the Properties such Individual Property or action in lieu thereof, except to the extent any such security deposits were applied in accordance with the terms and conditions of any of the Leases prior to the occurrence of the Event of Default that gave rise to such foreclosure or action in lieu thereof;
(viiiix) any materially incorrect or inaccurate statement, representation or certification set forth in any estoppel from Borrower dated on or about the event of:date hereof and delivered in connection with the closing of the Loan; provided, however, that upon Borrower providing to Lender an estoppel certificate from Dollar General with respect to each Dollar General Lease on Lender’s or Dollar General’s standard form of estoppel in form and substance reasonably satisfactory to Lender, Borrower shall not have any further liabilities or obligations to Lender under this Section 9.3(g)(x); or
(Ax) Borrowerrelating, Mortgage Borrowerdirectly or indirectly, Senior Mezzanine Borrowerto any failure of the Individual Property located in Robertsdale, Operating Company Alabama to be comprised of one (1) or more parcels which constitute a separate tax lot or lots; provided, however, that upon Borrower providing to Lender evidence satisfactory to Lender that the relevant taxing authority has assigned such separate tax parcel identification numbers to such Individual Property, Borrower shall not have any Guarantor further liabilities or obligations to Lender under this Section 9.3(g)(x) to the extent that such liabilities and/or obligations first arose on or after such date.
(a) Borrower or Principal filing a voluntary petition under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (Bb) the filing of an involuntary petition against Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company any Individual Borrower or any Guarantor Principal under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law by any Person in which any Individual Borrower, Mortgage BorrowerPrincipal or Guarantor colludes with, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of their respective Affiliates, agents or employees colludes with or otherwise assists such other Person, or Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company solicits or any Guarantor soliciting or causing causes to be solicited petitioning creditors for any involuntary petition against Borrower, Operating Company any Individual Borrower or any Guarantor Principal from any Person; (Cc) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company any Individual Borrower or any Guarantor Principal filing an answer consenting to or otherwise acquiescing in or joining in any involuntary petition filed against it it, by any other Person, other than Lender, Person under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (Dd) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company any Individual Borrower or any Guarantor Principal consenting to or acquiescing in or joining in an application for the appointment of a custodian, receiver, trustee, or examiner for Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company any Individual Borrower or Principal or any Guarantor or any of the Properties, the Collateral, the Senior Mezzanine Collateral Individual Property (or any portion thereof, other than at the request of Lender); (e) any Individual Borrower or (E) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor Principal making an assignment for the benefit of creditors (other than Lender)creditors, or admitting, admitting in writing or in any legal insolvency or bankruptcy proceeding, its insolvency or inability to pay its debts as they become due;
; (ixii) if the first full monthly payment under the Note not being paid within five (5) days of notice that such payment is late (provided, however, that such grace period relates only to the recourse trigger described in this paragraph); (iii) if any Individual Borrower fails to permit on-site inspections of any Individual Property (subject to the rights of tenants), or fails to provide financial information subject to any applicable cure period (except for financial information required to be delivered by a tenant pursuant to the applicable Lease that has not been delivered to any Individual Borrower, Senior Mezzanine provided such Individual Borrower or Mortgage has requested such financial information from such tenant); (iv) if any Individual Borrower fails to maintain its status as a Special Purpose Entity or Entity, breaches any material representation or fails to comply with any warranty or covenant set forth in Section 4.1.30 of this Agreementhereof; and
(xv) if Borrower, Mortgage Borrower, Senior Mezzanine any Individual Borrower or Operating Company any Principal fails to obtain Lender’s prior written consent (to extent such consent is required) to any Indebtedness or other voluntary Indebtedness Lien; or (other than vi) the failure of any Individual Borrower to obtain Lender’s prior written consent (xto extent such consent is required) with respect to Mortgage Borrower, Permitted Indebtedness and (y) with respect to Operating Company, Permitted Indebtedness (Operating Company), as applicable) or voluntary Lien (other than Permitted Encumbrances) encumbering any of the Properties, Senior Mezzanine Collateral or Collateral Transfer as required by this Agreement, the Senior Mezzanine Loan Agreement, the Mortgage Loan Agreement, the Pledge Agreement or the Mortgages. Notwithstanding anything the provision set forth in clause (v) of this paragraph, a voluntary Lien other than a Lien securing an extension of credit filed against any Individual Property shall not constitute a full recourse trigger for purposes of this paragraph provided such Lien (A) is fully bonded to the contrary under this Agreementsatisfaction of Lender and discharged of record within ninety (90) days of filing, neither or (B) within such ninety (90) day period, Lender receives affirmative title insurance from the title insurance company insuring the lien of the applicable Mortgage that such Lien is subject and subordinate to the lien of such Mortgage and no enforcement action is commenced by the applicable Lien holder. Upon the satisfaction of the conditions set forth in the preceding sentence with respect to the recourse trigger described in clause (v) above, or the acceptance by Lender of any present cure by Borrower of a recourse trigger described in clauses (ii), (iii) or future Affiliate (vi) above (which Lender is not obligated to accept and may reject or accept in its sole and absolute discretion), the Debt shall no longer be fully recourse to Borrower solely as a result of such trigger, provided, however, Borrower (other than Guarantor, shall remain liable to the extent provided under the Guaranty) nor any present or future shareholder, officer, director, employee, trustee, beneficiary, advisor, partner, member, principal, participant or agent of or in any Borrower or of or in any person or entity that is or becomes an Affiliate of any Borrower shall have any personal loss, damage, cost, expense, liability, directly claim or indirectly, under other obligation incurred by Lender (including attorneys’ fees and costs reasonably incurred) arising out of or in connection with the Loan Documents. Neither the negative capital account of any Affiliate of Borrower in Borrower, or in any other Affiliate of Borrower in any other Affiliate of Borrower, nor any obligation of any Affiliate of Borrower in any Borrower to restore a negative capital account or to contribute or loan capital to any Borrower or to any other Affiliate of Borrower shall at any time be deemed to be the property or an asset of any Borrower (or any other Affiliate of Borrower) and neither Lender nor its successors or assigns shall have any right to collect, enforce or proceed against any such negative capital account or obligation to restore, contribute or loan capitaltrigger.
(b) Notwithstanding anything to the contrary in this Agreement, the Note or any of the Loan Documents, Lender shall not be deemed to have waived any right which Lender may have under Section 506(a), 506(b), 1111(b) or any other provisions of the Bankruptcy Code to file a claim for the full amount of the Indebtedness or to require that all collateral shall continue to secure all of the Indebtedness owing to Lender in accordance with the Loan Documents.
Appears in 1 contract
Sources: Loan Agreement (Inland Real Estate Income Trust, Inc.)
Exculpation. (a) Subject to the qualifications belowset forth in this Section 9.3, Lender shall not enforce the liability and obligation of Borrower or Operating Lessee to perform and observe the its respective obligations contained in the NoteNote (as to Borrower), this Agreement, the Pledge Agreement or the any other Loan Documents Document to which it is a party by any action or proceeding wherein a money judgment shall be sought against BorrowerBorrower or Operating Lessee, 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 Operating Lessee only to the extent of Borrower’s or Operating Lessee’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 ▇▇▇ for, seek or demand any deficiency judgment against Borrower or Operating Lessee 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,
, (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 or Operating Lessee 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 omittedimpair the enforcement of any assignment of leases contained in the Mortgage; 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 Mortgage or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against all of the Collateral; Property.
(b) Nothing contained herein shall in any manner or (g) constitute a waiver of way release, affect or impair 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, expense, liability, claim or other obligation to the extent actually incurred by Lender (including reasonable attorneys’ fees and costs reasonably incurred) arising out of or incurred in connection with the followingfollowing actions or omissions on the part of Guarantor, Borrower, Operating Lessee, any Affiliated Manager or any Affiliate of Guarantor, Borrower, Operating Lessee or any Affiliated Manager:
(i) fraud or intentional material and willful misrepresentation by Borrower, Mortgage Principal, Guarantor, Affiliated Manager, Operating Lessee or any Affiliate of Borrower, Senior Mezzanine BorrowerPrincipal, Guarantor, Operating Company Lessee or any Guarantor Affiliated Manager in connection with the execution and delivery of the Loan Documents and/or the Loan;
(ii) the misappropriation, conversion or misapplication in contravention of the Loan Documents willful misconduct by Borrower, Mortgage Principal, Operating Lessee, Guarantor, Affiliated Manager or any Affiliate of Borrower, Senior Mezzanine Principal, Operating Lessee, Guarantor or any Affiliated Manager that results in physical damage or waste to any Property;
(iii) the removal or disposal by, or on behalf, of Borrower, Operating Company Lessee, Principal, Guarantor, Affiliated Manager or any Guarantor of any funds Affiliate of Borrower, Senior Mezzanine Operating Lessee, Principal, Guarantor or any Affiliated Manager, of any portion of any Property during the continuance of an Event of Default;
(iv) the misappropriation or conversion by Borrower, Mortgage Borrower Operating Lessee, Principal, Guarantor, Affiliated Manager or any Affiliate of Borrower, Operating CompanyLessee, includingPrincipal, without limitation, Guarantor or any Affiliated Manager of (A) any RevenuesInsurance Proceeds paid by reason of a Casualty, (B) any Net Liquidation Proceeds or Insurance Proceeds, (C) any Awards received in connection with a CondemnationCondemnation of all or a portion of the Property, (DC) any Rents or security deposits (or any item during the continuance of Revenue, from whatever source) following an Event of Default, or (ED) any distribution or other payments made in connection with any part of the Collateral or Senior Mezzanine Collateral;
(iii) the misappropriation, conversion or misapplication by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any security deposits or Rents paid more than one (1) month in advance;
(iv) any act of actual intentional physical waste by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor;
(v) the a material breach of any representationcovenant set forth in Section 5.1.28(a), warranty, covenant (b) or indemnification provision in the Environmental Indemnity Agreement concerning environmental laws, hazardous substances and asbestos and any indemnification of Lender with respect thereto in either document(c) hereof;
(vi) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company fails to obtain Lender’s prior written consent to any financing or other voluntary intentional Transfer as Lien encumbering the Property, if such consent is required by this Agreement, in accordance with the Mortgage applicable provisions of the Loan Agreement or the Mortgages, as applicableDocuments;
(vii) any security deposits, advance deposits or any other deposits collected with respect to any of the Properties which are not delivered to Mortgage Lender upon a foreclosure of any of the Properties or action in lieu thereof, except to the extent any such security deposits were applied in accordance with the terms and conditions of any of the Leases prior to the occurrence of the Event of Default that gave rise to such foreclosure or action in lieu thereof;
(viii) in the event of:
(A) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing a voluntary petition under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (B) the filing of an involuntary petition against Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law by any Person in which Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of their respective Affiliates, agents or employees colludes with or such other Person, or Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor soliciting or causing to be solicited petitioning creditors for any involuntary petition against Borrower, Operating Company or any Guarantor from any Person; (C) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing an answer consenting to or otherwise acquiescing in or joining in any involuntary petition filed against it by any other Person, other than Lender, under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (D) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor consenting to or acquiescing in or joining in an application for the appointment of a custodian, receiver, trustee, or examiner for Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of the Properties, the Collateral, the Senior Mezzanine Collateral or any portion thereof, other than at the request of Lender; or (E) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor making an assignment for the benefit of creditors (other than Lender), or admitting, in writing or in any legal proceeding, its insolvency or inability to pay its debts as they become due;
(ix) if Borrower, Senior Mezzanine Borrower or Mortgage Borrower fails to maintain its status as a Special Purpose Entity or breaches any material representation or warranty set forth in Section 4.1.30 of this Agreement; and
(x) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company Lessee fails to obtain Lender’s prior written consent to any voluntary Indebtedness (other than (x) with respect to Mortgage Borrower, Permitted Indebtedness and (y) with respect to Operating Company, Permitted Indebtedness (Operating Company), as applicable) or voluntary Lien (other than Permitted Encumbrances) encumbering any Transfer of the PropertiesProperty or a Transfer of the ownership interests in Borrower or Operating Lessee, Senior Mezzanine Collateral or Collateral in each case, as required by this AgreementSection 5.2.10 hereof, and in each case, excluding Permitted Transfers; or
(viii) the Senior Mezzanine Loan Agreement, the Mortgage Loan Agreement, the Pledge Agreement or the Mortgages. Notwithstanding anything to the contrary under this Agreement, neither any present or future Affiliate occurrence of Borrower (other than Guarantor, to the extent provided under the Guaranty) nor any present or future shareholder, officer, director, employee, trustee, beneficiary, advisor, partner, member, principal, participant or agent of or in any Borrower or of or in any person or entity that is or becomes an Affiliate of any Borrower shall have any personal liability, directly or indirectly, under or in connection with the Loan Documents. Neither the negative capital account of any Affiliate of Borrower in Borrower, or in any other Affiliate of Borrower in any other Affiliate of Borrower, nor any obligation of any Affiliate of Borrower in any Borrower to restore a negative capital account or to contribute or loan capital to any Borrower or to any other Affiliate of Borrower shall at any time be deemed to be the property or an asset of any Borrower (or any other Affiliate of Borrower) and neither Lender nor its successors or assigns shall have any right to collect, enforce or proceed against any such negative capital account or obligation to restore, contribute or loan capitalERISA Event.
(bc) Notwithstanding anything to the contrary in this Agreement, the Note or any of the Loan Documents, (i) Lender shall not be deemed to have waived any right which Lender may have under Section 506(a), 506(b), 1111(b) or any other provisions of the Bankruptcy Code to file a claim for the full amount of the Indebtedness Debt secured by the Mortgage or to require that all collateral shall continue to secure all of the Indebtedness Debt owing to Lender in accordance with the Loan Documents, and (ii) the Debt shall be fully recourse to Borrower in the event of: (A) Borrower, Operating Lessee or Principal filing a voluntary petition under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (B) the filing of an involuntary petition by any Person (other than Lender) against Borrower, Operating Lessee or Principal under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law in which Borrower, Operating Lessee, Principal or Guarantor or any Affiliate of Borrower, Operating Lessee, Principal or Guarantor colludes with, or otherwise assists, such Person, or solicits or causes to be solicited petitioning creditors for any involuntary petition against Borrower, Operating Lessee or Principal, by any Person (other than Lender); (C) Borrower, Operating Lessee, Principal or Guarantor or any Affiliate of Borrower, Operating Lessee, Principal or Guarantor filing an answer consenting to or otherwise acquiescing in or joining in any involuntary petition filed against Borrower, Operating Lessee or Principal, by any other Person (other than Lender) under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law or (D) Borrower, Operating Lessee or Principal, consenting to or acquiescing in or joining in an application for the appointment of a custodian, receiver, trustee, or examiner for Borrower, Operating Lessee, Principal, or any portion of the Property.
Appears in 1 contract
Exculpation. (ai) Subject to The Collateral Agent shall have no duties or responsibilities except those expressly set forth in this Agreement, and the qualifications below, Lender Collateral Agent shall not enforce by reason of this Agreement or any of the liability Gestetner Notes (or otherwise) be a trustee for any Gestetner Purchaser or have any fiduciary obligation to any Gestetner Purchaser or any of their Affiliates. Neither the Collateral Agent nor any of its directors, partners, members, managers, officers, employees or agents (collectively, the “Related Parties”) shall be liable to any Gestetner Purchaser for any action taken or omitted to be taken by it under this Agreement and obligation the Gestetner Notes, or in any agreements delivered in connection therewith, or in connection herewith or therewith, except for its own willful misconduct or gross negligence, nor shall the Collateral Agent or any Related Parties be responsible for any recitals or representations or warranties herein or therein or in any other agreement delivered in connection therewith, or for the effectiveness, enforceability, validity or due execution of Borrower to perform and observe the obligations contained in the Note, any of 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 Gestetner Agency Agreement, the Pledge Agreement and the other Loan Documents, Gestetner Notes 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 ▇▇▇ for, seek or demand any deficiency judgment against Borrower in any such action or proceeding under, or by reason of, or agreement delivered in connection withtherewith, nor for the Notecreation, this Agreement, the Pledge Agreement perfection or the other Loan Documents. The provisions of this Section shall not, however,
(a) constitute a waiver, release or impairment priority of any obligation evidenced or secured by Security Interests purported to be created under any of the Loan Documents; (b) impair Gestetner Notes or the right validity, genuineness, enforceability, existence, value or sufficiency of Lender any Collateral, nor shall the Collateral Agent or any Related Parties be obligated to name Borrower as a party defendant make any inquiry respecting the performance by the Company of its obligations hereunder or thereunder or in any action or suit for foreclosure and sale under the Pledge Agreement; (c) affect the validity or enforceability of or any Guaranty made other agreement delivered 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 therewith. Any such inquiry by the Pledge Agreement Collateral Agent shall not obligate it to make any further inquiry or to commence take any other appropriate action action. The Collateral Agent shall be entitled to rely upon advice of counsel concerning legal matters and upon any notice, consent, certificate, statement, or proceeding in order writing which they believe to be genuine and to have been presented by a proper Person. The Collateral Agent shall not be responsible for Lender to exercise its remedies against all of the Collateral; negligence 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 misconduct of any actual loss, damage, cost, expense, liability, claim such agents or other obligation incurred attorneys-in-fact selected by Lender (including attorneys’ fees and costs reasonably incurred) arising out of or in connection it with the following:
(i) fraud or intentional misrepresentation by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor in connection with the execution and delivery of the Loan Documents and/or the Loan;reasonable care.
(ii) the misappropriationThe Collateral Agent shall be entitled to rely upon any certification, conversion notice or misapplication in contravention other communication (including any thereof by email, telex, telecopy, telegram or cable) reasonably believed by it to be genuine and correct and to have been signed or sent by or on behalf of the Loan Documents proper Person or Persons, and upon advice and statements of legal counsel (including counsel to Gestetner and counsel to the Company), independent accountants and other experts selected by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any funds of Borrower, Senior Mezzanine Borrower, Mortgage Borrower or Operating Company, including, without limitation, (A) any Revenues, (B) any Net Liquidation Proceeds or Insurance Proceeds, (C) any Awards received in connection with a Condemnation, (D) any Rents or security deposits (or any item of Revenue, from whatever source) following an Event of Default, or (E) any distribution or other payments made in connection with any part of the Collateral or Senior Mezzanine Collateral;
(iii) the misappropriation, conversion or misapplication by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any security deposits or Rents paid more than one (1) month in advance;
(iv) any act of actual intentional physical waste by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor;
(v) the breach of any representation, warranty, covenant or indemnification provision in the Environmental Indemnity Agreement concerning environmental laws, hazardous substances and asbestos and any indemnification of Lender Agent with respect thereto in either document;
(vi) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company fails to obtain Lender’s prior consent reasonable care. As to any voluntary intentional Transfer as required matters not expressly provided for by this Agreement, the Mortgage Loan Agreement Collateral Agent shall in all cases be fully protected in acting, or the Mortgagesin refraining from acting, as applicable;
(vii) any security deposits, advance deposits or any other deposits collected with respect to any of the Properties which are not delivered to Mortgage Lender upon a foreclosure of any of the Properties or action in lieu thereof, except to the extent any such security deposits were applied hereunder in accordance with instructions signed by Gestetner, in its capacity as agent of the Gestetner Purchasers, and any action taken or failure to act pursuant thereto, shall be binding on all of the Secured Parties.
(iii) The Collateral Agent shall not be required to take any action that is in its opinion contrary to law or to the terms of this Agreement and conditions of any of the Leases prior to the occurrence of the Event of Default that gave rise to such foreclosure Gestetner Notes, or action which would in lieu thereof;
(viii) in the event of:
(A) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing a voluntary petition under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (B) the filing of an involuntary petition against Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law by any Person in which Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor its opinion subject it or any of their respective Affiliatesits Related Parties to liability. The Collateral Agent shall, agents in all cases, be fully justified in failing or employees colludes with or such other Person, or Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or refusing to act hereunder and under the Notes unless it shall be fully indemnified to its satisfaction against any Guarantor soliciting or causing to and all liability and expense which may be solicited petitioning creditors for any involuntary petition against Borrower, Operating Company or any Guarantor from any Person; (C) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing an answer consenting to or otherwise acquiescing in or joining in any involuntary petition filed against incurred by it by any other Person, other than Lender, under the Bankruptcy Code reason of taking or any other Federal or state bankruptcy or insolvency law; (D) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor consenting continuing to or acquiescing in or joining in an application for the appointment of a custodian, receiver, trustee, or examiner for Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of the Properties, the Collateral, the Senior Mezzanine Collateral or any portion thereof, other than at the request of Lender; or (E) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor making an assignment for the benefit of creditors (other than Lender), or admitting, in writing or in any legal proceeding, its insolvency or inability to pay its debts as they become due;
(ix) if Borrower, Senior Mezzanine Borrower or Mortgage Borrower fails to maintain its status as a Special Purpose Entity or breaches any material representation or warranty set forth in Section 4.1.30 of this Agreement; and
(x) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company fails to obtain Lender’s prior consent to any voluntary Indebtedness (other than (x) with respect to Mortgage Borrower, Permitted Indebtedness and (y) with respect to Operating Company, Permitted Indebtedness (Operating Company), as applicable) or voluntary Lien (other than Permitted Encumbrances) encumbering any of the Properties, Senior Mezzanine Collateral or Collateral as required by this Agreement, the Senior Mezzanine Loan Agreement, the Mortgage Loan Agreement, the Pledge Agreement or the Mortgages. Notwithstanding anything to the contrary under this Agreement, neither any present or future Affiliate of Borrower (other than Guarantor, to the extent provided under the Guaranty) nor any present or future shareholder, officer, director, employee, trustee, beneficiary, advisor, partner, member, principal, participant or agent of or in any Borrower or of or in any person or entity that is or becomes an Affiliate of any Borrower shall have any personal liability, directly or indirectly, under or in connection with the Loan Documents. Neither the negative capital account of any Affiliate of Borrower in Borrower, or in any other Affiliate of Borrower in any other Affiliate of Borrower, nor any obligation of any Affiliate of Borrower in any Borrower to restore a negative capital account or to contribute or loan capital to any Borrower or to any other Affiliate of Borrower shall at any time be deemed to be the property or an asset of any Borrower (or any other Affiliate of Borrower) and neither Lender nor its successors or assigns shall have any right to collect, enforce or proceed against take any such negative capital account or obligation to restore, contribute or loan capitalaction.
(biv) Notwithstanding anything The Collateral Agent may deem and treat the payee of any promissory note or other evidence of indebtedness relating to the contrary in this Agreement, Gestetner Secured Obligations as the Note or any owner thereof for all purposes hereof unless and until a written notice of the Loan Documentsassignment or transfer thereof, Lender signed by such payee and in form reasonably satisfactory to the Collateral Agent, shall not be deemed to have waived any right which Lender may have under Section 506(a), 506(b), 1111(b) or any other provisions of the Bankruptcy Code to file a claim for the full amount of the Indebtedness or to require that all collateral shall continue to secure all of the Indebtedness owing to Lender in accordance been filed with the Loan DocumentsCollateral Agent. Any request, authority or consent of any Person who at the time of making such request or giving such authority or consent is the holder of any such note or other evidence of indebtedness shall be conclusive and binding on any subsequent holder, transferee or assignee of such note or other evidence of indebtedness and of any note or notes or other evidences of indebtedness issued in exchange therefor.
Appears in 1 contract
Sources: Intercreditor and Collateral Agency Agreement (Eroomsystem Technologies 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, ▇▇▇ 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 lossthe Insurance Proceeds and/or Awards.
(b) Notwithstanding the provisions of this Section 9.4 to the contrary, damage, cost, expense, liability, claim or other obligation incurred by Pledgor shall be personally liable to Lender (including attorneys’ fees and costs reasonably incurred) arising out of or in connection with for the following:
Losses it incurs due to: (i) fraud or intentional misrepresentation by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor in connection with the execution and the delivery of this Agreement, the Note, the Pledge Agreement, the other Loan Documents, the Mezzanine A Loan Documents, the Mezzanine B Loan Documents, the Mezzanine C Loan Documents, the Mezzanine D Loan Documents and/or the Loan;
or any Mortgage Loan Document; (ii) the misappropriationPledgor’s, conversion Mezzanine A Borrower’s, Mezzanine B Borrower’s, Mezzanine C Borrower’s, Mezzanine D Borrower’s or Mortgage Borrower’s misapplication in contravention or misappropriation of the Loan Documents Rents received by Pledgor, Mezzanine A Borrower, Mortgage Mezzanine B Borrower, Senior Mezzanine C Borrower, Operating Company Mezzanine D Borrower or any Guarantor of any funds of Borrower, Senior Mezzanine Borrower, Mortgage Borrower after the occurrence of a Default or Operating Company, including, without limitation, (A) any Revenues, (B) any Net Liquidation Proceeds or Insurance Proceeds, (C) any Awards received in connection with a Condemnation, (D) any Rents or security deposits (or any item of Revenue, from whatever source) following an Event of Default; (iii) Pledgor’s, Mezzanine A Borrower’s, Mezzanine B Borrower’s, Mezzanine C Borrower’s, Mezzanine D Borrower’s or Mortgage Borrower’s misapplication or misappropriation of Security Deposits or Rents collected more than thirty (E30) days in advance; (iv) Pledgor’s, Mezzanine A Borrower’s, Mezzanine B Borrower’s, Mezzanine C Borrower’s, Mezzanine D Borrower’s or Mortgage Borrower’s misapplication or the misappropriation of Insurance Proceeds or Awards; (v) Pledgor’s, Mezzanine A Borrower’s, Mezzanine B Borrower’s, Mezzanine C Borrower’s, Mezzanine D Borrower’s or Mortgage Borrower’s misapplication or the misappropriation of Net Liquidation After Debt Service or any distribution distributions or other payments made in connection with respect of any part of the Property, the Mezzanine A Collateral, the Mezzanine B Collateral, the Mezzanine C Collateral, the Mezzanine D Collateral or Senior the Collateral; (vi) Pledgor’s making a distribution to its equity owners after the occurrence of an Event of Default; (vii) Mortgage Borrower’s failure to pay Taxes, Other Charges (except to the extent that sums sufficient to pay such amounts have been deposited in escrow with Mortgage Lender pursuant to the terms of Section 7.2 of the Mortgage Loan Agreement), charges for labor or materials or other charges that can create Liens on the Properties; (viii) Pledgor’s failure to return or to reimburse Lender for all Personal Property taken from any Properties by or on behalf of Mortgage Borrower, Mezzanine Collateral;
A Borrower, Mezzanine B Borrower, Mezzanine C Borrower or Mezzanine D Borrower and not replaced with Personal Property of the same utility and of the same or greater value; (iiiix) the misappropriation, conversion any act of intentional waste or misapplication arson by BorrowerPledgor, Mortgage Borrower, Senior Mezzanine A Borrower, Operating Company Mezzanine B Borrower, Mezzanine C Borrower, Mezzanine D Borrower or Principal or any Guarantor of any security deposits Affiliate thereof or Rents paid more than one Guarantor; (1) month in advance;
(ivx) any act of actual intentional physical waste fees or commissions paid by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company Pledgor to Principal or any Guarantor;
(v) Affiliate of Pledgor or Principal or Guarantor in violation of the breach terms of any representation, warranty, covenant or indemnification provision in the Environmental Indemnity Agreement concerning environmental laws, hazardous substances and asbestos and any indemnification of Lender with respect thereto in either document;
(vi) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company fails to obtain Lender’s prior consent to any voluntary intentional Transfer as required by this Agreement, the Mortgage Loan Note, the Pledge Agreement or the Mortgages, as applicable;
other Loan Documents; (viixi) any security deposits, advance deposits Pledgor’s failure to comply with the provisions of Sections 4.1.40 and 5.1.19 of this Agreement; (xii) Pledgor ‘s or any other deposits collected with respect to any of the Properties which are not delivered to Mortgage Lender upon Principal’s default under Section 4.1.36 hereof (excluding a foreclosure of any of the Properties default under clauses (h) or action in lieu thereof, except (q) to the extent any that such security deposits were applied in accordance with default arises solely from insufficient cash flows from the terms and conditions of any Collateral); or (xiii) the termination or cancellation of the Leases prior to the occurrence of the Event of Default that gave rise to such foreclosure ▇▇▇▇▇▇▇ Ground Lease for any reason or action in lieu thereof;under any circumstances whatsoever.
(viiic) Notwithstanding the foregoing, the agreement of Lender not to pursue recourse liability as set forth in Subsection (a) above SHALL BECOME NULL AND VOID and shall be of no further force and effect (i) in the event of:
of a default under Section 5.2.10 hereof, (ii) if any Individual Property, the Collateral, the Mezzanine A Collateral, the Mezzanine B Collateral, the Mezzanine C Collateral, the Mezzanine D Collateral or any part thereof shall become an asset in (A) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing a voluntary petition under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; proceeding or (B) the filing of an involuntary petition against Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law proceeding commenced by any Person (other than Lender) in which Pledgor, Mezzanine A Borrower, Mortgage Mezzanine B Borrower, Senior Mezzanine C Borrower, Operating Company Mezzanine D Borrower or any Guarantor Mortgage Borrower colludes with, or any of their respective Affiliates, agents or employees colludes with or otherwise assists such other Person, or Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company solicits or any Guarantor soliciting or causing causes to be solicited petitioning creditors for any involuntary petition against Pledgor, Mezzanine A Borrower, Operating Company or any Guarantor from any Person; (C) Mezzanine B Borrower, Mortgage Mezzanine C Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing an answer consenting to or otherwise acquiescing in or joining in any involuntary petition filed against it by any other Person, other than Lender, under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (D) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor consenting to or acquiescing in or joining in an application for the appointment of a custodian, receiver, trustee, or examiner for Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of the Properties, the Collateral, the Senior Mezzanine Collateral or any portion thereof, other than at the request of Lender; or (E) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor making an assignment for the benefit of creditors (other than Lender), or admitting, in writing or in any legal proceeding, its insolvency or inability to pay its debts as they become due;
(ix) if Borrower, Senior Mezzanine D Borrower or Mortgage Borrower fails to maintain its status as a Special Purpose Entity from any Person or breaches any material representation or warranty set forth in Section 4.1.30 of this Agreement; and(iii) if the first Monthly Debt Service Payment Amount is not paid when due.
(xd) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company fails to obtain Lender’s prior consent to any voluntary Indebtedness (other than (x) with respect to Mortgage Borrower, Permitted Indebtedness and (y) with respect to Operating Company, Permitted Indebtedness (Operating Company), as applicable) or voluntary Lien (other than Permitted Encumbrances) encumbering any of the Properties, Senior Mezzanine Collateral or Collateral as required by this Agreement, the Senior Mezzanine Loan Agreement, the Mortgage Loan Agreement, the Pledge Agreement or the Mortgages. Notwithstanding anything to the contrary under this Agreement, neither any present or future Affiliate of Borrower (other than Guarantor, to the extent provided under the Guaranty) nor any present or future shareholder, officer, director, employee, trustee, beneficiary, advisor, partner, member, principal, participant or agent of or in any Borrower or of or in any person or entity that is or becomes an Affiliate of any Borrower Nothing herein shall have any personal liability, directly or indirectly, under or in connection with the Loan Documents. Neither the negative capital account of any Affiliate of Borrower in Borrower, or in any other Affiliate of Borrower in any other Affiliate of Borrower, nor any obligation of any Affiliate of Borrower in any Borrower to restore a negative capital account or to contribute or loan capital to any Borrower or to any other Affiliate of Borrower shall at any time be deemed to be the property or an asset a waiver of any Borrower (or any other Affiliate of Borrower) and neither Lender nor its successors or assigns shall have any right to collect, enforce or proceed against any such negative capital account or obligation to restore, contribute or loan capital.
(b) Notwithstanding anything to the contrary in this Agreement, the Note or any of the Loan Documents, Lender shall not be deemed to have waived any right which Lender may have under Section 506(a), 506(b), 1111(b) or any other provisions provision of the Bankruptcy Code to file a claim for the full amount of the Indebtedness indebtedness secured by the Pledge Agreement or to require that all collateral shall continue to secure all of the Indebtedness indebtedness owing to Lender in accordance with this Agreement, the Note, the Pledge Agreement and the other Loan Documents.
Appears in 1 contract
Sources: Mezzanine 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 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 Mezzanine A Borrower, Mezzanine A Leasehold Pledgor, 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 ▇s▇▇ 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”):
(i) fraud or intentional material misrepresentation committed by Borrower, Mortgage Leasehold Pledgor, Mezzanine A Borrower, Senior Mezzanine A Leasehold Pledgor, any Guarantor, any Individual Owner, any Operating Lessee or any Affiliate of Borrower, any Individual Owner, Mezzanine A Borrower, Mezzanine A Leasehold Pledgor, any Operating Company Lessee or any Guarantor in connection with the execution and delivery of the Loan Documents and/or the Loan;
(ii) the misappropriation, conversion Borrower or misapplication Leasehold Pledgor incurs any Indebtedness in contravention violation of the Loan Documents by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company not otherwise set forth in clause (i) in the definition of “Springing Recourse Event” below (unless such debt was permitted when incurred but was not repaid due to the Property’s failure to generate sufficient cash flow or any Guarantor the failure of any Lender to release funds of Borrower, Senior Mezzanine Borrower, Mortgage Borrower or Operating Company, including, without limitation, (A) any Revenues, (B) any Net Liquidation Proceeds or Insurance Proceeds, (C) any Awards received in connection with a Condemnation, (D) any Rents or security deposits (or any item of Revenue, from whatever source) following an Event of Default, or (E) any distribution or other payments made in connection with any part of the Collateral or Senior Mezzanine CollateralAccounts);
(iii) the misappropriation, conversion Borrower or misapplication by Leasehold Pledgor fails to obtain Lender’s prior consent to (a) any Transfer of any Individual Property or (b) any Transfer of a direct or indirect interest in Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor in each case not otherwise set forth in clause (ii) in the definition of any security deposits or Rents paid more than one (1) month in advance“Springing Recourse Event” below;
(iv) any act removal of actual intentional physical waste personal property from the Properties during an Event of Default by Borrower or Leasehold Pledgor or on behalf of Borrower, Mortgage Leasehold Pledgor, Mezzanine A Borrower, Senior Mezzanine A Leasehold Pledgor, any Individual Owner or any Operating Lessee by any Guarantor or any Affiliate of Borrower, Leasehold Pledgor, Mezzanine A Borrower, Mezzanine A Leasehold Pledgor, any Individual Owner, any Operating Company Lessee or any Guarantor, unless replaced with personal property of substantially the same or greater utility and of the same or greater value;
(v) any intentional material physical Waste at any Individual Property or of the Collateral or Mezzanine A Collateral committed by Borrower or Leasehold Pledgor or on behalf of Borrower, Leasehold Pledgor, Mezzanine A Borrower, Mezzanine A Leasehold Pledgor, any Individual Owner or any Operating Lessee by any Guarantor or any Affiliate of Borrower, Leasehold Pledgor, Mezzanine A Borrower, Mezzanine A Leasehold Pledgor, any Individual Owner, any Operating Lessee or any Guarantor;
(vvi) the material misappropriation by Borrower or Leasehold Pledgor or on behalf of Borrower, Leasehold Pledgor, Mezzanine A Borrower, Mezzanine A Leasehold Pledgor, any Individual Owner or any Operating Lessee by any Guarantor or any Affiliate of Borrower, Leasehold Pledgor, Mezzanine A Borrower, Mezzanine A Leasehold Pledgor, any Individual Owner, any Operating Lessee or any Guarantor of (A) any Insurance Proceeds paid by reason of any Casualty to any Individual Property, (B) any Awards in connection with the Condemnation of any Individual Property and (C) any Gross Revenues after (or that results in) a Trigger Period or an Event of Default, in each case, in violation of the Loan Documents;
(vii) any defaults under the Franchise Agreement for failure to complete any PIP, which results in the termination or cancellation of the applicable Franchise Agreement or any other termination or cancellation of a Franchise Agreement; provided, there shall not be Borrower’s Recourse Liability if Borrower or Leasehold Pledgor delivers (or causes Mezzanine A Borrower, Mezzanine A Leasehold Pledgor, Owner or Operating Lessee to deliver) a replacement Franchise Agreement in compliance with the Section 4.34(d) within 90 days of such termination or cancellation or if the Allocated Loan Amount for the Individual Property subject to such terminated Franchise Agreement together with the Allocated Loan Amount for all other Individual Properties that have had their Franchise Agreements terminated accounts for less than five percent (5%) of the aggregate Allocated Loan Amounts of all of the Properties; provided that with respect to the Red Zone Properties any default under the Franchise Agreement with respect to such Red Zone Property shall result in Borrower’s Recourse Liability notwithstanding that less than five percent (5%) of the aggregate Allocated Loan Amount have been terminated until such time as such Red Zone Property ceases to be classified as a “Red” or “Progress” property by the applicable Franchisor;
(viii) any breach of any representation, warranty, covenant provision of Section 4.4 or indemnification provision in the Environmental Indemnity Schedule V of this Agreement concerning environmental laws, hazardous substances and asbestos and any indemnification of Lender (other than with respect thereto to clause (d) of Schedule V (with respect to trade payables only), clause (f) of Schedule V, clause (j) of Schedule V, clause (o) of Schedule V (with respect to trade payables only), clause (v) of Schedule V and clause (w) of Schedule V) other than a Springing Recourse Event described in either documentclause (b)(viii) below;
(viix) any and all Divested Property Liabilities; and/or
(x) the modification, surrender or termination of any Ground Lease if such modification or termination is prohibited under this Agreement or under any Mortgage.
(i) Borrower, Mortgage Leasehold Pledgor, Mezzanine A Borrower, Senior Mezzanine Borrower A Leasehold Pledgor, Owner or Operating Company Lessee fails to obtain Lender’s prior consent to any financing for borrowed money secured by the Collateral, the Mezzanine A Collateral or any Individual Property, or any voluntary conveyance of a mortgage, deed of trust, security deed, security agreement or similar grant by Borrower, Leasehold Pledgor, Mezzanine A Borrower, Mezzanine A Leasehold Pledgor, Owner or Operating Lessee of a voluntary Lien upon any Individual Property, the Mezzanine A Collateral or the Collateral, or Borrower, Leasehold Pledgor, Mezzanine A Borrower, Mezzanine A Leasehold Pledgor, Owner or Operating Lessee fails to obtain Lender’s prior consent to any voluntary intentional Transfer granting of a security interest in, voluntary pledge of or other voluntary Lien upon any direct or indirect equity interest in any Individual Owner, any Operating Lessee, any SPC Party, any Mezzanine A Borrower or any Mezzanine A Leasehold Pledgor, in each case, as required by this Agreementsecurity for any obligations or liabilities that is not permitted under the Loan Documents (excluding, for the avoidance of doubt, the security interests, pledges or Liens granted under the Mortgage Loan Agreement Documents securing the Mortgage Loan, the Mezzanine A Loan Documents securing the Mezzanine A Loan or the MortgagesLoan Documents securing the Loan), as applicable;
in each case under this clause (viii) any security deposits, advance deposits that is not permitted under the Loan Documents or any other deposits collected with respect to any of the Properties which are not delivered to Mortgage Lender upon a foreclosure of any of the Properties or action in lieu thereof, except to the extent any such security deposits were applied in accordance with the terms and conditions of any of the Leases prior to the occurrence of the Event of Default that gave rise to such foreclosure or action in lieu thereof;
otherwise cured; (viii) in the event of:
(Aii) Borrower, Mortgage Leasehold Pledgor, Mezzanine A Borrower, Senior Mezzanine A Leasehold Pledgor, Owner or any SPC Party fails to obtain Lender’s prior consent to (a) any voluntary transfer of fee (or ground leasehold) title to any Individual Property, the Mezzanine A Collateral or the Collateral that is not permitted under the Loan Documents or otherwise cured or (b) any voluntary transfer of a direct or indirect interest in Borrower, Leasehold Pledgor, Mezzanine A Borrower, Mezzanine A Leasehold Pledgor, Owner or Operating Company Lessee that results in a change of control of Borrower, Leasehold Pledgor, Mezzanine A Borrower, Mezzanine A Leasehold Pledgor, Owner or Operating Lessee that is not permitted under the Loan Documents; (iii) Borrower, Leasehold Pledgor, Mezzanine A Borrower, Mezzanine A Leasehold Pledgor, any Guarantor filing Individual Owner, any Operating Lessee and/or any SPC Party, files a voluntary petition under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law, subject to a maximum aggregate liability equal to the BK Cap; (Biv) the filing of an involuntary petition against Borrower, Mortgage Leasehold Pledgor, Mezzanine A Borrower, Senior Mezzanine BorrowerA Leasehold Pledgor, any Individual Owner, any Operating Company or Lessee and/or any Guarantor SPC Party under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law by any other Person in which Borrower, Mortgage Leasehold Pledgor, Mezzanine A Borrower, Senior Mezzanine BorrowerA Leasehold Pledgor, any Individual Owner, any Operating Company or any Guarantor or any of their respective Affiliates, agents or employees Lessee and/or SPC Party colludes with or otherwise assists such other Person, or and/or Borrower, Mortgage Leasehold Pledgor, Mezzanine A Borrower, Senior Mezzanine BorrowerA Leasehold Pledgor, any Individual Owner, any Operating Company Lessee and/or any SPC Party solicits or any Guarantor soliciting or causing causes to be solicited petitioning creditors for any involuntary petition against Borrower, Leasehold Pledgor, any Individual Owner, Mezzanine A Borrower, Mezzanine A Leasehold Pledgor, any Operating Company or Lessee and/or any Guarantor from SPC Party by any Person, subject to a maximum aggregate liability equal to the BK Cap; (Cv) Borrower, Mortgage Leasehold Pledgor, Mezzanine A Borrower, Senior Mezzanine BorrowerA Leasehold Pledgor, any Individual Owner, any Operating Company or Lessee and/or any Guarantor filing an answer consenting SPC Party fails to or otherwise acquiescing in or joining in oppose any involuntary petition filed against it by any other Person, other than Lender, Person under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency lawlaw (unless there is no good faith defense to such involuntary petition), subject to a maximum aggregate liability equal to the BK Cap; (Dvi) Borrower, Mortgage Leasehold Pledgor, Mezzanine A Borrower, Senior Mezzanine A Leasehold Pledgor, any Individual Owner or any Operating Lessee or any Affiliate, officer, director or representative which controls Borrower, Leasehold Pledgor, Mezzanine A Borrower, Mezzanine A Leasehold Pledgor, such Individual Owner or such Operating Company Lessee, as the case may be, consents to, or any Guarantor consenting to or acquiescing in or joining in joins in, an application for the appointment of a custodian, receiver, trustee, trustee or examiner for Borrower, Mortgage Leasehold Pledgor, Mezzanine A Borrower, Senior Mezzanine BorrowerA Leasehold Pledgor, such Individual Owner, such Operating Company Lessee and/or any portion of any Individual Property, the Mezzanine A Collateral or any Guarantor or any of the Properties, the Collateral, as the Senior Mezzanine Collateral or any portion thereofcase may be, other than at subject to a maximum aggregate liability equal to the request of LenderBK Cap; or (Evii) Borrower, Mortgage Leasehold Pledgor, Mezzanine A Borrower, Senior Mezzanine BorrowerA Leasehold Pledgor, any Individual Owner, any Operating Company or Lessee and/or any Guarantor making SPC Party makes an assignment for the benefit of creditors (other than Lender)or admits, or admitting, in writing or in any legal proceeding, its insolvency or inability to pay its debts as they become due;
due (in each case except to the extent required by applicable law), subject to a maximum aggregate liability equal to the BK Cap; (viii) Borrower or Leasehold Pledgor fails to comply with the provisions of Section 4.4 or Schedule V of this Agreement (other than those relating to solvency or adequacy of capital or adequacy of cash flow), and such failure results in an order of substantive consolidation of Borrower or Leasehold Pledgor or one (1) or more of Mezzanine A Borrower, Mezzanine A Leasehold Pledgor, the Individual Owners or Operating Lessee with any other Person (other than another Mezzanine A Borrower, Mezzanine A Leasehold Pledgor, Individual Owner, Operating Lessee or the Liquor Subsidiary) in a bankruptcy or similar proceeding under the Bankruptcy Code or any other federal or state bankruptcy or insolvency law, subject to a maximum liability equal to the BK Cap; (ix) if Borrowersuch third party's claim of ownership of, Senior Mezzanine or a Lien upon, the Pledged Securities is fully and finally disposed of in favor of such third party, whether such disposition shall occur prior to or after a foreclosure on the Collateral by Lender (for avoidance of doubt, the BK Cap applies to clauses (iii) through (viii) collectively, such that the aggregate liability of Borrower under such clauses is the BK Cap), or Mortgage Borrower fails to maintain its status as a Special Purpose Entity or breaches any material representation or warranty set forth (ix) in Section 4.1.30 of this Agreement; and
(x) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company fails to obtain Lender’s prior consent to any voluntary Indebtedness (other than (x) the event that the leasehold estate created by the Ground Lease with respect to Mortgage Borrowerthe Dallas Courtyard Property shall be surrendered by or on behalf of Owner of such Ground Lease shall be terminated or cancelled or otherwise rendered ineffective, Permitted Indebtedness and (y) with respect to Operating Company, Permitted Indebtedness (Operating Company)in either case, as applicable) or voluntary Lien (other than Permitted Encumbrances) encumbering any a result of the Properties, Senior applicable Individual Owner’s rejection of such Ground Lease in a bankruptcy proceeding; provided that liability pursuant to this clause (ix) shall not exceed the Allocated Loan Amount for the Dallas Courtyard Property. -170- Mezzanine Collateral or Collateral as required by this Agreement, the Senior Mezzanine B Loan Agreement, the Mortgage Loan Agreement, the Pledge Agreement or the Mortgages. Notwithstanding anything to the contrary under this Agreement, neither any present or future Affiliate of Borrower (other than Guarantor, to the extent provided under the Guaranty) nor any present or future shareholder, officer, director, employee, trustee, beneficiary, advisor, partner, member, principal, participant or agent of or in any Borrower or of or in any person or entity that is or becomes an Affiliate of any Borrower shall have any personal liability, directly or indirectly, under or in connection with the Loan Documents. Neither the negative capital account of any Affiliate of Borrower in Borrower, or in any other Affiliate of Borrower in any other Affiliate of Borrower, nor any obligation of any Affiliate of Borrower in any Borrower to restore a negative capital account or to contribute or loan capital to any Borrower or to any other Affiliate of Borrower shall at any time be deemed to be the property or an asset of any Borrower (or any other Affiliate of Borrower) and neither Lender nor its successors or assigns shall have any right to collect, enforce or proceed against any such negative capital account or obligation to restore, contribute or loan capital.
(b) Notwithstanding anything to the contrary in this Agreement, the Note or any of the Loan Documents, Lender shall not be deemed to have waived any right which Lender may have under Section 506(a), 506(b), 1111(b) or any other provisions of the Bankruptcy Code to file a claim for the full amount of the Indebtedness or to require that all collateral shall continue to secure all of the Indebtedness owing to Lender in accordance with the Loan Documents.
Appears in 1 contract
Sources: Mezzanine Loan Agreement (Hospitality Investors 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 ▇s▇▇ 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”):
(i) fraud or fraud, willful misconduct, intentional misrepresentation of a material fact known to Borrower or Guarantor or failure to disclose a material fact known to Borrower or Guarantor by or on behalf of Borrower, Mortgage BorrowerGuarantor, Senior Mezzanine Borrowerany Affiliate of Borrower or Guarantor, Operating Company or including by reason of any Guarantor in connection with claim under the execution Racketeer Influenced and delivery of the Loan Documents and/or the LoanCorrupt Organizations Act (RICO);
(ii) the misappropriation, conversion or misapplication in contravention of the Loan Documents by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any funds of Borrower, Senior Mezzanine Borrower, Mortgage Borrower or Operating Company, including, without limitation, (A) any Revenues, (B) any Net Liquidation Proceeds or Insurance Proceeds, (C) any Awards received in connection with a Condemnation, (D) any Rents or security deposits (or any item of Revenue, from whatever source) following an Event of Default, or (E) any distribution or other payments made in connection with any part of the Collateral or Senior Mezzanine Collateral;
(iii) the misappropriation, conversion or misapplication by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any security deposits or Rents paid more than one (1) month in advance;
(iv) any act of actual intentional physical waste by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor;
(v) the breach of any representation, warranty, covenant or indemnification provision in the Environmental Indemnity Agreement concerning environmental lawsIndemnity, hazardous substances subject to the terms and asbestos and provisions of the Environmental Indemnity;
(iii) wrongful removal or destruction of any indemnification portion of Lender with respect thereto any Property or damage to any Property caused by willful misconduct or gross negligence of Borrower, Guarantor or their respective Affiliates;
(iv) any physical waste of any of the Properties by Borrower, Guarantor or their respective Affiliates;
(v) the forfeiture by Borrower of any Property, or any portion thereof, because of the conduct or purported conduct of criminal activity by Borrower or Guarantor or any of their respective agents or representatives in either documentconnection therewith;
(vi) if Borrowerthe misappropriation or conversion by or on behalf of Borrower of (A) any Insurance Proceeds paid by reason of any loss, Mortgage Borrower, Senior Mezzanine Borrower damage or Operating Company fails to obtain Lender’s prior consent destruction to any voluntary intentional Transfer as required by this AgreementProperty, the Mortgage Loan Agreement or the Mortgages, as applicable;
(viiB) any Awards or other amounts received in connection with the Condemnation of all or a portion of any Property, or (C) any Gross Revenues (including Rents, Insurance Proceeds, security deposits, advance deposits or any other deposits collected and Lease Termination Payments) or (D) any other funds due under the Loan Documents, including, in connection with respect to any of the Properties which are not delivered foregoing, by reason of failure to Mortgage Lender upon comply with Section 6.1 hereof or breach of the Clearing Account Agreement or the Cash Management Agreement;
(vii) failure to pay charges for labor or materials or other charges (other than Taxes) that can create Liens on any portion of any Property, other than (i) charges incurred by or on behalf of Agent or a receiver put in place by Agent, subject to Permitted Encumbrances or (ii) charges that relate to a period from and after a foreclosure of any the Loan or a conveyance in lieu of foreclosure of the Properties Loan, unless such charges were incurred by Borrower, Guarantor or action in lieu thereof, except to the extent any such security deposits were applied in accordance with the terms and conditions an Affiliate of any of the Leases prior to the occurrence of the Event of Default that gave rise to such foreclosure Borrower or action in lieu thereofGuarantor;
(viii) in the event of:
(A) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company failure to pay Taxes or any Guarantor filing a voluntary petition under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (B) the filing of an involuntary petition against Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law by any Person in which Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of their respective Affiliates, agents or employees colludes with or such other Person, or Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor soliciting or causing to be solicited petitioning creditors for any involuntary petition against Borrower, Operating Company or any Guarantor from any Person; (C) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing an answer consenting to or otherwise acquiescing in or joining in any involuntary petition filed against it by any other Persontransfer taxes, other than Lender, under the Bankruptcy Code those Taxes or any other Federal or state bankruptcy or insolvency law; (D) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor consenting transfer taxes that relate to or acquiescing in or joining in an application for the appointment of a custodian, receiver, trustee, or examiner for Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any period from and after a foreclosure of the PropertiesLoan or a conveyance in lieu of foreclosure of the Loan; unless (x) Rents received during the tax period in question are insufficient to pay all of Borrower’s current and/or past due liabilities (including such Taxes) with respect to the Properties or (y) funds to pay such Taxes were, the Collateral, the Senior Mezzanine Collateral or any portion thereof, other than at the request of Lender; or (E) Borrowertime in question, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor making an assignment for available in the benefit of creditors (other than Lender), or admitting, in writing or in any legal proceeding, its insolvency or inability Tax Account and Agent failed to pay its debts as they become due(or make such Tax Funds available to pay) such Taxes;
(ix) if failure to obtain and maintain the fully paid for Policies in accordance with Section 5.1.1 hereof, other than the failure to obtain or maintain Policies that relate to a period from and after a foreclosure of the Loan or a conveyance in lieu of foreclosure of the Loan; unless (x) Rents received during the period in question are insufficient to pay all of Borrower’s current and/or past due liabilities (including such Policies) with respect to the Properties or (y) funds to pay such Insurance Premiums were, Senior Mezzanine Borrower at the time in question, available in the Insurance Account and Agent failed to pay (or Mortgage Borrower fails make such Insurance Funds available to maintain its status as a Special Purpose Entity or breaches any material representation or warranty pay) such Insurance Premiums;
(x) Borrower’s indemnification of Agent set forth in Section 4.1.30 of this Agreement; and9.2 hereof;
(xxi) if Borrowerany (A) actual or alleged violation or breach of any applicable Rent Regulation Laws (including any actual or alleged overcharges in, Mortgage Borroweror rollback to, Senior Mezzanine Borrower rent payable by any current or Operating Company fails to obtain Lender’s prior consent to former Tenant) and/or (B) any voluntary Indebtedness breach of the covenants set forth in Section 4.33 hereof;
(xii) a breach of the covenants set forth in Section 4.4 hereof (other than those breaches covered by clause (xi) with respect to Mortgage Borrowerof the Springing Recourse Events below, Permitted Indebtedness and breaches of the covenants set forth in clauses (f) and (yi) in the definition of “Special Purpose Bankruptcy Remote Entity” attached hereto as Schedule V);
(xiii) any cost or expense incurred by Agent or any Lender in connection with respect to Operating Companythe enforcement of its rights and remedies hereunder or under any other Loan Document; and/or
(xiv) any losses, Permitted Indebtedness (Operating Company)damages, as applicable) costs, expenses, liabilities, claims or voluntary Lien (other than Permitted Encumbrances) encumbering obligations imposed upon or incurred by or asserted against Agent or any of the Properties, Senior Mezzanine Collateral or Collateral as required by this Agreement, the Senior Mezzanine Loan Agreement, the Mortgage Loan Agreement, the Pledge Agreement or the Mortgages. Notwithstanding anything to the contrary under this Agreement, neither any present or future Affiliate of Borrower (other than Guarantor, to the extent provided under the Guaranty) nor any present or future shareholder, officer, director, employee, trustee, beneficiary, advisor, partner, member, principal, participant or agent Lender arising out of or in any Borrower or of or in any person or entity that is or becomes an Affiliate of any Borrower shall have any personal liability, directly or indirectly, under or in connection with the Loan Documents. Neither the negative capital account of any Affiliate of Borrower in Borrower, or in any other Affiliate of Borrower in any other Affiliate of Borrower, nor any obligation of any Affiliate of Borrower in any Borrower to restore a negative capital account or to contribute or loan capital to any Borrower or to any other Affiliate of Borrower shall at any time be deemed to be the property or an asset of any Borrower (or any other Affiliate of Borrower) and neither Lender nor its successors or assigns shall have any right to collect, enforce or proceed against any such negative capital account or obligation to restore, contribute or loan capital.
(b) Notwithstanding anything way relating to the contrary in this Agreement, the Note or any of the Loan Documents, Lender shall not be deemed to have waived any right which Lender may have under Section 506(a), 506(b), 1111(b) or any other provisions of the Bankruptcy Code to file a claim for the full amount of the Indebtedness or to require that all collateral shall continue to secure all of the Indebtedness owing to Lender in accordance with the Loan DocumentsEquinox Litigation.
Appears in 1 contract
Sources: 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 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 ▇s▇▇ 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 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 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; (ed) intentionally omittedimpair the enforcement of the Assignment of Leases; (fe) 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 (gf) 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 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:
(i) fraud or intentional misrepresentation by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor Borrower in connection with the execution and delivery of the Loan Documents and/or the Loan;
(ii) physical damage to the misappropriationProperty arising from intentional, conversion or misapplication in contravention of the Loan Documents by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any funds active waste of Borrower, Senior Mezzanine Borrower, Mortgage Borrower or Operating Company, including, without limitation, (A) any Revenues, (B) any Net Liquidation Proceeds or Insurance Proceeds, (C) any Awards received in connection with a Condemnation, (D) any Rents or security deposits (or any item of Revenue, from whatever source) following an Event of Default, or (E) any distribution or other payments made in connection with any part of the Collateral or Senior Mezzanine Collateral;
(iii) the misappropriation, conversion or misapplication by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any security deposits or Rents paid more than one (1) month in advance;
(iv) any act of actual intentional physical waste by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor;
(v) the breach of any representation, warranty, covenant or indemnification provision in the Environmental Indemnity Agreement or in the Mortgage concerning environmental laws, hazardous substances and asbestos and any indemnification of Lender with respect thereto in either document;
(viiv) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower the removal or Operating Company fails to obtain Lender’s prior consent to disposal of any voluntary intentional Transfer as required by portion of the Property in violation of this Agreement, the Mortgage Loan Agreement or the Mortgages, as applicableother Loan Documents after an Event of Default;
(viiv) the misappropriation or conversion by Borrower of (A) any security deposits, advance deposits or any other deposits collected with respect to any of the Properties which are not delivered to Mortgage Lender upon a foreclosure Insurance Proceeds paid by reason of any of the Properties or action in lieu thereofCasualty, except to the extent so misappropriated or converted, (B) any such security deposits were applied Awards received in accordance connection with a Condemnation, to the terms extent so misappropriated or converted, (C) any Rents following and conditions during the continuance of an Event of Default, or (D) any Rents paid more than one (1) month in advance in violation of this Agreement or the other Loan Documents, to the extent so misappropriated or converted; and
(vi) any Liens on any portion of the Leases prior Property with priority over or equal to the occurrence Lien of the Event Loan Documents, in violation of Default that gave rise to such foreclosure this Agreement or action in lieu thereof;the other Loan Documents.
(viiia) in the event of:
(A) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor Borrower filing a voluntary petition under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (Bb) the filing of an involuntary petition against Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law by any Person in which Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of their respective Affiliates, agents or employees colludes with or such other Person, or Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor Borrower soliciting or causing to be solicited petitioning creditors for any involuntary to file a petition against Borrower, Operating Company or any Guarantor from any Person; (C) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing an answer consenting to or otherwise acquiescing in or joining in any involuntary petition filed against it by any other Person, other than Lender, Borrower under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (Dc) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company Borrower consenting in advance of the filing of a petition with its creditors to any involuntary petition filed against it under the Bankruptcy Code or any Guarantor consenting to other Federal or acquiescing in state bankruptcy or joining in an application for the appointment of a custodian, receiver, trustee, or examiner for Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of the Properties, the Collateral, the Senior Mezzanine Collateral or any portion thereof, other than at the request of Lenderinsolvency law; or (Ed) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or Borrower colluding with any Guarantor making an assignment for the benefit of creditors (Person other than Lender), or admitting, in writing or in any legal proceeding, its insolvency or inability to pay its debts as they become due;
(ix) if Borrower, Senior Mezzanine Borrower or Mortgage Borrower fails to maintain its status as a Special Purpose Entity or breaches any material representation or warranty set forth in Section 4.1.30 of this Agreement; and
(x) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company fails to obtain Lender’s prior consent to any voluntary Indebtedness (other than (x) Lender with respect to Mortgage the filing of involuntary insolvency proceedings against Borrower, Permitted Indebtedness and (y) with respect to Operating Company, Permitted Indebtedness (Operating Company), as applicable) or voluntary Lien (other than Permitted Encumbrances) encumbering any of the Properties, Senior Mezzanine Collateral or Collateral as required by this Agreement, the Senior Mezzanine Loan Agreement, the Mortgage Loan Agreement, the Pledge Agreement or the Mortgages. Notwithstanding anything to the contrary under this Agreement, neither any present or future Affiliate of Borrower (other than Guarantor, to the extent provided under the Guaranty) nor any present or future shareholder, officer, director, employee, trustee, beneficiary, advisor, partner, member, principal, participant or agent of or in any Borrower or of or in any person or entity that is or becomes an Affiliate of any Borrower shall have any personal liability, directly or indirectly, under or in connection with the Loan Documents. Neither the negative capital account of any Affiliate of Borrower in Borrower, or in any other Affiliate of Borrower in any other Affiliate of Borrower, nor any obligation of any Affiliate of Borrower in any Borrower to restore a negative capital account or to contribute or loan capital to any Borrower or to any other Affiliate of Borrower shall at any time be deemed to be the property or an asset of any Borrower (or any other Affiliate of Borrower) and neither Lender nor its successors or assigns shall have any right to collect, enforce or proceed against any such negative capital account or obligation to restore, contribute or loan capital.
(b) Notwithstanding anything to the contrary in this Agreement, the Note or any of the Loan Documents, Lender shall not be deemed to have waived any right which Lender may have under Section 506(a), 506(b), 1111(b) or any other provisions of the Bankruptcy Code to file a claim for the full amount of the Indebtedness or to require that all collateral shall continue to secure all of the Indebtedness owing to Lender in accordance with the Loan Documents.; or
Appears in 1 contract
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, 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 Collateral, 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 shall not ▇▇▇ 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 9.4 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 Borrower as a party defendant in any action or suit for foreclosure and sale under any of 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 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 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:
(i) fraud or intentional misrepresentation by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor in connection with the execution and delivery of the Loan Documents and/or the Loan;
(ii) the misappropriation, conversion or misapplication in contravention of the Loan Documents by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any funds of Borrower, Senior Mezzanine Borrower, Mortgage Borrower or Operating Company, including, without limitation, (A) any Revenues, (B) any Net Liquidation Proceeds or Insurance Proceeds, (C) any Awards received in connection with a Condemnation, (D) any Rents or security deposits (or any item of Revenue, from whatever source) following an Event of Default, or (E) any distribution or other payments made in connection with any part of the Collateral or Senior Mezzanine Collateral;
(iii) the misappropriation, conversion or misapplication by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any security deposits or Rents paid more than one (1) month in advance;
(iv) any act of actual intentional physical waste by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor;
(v) the breach of any representation, warranty, covenant or indemnification provision in the Environmental Indemnity Agreement concerning environmental laws, hazardous substances and asbestos and any indemnification of Lender with respect thereto in either document;
(vi) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company fails to obtain Lender’s prior consent to any voluntary intentional Transfer as required by this Agreement, the Mortgage Loan Agreement or the Mortgages, as applicable;
(vii) any security deposits, advance deposits or any other deposits collected with respect to any of the Properties which are not delivered to Mortgage Lender upon a foreclosure enforcement of any of the Properties or action in lieu thereof, except to the extent any such security deposits were applied in accordance with the terms and conditions Assignments of any of the Leases prior to the occurrence of the Event of Default that gave rise to such foreclosure or action in lieu thereofLeases;
(viii) in the event of:
(A) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing a voluntary petition under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (B) the filing of an involuntary petition against Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law by any Person in which Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of their respective Affiliates, agents or employees colludes with or such other Person, or Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor soliciting or causing to be solicited petitioning creditors for any involuntary petition against Borrower, Operating Company or any Guarantor from any Person; (C) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing an answer consenting to or otherwise acquiescing in or joining in any involuntary petition filed against it by any other Person, other than Lender, under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (D) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor consenting to or acquiescing in or joining in an application for the appointment of a custodian, receiver, trustee, or examiner for Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of the Properties, the Collateral, the Senior Mezzanine Collateral or any portion thereof, other than at the request of Lender; or (E) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor making an assignment for the benefit of creditors (other than Lender), or admitting, in writing or in any legal proceeding, its insolvency or inability to pay its debts as they become due;
(ix) if Borrower, Senior Mezzanine Borrower or Mortgage Borrower fails to maintain its status as a Special Purpose Entity or breaches any material representation or warranty set forth in Section 4.1.30 of this Agreement; and
(x) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company fails to obtain Lender’s prior consent to any voluntary Indebtedness (other than (x) with respect to Mortgage Borrower, Permitted Indebtedness and (y) with respect to Operating Company, Permitted Indebtedness (Operating Company), as applicable) or voluntary Lien (other than Permitted Encumbrances) encumbering any of the Properties, Senior Mezzanine Collateral or Collateral as required by this Agreement, the Senior Mezzanine Loan Agreement, the Mortgage Loan Agreement, the Pledge Agreement or the Mortgages. Notwithstanding anything to the contrary under this Agreement, neither any present or future Affiliate of Borrower (other than Guarantor, to the extent provided under the Guaranty) nor any present or future shareholder, officer, director, employee, trustee, beneficiary, advisor, partner, member, principal, participant or agent of or in any Borrower or of or in any person or entity that is or becomes an Affiliate of any Borrower shall have any personal liability, directly or indirectly, under or in connection with the Loan Documents. Neither the negative capital account of any Affiliate of Borrower in Borrower, or in any other Affiliate of Borrower in any other Affiliate of Borrower, nor any obligation of any Affiliate of Borrower in any Borrower to restore a negative capital account or to contribute or loan capital to any Borrower or to any other Affiliate of Borrower shall at any time be deemed to be the property or an asset of any Borrower (or any other Affiliate of Borrower) and neither Lender nor its successors or assigns shall have any right to collect, enforce or proceed against any such negative capital account or obligation to restore, contribute or loan capital.
(b) Notwithstanding anything to the contrary in this Agreement, the Note or any of the Loan Documents, Lender shall not be deemed to have waived any right which Lender may have under Section 506(a), 506(b), 1111(b) or any other provisions of the Bankruptcy Code to file a claim for the full amount of the Indebtedness or to require that all collateral shall continue to secure all of the Indebtedness owing to Lender in accordance with the Loan Documents.
Appears in 1 contract
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 ▇▇▇ 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 or to commence 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 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:
(i) fraud or intentional misrepresentation by Borrower, any Individual Mortgage Borrower, Senior Maryland Owner, any Principal, any Junior Mezzanine Borrower, Operating Company Borrower or any Guarantor Indemnitor in connection with the execution and delivery of the Loan Documents and/or the Loan;
(ii) the misappropriation, conversion gross negligence or misapplication in contravention of the Loan Documents by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any funds willful misconduct of Borrower, Senior Maryland Owner, Principal, Indemnitor, Junior Mezzanine Borrower, Mortgage Borrower or Operating Company, including, without limitation, (A) any Revenues, (B) any Net Liquidation Proceeds or Insurance Proceeds, (C) any Awards received in connection with a Condemnation, (D) any Rents or security deposits (or any item of Revenue, from whatever source) following an Event of Default, or (E) any distribution or other payments made in connection with any part of the Collateral or Senior Mezzanine CollateralIndividual Mortgage Borrower;
(iii) the misappropriation, conversion or misapplication by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any security deposits or Rents paid more than one (1) month in advance;
(iv) any act of actual intentional physical waste by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor;
(v) the breach of any representation, warranty, covenant or indemnification provision in the Environmental Indemnity Agreement concerning environmental laws, hazardous substances and or asbestos and or any indemnification of Lender with respect thereto thereto;
(iv) the removal or disposal of any portion of any Individual Property or the Collateral after an Event of Default;
(v) the misapplication or conversion by Borrower, Maryland Owner, Principal, Indemnitor, Junior Mezzanine Borrower or any Individual Mortgage Borrower of (A) any Insurance Proceeds paid by reason of any loss, damage or destruction to any Individual Property which are not applied by Borrower in either documentaccordance with this Agreement or by Mortgage Borrower and Maryland Owner in accordance with the Mortgage Loan Agreement, (B) any Awards or other amounts received in connection with the Condemnation of all or a portion of any Individual Property which are not applied by Borrower in accordance with this Agreement or by Mortgage Borrower and Maryland Owner in accordance with the Mortgage Loan Agreement, (C) any Net Liquidation Proceeds After Debt Service, (D) any Rents following an Event of Default, or (E) any Rents paid more than one (1) month in advance or (F) any distributions or other payments made in connection with any part of the Collateral;
(vi) the failure to pay charges for labor or materials or other charges or judgments that can create Liens on any portion of any Individual Property (other than resulting from Lender’s failure to pay Taxes from the Tax and Insurance Reserve Fund provided that (A) no other Event of Default shall then exist, (B) Borrower has performed all of its respective obligations under Sections 5.1.2 and 7.2 hereof, and (C) sufficient funds are then on deposit therein and such funds are allocated for the payment of such Taxes) provided that if (i) such Lien is fully bonded to the satisfaction of Lender (which bond shall create no obligations on the part of Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company fails Maryland Owner), and (ii) such Lien is discharged of record, Borrower shall not have any liability to obtain Lender for such Lien under this Section 9.4;
(A) any termination of a Ground Lease by any Individual Mortgage Borrower and/or Maryland Owner without Lender’s prior written consent and other than as expressly permitted hereunder, (B) any rejection by any Individual Mortgage Borrower and/or Maryland Owner (as debtor in possession in connection with a Bankruptcy Action or otherwise) of a Ground Lease, (C) any termination of any Ground Lease by the landlord thereunder which termination is caused by any Individual Mortgage Borrower and/or Maryland Owner interfering with the exercise of Lender’s or Mortgage Lender’s cure rights under the Ground Lease (including, deliberately failing to act to cure a non-monetary default if so directed by Lender provided such action is within any voluntary intentional Transfer Individual Mortgage Borrower’s and/or Maryland Owner’s control), or (D) if any Ground Lease is amended, modified or terminated without Lender’s prior written consent other than as required by this Agreement, the Mortgage Loan Agreement or the Mortgages, as applicableexpressly permitted hereunder;
(viiviii) any security deposits, advance deposits or any other deposits collected with respect to any of the Properties Individual Property which are not delivered to Mortgage Lender upon a foreclosure of any of the Properties such Individual Property or action in lieu thereof, except to the extent any such security deposits were applied in accordance with the terms and conditions of any of the Leases prior to the occurrence of the Event of Default that gave rise to such foreclosure or action in lieu thereof;
(viii) in the event of:
(A) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing a voluntary petition under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (B) the filing of an involuntary petition against Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law by any Person in which Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of their respective Affiliates, agents or employees colludes with or such other Person, or Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor soliciting or causing to be solicited petitioning creditors for any involuntary petition against Borrower, Operating Company or any Guarantor from any Person; (C) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing an answer consenting to or otherwise acquiescing in or joining in any involuntary petition filed against it by any other Person, other than Lender, under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (D) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor consenting to or acquiescing in or joining in an application for the appointment of a custodian, receiver, trustee, or examiner for Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of the Properties, the Collateral, the Senior Mezzanine Collateral or any portion thereof, other than at the request of Lender; or (E) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor making an assignment for the benefit of creditors (other than Lender), or admitting, in writing or in any legal proceeding, its insolvency or inability to pay its debts as they become due;and
(ix) if Borrowerany breach of any representation, Senior Mezzanine Borrower warranty or Mortgage Borrower fails to maintain its status as a Special Purpose Entity or breaches any material representation or warranty set forth covenant contained in Section 4.1.30 of this Agreement; and
(x) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company fails to obtain Lender’s prior consent to any voluntary Indebtedness (other than (x) with respect to Mortgage Borrower, Permitted Indebtedness and (y) with respect to Operating Company, Permitted Indebtedness (Operating Company), as applicable) or voluntary Lien (other than Permitted Encumbrances) encumbering any 4 of the Properties, Senior Mezzanine Collateral or Collateral as required by this Pledge Agreement, the Senior Mezzanine Loan Agreement, the Mortgage Loan Agreement, the Pledge Agreement or the Mortgages. Notwithstanding anything to the contrary under this Agreement, neither any present or future Affiliate of Borrower (other than Guarantor, to the extent provided under the Guaranty) nor any present or future shareholder, officer, director, employee, trustee, beneficiary, advisor, partner, member, principal, participant or agent of or in any Borrower or of or in any person or entity that is or becomes an Affiliate of any Borrower shall have any personal liability, directly or indirectly, under or in connection with the Loan Documents. Neither the negative capital account of any Affiliate of Borrower in Borrower, or in any other Affiliate of Borrower in any other Affiliate of Borrower, nor any obligation of any Affiliate of Borrower in any Borrower to restore a negative capital account or to contribute or loan capital to any Borrower or to any other Affiliate of Borrower shall at any time be deemed to be the property or an asset of any Borrower (or any other Affiliate of Borrower) and neither Lender nor its successors or assigns shall have any right to collect, enforce or proceed against any such negative capital account or obligation to restore, contribute or loan capital.
(b) Notwithstanding anything to the contrary in this Agreement, the Note or any of the Loan Documents, (A) the Debt shall be fully recourse to the Borrower and (B) Lender shall not be deemed to have waived any right which Lender may have under Section 506(a), 506(b), 1111(b) or any other provisions of the Bankruptcy Code to file a claim for the full amount of the Indebtedness Debt secured by the Pledge Agreement or to require that all collateral shall continue to secure all of the Indebtedness Debt owing to Lender in accordance with the Loan Documents in the event of: (1) the first full monthly payment under the Note not being paid within five (5) days of notice that such payment is late (provided, however, that such grace period relates only to the recourse trigger described in this paragraph), (2) the failure of Borrower to cause Maryland Owner or any Individual Mortgage Borrower to permit on-site inspections of any Individual Property subject to the rights of Tenants and any applicable cure period set forth in the Loan Documents, (3) the failure of Borrower to provide financial information as required under the Loan Documents subject to any applicable cure period (except for financial information required to be delivered by a tenant pursuant to the applicable Lease that has not been delivered to Maryland Owner or the applicable Individual Mortgage Borrower, provided Maryland Owner or such Individual Mortgage Borrower has requested such financial information from such tenant), (4) the failure of any of Borrower, Mortgage Borrower, Maryland Owner, Junior Mezzanine Borrower or Principal to maintain its respective status as a Single Purpose Entity or the breach of any representation or warranty set forth in Section 4.1.30 hereof, Section 4.1.30 of the Mortgage Loan Agreement or Section 4.1.30 of the Junior Mezzanine Loan Agreement, as applicable, (5) Borrower, any Individual Mortgage Borrower, Principal or Maryland Owner filing a voluntary petition under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (6) the filing of an involuntary petition against Borrower, any Individual Mortgage Borrower, Principal or Maryland Owner under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law, in which Borrower, any Individual Mortgage Borrower, Principal or Maryland Owner colludes with, or otherwise assists such Person, or solicits or causes to be solicited petitioning creditors for any involuntary petition against any -103- Borrower, Individual Mortgage Borrower, Principal or Maryland Owner from any Person; (7) Borrower, any Individual Mortgage Borrower, Principal Maryland Owner filing an answer consenting to or otherwise acquiescing in or joining in any involuntary petition filed against it, by any other Person under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (8) Borrower, any Individual Mortgage Borrower, Principal or Maryland Owner consenting to or acquiescing in or joining in an application for the appointment of a custodian, receiver, trustee, or examiner for Borrower, any Individual Mortgage Borrower, Principal or Maryland Owner or any Individual Property (or any portion thereof); (9) Borrower, any Individual Mortgage Borrower, Principal or Maryland Owner making an assignment for the benefit of creditors, or admitting, in writing or in any legal proceeding, its insolvency or inability to pay its debts as they become due; (10) the failure of Borrower to obtain Lender’s prior written consent (to extent such consent is required) to any subordinate financing or other voluntary Lien encumbering any Individual Property, or the Collateral; or (11) the failure of Borrower to obtain Lender’s prior written consent to any Transfer or permit any Transfer of any Individual Property by Mortgage Borrower or Maryland Owner, or of the Collateral or any portion thereof, or any interest therein as required by this Agreement or the Pledge Agreement. Upon the acceptance by Lender of any cure by Borrower of a recourse trigger described in clauses (1), (2), (3), (10) or (11) above (which Lender is not obligated to accept and may reject or accept in its sole and absolute discretion), the Debt shall no longer be fully recourse to Borrower solely as a result of such trigger, provided, however, Borrower shall remain liable to the extent of any 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 such trigger.
Appears in 1 contract
Sources: Senior Mezzanine 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 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 ▇s▇▇ 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:
(i) fraud or intentional misrepresentation by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company Borrower or any Guarantor in connection with the execution and delivery of the Loan Documents and/or the Loan;
(ii) the misappropriation, conversion gross negligence or misapplication in contravention of the Loan Documents by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any funds willful misconduct of Borrower, Senior Mezzanine Borrower, Mortgage Borrower or Operating Company, including, without limitation, (A) any Revenues, (B) any Net Liquidation Proceeds or Insurance Proceeds, (C) any Awards received in connection with a Condemnation, (D) any Rents or security deposits (or any item of Revenue, from whatever source) following an Event of Default, or (E) any distribution or other payments made in connection with any part of the Collateral or Senior Mezzanine Collateral;
(iii) the misappropriation, conversion or misapplication by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any security deposits or Rents paid more than one (1) month in advance;
(iv) any act of actual intentional physical waste by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor;
(v) the breach of any representation, warranty, covenant or indemnification provision in the Environmental Indemnity Agreement or in the Mortgage concerning environmental laws, hazardous substances and asbestos and any indemnification of Lender with respect thereto in either document;
(iv) the removal or disposal of any portion of the Property after an Event of Default;
(v) the misapplication or conversion by Borrower of (A) any Insurance Proceeds paid by reason of any loss, damage or destruction to the Property, (B) any Awards received in connection with a Condemnation of all or a portion of the Property, (C) any Rents following an Event of Default, or (D) any Rents paid more than one month in advance;
(vi) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower failure to pay charges for labor or Operating Company fails to obtain Lender’s prior consent to materials or other charges that can create Liens on any voluntary intentional Transfer as required by this Agreement, portion of the Mortgage Loan Agreement or the Mortgages, as applicableProperty;
(vii) any security deposits, advance deposits or any other deposits collected with respect to any of the Properties Property which are not delivered to Mortgage Lender upon a foreclosure of any of the Properties Property or action in lieu thereof, except to the extent any such security deposits were applied in accordance with the terms and conditions of any of the Leases prior to the occurrence of the Event of Default that gave rise to such foreclosure or action in lieu thereof;; or
(viii) the breach of any representation, warranty, covenant or indemnification provision in the event of:Guaranty of Completion or Guaranty of Recourse Carveouts;
(ix) if (A) Borrowera breach or default by Borrower under any condition or obligation contained in the Ground Lease is not cured within any applicable cure period provided therein, Mortgage Borrower(B) there occurs any event or condition that gives the Ground Lessor under the Ground Lease a right to terminate or cancel the Ground Lease, Senior Mezzanine Borroweror (C) the Ground Lease shall be surrendered or the Ground Lease shall be terminated or cancelled for any reason or under any circumstances whatsoever, Operating Company or (D) any Guarantor of the terms, covenants or conditions of the Ground Lease shall in any manner be modified, changed, supplemented, altered, or amended without the prior written consent of Lender; or
(x) if (A) a breach or default by Borrower or Storage Facility Tenant under any condition or obligation contained in the Storage Facility Master Lease occurs, (B) there occurs any event or condition that gives the Borrower or Storage Facility Tenant under the Storage Facility Master Lease a right to terminate or cancel the Storage Facility Master Lease, (C) the Storage Facility Master Lease shall be surrendered or the Storage Facility Master Lease shall be terminated or cancelled for any reason or under any circumstances whatsoever without the prior written consent of Lender, or (D) any of the terms, covenants or conditions of the Storage Facility Master Lease shall in any manner be modified, changed, supplemented, altered, or amended without the prior written consent of Lender.
(a) Borrower filing a voluntary petition under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (Bb) the filing of an involuntary petition against Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor Borrower under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law by any Person law, in which BorrowerBorrower colludes with, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of their respective Affiliates, agents or employees colludes with or otherwise assists such other Person, or Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company solicits or any Guarantor soliciting or causing causes to be solicited petitioning creditors for any involuntary petition against Borrower, Operating Company or any Guarantor Borrower from any Person; (Cc) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor Borrower filing an answer consenting to or otherwise acquiescing in or joining in any involuntary petition filed against it it, by any other Person, other than Lender, Person under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (Dd) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor Borrower consenting to or acquiescing in or joining in an application for the appointment of a custodian, receiver, trustee, or examiner for Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of the Properties, the Collateral, the Senior Mezzanine Collateral Borrower or any portion thereof, other than at the request of Lender; or (E) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor making an assignment for the benefit of creditors (other than Lender), or admitting, in writing or in any legal proceeding, its insolvency or inability to pay its debts as they become due;
(ix) if Borrower, Senior Mezzanine Borrower or Mortgage Borrower fails to maintain its status as a Special Purpose Entity or breaches any material representation or warranty set forth in Section 4.1.30 of this Agreement; and
(x) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company fails to obtain Lender’s prior consent to any voluntary Indebtedness (other than (x) with respect to Mortgage Borrower, Permitted Indebtedness and (y) with respect to Operating Company, Permitted Indebtedness (Operating Company), as applicable) or voluntary Lien (other than Permitted Encumbrances) encumbering any of the Properties, Senior Mezzanine Collateral or Collateral as required by this Agreement, the Senior Mezzanine Loan Agreement, the Mortgage Loan Agreement, the Pledge Agreement or the Mortgages. Notwithstanding anything to the contrary under this Agreement, neither any present or future Affiliate of Borrower (other than Guarantor, to the extent provided under the Guaranty) nor any present or future shareholder, officer, director, employee, trustee, beneficiary, advisor, partner, member, principal, participant or agent of or in any Borrower or of or in any person or entity that is or becomes an Affiliate of any Borrower shall have any personal liability, directly or indirectly, under or in connection with the Loan Documents. Neither the negative capital account of any Affiliate of Borrower in Borrower, or in any other Affiliate of Borrower in any other Affiliate of Borrower, nor any obligation of any Affiliate of Borrower in any Borrower to restore a negative capital account or to contribute or loan capital to any Borrower or to any other Affiliate of Borrower shall at any time be deemed to be the property or an asset of any Borrower (or any other Affiliate of Borrower) and neither Lender nor its successors or assigns shall have any right to collect, enforce or proceed against any such negative capital account or obligation to restore, contribute or loan capital.
(b) Notwithstanding anything to the contrary in this Agreement, the Note or any of the Loan Documents, Lender shall not be deemed to have waived any right which Lender may have under Section 506(a), 506(b), 1111(b) or any other provisions of the Bankruptcy Code to file a claim for the full amount of the Indebtedness or to require that all collateral shall continue to secure all of the Indebtedness owing to Lender in accordance with the Loan Documents.Property; or
Appears in 1 contract
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 or Trustee may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender and each Noteholder or Trustee 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 following an Event of Default, or any other collateral given to Lender or Trustee 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 following an Event of Default and in any other collateral given to LenderLender or Trustee, and LenderLender or Trustee, by accepting the Note, this Agreement, the Pledge Agreement Mortgage and the other Loan Documents, agrees that it shall not ▇▇▇ 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 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 or Trustee 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 or any Guaranty guaranty made in connection with the Loan or any of the rights and remedies of Lender or Trustee thereunder; (d) impair the right of Lender or Trustee to obtain the appointment of a receiver; (e) intentionally omittedimpair the enforcement of any of the Assignment of Leases following an Event of Default; (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 Trustee commencing any other appropriate action or proceeding in order for Lender or Trustee to exercise its remedies against all of the CollateralProperty; or (g) constitute a waiver of the right of Lender or Trustee 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 67 Lender or Trustee (including attorneys’ ' fees and costs reasonably incurred) arising out of or in connection with the following:
(i) fraud or intentional misrepresentation by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company Borrower or any Guarantor guarantor in connection with the execution and delivery of the Loan Documents and/or the Loan;
(ii) the misappropriation, conversion gross negligence or misapplication in contravention of the Loan Documents by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any funds willful misconduct of Borrower, Senior Mezzanine Borrower, Mortgage Borrower or Operating Company, including, without limitation, (A) any Revenues, (B) any Net Liquidation Proceeds or Insurance Proceeds, (C) any Awards received in connection with a Condemnation, (D) any Rents or security deposits (or any item of Revenue, from whatever source) following an Event of Default, or (E) any distribution or other payments made in connection with any part of the Collateral or Senior Mezzanine Collateral;
(iii) material physical waste of the misappropriation, conversion or misapplication by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any security deposits or Rents paid more than one (1) month in advanceProperty;
(iv) any act of actual intentional physical waste by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor;
(v) the breach of any representation, warranty, covenant or indemnification provision in the Environmental Indemnity Agreement or in the Mortgage concerning environmental laws, hazardous substances and asbestos and any indemnification of Lender with respect thereto in either document;
(v) the removal or disposal of any portion of the Property after an Event of Default;
(vi) if Borrowerthe misapplication or conversion by Borrower of (A) any insurance proceeds paid by reason of any loss, Mortgage Borrower, Senior Mezzanine damage or destruction to the Property which are not applied by Borrower or Operating Company fails to obtain Lender’s prior consent to any voluntary intentional Transfer as required by in accordance with this Agreement, (B) any awards or other amounts received in connection with the Mortgage Loan Agreement condemnation of all or a portion of the MortgagesProperty which are not applied by Borrower in accordance with this Agreement, as applicableor (C) any Rents following an Event of Default;
(vii) failure to pay charges for labor or materials or other charges that can create liens on any portion of the Property; or
(viii) any security deposits, advance deposits or any other deposits collected with respect to any of the Properties Property which are not delivered to Mortgage Lender upon a foreclosure of any of the Properties Property or action in lieu thereof, except to the extent any such security deposits were applied in accordance with the terms and conditions of any of the Leases prior to the occurrence of the Event of Default that gave rise to such foreclosure or action in lieu thereof;
(viii) in the event of:
(A) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing a voluntary petition under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (B) the filing of an involuntary petition against Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law by any Person in which Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of their respective Affiliates, agents or employees colludes with or such other Person, or Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor soliciting or causing to be solicited petitioning creditors for any involuntary petition against Borrower, Operating Company or any Guarantor from any Person; (C) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing an answer consenting to or otherwise acquiescing in or joining in any involuntary petition filed against it by any other Person, other than Lender, under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (D) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor consenting to or acquiescing in or joining in an application for the appointment of a custodian, receiver, trustee, or examiner for Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of the Properties, the Collateral, the Senior Mezzanine Collateral or any portion thereof, other than at the request of Lender; or (E) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor making an assignment for the benefit of creditors (other than Lender), or admitting, in writing or in any legal proceeding, its insolvency or inability to pay its debts as they become due;.
(ix) if the breach of Borrower, Senior Mezzanine Borrower or Mortgage Borrower fails 's indemnification obligation pursuant to maintain its status as a Special Purpose Entity or breaches any material representation or warranty set forth in Section 4.1.30 of this Agreement; and
(x10.13(b) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company fails to obtain Lender’s prior consent to any voluntary Indebtedness (other than (x) hereof with respect to Mortgage Borrower, Permitted Indebtedness and (y) with respect to Operating Company, Permitted Indebtedness (Operating Company), as applicable) or voluntary Lien (other than Permitted Encumbrances) encumbering any of the Properties, Senior Mezzanine Collateral or Collateral as required by this Agreement, the Senior Mezzanine Loan Agreement, the Mortgage Loan Agreement, the Pledge Agreement or the Mortgagesa Purchase Price Adjustment. Notwithstanding anything to the contrary under this Agreement, neither any present or future Affiliate of Borrower (other than Guarantor, to the extent provided under the Guaranty) nor any present or future shareholder, officer, director, employee, trustee, beneficiary, advisor, partner, member, principal, participant or agent of or in any Borrower or of or in any person or entity that is or becomes an Affiliate of any Borrower shall have any personal liability, directly or indirectly, under or in connection with the Loan Documents. Neither the negative capital account of any Affiliate of Borrower in Borrower, or in any other Affiliate of Borrower in any other Affiliate of Borrower, nor any obligation of any Affiliate of Borrower in any Borrower to restore a negative capital account or to contribute or loan capital to any Borrower or to any other Affiliate of Borrower shall at any time be deemed to be the property or an asset of any Borrower (or any other Affiliate of Borrower) and neither Lender nor its successors or assigns shall have any right to collect, enforce or proceed against any such negative capital account or obligation to restore, contribute or loan capital.
(b) Notwithstanding anything to the contrary in this Agreement, the Note or any of the Loan Documents, (A) the Debt shall be fully recourse to the Borrower and (B) Lender shall not be deemed to have waived any right which Lender may have under Section 506(a), 506(b), 1111(b) or any other provisions of the U.S. Bankruptcy Code to file a claim for the full amount of the Indebtedness Debt secured by the Mortgage or to require that all collateral shall continue to secure all of the Indebtedness Debt owing to Lender in accordance with the Loan Documents in the event that the (I) first full monthly payment under the Note is not paid within five (5) days of notice that such payment is late (provided, however, that such grace period relates only to the recourse trigger described in this paragraph), or (II) failure of Borrower to permit on-site inspections of the Property subject to the rights of the Major Tenants under their respective Leases and any applicable cure period set forth in the Loan Documents, to provide financial information as required under the Loan Documents subject to any applicable cure period (except for financial information required to be delivered by the Major Tenants pursuant to their respective Leases that has not been delivered to Borrower, provided Borrower has requested such financial information from the Major Tenants, or to comply with Section 4.1.30 hereof, or (III) failure of Borrower to obtain Lender's prior written consent to any subordinate financing or other voluntary lien encumbering the Property, or (IV) failure of Borrower to obtain Lender's prior written consent to any assignment, transfer or conveyance of the Property, or any portion thereof, or any interest therein as required by this Agreement. Notwithstanding the provision set forth in clause (III) of this paragraph, a voluntary lien OTHER THAN a lien securing an extension of credit filed against the Property shall not constitute a recourse trigger for purposes of this paragraph provided such lien (A) is fully bonded to the satisfaction of Lender and discharged of record within ninety (90) days of filing, or (B) within such ninety (90) day period, Lender receives affirmative title insurance from the title insurance company insuring the lien of the Mortgage that such lien is subject and subordinate to the lien of the Mortgage and no enforcement action is commenced by the applicable lien holder.
Appears in 1 contract
Sources: 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 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 ▇▇▇ 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”):
(ia) fraud or intentional misrepresentation by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company Borrower or any Guarantor in connection with the execution and delivery of the Loan Documents and/or obtaining the Loan;
(iib) the misappropriation, conversion or misapplication in contravention physical waste of the Loan Documents by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company Property or any Guarantor portion thereof, or after an Event of Default the removal or disposal of any funds portion of Borrower, Senior Mezzanine Borrower, Mortgage Borrower or Operating Company, including, without limitation, the Property;
(Ac) any Revenues, (B) Proceeds paid by reason of any Net Liquidation Proceeds Insured Casualty or Insurance Proceeds, (C) any Awards Award received in connection with a CondemnationCondemnation or other sums or payments attributable to the Property not applied in accordance with the provisions of the Loan Documents (except to the extent that Borrower did not have the legal right, because of a bankruptcy, receivership or similar judicial proceeding, to direct disbursement of such sums or payments);
(Dd) any all Rents of the Property received or security deposits collected by or on behalf of the 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 (except to the extent that such application of such funds is prevented by bankruptcy, receivership, or any item similar judicial proceeding in which Borrower is legally prevented from directing the disbursement of Revenue, from whatever sourcesuch 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 (E) any distribution or other payments made in connection with any part of funds held by Borrower for the Collateral or Senior Mezzanine Collateralbenefit of another party;
(iiif) the misappropriationfailure to pay Taxes, conversion or misapplication by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any security deposits or Rents paid more than one (1) month provided Borrower shall not be liable to the extent funds to pay such amounts are available in advancethe Tax and Insurance Account and Lender failed to pay same;
(iv) any act of actual intentional physical waste by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor;
(vg) the breach of any representation, warranty, covenant or indemnification provision in the any Loan Document concerning Environmental Indemnity Agreement concerning environmental lawsLaws or Hazardous Substances, hazardous substances including Sections 4.21 and asbestos 5.8, and any indemnification clauses (viii) through (xi) of Lender with respect thereto in either documentSection 5.29;
(vih) if the gross negligence or willful misconduct of Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company fails to obtain Lender’s prior consent to any voluntary intentional Transfer as required by this Agreement, the Mortgage Loan Agreement or the Mortgages, as applicable;; or
(viii) failure to pay charges for labor or materials or other charges that can create Liens on any security deposits, advance deposits or any other deposits collected with respect to any portion of the Properties which Property unless such charges are not delivered to Mortgage Lender upon the subject of a foreclosure of any of the Properties or action in lieu thereof, except to the extent any such security deposits were applied in accordance with the terms and conditions of any of the Leases prior to the occurrence of the Event of Default that gave rise to such foreclosure or action in lieu thereof;
(viii) in the event of:
(A) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing a voluntary petition under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (B) the filing of an involuntary petition against Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law by any Person bona fide dispute in which Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company Borrower is contesting the amount or any Guarantor or any of their respective Affiliates, agents or employees colludes with or such other Person, or Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor soliciting or causing to be solicited petitioning creditors for any involuntary petition against Borrower, Operating Company or any Guarantor from any Person; (C) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing an answer consenting to or otherwise acquiescing in or joining in any involuntary petition filed against it by any other Person, other than Lender, under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (D) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor consenting to or acquiescing in or joining in an application for the appointment of a custodian, receiver, trustee, or examiner for Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of the Properties, the Collateral, the Senior Mezzanine Collateral or any portion validity thereof, other than at the request of Lender; or (E) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor making an assignment for the benefit of creditors (other than Lender), or admitting, in writing or in any legal proceeding, its insolvency or inability to pay its debts as they become due;
(ix) if Borrower, Senior Mezzanine Borrower or Mortgage Borrower fails to maintain its status as a Special Purpose Entity or breaches any material representation or warranty set forth in Section 4.1.30 of this Agreement; and
(x) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company fails to obtain Lender’s prior consent to any voluntary Indebtedness (other than (x) with respect to Mortgage Borrower, Permitted Indebtedness and (y) with respect to Operating Company, Permitted Indebtedness (Operating Company), as applicable) or voluntary Lien (other than Permitted Encumbrances) encumbering any of the Properties, Senior Mezzanine Collateral or Collateral as required by this Agreement, the Senior Mezzanine Loan Agreement, the Mortgage Loan Agreement, the Pledge Agreement or the Mortgages. Notwithstanding anything to the contrary under this Agreement, neither any present or future Affiliate of Borrower (other than Guarantor, to the extent provided under the Guaranty) nor any present or future shareholder, officer, director, employee, trustee, beneficiary, advisor, partner, member, principal, participant or agent of or in any Borrower or of or in any person or entity that is or becomes an Affiliate of any Borrower shall have any personal liability, directly or indirectly, under or in connection with the Loan Documents. Neither the negative capital account of any Affiliate of Borrower in Borrower, or in any other Affiliate of Borrower in any other Affiliate of Borrower, nor any obligation of any Affiliate of Borrower in any Borrower to restore a negative capital account or to contribute or loan capital to any Borrower or to any other Affiliate of Borrower shall at any time be deemed to be the property or an asset of any Borrower (or any other Affiliate of Borrower) and neither Lender nor its successors or assigns shall have any right to collect, enforce or proceed against any such negative capital account or obligation to restore, contribute or loan capital.
(b) Notwithstanding anything to the contrary in this Agreement, the Note Agreement or any of the Loan Documents, (A) Lender shall not be deemed to have waived any right which Lender may have under Section 506(a), 506(b), 1111(b) or any other provisions of the U.S. Bankruptcy Code to file a claim for the full amount of the Indebtedness Debt or to require that all collateral shall continue to secure all of the Indebtedness owing to Lender Debt in accordance with the Loan Documents, and (B) Lender’s agreement not to pursue personal liability of Borrower as set forth above SHALL BECOME NULL AND VOID and shall be of no further force and effect, and the Debt shall be fully recourse to Borrower in the event that one or more of the following occurs (each, a “Springing Recourse Event”): (i) an Event of Default described in Section 8.1(d) shall have occurred or (ii) a breach of the covenants set forth in Section 5.13, or (iii) the occurrence of any condition or event described in either Section 8.1(f) or Section 8.1(g) and, with respect to such condition or event described in Section 8.1(g), either Borrower or Guarantor consents to, aids, solicits, supports, or otherwise cooperates or colludes to cause such condition or event or fails to contest such condition or event, or (iv) Borrower creates, incurs, assumes, permits or suffers to exist any Lien on all or any portion of the Property or any direct or indirect legal or beneficial ownership interest in Borrower, excepting only the Permitted Encumbrances, or incurs any indebtedness other than the Permitted Indebtedness, or (v) an act or omission of any of Borrower or Guarantor of any thereof which hinders, delays or interferes with Lender’s enforcement of its rights hereunder or under any other Loan Document or the realization of the collateral, including the assertion by any of Borrower or Guarantor of defenses or counterclaims.
Appears in 1 contract
Sources: Loan Agreement (American Realty Capital Daily Net Asset Value Trust, 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 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 ▇s▇▇ 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”):
(i) fraud or intentional material misrepresentation committed by Borrower, Mortgage BorrowerOperating Lessee, Senior Mezzanine any Guarantor or any Affiliate of Borrower, Operating Company Lessee or any Guarantor in connection with the execution and delivery of the Loan Documents and/or the Loan;
(ii) the misappropriation, conversion Borrower or misapplication Operating Lessee incurs any Indebtedness in contravention violation of the Loan Documents by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company not otherwise set forth in clause (i) in the definition of “Springing Recourse Event” below (unless such debt was permitted when incurred but was not repaid due to the Property’s failure to generate sufficient cash flow or any Guarantor the failure of any Lender to release funds of Borrower, Senior Mezzanine Borrower, Mortgage Borrower or Operating Company, including, without limitation, (A) any Revenues, (B) any Net Liquidation Proceeds or Insurance Proceeds, (C) any Awards received in connection with a Condemnation, (D) any Rents or security deposits (or any item of Revenue, from whatever source) following an Event of Default, or (E) any distribution or other payments made in connection with any part of the Collateral or Senior Mezzanine CollateralAccounts);
(iii) the misappropriation, conversion Borrower or misapplication by Operating Lessee fails to obtain Lender’s prior consent to (a) any Transfer of any Individual Property or (b) any Transfer of a direct or indirect interest in Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor in each case not otherwise set forth in clause (ii) in the definition of any security deposits or Rents paid more than one (1) month in advance“Springing Recourse Event” below;
(iv) removal of personal property from the Properties during an Event of Default by Borrower or Operating Lessee or on behalf of Borrower or Operating Lessee by any act Guarantor or any Affiliate of actual intentional physical waste by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company Lessee or any Guarantor, unless replaced with personal property of substantially the same or greater utility and of the same or greater value;
(v) any intentional material physical Waste at any Individual Property committed by Borrower or Operating Lessee or on behalf of Borrower or Operating Lessee by any Guarantor or any Affiliate of Borrower, Operating Lessee or any Guarantor;
(vvi) the material misappropriation by Borrower or Operating Lessee or on behalf of Borrower or Operating Lessee by any Guarantor or any Affiliate of Borrower, Operating Lessee or any Guarantor of (A) any Insurance Proceeds paid by reason of any Casualty to any Individual Property, (B) any Awards in connection with the Condemnation of any Individual Property and (C) any Gross Revenues after (or that results in) a Trigger Period or an Event of Default, in each case, in violation of the Loan Documents; and
(vii) any breach of any representation, warranty, covenant provision of Section 4.4 or indemnification provision in the Environmental Indemnity Schedule V of this Agreement concerning environmental laws, hazardous substances and asbestos and any indemnification of Lender (other than with respect thereto to clause (d) of Schedule V (with respect to trade payables only), clause (f) of Schedule V, clause (j) of Schedule V, clause (o) of Schedule V (with respect to trade payables only), clause (v) of Schedule V and clause (w) of Schedule V)) other than a Springing Recourse Event described in either document;clause (b)(viii) below.
(vii) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company Lessee fails to obtain Lender’s prior consent to any financing for borrowed money secured by any Individual Property, or any voluntary conveyance of a mortgage, deed of trust, security deed, security agreement or similar grant by Borrower or Operating Lessee of a voluntary Lien upon any Individual Property, or Borrower or Operating Lessee fails to obtain Lender’s prior consent to any voluntary intentional Transfer granting of a security interest in, voluntary pledge of or other voluntary Lien upon any direct or indirect equity interest in any Individual Borrower, Operating Lessee, or any Mezzanine Borrower, in each case, as required by this Agreementsecurity for any obligations or liabilities that is not permitted under the Loan Documents (excluding, for the avoidance of doubt, the Mortgage security interests, pledges or Liens granted under the Loan Agreement Documents or Mezzanine Loan Documents securing the MortgagesLoan or any Mezzanine Loan), as applicable;
in each case under this clause (viii) that is not permitted under the Loan Documents or otherwise cured; (ii) Borrower fails to obtain Lender’s prior consent to (a) any security depositsvoluntary transfer of fee title to any Individual Property that is not permitted under the Loan Documents or otherwise cured, advance deposits or (b) any voluntary transfer of a direct or indirect interest in Borrower that results in a change of Control of Borrower, Operating Lessee or Mezzanine Borrower that is not permitted under the Loan Documents or otherwise cured (specifically excluding from this clause (ii), any transfer of the direct ownership interests in any Individual Borrower, or any other deposits collected with respect Mezzanine Borrower to any Mezzanine Lender or its designee as result of any foreclosure upon such ownership interests (or transfer-in-lieu of foreclosure of the Properties which ownership interests that are not delivered to Mortgage Lender upon a foreclosure of any of the Properties or action in lieu thereof, except to collateral for the extent any such security deposits were applied in accordance with the terms and conditions of any of the Leases prior to the occurrence of the Event of Default that gave rise to such foreclosure or action in lieu thereof;
Mezzanine Loan); (viii) in the event of:
(Aiii) Borrower, Mortgage BorrowerOperating Lessee, Senior and/or any Mezzanine Borrower, Operating Company or any Guarantor filing files a voluntary petition under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (Biv) the filing of an involuntary petition against Borrower, Mortgage BorrowerOperating Lessee, Senior and/or any Mezzanine Borrower, Operating Company or any Guarantor Borrower under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law by any other Person in which Borrower, Mortgage BorrowerOperating Lessee, Senior and/or any Mezzanine Borrower colludes with or otherwise assists such Person, and/or Borrower, Operating Company Lessee, and/or any Mezzanine Borrower solicits or any Guarantor or any of their respective Affiliates, agents or employees colludes with or such other Person, or Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor soliciting or causing causes to be solicited petitioning creditors for any involuntary petition against Borrower, Operating Company or Lessee, and/or any Guarantor from Mezzanine Borrower by any Person; (Cv) Borrower, Mortgage BorrowerOperating Lessee, Senior and/or any Mezzanine Borrower, Operating Company or any Guarantor filing an answer consenting Borrower fails to or otherwise acquiescing in or joining in oppose any involuntary petition filed against it by any other Person, other than Lender, Person under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency lawlaw (unless there is no good faith defense to such involuntary petition); (Dvi) Borrower, Mortgage Operating Lessee, or any Mezzanine Borrower or any Affiliate, officer, director or representative which controls Borrower, Senior Operating Lessee, or such Mezzanine Borrower, Operating Company as the case may be, consents to, or any Guarantor consenting to or acquiescing in or joining in joins in, an application for the appointment of a custodian, receiver, trustee, trustee or examiner for Borrower, Mortgage BorrowerOperating Lessee, Senior and/or any portion of any Individual Property, or such Mezzanine Borrower, Operating Company or any Guarantor or any of as the Properties, the Collateral, the Senior Mezzanine Collateral or any portion thereof, other than at the request of Lendercase may be; or (Evii) Borrower, Mortgage BorrowerOperating Lessee, Senior and/or any Mezzanine Borrower, Operating Company or any Guarantor making Borrower makes an assignment for the benefit of creditors (other than Lender)or admits, or admitting, in writing or in any legal proceeding, its insolvency or inability to pay its debts as they become due;
due (ixin each case except to the extent required by applicable law); or (viii) if Borrower, Senior Mezzanine Borrower or Mortgage Borrower fails to maintain its status as a Special Purpose Entity or breaches any material representation or warranty set forth in Section 4.1.30 of this Agreement; and
(x) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company Lessee fails to obtain Lender’s prior consent to any voluntary Indebtedness comply with the provisions of Section 4.4 or Schedule V of this Agreement (other than (x) with respect those relating to Mortgage Borrower, Permitted Indebtedness and (y) with respect to Operating Company, Permitted Indebtedness (Operating Companysolvency or adequacy of capital or adequacy of cash flow), as applicableand such failure results in an order of substantive consolidation of one (1) or voluntary Lien more of the Individual Borrowers or Operating Lessee with any other Person (other than Permitted Encumbrancesanother Individual Borrower) encumbering any of the Properties, Senior Mezzanine Collateral in a bankruptcy or Collateral as required by this Agreement, the Senior Mezzanine Loan Agreement, the Mortgage Loan Agreement, the Pledge Agreement or the Mortgages. Notwithstanding anything to the contrary under this Agreement, neither any present or future Affiliate of Borrower (other than Guarantor, to the extent provided similar proceeding under the Guaranty) nor any present or future shareholder, officer, director, employee, trustee, beneficiary, advisor, partner, member, principal, participant or agent of or in any Borrower or of or in any person or entity that is or becomes an Affiliate of any Borrower shall have any personal liability, directly or indirectly, under or in connection with the Loan Documents. Neither the negative capital account of any Affiliate of Borrower in Borrower, or in any other Affiliate of Borrower in any other Affiliate of Borrower, nor any obligation of any Affiliate of Borrower in any Borrower to restore a negative capital account or to contribute or loan capital to any Borrower or to any other Affiliate of Borrower shall at any time be deemed to be the property or an asset of any Borrower (Bankruptcy Code or any other Affiliate of Borrower) and neither Lender nor its successors federal or assigns shall have any right to collect, enforce state bankruptcy or proceed against any such negative capital account or obligation to restore, contribute or loan capitalinsolvency law.
(b) Notwithstanding anything to the contrary in this Agreement, the Note or any of the Loan Documents, Lender shall not be deemed to have waived any right which Lender may have under Section 506(a), 506(b), 1111(b) or any other provisions of the Bankruptcy Code to file a claim for the full amount of the Indebtedness or to require that all collateral shall continue to secure all of the Indebtedness owing to Lender in accordance with the Loan Documents.
Appears in 1 contract
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 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 in the Note, this Agreement, the Pledge Agreement and Security Instruments, the other Loan Documents, or and the interest in the CollateralProperties, or the Rents, the Collateral and any other collateral given to Lender pursuant to the Note, this Agreement, the Security Instruments or 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 Properties, in the Rent, the Collateral 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 sum due hereunder, and under the Note, the Security Instruments 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 DocumentsSecurity Instruments, agrees that it shall not not, except as otherwise provided herein ▇▇▇ 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 other Loan Documents or the other Loan DocumentsSecurity Instruments. 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 Note, this Agreement, the other Loan DocumentsDocuments or the Security Instruments; (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 AgreementSecurity Instruments; (ciii) affect the validity or enforceability of any indemnity (including, without limitation, the Environmental Indemnity and the Maryland Guaranty), guaranty, master lease or any Guaranty similar instrument made in connection with the Note, this Agreement, the Security Instruments, 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 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 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 4.1.8, 4.1.28, 5.1.9 and obligation 5.2.8 of Borrower, by money this Agreement; or (vii) impair the right of Lender to obtain a deficiency judgment or otherwiseother judgment on the Note against Borrower if necessary to preserve or enforce its rights and remedies against any Collateral, including any insurance proceeds or condemnation awards to which Lender would otherwise be entitled under this Agreement or the Security Instruments; provided however, Lender shall only enforce such judgment against such Collateral, including the insurance proceeds and/or condemnation awards, as applicable.
(b) Notwithstanding the provisions of this Section 9.4 to the extent of any contrary, Borrower shall be personally liable to Lender for the direct, 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:
Losses it incurs due to: (i) fraud or intentional misrepresentation by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company any Borrower or any Guarantor other person or entity in connection with the execution and the delivery of the Note, this Agreement, the Security Instruments or the other Loan Documents and/or the Loan;
Documents; (ii) any Borrower's intentional misapplication or misappropriation of Rents received by Borrower after the misappropriation, conversion or misapplication in contravention occurrence of the Loan Documents by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any funds of Borrower, Senior Mezzanine Borrower, Mortgage Borrower or Operating Company, including, without limitation, (A) any Revenues, (B) any Net Liquidation Proceeds or Insurance Proceeds, (C) any Awards received in connection with a Condemnation, (D) any Rents or security deposits (or any item of Revenue, from whatever source) following an Event of Default, or (E) any distribution or other payments made in connection with any part of the Collateral or Senior Mezzanine Collateral;
(iii) the misappropriation, conversion or misapplication by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any security deposits or Rents paid more than one (1) month in advance;
(iv) any act of actual intentional physical waste by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor;
(v) the breach of any representation, warranty, covenant or indemnification provision in the Environmental Indemnity Agreement concerning environmental laws, hazardous substances and asbestos and any indemnification of Lender with respect thereto in either document;
(vi) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company fails to obtain Lender’s prior consent to any voluntary intentional Transfer as required by this Agreement, the Mortgage Loan Agreement or the Mortgages, as applicable;
(vii) any security deposits, advance deposits or any other deposits collected with respect to any of the Properties which are not delivered to Mortgage Lender upon a foreclosure of any of the Properties or action in lieu thereof, except to the extent any such security deposits were applied in accordance with the terms and conditions of any of the Leases prior to the occurrence of the Event of Default that gave rise to such foreclosure or action in lieu thereof;
(viii) in the event of:
(A) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing a voluntary petition under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (B) the filing of an involuntary petition against Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law by any Person in which Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of their respective Affiliates, agents or employees colludes with or such other Person, or Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor soliciting or causing to be solicited petitioning creditors for any involuntary petition against Borrower, Operating Company or any Guarantor from any Person; (C) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing an answer consenting to or otherwise acquiescing in or joining in any involuntary petition filed against it by any other Person, other than Lender, under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (D) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor consenting to or acquiescing in or joining in an application for the appointment of a custodian, receiver, trustee, or examiner for Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of the Properties, the Collateral, the Senior Mezzanine Collateral or any portion thereof, other than at the request of Lender; or (E) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor making an assignment for the benefit of creditors (other than Lender), or admitting, in writing or in any legal proceeding, its insolvency or inability to pay its debts as they become due;
(ix) if Borrower, Senior Mezzanine Borrower or Mortgage Borrower fails to maintain its status as a Special Purpose Entity or breaches any material representation or warranty set forth in Section 4.1.30 of this Agreement; and
(x) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company fails to obtain Lender’s prior consent to any voluntary Indebtedness (other than (x) with respect to Mortgage Borrower, Permitted Indebtedness and (y) with respect to Operating Company, Permitted Indebtedness (Operating Company), as applicable) or voluntary Lien (other than Permitted Encumbrances) encumbering any of the Properties, Senior Mezzanine Collateral or Collateral as required by this Agreement, the Senior Mezzanine Loan Agreement, the Mortgage Loan Agreement, the Pledge Agreement or the Mortgages. Notwithstanding anything to the contrary under this Agreement, neither any present or future Affiliate of Borrower (other than Guarantor, to the extent provided under the Guaranty) nor any present or future shareholder, officer, director, employee, trustee, beneficiary, advisor, partner, member, principal, participant or agent of or in any Borrower or of or in any person or entity that is or becomes an Affiliate of any Borrower shall have any personal liability, directly or indirectly, under or in connection with the Loan Documents. Neither the negative capital account of any Affiliate of Borrower in Borrower, or in any other Affiliate of Borrower in any other Affiliate of Borrower, nor any obligation of any Affiliate of Borrower in any Borrower to restore a negative capital account or to contribute or loan capital to any Borrower or to any other Affiliate of Borrower shall at any time be deemed to be the property or an asset of any Borrower (or any other Affiliate of Borrower) and neither Lender nor its successors or assigns shall have any right to collect, enforce or proceed against any such negative capital account or obligation to restore, contribute or loan capital.
(b) Notwithstanding anything to the contrary in this Agreement, the Note or any of the Loan Documents, Lender shall not be deemed to have waived any right which Lender may have under Section 506(a), 506(b), 1111(b) or any other provisions of the Bankruptcy Code to file a claim for the full amount of the Indebtedness or to require that all collateral shall continue to secure all of the Indebtedness owing to Lender in accordance with the Loan Documents.
Appears in 1 contract
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 ▇▇▇ 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:
(i) fraud or intentional misrepresentation by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor in connection with the execution and delivery of the Loan Documents and/or the Loan;
(ii) the misappropriation, conversion or misapplication in contravention of the Loan Documents by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any funds of Borrower, Senior Mezzanine Borrower, Mortgage Borrower or Operating Company, including, without limitation, (A) any Revenues, (B) any Net Liquidation Proceeds or Insurance Proceeds, (C) any Awards received in connection with a Condemnation, (D) any Rents or security deposits (or any item of Revenue, from whatever source) following an Event of Default, or (E) any distribution or other payments made in connection with any part of the Collateral or Senior Mezzanine Collateral;
(iii) the misappropriation, conversion or misapplication by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any security deposits or Rents paid more than one (1) month in advance;
(iv) any act of actual intentional physical waste by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor;
(v) the breach of any representation, warranty, covenant or indemnification provision in the Environmental Indemnity Agreement concerning environmental laws, hazardous substances and asbestos and any indemnification of Lender with respect thereto in either document;
(vi) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company fails to obtain Lender’s prior consent to any voluntary intentional Transfer as required by this Agreement, the Mortgage Loan Agreement or the Mortgages, as applicable;
(vii) any security deposits, advance deposits or any other deposits collected with respect to any of the Properties which are not delivered to Mortgage Lender upon a foreclosure of any of the Properties or action in lieu thereof, except to the extent any such security deposits were applied in accordance with the terms and conditions of any of the Leases prior to the occurrence of the Event of Default that gave rise to such foreclosure or action in lieu thereof;
(viii) in the event of:
: (A) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing a voluntary petition under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (B) the filing of an involuntary petition against Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law by any Person in which Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of their respective Affiliates, agents or employees colludes with or such other Person, or Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor soliciting or causing to be solicited petitioning creditors for any involuntary petition against Borrower, Operating Company or any Guarantor from any Person; (C) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing an answer consenting to or otherwise acquiescing in or joining in any involuntary petition filed against it by any other Person, other than Lender, under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (D) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor consenting to or acquiescing in or joining in an application for the appointment of a custodian, receiver, trustee, or examiner for Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of the Properties, the Collateral, the Senior Mezzanine Collateral or any portion thereof, other than at the request of Lender; or (E) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor making an assignment for the benefit of creditors (other than Lender), or admitting, in writing or in any legal proceeding, its insolvency or inability to pay its debts as they become due;
(ix) if Borrower, Senior Mezzanine Borrower or Mortgage Borrower fails to maintain its status as a Special Purpose Entity or breaches any material representation or warranty set forth in Section 4.1.30 of this Agreement; and
(x) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company fails to obtain Lender’s prior consent to any voluntary Indebtedness (other than (x) with respect to Mortgage Borrower, Permitted Indebtedness and (y) with respect to Operating Company, Permitted Indebtedness (Operating Company), as applicable) or voluntary Lien (other than Permitted Encumbrances) encumbering any of the Properties, Senior Mezzanine Collateral or Collateral as required by this Agreement, the Senior Mezzanine Loan Agreement, the Mortgage Loan Agreement, the Pledge Agreement or the Mortgages. Notwithstanding anything to the contrary under this Agreement, neither any present or future Affiliate of Borrower (other than Guarantor, to the extent provided under the Guaranty) nor any present or future shareholder, officer, director, employee, trustee, beneficiary, advisor, partner, member, principal, participant or agent of or in any Borrower or of or in any person or entity that is or becomes an Affiliate of any Borrower shall have any personal liability, directly or indirectly, under or in connection with the Loan Documents. Neither the negative capital account of any Affiliate of Borrower in Borrower, or in any other Affiliate of Borrower in any other Affiliate of Borrower, nor any obligation of any Affiliate of Borrower in any Borrower to restore a negative capital account or to contribute or loan capital to any Borrower or to any other Affiliate of Borrower shall at any time be deemed to be the property or an asset of any Borrower (or any other Affiliate of Borrower) and neither Lender nor its successors or assigns shall have any right to collect, enforce or proceed against any such negative capital account or obligation to restore, contribute or loan capital.
(b) Notwithstanding anything to the contrary in this Agreement, the Note or any of the Loan Documents, Lender shall not be deemed to have waived any right which Lender may have under Section 506(a), 506(b), 1111(b) or any other provisions of the Bankruptcy Code to file a claim for the full amount of the Indebtedness or to require that all collateral shall continue to secure all of the Indebtedness owing to Lender in accordance with the Loan Documents.
Appears in 1 contract
Sources: 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 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 CollateralProperty, the Gross Revenue, or any other collateral given to Lender pursuant to the Loan Documents; provided, however, that, except as specifically provided hereinbelow, 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 Revenue 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 ▇s▇▇ for, seek or demand any deficiency judgment against Borrower or Guarantor (whose liability shall be determined in accordance with the terms and conditions of the Guaranty) 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 Instruments 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 Instruments; (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 Security Instruments (in which event such deficiency judgment shall be used solely to realize on such collateral) 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:
(i) fraud or intentional misrepresentation by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor in connection with the execution and delivery of the Loan Documents and/or the Loan;
(ii) the misappropriation, conversion or misapplication in contravention of the Loan Documents by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any funds of Borrower, Senior Mezzanine Borrower, Mortgage Borrower or Operating Company, including, without limitation, (A) any Revenues, (B) any Net Liquidation Proceeds or Insurance Proceeds, (C) any Awards received in connection with a Condemnation, (D) any Rents or security deposits (or any item of Revenue, from whatever source) following an Event of Default, or (E) any distribution or other payments made in connection with any part of the Collateral or Senior Mezzanine Collateral;
(iii) the misappropriation, conversion or misapplication by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any security deposits or Rents paid more than one (1) month in advance;
(iv) any act of actual intentional physical waste by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor;
(v) the breach of any representation, warranty, covenant or indemnification provision in the Environmental Indemnity Agreement concerning environmental laws, hazardous substances and asbestos and any indemnification of Lender with respect thereto in either documentcontained therein;
(viii) if Borrowerintentional physical waste unless such waste was due to the fact that (A) funds specifically identified to pay charges which would have prevented such waste were, Mortgage Borrowerat the time in question, Senior Mezzanine Borrower or Operating Company fails to obtain Lender’s prior consent to any voluntary intentional Transfer as required by this Agreementavailable in the FF&E Reserve Account, the Mortgage Loan Agreement or the MortgagesPIP Reserve Account and/or Required Repairs Account, as applicable, and Lender failed to pay (or make such funds available to pay) such charges unless Lender is restricted in any manner from making such funds available as a result of a legal impediment caused by any Borrower or any Affiliate of Borrower or (B) Gross Revenue received during the period in question is insufficient to pay all of Borrower’s Operating Expenses for the time period in question (including such relevant costs relating to the applicable Property) with respect to the Property or, after the occurrence and during the continuance of an Event of Default, the intentional removal or disposal of any portion of the Property in violation of the Loan Documents;
(viiiii) the misappropriation or conversion by or on behalf of Borrowers of any of the following in violation of the terms of this Agreement: (A) any Insurance Proceeds paid by reason of any loss, damage or destruction to the Property, (B) any Awards or other amounts received in connection with the Condemnation of all or a portion of the Property, or (C) any Gross Revenue (including security deposits, advance deposits or any other deposits);
(iv) any security deposits, advance deposits or any other deposits collected with respect to any of the Properties Property which are not delivered to Mortgage Lender upon a foreclosure of any of the Properties Property or action deed in lieu thereof, except to the extent any such security deposits were applied in accordance with the terms and conditions of any provisions of the applicable Leases prior to the occurrence of the Event of Default that gave rise to such foreclosure or action deed in lieu thereof;
(viiiv) the failure to pay charges (including charges for labor or materials) that can create Liens on any portion of the Property (except to the extent (i) sufficient Reserve Funds allocable to such charges were on deposit and the same were not disbursed by Lender therefor in violation of the terms and conditions of the Loan Documents, (ii) such charges are the subject of a bona fide dispute in which Borrower is contesting the amount or the validity thereof in accordance with the terms of this Agreement), or (iii) in respect of any Liens or charges other than those incurred with respect to PIP Work, Gross Revenue is insufficient to pay the event of:
same; provided, however, that the foregoing exceptions shall not apply if (A) Borrowerthe labor, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company materials or other charges were contracted for in violation of this Agreement (including not obtaining any Guarantor filing a voluntary petition under the Bankruptcy Code required Lender consent) or any other Federal or state bankruptcy or insolvency law; (B) the filing labor, materials or other charges were for matters unrelated to so-called “life/safety” issues and contracted for when Borrower knew there would not be sufficient remaining cash flow or applicable Reserve Funds to pay for such charges;
(vi) the failure to (A) pay Taxes or (B) obtain and maintain the fully paid for Policies in accordance with Section 5.1 hereof, provided that Borrower shall not be liable to the extent (i) Gross Revenue from the Property is insufficient to pay the same or (ii) funds to pay for Taxes or Insurance Premiums, as applicable, are available in the Tax Account or the Insurance Account, as applicable, and Lender failed to pay the same;
(vii) [intentionally omitted];
(viii) the failure by Borrower to satisfy in full its indemnification obligations pursuant to and in accordance with the terms and provisions of an involuntary petition against Section 9.2 hereof;
(ix) [intentionally omitted];
(x) Borrower or any SPC Party fails to comply with any representation, warranty or covenant set forth in Sections 3.1.24 or 4.1.15 or Schedule III attached hereto beyond all applicable notice and cure periods;
(xi) in connection with the Loan or the Property (including, without limitation, any Lease), Borrower, Mortgage BorrowerGuarantor, Senior Mezzanine Borrower, Operating Company any Affiliate of Borrower or any Guarantor under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law by any Person in which Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of their respective Affiliates, agents or employees colludes with representatives engages in any action constituting fraud, willful or such other Personintentional misrepresentation, gross negligence or Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company willful misconduct;
(xii) [intentionally omitted];
(xiii) the modification or any Guarantor soliciting or causing to be solicited petitioning creditors amendment of the Franchise Agreement for any involuntary petition against Borrower, Operating Company particular Property without Lender’s prior written consent as provided in Section 7.2.1 of this Agreement;
(xiv) the termination or any Guarantor from any Person; (C) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing an answer consenting to or otherwise acquiescing in or joining in any involuntary petition filed against it by any other Person, other than Lender, under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (D) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor consenting to or acquiescing in or joining in an application for the appointment of a custodian, receiver, trustee, or examiner for Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any cancellation of the Properties, the Collateral, the Senior Mezzanine Collateral or Franchise Agreement for any portion thereof, other than at the request particular Property without Lender’s prior written consent as provided in Section 7.2.1 of Lender; or (E) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor making an assignment for the benefit of creditors this Agreement (other than Lender)a Voluntary Franchise Termination) on or after any date that (A) all of the amounts set forth on the PIP Reserve Funding Schedule shall have been funded by Borrower in accordance with the terms hereof, or admitting, (B) the applicable PIP Plan for such Property has been completed in writing or in any legal proceeding, its insolvency or inability to pay its debts as they become due;accordance with the applicable PIP Budget and Franchise Agreement; or
(ixxv) if BorrowerBorrower grants a voluntary Lien related to an easement or restrictive covenant that benefits a Property, Senior Mezzanine Borrower or Mortgage Borrower fails to maintain its status as a Special Purpose Entity or breaches any material representation or warranty set forth the operation of the hospitality business contemplated thereon, without Lender’s consent in Section 4.1.30 accordance with the terms and conditions of this Agreement; and
(x) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company fails to obtain Lender’s prior consent to any voluntary Indebtedness (other than (x) with respect to Mortgage Borrower, Permitted Indebtedness and (y) with respect to Operating Company, Permitted Indebtedness (Operating Company), as applicable) or voluntary Lien (other than Permitted Encumbrances) encumbering any of the Properties, Senior Mezzanine Collateral or Collateral as required by this Agreement, the Senior Mezzanine Loan Agreement, the Mortgage Loan Agreement, the Pledge Agreement or the Mortgages. Notwithstanding anything to the contrary under this Agreement, neither any present or future Affiliate of Borrower (other than Guarantor, to the extent provided under the Guaranty) nor any present or future shareholder, officer, director, employee, trustee, beneficiary, advisor, partner, member, principal, participant or agent of or in any Borrower or of or in any person or entity that is or becomes an Affiliate of any Borrower shall have any personal liability, directly or indirectly, under or in connection with the Loan Documents. Neither the negative capital account of any Affiliate of Borrower in Borrower, or in any other Affiliate of Borrower in any other Affiliate of Borrower, nor any obligation of any Affiliate of Borrower in any Borrower to restore a negative capital account or to contribute or loan capital to any Borrower or to any other Affiliate of Borrower shall at any time be deemed to be the property or an asset of any Borrower (or any other Affiliate of Borrower) and neither Lender nor its successors or assigns shall have any right to collect, enforce or proceed against any such negative capital account or obligation to restore, contribute or loan capital.
(b) Notwithstanding anything to the contrary in this Agreement, the Note Agreement or any of the other Loan Documents, (A) Lender shall not be deemed to have waived any right which Lender may have under Section 506(a), 506(b), 1111(b) or any other provisions of the Bankruptcy Code to file a claim for the full amount of the Indebtedness Obligations or to require that all collateral shall continue to secure all of the Indebtedness Obligations owing to Lender in accordance with the Loan Documents and (B) the Obligations shall be fully recourse to Borrower in the event that any of the following occur:
(1) [intentionally omitted];
(2) Borrower or any SPC Party fails to comply with (A) any representation, warranty or covenant set forth in Sections 3.1.24 or 4.1.15 or Schedule III attached hereto and a court of competent jurisdiction orders a substantive consolidation of Borrower based, in whole or in part, on such failure, and/or (B) any representation, warranty or covenant set forth in any of clauses (a), (b), (d), (e), (k), (n) and/or (u) set forth in Schedule III attached hereto and such failure is a substantial factor in Borrower being the debtor in, and/or the Property or any portion thereof or interest therein becoming an asset in, an involuntary bankruptcy or insolvency proceeding brought by one or more Persons other than Lender or any Affiliate of Lender and such proceeding is not discharged, stayed or dismissed within ninety (90) days;
(3) Borrower grants a voluntary Lien (other than a Lien resulting from the failure to pay charges for labor or materials or a Lien related to an easement or restrictive covenant that benefits a Property or the operation of the hospitality business contemplated thereon) encumbering the Property or any portion thereof or interest therein in violation of the Loan Documents;
(4) Borrower fails to obtain Lender’s prior written consent to any Transfer (including, without limitation, any change in Control), except to the extent expressly permitted by the Loan Documents;
(5) Borrower or any SPC Party files a voluntary petition under the Bankruptcy Code or any other federal, state, local or foreign bankruptcy or insolvency law;
(6) an Affiliate, officer, director or representative which Controls, directly or indirectly, Borrower or any SPC Party files, or joins in the filing of, an involuntary petition against Borrower or any SPC Party under the Bankruptcy Code or any other federal, state, local or foreign bankruptcy or insolvency law, solicits or causes to be solicited petitioning creditors for any involuntary petition against Borrower or any SPC Party from any Person or colludes with or otherwise assists such Person;
(7) Borrower or any SPC Party files an answer consenting to, or otherwise acquiescing in, or joining in, any involuntary petition filed against it, by any other Person under the Bankruptcy Code or any other federal, state, local or foreign bankruptcy or insolvency law, solicits or causes to be solicited petitioning creditors for any involuntary petition against Borrower or any SPC Party from any Person or colludes with or otherwise assists such Person;
(8) any Affiliate, officer, director or representative which Controls Borrower or any SPC Party consents to, or acquiesces in, or joins in, an application for the appointment of a custodian, receiver, trustee or examiner for Borrower or any SPC Party or any portion of the Property;
(9) Borrower or any SPC Party makes an assignment for the benefit of creditors (other than to Lender at Lender’s request), or admits, in writing or in any legal proceeding (other than to Lender at Lender’s request), its insolvency or inability to pay its debts as they become due; or
(10) Borrower, or any SPC Party, Guarantor, or any Affiliate of any of the foregoing, in connection with any enforcement action or exercise or assertion of any right or remedy by or on behalf of Lender under or in connection with the Note, the Security Instruments, the Guaranty or any other Loan Document, seeks a defense, judicial intervention or injunctive or other equitable relief of any kind or asserts in a pleading filed in connection with a judicial proceeding any defense against Lender or any right in connection with any security for the Loan, which a court of competent jurisdiction determines, pursuant to a final, non-appealable judgment, to have been frivolous, brought in bad faith or wholly without basis in fact or law, other than for mandatory or affirmative defenses; or
(11) if, without Lender’s prior written consent as provided in Section 7.2.1 of this Agreement), the Franchise Agreement for any particular Property is (A) modified or amended in any material respect, (B) surrendered, renewed or extended (other than, in the case of a renewal or extension, a renewal or extension provided for in such Franchise Agreement), (C) the subject of a Voluntary Franchise Termination, or (D) terminated or canceled by Franchisor under circumstances other than a Voluntary Franchise Termination, in the case of this clause (D) only, prior to the date (1) all of the amounts set forth on the PIP Reserve Funding Schedule shall have been funded by Borrower in accordance with the terms hereof, or (2) the PIP Plan for such Property shall have been completed in accordance with the applicable PIP Budget and Franchise Agreement; provided, however, in the case of a termination or cancellation contemplated in clause 11(D) above, the Obligations shall not be fully recourse to Borrower if within sixty (60) days after such termination or cancellation, Borrower enters into a Replacement Franchise Agreement for such affected Property, in accordance with the applicable terms and conditions of this Agreement, with (x) a Qualified Franchisor or (y) an Approved Brand, provided Borrower’s selection of an Approved Brand under this clause (y) shall be permitted without satisfying the requirements of a Qualified Franchisor up to a maximum of four (4) times without Lender consent (inclusive of any instances in which an Approved Brand is engaged by Borrower to cure an Event of Default under Section 10.1(a)(xv)), provided that Borrower shall nonetheless be recourse to Lender in respect of the Obligations to the extent of any 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 such termination or cancellation during such sixty (60) day period. Borrower’s recourse liability under this clause (11) shall be limited to the Allocated Loan Amount(s) for the applicable Property or Properties affected by the material modification or amendment or surrender, termination, cancellation, renewal or extension of the applicable Franchise Agreement.
Appears in 1 contract
Sources: Loan Agreement (American Realty Capital 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 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, ▇▇▇▇▇▇ agrees that it shall not ▇▇▇ 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 ▇▇▇▇▇▇▇▇ 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 Borrower▇▇▇▇▇▇▇▇, 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 ▇▇▇▇▇▇ (including attorneys’ fees and costs reasonably incurred) arising out of or in connection with the following:
(i) Actual fraud or and intentional misrepresentation by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company Borrower or any Guarantor of its partners, officers, principals, members, any guarantor or any other person authorized to make statements or representations, or act, on behalf of Borrower in connection with the execution and delivery of the Loan Documents and/or the Loan;
(ii) Affirmative acts of physical waste committed on the misappropriationTrust Property; damage to the Trust Property as a result of the intentional misconduct of Borrower or any of its principals, conversion officers, general partners or misapplication members, or any agent or employee of any such persons; or the removal of any portion of the Trust Property in contravention violation of the terms of the Loan Documents by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor following and during the continuance of any funds of Borrower, Senior Mezzanine Borrower, Mortgage Borrower or Operating Company, including, without limitation, (A) any Revenues, (B) any Net Liquidation Proceeds or Insurance Proceeds, (C) any Awards received in connection with a Condemnation, (D) any Rents or security deposits (or any item of Revenue, from whatever source) following an Event of Default, or (E) any distribution or other payments made in connection with any part of the Collateral or Senior Mezzanine Collateral;
(iii) subject to any right to contest such matters, as provided in the misappropriationDeed of Trust, conversion failure to pay any valid taxes and assessments, mechanic’s liens, materialmen’s liens or misapplication other liens which could create liens on any portion of the Trust Property which would be superior to the lien or security title of the Deed of Trust or the other Loan Documents, to the full extent of the amount claimed by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any security deposits or Rents paid more than one (1) month in advancesuch lien claimant;
(iv) all legal costs and expenses (including attorneys’ fees) reasonably incurred by Lender in connection with litigation or other legal proceedings involving the collection or enforcement of the Loan or preservation of Lender’s rights under the Loan Documents, including any act costs incurred by Lender arising from or relating to the filing of actual intentional physical waste a petition under the U.S. Bankruptcy Code by or against Borrower, Mortgage Borrowerother than those customarily incurred by a lender in realizing upon its lien in an uncontested foreclosure sale after an undisputed default; provided, Senior Mezzanine Borrowerhowever, Operating Company or that no liability for any Guarantorsuch costs and expenses shall arise in connection with a bona fide good faith litigation;
(v) the breach in any material respect of any representation, warranty, covenant or indemnification provision in that certain Environmental and Hazardous Substance Indemnification Agreement of even date herewith given by Borrower to Lender or in the Environmental Indemnity Agreement Deed of Trust concerning environmental laws, hazardous substances and asbestos and any indemnification of Lender with respect thereto in either documentor asbestos;
(vi) if Borrowerthe misapplication or conversion by Borrower of (A) any insurance proceeds paid by reason of any loss, Mortgage Borrowerdamage or destruction to the Trust Property, Senior Mezzanine Borrower (B) any awards or Operating Company fails to obtain Lender’s prior consent to other amounts received in connection with the condemnation of all or a portion of the Trust Property, or (C) any voluntary intentional Transfer as required by this Agreement, Rents following and during the Mortgage Loan Agreement or the Mortgages, as applicablecontinuance of an Event of Default;
(vii) any security deposits, advance deposits or any other refundable deposits collected with respect to any of the Properties Trust Property which are not delivered to Mortgage Lender upon a sale or foreclosure of any of the Properties Trust Property or other action in lieu thereof, except to the extent any such security deposits were applied in accordance with the terms and conditions of any of the Leases (as defined in the Deed of Trust) prior to the occurrence of the Event of Default that gave rise to such sale or foreclosure or action in lieu thereof;; and
(viii) in failure to maintain any Policies required under Paragraph 2 of the event of:
(A) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing a voluntary petition under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (B) the filing Deed of an involuntary petition against Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law by any Person in which Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of their respective Affiliates, agents or employees colludes with or such other PersonTrust, or Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor soliciting or causing to be solicited petitioning creditors for any involuntary petition against Borrower, Operating Company or any Guarantor from any Person; (C) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing an answer consenting to or otherwise acquiescing in or joining in any involuntary petition filed against it by any other Person, other than Lender, under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (D) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor consenting to or acquiescing in or joining in an application for the appointment of a custodian, receiver, trustee, or examiner for Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of the Properties, the Collateral, the Senior Mezzanine Collateral or any portion thereof, other than at the request of Lender; or (E) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor making an assignment for the benefit of creditors (other than Lender), or admitting, in writing or in any legal proceeding, its insolvency or inability to pay its debts as they become due;
(ix) if Borrower, Senior Mezzanine Borrower or Mortgage Borrower fails to maintain its status as a Special Purpose Entity or breaches provide the amount of any material representation or warranty set forth in Section 4.1.30 of this Agreement; and
(x) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company fails to obtain Lender’s prior consent to any voluntary Indebtedness (other than (x) with respect to Mortgage Borrower, Permitted Indebtedness and (y) with respect to Operating Company, Permitted Indebtedness (Operating Company), as applicable) or voluntary Lien (other than Permitted Encumbrances) encumbering any of the Properties, Senior Mezzanine Collateral or Collateral as required by this Agreement, the Senior Mezzanine Loan Agreement, the Mortgage Loan Agreement, the Pledge Agreement or the Mortgages. Notwithstanding anything to the contrary under this Agreement, neither any present or future Affiliate of Borrower (other than Guarantorinsurance deductible, to the extent provided of the applicable deductible, following a Casualty (as defined in the Deed of Trust) or other insured event (other than a circumstance of non-conformity arising by reason of a change in insurance market circumstance subsequent to the origination of the Loan which prevents such maintenance). With respect to liability arising under clause (iii) and (viii) above, such liability shall not arise to the Guaranty) nor any present extent, but only the extent, the required amounts had been paid by Borrower to Lender pursuant to the Deed of Trust or future shareholderthe failure to pay, officer, director, employee, trustee, beneficiary, advisor, partner, member, principal, participant maintain or agent of or provide in any Borrower such case is due to the operation of the Trust Property failing to generate revenues sufficient, on a first priority basis, for the payment or of or in any person or entity that is or becomes an Affiliate of any Borrower shall have any personal liability, directly or indirectly, under or in connection with the Loan Documentsmaintenance thereof. Neither the negative capital account of any Affiliate of Borrower in Borrower, or in any other Affiliate of Borrower in any other Affiliate of Borrower, nor any obligation of any Affiliate of Borrower in any Borrower to restore a negative capital account or to contribute or loan capital to any Borrower or to any other Affiliate of Borrower shall at any time be deemed to be the property or an asset of any Borrower (or any other Affiliate of Borrower) and neither Lender nor its successors or assigns shall have any right to collect, enforce or proceed against any such negative capital account or obligation to restore, contribute or loan capital.
(b) Notwithstanding anything to the contrary in this Agreement, the Note or any of the Loan Documents, (A) Lender shall not be deemed to have waived any right which Lender may have under Section 506(a), 506(b), 1111(b) or any other provisions of the U.S. Bankruptcy Code to file a claim for the full amount of the Indebtedness Debt secured by the Deed of Trust or to require that all collateral shall continue to secure all of the Indebtedness Debt owing to Lender in accordance with the Loan Documents, and (B) the Debt shall be fully recourse to Borrower in the event that: (i) Borrower fails to pay the first full monthly payment of interest under this Note when due; (ii) the Trust Property or any part thereof becomes an asset in a voluntary bankruptcy or voluntary insolvency proceeding under the U.S. Bankruptcy Code; (iii) Borrower engages in any business activities other than those related to the Trust Property or violates the restrictions on indebtedness set forth in the Deed of Trust; (iv) Borrower fails to obtain Lender’s prior written consent to any subordinate financing or other voluntary lien encumbering the Trust Property or any interests in Borrower; (v) Borrower fails to obtain ▇▇▇▇▇▇’s prior written consent to any assignment, transfer, or conveyance of the Trust Property or any interest therein as required by the Deed of Trust; or (vi) there is an intentional breach of, or deliberate failure to perform, any of the representations, covenants and agreements of Section 1(l) of the Deed of Trust occurs.
Appears in 1 contract
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 ▇▇▇ 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:
(i) fraud or intentional misrepresentation by Borrowerany Loan Party, Mortgage BorrowerHRHI, Senior Mezzanine Borrower, Operating Company any Guarantor or any Guarantor of their respective principals, officers, agents or employees in connection with the execution and delivery of the Loan Documents and/or the Loan;
(ii) physical waste to any Property arising from the misappropriationintentional misconduct or gross negligence of any Loan Party, conversion or misapplication in contravention of the Loan Documents by BorrowerHRHI, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company any Guarantor or any Guarantor of their respective principals, officers, agents or employees and/or any removal of any funds asset forming a part of Borrowerany Property in violation of this Agreement or the other Loan Documents;
(iii) Intentionally Omitted;
(iv) the misappropriation or conversion by any Loan Party, Senior Mezzanine Borrower, Mortgage Borrower or Operating Companyby any Person Controlled by any Loan Party, including, without limitation, any Affiliated Manager, a Liquor Manager who is an Affiliate of any Loan Party or a Gaming Operator who is an Affiliate of any Loan Party, by any agent of any Loan Party, or by any other Person with whom any Loan Party shall collude or cooperate, of (A) any RevenuesInsurance Proceeds paid by reason of any Casualty, to the extent so misappropriated or converted; (B) any Net Liquidation Proceeds or Insurance Proceeds, (C) any Awards received in connection with a Condemnation, to the extent so misappropriated or converted; (C) any Rents or other Gross Income from Operations not delivered to Lender following and during the continuance of an Event of Default and not otherwise used to pay actual, customary Operating Expenses reflected on the Approved Annual Budget then in effect, including, without limitation, (I) any income, proceeds or other amounts received by any Loan Party under the Gaming Sublease, and/or (II) without duplication of the foregoing clause (I), any income, proceeds or revenue generated from gaming activities at any Property, in each of the foregoing instances, to the extent so misappropriated or converted; (D) any Rents or security deposits (or any item of Revenue, from whatever source) following an Event of Default, or (E) any distribution or other payments made in connection with any part of the Collateral or Senior Mezzanine Collateral;
(iii) the misappropriation, conversion or misapplication by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any security deposits or Rents paid more than one (1) month in advance;
advance in violation of this Agreement or the other Loan Documents, to the extent so misappropriated or converted; and/or (ivE) any act of actual intentional physical waste by Borrowersecurity deposits, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company to the extent so misappropriated or any Guarantorconverted;
(v) the breach failure of any representationLoan Party to pay (or to deposit into the Mortgage Reserve Funds or the Reserve Funds, warrantyif applicable, covenant amounts sufficient to pay) all Taxes and all other costs giving rise to any Lien on any portion of the Collateral or indemnification provision any Property or the IP with priority over or equal to the Lien of the Loan Documents in violation of this Agreement or the Environmental Indemnity Agreement concerning environmental lawsother Loan Documents, hazardous substances and asbestos and any indemnification of Lender with respect thereto in either documentto the extent that there is sufficient Gross Income from Operations to make such payments (or deposits, as applicable);
(vi) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company fails to obtain Lender’s prior consent to any voluntary intentional Transfer as required by this Agreement, the Mortgage Loan Agreement or the Mortgages, as applicable;
(vii) any security deposits, advance deposits or any other deposits collected with respect to any of the Properties which are not delivered to Mortgage Lender upon a foreclosure of any of the Properties or action in lieu thereof, except to the extent any such security deposits were applied in accordance with the terms and conditions of any of the Leases prior to the occurrence of the Event of Default that gave rise to such foreclosure or action in lieu thereof;
(viii) in the event of:
(A) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing a voluntary petition under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (B) the filing of an involuntary petition against Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law by any Person in which Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of their respective Affiliates, agents or employees colludes with or such other Person, or Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor soliciting or causing to be solicited petitioning creditors for any involuntary petition against Borrower, Operating Company or any Guarantor from any Person; (C) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing an answer consenting to or otherwise acquiescing in or joining in any involuntary petition filed against it by any other Person, other than Lender, under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (D) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor consenting to or acquiescing in or joining in an application for the appointment of a custodian, receiver, trustee, or examiner for Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of the Properties, the Collateral, the Senior Mezzanine Collateral or any portion thereof, other than at the request of Lender; or (E) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor making an assignment for the benefit of creditors (other than Lender), or admitting, in writing or in any legal proceeding, its insolvency or inability to pay its debts as they become due;
(ix) if Borrower, Senior Mezzanine Borrower or Mortgage Borrower Party fails to maintain its status as a Special Purpose Entity as required pursuant to the terms hereof;
(vii) if any Loan Party fails to obtain Lender’s consent to any subordinate financing, mortgage or breaches other voluntary Lien encumbering the Collateral, any material representation Property or warranty the IP other than Permitted Encumbrances and Permitted IP Encumbrances;
(viii) the failure to maintain insurance coverage under blanket insurance policies to the extent permitted under this Agreement;
(ix) if any of the events set forth in clauses (a), (b) or (c) of Section 4.1.30 5.2.11 hereof shall occur without the prior approval of this Agreement; andLender;
(x) if Borrowerany of the restrictions to Transfer set forth in Section 5.2.10 hereof or in any of the other Loan Documents are violated;
(xi) if Lender or any Affiliate thereof shall succeed to the interest of HRHI under the Gaming Sublease following a foreclosure, Mortgage Borrowerdeed in lieu of foreclosure or similar transfer, Senior Mezzanine Borrower any actual loss, cost, damage or Operating Company fails expense (including, without limitation, reasonable attorneys’ fees and expenses) suffered by Lender or such Affiliate as a result of: (A) any act, omission, neglect or default of HRHI under the Gaming Sublease, (B) any claim, defense, counterclaim or offset which the Gaming Operator may have under the Gaming Sublease against HRHI, (C) any obligation to obtain Lendermake any payment to the Gaming Operator under the Gaming Sublease which was required to be made by or on behalf of HRHI prior to the time Lender or such Affiliate succeeded to HRHI’s prior consent interest under the Gaming Sublease, (D) any monies deposited with HRHI under the Gaming Sublease, except to the extent such monies are actually received by Lender or such Affiliate, (E) any voluntary Indebtedness obligation to complete or permit the construction of any improvements under the Gaming Sublease arising while HRHI was the sublandlord under the Gaming Sublease, and/or (other than F) any default by HRHI under the Gaming Lease beyond applicable notice and cure periods;
(xxii) if HRHI or any Affiliate thereof shall send a notice to Gaming Operator under Section 6(a), (c) or (d) of the Gaming Recognition Agreement which conflicts with respect any notice theretofore sent by Lender to Mortgage BorrowerGaming Operator under said Section 6(a), Permitted Indebtedness and (yc) with respect to Operating Company, Permitted Indebtedness or (Operating Companyd), as applicable, of the Gaming Recognition Agreement; provided, however, that the liability under this clause (xii) shall be limited to all fees and costs incurred by Gaming Operator in bringing and pursuing any interpleader action contemplated by said Section 6(a), (c) or voluntary Lien (other than Permitted Encumbrancesd), as applicable, and only to the extent that Gaming Operator seeks to recover and/or does recover such fees and expenses from Lender;
(xiii) encumbering any if HRHI shall fail to provide Gaming Employees for the operation of gaming activities at the Hotel/Casino Property as and to the extent required pursuant to Paragraph 7 of the PropertiesHRHI Gaming Agreement;
(xiv) in the event that Gaming Borrower shall ever become the Gaming Operator pursuant to Article XII hereof, Senior Mezzanine Collateral if Gaming Borrower thereafter shall fail to provide gaming operation services for the Hotel/Casino Property following an Event of Default or Collateral a foreclosure of the Mortgage as and to the extent required by this pursuant to Section 12.1(e) hereof;
(xv) in the event that HRHI, Gaming Borrower, any other Loan Party or any Affiliate thereof shall be the Liquor Manager, if HRHI, Gaming Borrower, such other Loan Party or such Affiliate thereof shall fail to provide liquor management services for the Hotel/Casino Property following an Event of Default or a foreclosure of the Mortgage as and to the extent required (A) as to HRHI, pursuant to Sections 5(a) or 5(b) of the Assignment of Liquor Management Agreement, as applicable, and (B) as to Gaming Borrower, any other Mortgage Borrower or any Affiliate thereof, pursuant to Section 5.1.23(c) hereof;
(xvi) in connection with the Senior Mezzanine Loan Agreement$250,000.00 lease termination fee pursuant to Section 3.2(B) of that certain Lease by and between PM Realty, LLC and HRHI, as landlord, and ▇▇. ▇▇▇▇ of Las Vegas, LLC, as tenant, dated December 24, 2004;
(xvii) as a result of the imposition of any tax provided in NRS §§375.020 and 375.023 with respect to the merger transaction contemplated under the Merger Agreement and/or the subsequent conveyance of the Hotel/Casino Property (A) to HRHH Gaming Junior Mezz, LLC, and then (B) to Gaming Mezz Borrower, and then (iii) to Hotel/Casino Borrower, provided, however, that any liability under this clause (xvii) shall terminate upon the payment in full of the Debt;
(xviii) as a result of Adjacent Borrower selling or attempting to sell any Partial Release Parcel or any Partial Adjacent Parcel in accordance with the procedures set forth in Section 2.5.1(f) or 2.5.2(f) of the Mortgage Loan Agreement, as applicable, rather than pursuant to a customary direct deed transfer, including, without limitation, (A) the Pledge Agreement or the Mortgages. Notwithstanding anything to the contrary under this Agreement, neither any present or future Affiliate of Borrower (other than Guarantor, to the extent provided under the Guaranty) nor any present or future shareholder, officer, director, employee, trustee, beneficiary, advisor, partner, member, principal, participant or agent of or in any Borrower or of or in any person or entity that is or becomes an Affiliate imposition of any Borrower shall have any personal liabilitytax (including interest and penalties) provided in NRS §§375.020 and 375.023, directly or indirectly, under or (B) in connection with the Loan Documents. Neither the negative capital account of any Affiliate of Borrower in Borrower, Bankruptcy Action filed by or in any other Affiliate of Borrower in any other Affiliate of Borrower, nor any obligation of any Affiliate of Borrower in any Borrower to restore a negative capital account or to contribute or loan capital to any Borrower or to any other Affiliate of Borrower shall at any time be deemed to be the property or an asset of any Borrower (or any other Affiliate of Borrower) and neither Lender nor its successors or assigns shall have any right to collect, enforce or proceed against any Subsidiary Transferee prior to or following the consummation of such negative capital account sale, and/or (C) in connection with any delay in accomplishing any of the steps identified in said Section 2.5.1(f) or obligation to restore2.5.2(f) of the Mortgage Loan Agreement, contribute or loan capital.as applicable; and/or
(bxix) any Interest Shortfall existing on any Payment Date (A) occurring after February 2, 2008, if on or after February 2, 2008 the Gaming Operating Condition is not satisfied, and (B) ending with (and including) the May 9, 2008 Payment Date. Notwithstanding anything to the contrary in this Agreement, the Note or any of the other Loan Documents, (A) Lender shall not be deemed to have waived any right which Lender may have under Section 506(a), 506(b), 1111(b) or any other provisions of the Bankruptcy Code to file a claim for the full amount of the Indebtedness Debt secured by the Pledge Agreement or to require that all collateral shall continue to secure all of the Indebtedness Debt owing to Lender in accordance with the Loan Documents., and (B) the Debt shall be fully recourse to Borrowers in the event of: (i) any Loan Party, HRHI or both Guarantors filing a voluntary petition under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (ii) the filing of an involuntary petition against any Loan Party, HRHI or both Guarantors under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law by or on behalf of any Person other than Lender, and such petition is not dismissed within ninety (90) days after filing, or any Loan Party, or any Affiliate of any of them who Controls any Loan Party, or HRHI or both Guarantors, solicit or cause to be solicited petitioning creditors for any involuntary petition against any Loan Party, HRHI or both Guarantors from any Person (other than if requested to do so by or on behalf of Lender); (iii) any Loan Party, HRHI or both Guarantors filing an answer consenting to, or any Loan Party, HRHI or both Guarantors, or any Affiliate of any of them who Controls any Loan Party, otherwise consenting to or acquiescing or joining in, any involuntary petition filed against any Loan Party, HRHI or both Guarantors, by any other Person (other than if filed by or on behalf of Lender) under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (iv) any Loan Party, HRHI or both Guarantors, or any Affiliate of any of them who Controls any Loan Party, consenting to or acquiescing or joining in an application for the appointment of a custodian, receiver, trustee or examiner for any Loan Party or any portion of any Property or any portion of the IP or the Collateral (other than any such appointment at the request or petition of Lender); (v) any Loan Party, HRHI or both Guarantors voluntarily making an assignment for the benefit of creditors (other than Lender), or admitting, in writing or in any legal proceeding, its insolvency or inability to pay its debts as they become due; and/or (vi) Gaming Mezz Borrower failing to comply, or cause compliance by the applicable Mortgage Borrower, with the requirements of the Gaming Laws to obtain the approval of the Gaming Authorities of the pledge of the Gaming Securities pursuant to Section 17(b) of the Pledge Agreement (it being understood and agreed that Borrowers shall have no liability under this clause (vi) to the extent arising from the failure of Lender to reasonably cooperate with the Gaming Authorities in connection with such Gaming Law requirements to the extent necessary); unless, in the case of any of the foregoing clauses (i), (ii), (iii), (iv), (v) or (vi) as it relates to or affects both Guarantors, one or more guarantors acceptable to Lender in its sole discretion remains or becomes a guarantor of the Loan. Notwithstanding anything to the contrary in this Agreement or any other Loan Document, and except for (1) Guarantors’ obligations under the Non-Recourse Guaranty, the Non-Qualified Prepayment Guaranty, the Closing Completion Guaranty and the Construction Completion Guaranty, (2) HRHI’s obligations under the HRHI Guaranty, and (3) with respect to the DLJ Guarantor, DLJ Merchant Banking Partners IV, L.P., MBP IV Plan Investors, L.P., DLJMB HRH Co-Investments, L.P., DLJ Offshore Partners IV, L.P., and DLJ Merchant Banking Partners IV (Pacific), L.P. (such limited partnerships, collectively, the “DLJMB Parties”) as provided in the DLJMB Commitment Letter, no present or future Constituent Member in any Borrower, nor any present or future shareholder, officer, director, employee, trustee, beneficiary, advisor, member, partner, principal, participant or agent of or in any Borrower or of or in any Person that is or becomes a Constituent Member in any Borrower, shall have any personal liability, directly or indirectly, under or in connection with this Agreement or any of the Loan Documents, or any amendment or amendments to any of the foregoing made at any time or times, heretofore or hereafter, and Lender on behalf of itself and its successors and assigns, hereby waives any and all such personal liability. In addition, Lender, for itself and its successors and assigns, acknowledges and agrees that neither Borrowers, nor any Constituent Member, nor any other party, is assuming any personal liability, directly or indirectly, under or in connection with any agreement, lease, instrument, claim or right constituting a part of any Property, the IP or the Collateral or to which any Property, the IP or the Collateral is now or hereafter subject, except as may be expressly set forth therein. For purposes of this Agreement and each of the other Loan Documents, neither the negative capital account of any Constituent Member in any Borrower nor any obligation of any Constituent Member in any Borrower to restore a negative capital account or to contribute or loan capital to any Borrower or to any other Constituent Member in any Borrower shall at any time be deemed to be the property or an asset of such Borrower (or any such other Constituent Member) and neither Lender nor any of its successors or assigns shall have any right to collect, enforce or proceed against any Constituent Member with respect to any such negative capital
Appears in 1 contract
Sources: 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 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 ▇▇▇ 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 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:
(i) fraud or intentional misrepresentation by any Individual Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company Principal or any Guarantor in connection with the execution and delivery of the Loan Documents and/or the Loan;
(ii) the misappropriation, conversion gross negligence or misapplication in contravention willful misconduct of the Loan Documents by any Individual Borrower, Mortgage Principal or Guarantor;
(iii) material physical waste of any Individual Property;
(iv) the removal or disposal of any portion of any Individual Property after an Event of Default;
(v) the misapplication or conversion by any Individual Borrower, Senior Mezzanine Borrower, Operating Company Principal or any Guarantor of any funds of Borrower, Senior Mezzanine Borrower, Mortgage Borrower or Operating Company, including, without limitation, (A) any RevenuesInsurance Proceeds paid by reason of any loss, damage or destruction to any Individual Property which are not applied by Borrower in accordance with this Agreement, (B) any Net Liquidation Proceeds or Insurance Proceeds, (C) any Awards received in connection with a CondemnationCondemnation of all or a portion of any Individual Property which are not applied by Borrower in accordance with this Agreement, (DC) any Rents or security deposits (or any item of Revenue, from whatever source) following an Event of Default, or (ED) any distribution or other payments made in connection with any part of the Collateral or Senior Mezzanine Collateral;
(iii) the misappropriation, conversion or misapplication by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any security deposits or Rents paid more than one (1) month in advance;
(ivvi) failure to pay charges for labor or materials or other charges or judgments that can create Liens on any act of actual intentional physical waste by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor;
(v) the breach portion of any representationIndividual Property (other than resulting from Lender’s failure to pay Taxes from the Tax and Insurance Reserve Fund provided that (A) no other Event of Default shall then exist, warranty(B) each of Borrower has performed all of its respective obligations under Sections 5.1.2 and 7.2 hereof, covenant or indemnification provision in and (C) sufficient funds are then on deposit therein and such funds are allocated for the Environmental Indemnity Agreement concerning environmental lawspayment of such Taxes), hazardous substances and asbestos and any indemnification provided, that, if (i) such Lien is fully bonded to the satisfaction of Lender with respect thereto in either document;
(viwhich bond shall create no obligations on the part of Borrower), and (ii) if Borrowersuch Lien is discharged of record, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company fails shall not have any liability to obtain Lender’s prior consent to any voluntary intentional Transfer as required by Lender for such Lien under this Agreement, the Mortgage Loan Agreement or the Mortgages, as applicableSection 9.3;
(vii) failure to appoint a new property manager upon the request of Lender as permitted under this Agreement; or
(viii) any security deposits, advance deposits or any other deposits collected with respect to any of the Properties Individual Property which are not delivered to Mortgage Lender upon a foreclosure of any of the Properties such Individual Property or action in lieu thereof, except to the extent any such security deposits were applied in accordance with the terms and conditions of any of the Leases prior to the occurrence of the Event of Default that gave rise to such foreclosure or action in lieu thereof;.
(viiia) in the event of:
(A) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company Borrower or any Guarantor Principal filing a voluntary petition under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (Bb) the filing of an involuntary petition against Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company any Individual Borrower or any Guarantor Principal under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law by any Person in which any Individual Borrower, Mortgage BorrowerPrincipal or Guarantor colludes with, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of their respective Affiliates, agents or employees colludes with or otherwise assists such other Person, or Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company solicits or any Guarantor soliciting or causing causes to be solicited petitioning creditors for any involuntary petition against Borrower, Operating Company any Individual Borrower or any Guarantor Principal from any Person; (Cc) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company any Individual Borrower or any Guarantor Principal filing an answer consenting to or otherwise acquiescing in or joining in any involuntary petition filed against it it, by any other Person, other than Lender, Person under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (Dd) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company any Individual Borrower or any Guarantor Principal consenting to or acquiescing in or joining in an application for the appointment of a custodian, receiver, trustee, or examiner for Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company any Individual Borrower or Principal or any Guarantor or any of the Properties, the Collateral, the Senior Mezzanine Collateral Individual Property (or any portion thereof, other than at the request of Lender); (e) any Individual Borrower or (E) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor Principal making an assignment for the benefit of creditors (other than Lender)creditors, or admitting, admitting in writing or in any legal insolvency or bankruptcy proceeding, its insolvency or inability to pay its debts as they become due;
; (ixii) the first full monthly payment under the Note not being paid within five (5) days of notice that such payment is late (provided, however, that such grace period relates only to the recourse trigger described in this paragraph); (iii) if any Individual Borrower fails to permit on-site inspections of any Individual Property (subject to the rights of tenants), or fails to provide financial information subject to any applicable cure period (except for financial information required to be delivered by a tenant pursuant to the applicable Lease that has not been delivered to any Individual Borrower, Senior Mezzanine provided such Individual Borrower or Mortgage has requested such financial information from such tenant); (iv) if any Individual Borrower fails to maintain its status as a Special Purpose Entity or Entity, breaches any material representation or fails to comply with any warranty or covenant set forth in Section 4.1.30 of this Agreementhereof; and
(xv) if Borrower, Mortgage Borrower, Senior Mezzanine any Individual Borrower or Operating Company any Principal fails to obtain Lender’s prior written consent (to extent such consent is required) to any Indebtedness or other voluntary Indebtedness Lien; or (other than vi) the failure of any Individual Borrower to obtain Lender’s prior written consent (xto extent such consent is required) with respect to Mortgage Borrower, Permitted Indebtedness and (y) with respect to Operating Company, Permitted Indebtedness (Operating Company), as applicable) or voluntary Lien (other than Permitted Encumbrances) encumbering any of the Properties, Senior Mezzanine Collateral or Collateral Transfer as required by this Agreement, the Senior Mezzanine Loan Agreement, the Mortgage Loan Agreement, the Pledge Agreement or the Mortgages. Notwithstanding anything the provision set forth in clause (v) of this paragraph, a voluntary Lien other than a Lien securing an extension of credit filed against any Individual Property shall not constitute a full recourse trigger for purposes of this paragraph provided such Lien (A) is fully bonded to the contrary under this Agreementsatisfaction of Lender and discharged of record within ninety (90) days of filing, neither or (B) within such ninety (90) day period, Lender receives affirmative title insurance from the title insurance company insuring the lien of the applicable Mortgage that such Lien is subject and subordinate to the lien of such Mortgage and no enforcement action is commenced by the applicable Lien holder. Upon the satisfaction of the conditions set forth in the preceding sentence with respect to the recourse trigger described in clause (v) above, or the acceptance by Lender of any present cure by Borrower of a recourse trigger described in clauses (ii), (iii) or future Affiliate (vi) above (which Lender is not obligated to accept and may reject or accept in its sole and absolute discretion), the Debt shall no longer be fully recourse to Borrower solely as a result of such trigger, provided, however, Borrower (other than Guarantor, shall remain liable to the extent provided under the Guaranty) nor any present or future shareholder, officer, director, employee, trustee, beneficiary, advisor, partner, member, principal, participant or agent of or in any Borrower or of or in any person or entity that is or becomes an Affiliate of any Borrower shall have any personal loss, damage, cost, expense, liability, directly claim or indirectly, under other obligation incurred by Lender (including attorneys’ fees and costs reasonably incurred) arising out of or in connection with such trigger. Notwithstanding the Loan Documents. Neither foregoing, provided that any natural person serving as an Independent Director has agreed in writing that it is not, and will not become, a stockholder in any Individual Borrower, Guarantor or any Affiliate, the negative capital account disqualification of such person from serving as an Independent Director because (1) such person became a stockholder in Guarantor or any publicly traded Affiliate of any Individual Borrower or Guarantor without the knowledge or consent of such Individual Borrower, Guarantor or the applicable Affiliate, or (2) a member of such natural person’s immediate family is, or became, a stockholder in Guarantor or any publicly traded Affiliate of any Individual Borrower in or Guarantor without the knowledge or consent of such Individual Borrower, Guarantor or in any other Affiliate of Borrower in any other Affiliate of the applicable Affiliate, shall not trigger recourse under this Section 9.3 provided the applicable Borrower, nor any obligation upon obtaining knowledge of any Affiliate of Borrower in any Borrower such person’s ineligibility to restore a negative capital account or serve as an Independent Director, promptly causes such person to contribute or loan capital to any Borrower or to any other Affiliate of Borrower shall at any time be deemed to be the property or resign and replaces such person with an asset of any Borrower (or any other Affiliate of Borrower) and neither Lender nor its successors or assigns shall have any right to collect, enforce or proceed against any such negative capital account or obligation to restore, contribute or loan capital.
(b) Notwithstanding anything to the contrary in this Agreement, the Note or any of the Loan Documents, Lender shall not be deemed to have waived any right which Lender may have under Section 506(a), 506(b), 1111(b) or any other provisions of the Bankruptcy Code to file a claim for the full amount of the Indebtedness or to require that all collateral shall continue to secure all of the Indebtedness owing to Lender eligible Independent Director in accordance with the Loan Documentsterms hereof.
Appears in 1 contract
Sources: Loan Agreement (Inland Diversified Real Estate Trust, Inc.)
Exculpation. (a) Subject Except as hereinafter provided, the liability of Borrower and any Guarantor with respect to the qualifications belowpayment of principal and interest hereunder shall be “non-recourse”, Lender shall not enforce and ▇▇▇▇▇▇’s source of satisfaction of the liability indebtedness and obligation of Borrower to perform ▇▇▇▇▇▇▇▇’s and observe the Guarantor’s other obligations contained in the Note, under this Agreement, the Pledge Agreement or Note and under the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against limited to the Property and ▇▇▇▇▇▇’s receipt of the rents, issues and profits from the Property and any other security or collateral now or hereafter held by Lender. Lender shall not seek to procure payment out of other assets of Borrower, except that Lender may bring a foreclosure action, an action for specific performance any Guarantor or any other appropriate action person or proceeding to enable Lender and each Noteholder to enforce and realize upon its interest entity comprising Borrower, nor seek any judgment (except as hereinafter provided) for any sums that are or may be payable under the Note, this Agreement, the Pledge Agreement and Note or any of the other Loan Documents, including any claim or judgment (except as hereafter provided) for any deficiency remaining after foreclosure of the Deed of Trust. The above provisions shall not be deemed to be a release or impairment of the Loan evidenced by this Note or the security therefor intended by the other Loan Documents, nor be deemed to preclude Lender from exercising its rights to foreclose the Deed of Trust or to enforce any of its other rights or remedies under the Loan Documents, including but not limited to that certain Guaranty of Recourse Carve-Outs of even date herewith from Whitestone REIT, a Maryland real estate investment trust. It is expressly understood and agreed that the aforementioned limitation on liability shall in no way affect or apply to the Collateralcontinued personal liability of Borrower or any Guarantor, jointly and severally, for any and all costs, expenses, losses and/or damages incurred by ▇▇▇▇▇▇ as a result of:
(a) fraud, willful misconduct or material misrepresentation made in connection with the Application for Mortgage Loan dated August 7, 2008, and any subsequent amendments thereto (the “Application”), this Note, any of the other Loan Documents or any other collateral given supporting or due diligence documentation provided by Borrower or any Guarantor in connection therewith;
(b) failure to pay any taxes which accrue prior to Lender taking control of the Property or to pay assessments, charges for labor or materials or any other charges that could result in liens on all or any portion of the Property, but exclusive of any damages resulting from the failure by ▇▇▇▇▇▇ to disburse any taxes or assessments received from Borrower in escrow;
(c) misapplication or misappropriation of (i) proceeds of insurance covering all or any portion of the Property; (ii) proceeds of the sale, condemnation or transfer in lieu of condemnation of all or any portion of the Property; or (iii) rentals or other income from the Property received by or on behalf of Borrower and not applied to satisfy Borrower’s obligations under this Note and/or under the Loan Documents;
(d) causing or permitting waste, arson or other similar damage to occur in, on or about the Property, or failing to maintain the Property in a prudent business-like and commercially reasonable standard, excepting only ordinary wear and tear;
(e) failure to pay to Lender all unearned advance rentals and security deposits that have been paid by tenants of the Property to the extent that such funds have not been refunded to such tenants;
(f) failure to pay any and all tenant improvement allowances owed to tenants leasing space in the Property;
(g) failure to pay to Lender any and all required amounts paid to Borrower by tenants of the Property in connection with the termination of the leases of such tenants, including any amounts paid in connection with the bankruptcies or insolvencies of such tenants and failure to assign any claims, proofs of claims or other rights related to the future right to receive payment of such amounts;
(h) claims, including, without limitation, claims of offset or abatement of rent, made by any tenant of the Property in connection with its lease, with its premises or with any other areas of the Property which claims relate to, arise out of or are caused in whole or in part, by any action, default or failure of Borrower, which occurs or begins to occur prior to the date on which Lender takes actual day-to-day control of the Property, regardless of when such claims may be asserted;
(i) Borrower’s amendment, modification, termination, renewal or extension of any existing leases, or entering into new leases of the Property in violation of the Loan Documents;
(j) claims made by third parties as a result of ▇▇▇▇▇▇▇▇’s failure to perform under agreements affecting the Property;
(k) loss by fire, casualty or acts of terrorism to the extent not compensated by insurance proceeds collected by or remitted to Lender;
(l) failure to return to Lender or reimburse Lender for all Fixtures and Personal Property (as defined in the Deed of Trust) owned by Borrower taken from the Property by or on behalf of Borrower out of the ordinary course of business and not replaced by items of like or greater value than the original value of the Fixtures and Personal Property so removed;
(m) all court costs and Reasonable Attorneys’ Fees actually incurred by ▇▇▇▇▇▇ for which Borrower or any Guarantor is liable pursuant to the terms of the Application, this Note or any of the other Loan Documents;
(i) removal or remediation of any hazardous or toxic chemicals, materials, substances or wastes (collectively, “Hazardous Substances”) found on, in or under the Property in quantities or concentrations that exceed legal limits or where removal or remediation is required by any governmental entity or any Hazardous Substances Laws (as defined in the Deed of Trust); to which exposure is prohibited, limited or regulated by any federal, state, county or local authority; or which may or could pose a hazard to the health or safety of the occupants of or visitors to the Property (which substances are also further defined in the Deed of Trust as “Hazardous Substances”), regardless of the source of origination (including sources off the Property from which the substance has migrated onto the Property or into its groundwater);
(ii) the restoration of the Property to comply with all governmental regulations pertaining to Hazardous Substances found in, on or under the Property, regardless of the source of origination; and (iii) any indemnity or other agreement to hold Lender and the Trustee (as defined in the Deed of Trust) harmless from and against any and all losses, liabilities, damages, injuries, costs, fines and expenses of any and every kind arising as a result of the presence, removal or remediation of Hazardous Substances, or from the violation of Hazardous Substances Laws. Borrower and any Guarantor shall not be liable hereunder if the Property becomes contaminated by Hazardous Substances subsequent to Lender’s acquisition of the Property by foreclosure or acceptance of a deed in lieu of foreclosure, or subsequent to any transfer of ownership of the Property that was approved or authorized in writing by ▇▇▇▇▇▇, provided that such transferee assumes in writing all obligations of Borrower and any Guarantor under the Loan Documents pertaining to Hazardous Substances Laws. Liability under this subsection shall extend beyond repayment of this Note and compliance with the terms of the Deed of Trust unless at such time Borrower provides Lender with an environmental assessment report prepared by an environmental engineer or consultant approved by ▇▇▇▇▇▇ which demonstrates to Lender’s satisfaction that the Property is free of Hazardous Substances and not in violation of Hazardous Substances Laws. The burden of proof under this subsection with regard to establishing the date upon which such Hazardous Substances were placed or appeared in, on or under the Property shall be upon Borrower;
(i) any and all costs incurred in order to cause the Property to comply with Accessibility Laws (as defined in the Deed of Trust) and (ii) any indemnity or other agreement to hold Lender and the Trustee harmless from and against any and all losses, liabilities, damages, injuries, costs, fines or expenses of any kind arising as a result of non-compliance with any Accessibility Laws; provided, however, thatBorrower and any Guarantor shall not be liable for compliance with any Accessibility Laws that first become effective, except as specifically or for any violation of any Accessibility Laws resulting from alterations or improvements to the Property that are performed, subsequent to Lender’s actually taking possession of the Property pursuant to foreclosure of the Deed of Trust or acceptance of a deed in lieu thereof, or subsequent to any transfer of ownership of the Property which was approved or authorized in writing by Lender provided herein, that such transferee assumes in writing all obligations of Borrower and any judgment in Guarantor pertaining to compliance with Accessibility Laws under the Loan Documents. The burden of proof under this subsection with regard to establishing the date upon which such non-compliance with any such action or proceeding Accessibility Laws occurred at the Property shall be enforceable against Borrower only to upon Borrower;
(p) obligations under any Letter(s) of Credit held by ▇▇▇▇▇▇ in connection with the extent of Borrower’s interest in the Collateral and in any other collateral given to Lender, and Lender, by accepting the NoteLoan, this Agreement, the Pledge Agreement and Note or any of the other Loan Documents, agrees that it shall not ▇▇▇ for, seek or demand ; and
(q) failure by Borrower to provide any deficiency judgment against Borrower in any such action or proceeding under, or by reason of, or in connection with, Letter of Credit required to be posted subsequent to the Note, this Agreement, the Pledge Agreement or the other Loan Documents. The provisions date of this Section shall not, however,
(a) constitute a waiver, release or impairment of any obligation evidenced or secured Note required by any of the Loan Documents; (b) impair the right . The obligations 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 subsections (m), (n) and (o) above shall survive 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:
(i) fraud or intentional misrepresentation by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor in connection with the execution and delivery repayment of the Loan Documents and/or evidenced by this Note and satisfaction of the Loan;
(ii) Deed of Trust, and the misappropriation, conversion or misapplication in contravention other obligations of Borrower hereunder shall terminate upon such repayment of the Loan Documents evidenced by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any funds of Borrower, Senior Mezzanine Borrower, Mortgage Borrower or Operating Company, including, without limitation, (A) any Revenues, (B) any Net Liquidation Proceeds or Insurance Proceeds, (C) any Awards received in connection with a Condemnation, (D) any Rents or security deposits (or any item of Revenue, from whatever source) following an Event of Default, or (E) any distribution or other payments made in connection with any part this Note and satisfaction of the Collateral or Senior Mezzanine Collateral;
(iii) the misappropriation, conversion or misapplication by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor Deed of any security deposits or Rents paid more than one (1) month in advance;
(iv) any act of actual intentional physical waste by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor;
(v) the breach of any representation, warranty, covenant or indemnification provision in the Environmental Indemnity Agreement concerning environmental laws, hazardous substances and asbestos and any indemnification of Lender with respect thereto in either document;
(vi) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company fails to obtain Lender’s prior consent to any voluntary intentional Transfer as required by this Agreement, the Mortgage Loan Agreement or the Mortgages, as applicable;
(vii) any security deposits, advance deposits or any other deposits collected with respect to any of the Properties which are not delivered to Mortgage Lender upon a foreclosure of any of the Properties or action in lieu thereof, except to the extent any such security deposits were applied in accordance with the terms and conditions of any of the Leases prior to the occurrence of the Event of Default that gave rise to such foreclosure or action in lieu thereof;
(viii) in the event of:
(A) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing a voluntary petition under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (B) the filing of an involuntary petition against Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law by any Person in which Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of their respective Affiliates, agents or employees colludes with or such other Person, or Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor soliciting or causing to be solicited petitioning creditors for any involuntary petition against Borrower, Operating Company or any Guarantor from any Person; (C) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing an answer consenting to or otherwise acquiescing in or joining in any involuntary petition filed against it by any other Person, other than Lender, under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (D) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor consenting to or acquiescing in or joining in an application for the appointment of a custodian, receiver, trustee, or examiner for Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of the Properties, the Collateral, the Senior Mezzanine Collateral or any portion thereof, other than at the request of Lender; or (E) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor making an assignment for the benefit of creditors (other than Lender), or admitting, in writing or in any legal proceeding, its insolvency or inability to pay its debts as they become due;
(ix) if Borrower, Senior Mezzanine Borrower or Mortgage Borrower fails to maintain its status as a Special Purpose Entity or breaches any material representation or warranty set forth in Section 4.1.30 of this Agreement; and
(x) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company fails to obtain Lender’s prior consent to any voluntary Indebtedness (other than (x) with respect to Mortgage Borrower, Permitted Indebtedness and (y) with respect to Operating Company, Permitted Indebtedness (Operating Company), as applicable) or voluntary Lien (other than Permitted Encumbrances) encumbering any of the Properties, Senior Mezzanine Collateral or Collateral as required by this Agreement, the Senior Mezzanine Loan Agreement, the Mortgage Loan Agreement, the Pledge Agreement or the Mortgages. Notwithstanding anything to the contrary under this Agreement, neither any present or future Affiliate of Borrower (other than Guarantor, to the extent provided under the Guaranty) nor any present or future shareholder, officer, director, employee, trustee, beneficiary, advisor, partner, member, principal, participant or agent of or in any Borrower or of or in any person or entity that is or becomes an Affiliate of any Borrower shall have any personal liability, directly or indirectly, under or in connection with the Loan Documents. Neither the negative capital account of any Affiliate of Borrower in Borrower, or in any other Affiliate of Borrower in any other Affiliate of Borrower, nor any obligation of any Affiliate of Borrower in any Borrower to restore a negative capital account or to contribute or loan capital to any Borrower or to any other Affiliate of Borrower shall at any time be deemed to be the property or an asset of any Borrower (or any other Affiliate of Borrower) and neither Lender nor its successors or assigns shall have any right to collect, enforce or proceed against any such negative capital account or obligation to restore, contribute or loan capitalTrust.
(b) Notwithstanding anything to the contrary in this Agreement, the Note or any of the Loan Documents, Lender shall not be deemed to have waived any right which Lender may have under Section 506(a), 506(b), 1111(b) or any other provisions of the Bankruptcy Code to file a claim for the full amount of the Indebtedness or to require that all collateral shall continue to secure all of the Indebtedness owing to Lender in accordance with the Loan Documents.
Appears in 1 contract
Sources: Loan Agreement (Whitestone REIT)
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 Security Deed 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 Security Deed and the other Loan Documents, or in the CollateralProperty, the Rents (as defined in the Security Deed), 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 . By accepting the this Note, this Agreement, the Pledge Agreement Security Deed and the other Loan Documents, ▇▇▇▇▇▇ agrees that it shall not ▇▇▇ except as otherwise herein provided. 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 withwith this Note, the Note, this Agreement, the Pledge Agreement Security Deed or the other Loan Documents. The provisions of this Section paragraph shall not, however,
, (a) constitute a waiver, release or impairment 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 Deed; (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 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 Borrower, 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 Incurred by Lender ▇▇▇▇▇▇ (including attorneys’ fees and costs reasonably incurred) arising out of or in connection with the following:
(i) fraud fraud, maternal misrepresentation, gross negligence or intentional misrepresentation willful misconduct by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company Borrower or any Guarantor of its partners (as partners), officers, principals, members, any guarantor or any other person authorized to make statements or representations, or act, on behalf of Borrower in connection with the execution and delivery of the Loan Documents and/or the Loan;
(ii) physical waste committed on the misappropriationProperty; damage to the Property as a result of the intentional misconduct or gross negligence of Borrower or its Governing Entity (as defined in the Security Deed), conversion or misapplication any agent or employee of any such persons acting w t h the scope of the agency or employment; or the removal of any portion of the Properly in contravention violation of the terms of the Loan Documents by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any funds of Borrower, Senior Mezzanine Borrower, Mortgage Borrower or Operating Company, including, without limitation, (A) any Revenues, (B) any Net Liquidation Proceeds or Insurance Proceeds, (C) any Awards received in connection with a Condemnation, (D) any Rents or security deposits (or any item of Revenue, from whatever source) following an Event of Default, or (E) any distribution or other payments made in connection with any part of the Collateral or Senior Mezzanine Collateral;
(iii) subject to any right to contest such matters, as provided in the misappropriationSecurity Deed, conversion failure to pay any valid taxes (except to the extent, but only the extent, the entire amount of the unpaid taxes had been paid by Borrower to Lender pursuant to Paragraph 5 of the Security Deed), assessments, mechanic’s liens, material men’s liens or misapplication other liens which could create liens on any portion of the Property which would be superior to the lien or security title of the Security Deed or the other Loan Documents, to the full extent of the amount claimed by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any security deposits or Rents paid more than one (1) month in advancesuch lien clamant;
(iv) a1l legal costs and expenses (including attorneys’ fees) reasonably incurred by Lender in connection with ligation or other legal proceedings involving the collection or enforcement of the Loan or preservation of Lender’s rights under the Loan Documents, including any act costs incurred y Lender arising from or relating to the filing of actual intentional physical waste a petition under the U.S. Bankruptcy Code by or against Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantorother than those customarily incurred by a Lender in realizing upon its lien in an uncontested foreclosure sale after an undisputed default;
(v) the breach of any representation, warranty, covenant or indemnification provision in that certain Environmental and Hazardous Substance Indemnification Agreement of even date herewith given by Borrower to Lender or in the Environmental Indemnity Agreement Security Deed concerning environmental laws, hazardous substances and asbestos and any indemnification of Lender with respect thereto in either documentor asbestos;
(vi) if Borrowerthe misapplication or conversion by Borrower of (A) any Insurance proceeds paid by reason of any loss, Mortgage Borrowerdamage or destruction to the Property, Senior Mezzanine Borrower (B) any awards or Operating Company fails to obtain Lender’s prior consent to other amounts received in connection with the condemnation of all or a portion of the Property, or (C) any voluntary intentional Transfer as required by this Agreement, the Mortgage Loan Agreement or the Mortgages, as applicableRents following an Event of Default;
(vii) any security deposits, advance deposits or any other refundable deposits collected with respect to any of the Properties Property which are not delivered to Mortgage Lender upon a sale or foreclosure of any of the Properties Property or other action in lieu thereof, except to the extent any such security deposits were applied in accordance with the terms and conditions of any of the Leases (as defined in the Security Deed) prior to the occurrence of the Event of Default that gave rise to such sale or foreclosure or action in lieu Lieu thereof;
(viii) failure to maintain any Policies required under Paragraph 2 of the Security Deed, or to pay or provide the amount of any insurance deductible, to the extent of the applicable deductible, following a Casualty (as defined in the event of:
(ASecurity Deed) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing a voluntary petition under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency lawInsured event; (B) the filing of an involuntary petition against Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law by any Person in which Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of their respective Affiliates, agents or employees colludes with or such other Person, or Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor soliciting or causing to be solicited petitioning creditors for any involuntary petition against Borrower, Operating Company or any Guarantor from any Person; (C) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing an answer consenting to or otherwise acquiescing in or joining in any involuntary petition filed against it by any other Person, other than Lender, under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (D) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor consenting to or acquiescing in or joining in an application for the appointment of a custodian, receiver, trustee, or examiner for Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of the Properties, the Collateral, the Senior Mezzanine Collateral or any portion thereof, other than at the request of Lender; or (E) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor making an assignment for the benefit of creditors (other than Lender), or admitting, in writing or in any legal proceeding, its insolvency or inability to pay its debts as they become due;or
(ix) if Borrower, Senior Mezzanine Borrower or Mortgage Borrower fails to maintain its status as a Special Purpose Entity or breaches any material representation or warranty set forth in Section 4.1.30 of this Agreement; and
(x) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company fails to obtain Lender’s prior consent to any voluntary Indebtedness (other than (x) with respect to Mortgage Borrower, Permitted Indebtedness and (y) with respect to Operating Company, Permitted Indebtedness (Operating Company), as applicable) or voluntary Lien (other than Permitted Encumbrances) encumbering any breach of the Propertiesrepresentations, Senior Mezzanine Collateral or Collateral as required by this Agreement, covenants and agreements of Section l(i) of the Senior Mezzanine Loan Agreement, the Mortgage Loan Agreement, the Pledge Agreement or the MortgagesSecurity Deed. Notwithstanding anything to the contrary under In this Agreement, neither any present or future Affiliate of Borrower (other than Guarantor, to the extent provided under the Guaranty) nor any present or future shareholder, officer, director, employee, trustee, beneficiary, advisor, partner, member, principal, participant or agent of or in any Borrower or of or in any person or entity that is or becomes an Affiliate of any Borrower shall have any personal liability, directly or indirectly, under or in connection with the Loan Documents. Neither the negative capital account of any Affiliate of Borrower in Borrower, or in any other Affiliate of Borrower in any other Affiliate of Borrower, nor any obligation of any Affiliate of Borrower in any Borrower to restore a negative capital account or to contribute or loan capital to any Borrower or to any other Affiliate of Borrower shall at any time be deemed to be the property or an asset of any Borrower (or any other Affiliate of Borrower) and neither Lender nor its successors or assigns shall have any right to collect, enforce or proceed against any such negative capital account or obligation to restore, contribute or loan capital.
(b) Notwithstanding anything to the contrary in this Agreement, the Note or any of the Loan Documents, (A) Lender shall not be deemed to have waived any right which Lender may have under Section 506(aSection5 06(a), 506(b), 1111(b) or any other provisions of the U.S. Bankruptcy Code to file a claim for the full amount of the Indebtedness Debt secured by the Security Deed or to require that all collateral shall continue to secure all of the Indebtedness Debt owing to Lender in accordance with the Loan Documents, and (B) the Debt shall be fully recourse to Borrower in the event that: (i) Borrower fails to pay the first full monthly payment of principal and interest under this Note when due; (ii) the Property or any part thereof becomes an asset in a voluntary bankruptcy or insolvency proceeding under the U.S. Bankruptcy Code; (iii) Borrower falls to provide any of the financial information required pursuant to Paragraph 17 of the Security Deed within thirty( 30) days after the date upon which such financial information is due and Lender has given at least fifteen (15) days prior written notice to Borrower of such failure by Borrower to provide such information, provided that if such failure to provide such financial information is not reasonably susceptible of cure within such fifteen (15) day period, then Borrower may be permitted up to an additional fifteen (15) days within which to provide such financial information as long as Borrower diligently and continuously pursues such cure; (iv) Borrower fails to maintain its status as a single purpose entity as required by, and in accordance with the terms and provisions of the Security deed; (v) Borrower fails to obtain ▇▇▇▇▇▇’s prior written consent to any subordinate financing or other voluntary lien encumbering the Property or any Interests in Borrower; or (vi) Borrower fails to obtain ▇▇▇▇▇▇’s prior written consent to any assignment, transfer, or conveyance of the Property or any interest therein as required by the Security Deed.
Appears in 1 contract
Sources: Deed to Secure Debt Note (NNN Healthcare/Office 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 or any deficiency judgment or other judgment establishing personal liability shall be sought against BorrowerBorrower or any Affiliate of Borrower or any legal representatives, successors or assigns of Borrower or its Affiliate or any principals, directors, officers, employees, beneficiaries, shareholders, partners, members, trustees, agents, or Affiliates of any of the foregoing (collectively, but specifically excluding Guarantor to the extent of Guarantor’s liability under the Guaranty, any Alteration Deficiency Guaranty or any other guaranty provided in connection with the Loan, 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 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 su▇ ▇▇▇ foror, seek or demand any deficiency judgment against Borrower any Exculpated Party 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, 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 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 reasonably incurred by Lender (including out-of-pocket attorneys’ fees and costs reasonably incurredincurred but excluding any consequential, special or punitive damages) arising out of or in connection with the following:following 119 (all such liability and obligation of Borrower for any or all of the following being referred to herein as “Borrower’s Recourse Liabilities”):
(i) fraud fraudulent acts, willful misconduct or material intentional misrepresentation by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company Borrower or any Guarantor Borrower Affiliate in connection with the execution and delivery of the Loan Documents and/or the Loan;
(ii) the misappropriation, conversion or misapplication in contravention of the Loan Documents breach by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any funds of Borrower, Senior Mezzanine Borrower, Mortgage Borrower or Operating Company, including, without limitation, (A) any Revenues, (B) any Net Liquidation Proceeds or Insurance Proceeds, (C) any Awards received in connection with a Condemnation, (D) any Rents or security deposits (or any item of Revenue, from whatever source) following an Event of Default, or (E) any distribution or other payments made in connection with any part of the Collateral or Senior Mezzanine Collateral;
(iii) the misappropriation, conversion or misapplication by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any security deposits or Rents paid more than one (1) month in advance;
(iv) any act of actual intentional physical waste by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor;
(v) the breach of any representation, warranty, covenant or indemnification provision in the Environmental Indemnity Agreement concerning environmental lawsIndemnity;
(iii) the intentional misappropriation by Borrower of any Reserve Funds disbursed to Borrower, hazardous substances and asbestos and or any indemnification intentional failure to deposit rents into the Clearing Account to the extent in the control of Lender with respect thereto Borrower, unless such rents are otherwise delivered to Lender;
(iv) any intentional (other than, in either documenteach case, as part of or to facilitate any alteration that is permitted hereunder) material physical waste of the Property by Borrower or any Borrower Affiliate, or any intentional wrongful removal or destruction of a material portion of the Property or damage to a material portion of the Property caused by willful misconduct or gross negligence of Borrower or any Borrower Affiliate;
(v) the commission of any criminal act by Borrower or any Borrower Affiliate which results in the forfeiture of the Property;
(vi) if Borrower, Mortgage Borrower, Senior Mezzanine the intentional misappropriation by Borrower or Operating Company fails to obtain Lender’s prior consent to any voluntary intentional Transfer as required Borrower Affiliate of (A) any Insurance Proceeds actually received by this Agreement, Borrower or any Borrower Affiliate or (B) any Awards or other amounts received in connection with the Mortgage Loan Agreement Condemnation of all or a portion of the Mortgages, as applicableProperty actually received by Borrower or any Borrower Affiliate;
(vii) after the occurrence and during the continuance of an Event of Default, the intentional misappropriation by Borrower or any Borrower Affiliate of any Rents in violation of the Loan Documents;
(viii) all or any material portion of the Property being encumbered by a Lien voluntarily granted by Borrower (i.e., not arising by operation of law) in violation of the Loan Documents, or Borrower’s failure to pay any charges (including, without limitation, charges for labor and materials) that create Liens on the Property, regardless of whether arising by operation of law, to the extent cash flow from the Property is sufficient to make such payments and, during a Trigger Period, funds are made available to Borrower for payment of such charges;
(ix) Borrower’s failure to pay Taxes or transfer taxes, maintain required Policies, pay insurance premiums for such Policies, or pay any Condominium Charges to the extent cash flow from the Property is sufficient to make such payments and all other payments required of Borrower and, during a Trigger Period, funds are made available to Borrower to make such payments; 120
(x) the voluntary incurrence by Borrower of any Indebtedness for borrowed money in violation of the provisions of this Agreement or any other Loan Document (other than Permitted Encumbrances);
(xi) the failure by Borrower to deliver to Lender any security deposits, advance deposits or any other deposits collected with respect to any of the Properties which are not delivered to Mortgage Lender Property upon a foreclosure of any of by Lender under the Properties or action in lieu thereofLoan Documents, unless previously applied (except to the extent any that such security deposits were applied in accordance with the terms and conditions applicable lease or other governing document or Borrower did not have the legal right, because of a bankruptcy, receivership or similar judicial proceeding, to direct disbursement of such deposits);
(xii) the termination of the Condominium or the removal of any Unit from the Condominium, in each case, in violation of the Leases prior terms of this Agreement, which was voted for or consented to or approved by Borrower (or the members of the Condominium Board appointed by Borrower); and/or
(xiii) (i) the failure by Borrower, any Borrower Affiliate and/or any other owner of the Upper Option Space and/or the Lower Option Space (as defined in the Original Bloomberg Lease) (other than Lender or any Affiliate of Lender) to comply with the terms of Section 36 of the Original Bloomberg Lease (an “Expansion Space Default”), (ii) the exercise of any rights that the Tenant under the Original Bloomberg Lease may have as a result of an Expansion Space Default (whether pursuant to the Original Bloomberg Lease, at law or in equity), including, without limitation, any rights to set off any payments required under the Original Bloomberg Lease and/or (iii) paying any amount or performing any obligation with respect to the Upper Option Space and/or the Lower Option Space after the occurrence of the Event of Default that gave rise to such foreclosure or action in lieu thereof;
(viii) in the event of:
(A) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing a voluntary petition under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (B) the filing of an involuntary petition against Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law by any Person in which Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of their respective Affiliates, agents or employees colludes with or such other Person, or Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor soliciting or causing to be solicited petitioning creditors for any involuntary petition against Borrower, Operating Company or any Guarantor from any Person; (C) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing an answer consenting to or otherwise acquiescing in or joining in any involuntary petition filed against it by any other Person, other than Lender, under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (D) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor consenting to or acquiescing in or joining in an application for the appointment of a custodian, receiver, trustee, or examiner for Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of the Properties, the Collateral, the Senior Mezzanine Collateral or any portion thereof, other than at the request of Lender; or (E) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor making an assignment for the benefit of creditors (other than Lender), or admitting, in writing or in any legal proceeding, its insolvency or inability to pay its debts as they become due;
(ix) if Borrower, Senior Mezzanine Borrower or Mortgage Borrower fails to maintain its status as a Special Purpose Entity or breaches any material representation or warranty set forth in Section 4.1.30 of this Agreement; and
(x) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company fails to obtain Lender’s prior consent to any voluntary Indebtedness (other than (x) with respect to Mortgage Borrower, Permitted Indebtedness and (y) with respect to Operating Company, Permitted Indebtedness (Operating Company), as applicable) or voluntary Lien (other than Permitted Encumbrances) encumbering any of the Properties, Senior Mezzanine Collateral or Collateral as required by this Agreement, the Senior Mezzanine Loan Agreement, the Mortgage Loan Agreement, the Pledge Agreement or the MortgagesExpansion Space Default. Notwithstanding anything to the contrary under this Agreement, neither any present or future Affiliate of Borrower (other than Guarantor, to the extent provided under the Guaranty) nor any present or future shareholder, officer, director, employee, trustee, beneficiary, advisor, partner, member, principal, participant or agent of or in any Borrower or of or in any person or entity that is or becomes an Affiliate of any Borrower shall have any personal liability, directly or indirectly, under or in connection with the Loan Documents. Neither the negative capital account of any Affiliate of Borrower in Borrower, or in any other Affiliate of Borrower in any other Affiliate of Borrower, nor any obligation of any Affiliate of Borrower in any Borrower to restore a negative capital account or to contribute or loan capital to any Borrower or to any other Affiliate of Borrower shall at any time be deemed to be the property or an asset of any Borrower (or any other Affiliate of Borrower) and neither Lender nor its successors or assigns shall have any right to collect, enforce or proceed against any such negative capital account or obligation to restore, contribute or loan capital.
(b) Notwithstanding anything to the contrary in this Agreement, the Note Agreement or any of the other Loan Documents, (A) Lender shall not be deemed to have waived any right which Lender may have under Section 506(a), 506(b), 1111(b) or any other provisions of the Bankruptcy Code to file a claim for the full amount of the Indebtedness Obligations or to require that all collateral shall continue to secure all of the Indebtedness Obligations owing to Lender in accordance with the Loan Documents, and (B) the Obligations shall be fully recourse to Borrower in the event that any of the following occur (each, a “Springing Recourse Event”): (i) a breach of the covenants set forth in Schedule V hereof (other than those single purpose entity covenants that relate to solvency or adequacy of capital) or a breach of any of the certifications set forth in the “Recycled Entity Certificate”, in each case, that results in a substantive consolidation of the assets and liabilities of Borrower with any other Person in connection with a proceeding under the Bankruptcy Code or under federal, state or foreign insolvency law (other than on motion or pleading seeking a substantive consolidation brought or actively supported by Lender); (ii) Borrower or any Borrower Affiliate, officer, director or representative which Controls Borrower consents to or files a voluntary petition with respect to Borrower under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (iii) Borrower files an application for the appointment of a receiver, trustee or examiner for Borrower or any portion of the Property, except at the request of or with the consent of Lender, (iv) the filing of an involuntary petition against Borrower under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law by any other Person in which Borrower or a Borrower Affiliate that directly or indirectly Controls Borrower colludes 121 with and/or Borrower or a Borrower Affiliate that directly or indirectly Controls Borrower solicits or causes to be solicited petitioning creditors for any involuntary petition against Borrower by any Person; (v) Borrower files an answer consenting to, or joining in, any involuntary petition filed against it by any other Person under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (vi) Borrower makes an assignment for the benefit of creditors or admits, in writing or in any legal proceeding, its insolvency or inability to pay its debts as they become due, which admission is used as evidence of Borrower’s insolvency in connection with an involuntary petition under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law by a Person other than Lender (except for (A) any admissions that Borrower believes in good faith are truthful when made and (B) any such admission to Lender or any servicer of the Loan that Borrower cannot pay its operating expenses (including Debt Service payments due in respect of the Loan) or that Borrower cannot refinance the Loan on the Maturity Date); or (vii) there is a voluntary Transfer of all or any material portion of the Property or any direct or indirect interest therein or any Transfer of any direct or indirect interest in Borrower, in either case, in violation of the Loan Documents.
Appears in 1 contract
Sources: Loan Agreement (Alexanders 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 ▇▇▇ 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 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 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 or the Security Assignment of Operating Lease; (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:
(i) fraud or intentional misrepresentation by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor Significant Party in connection with the execution and delivery Loan, including by reason of the Loan Documents and/or the Loanany claim under RICO;
(ii) the misappropriation, conversion gross negligence or misapplication in contravention willful misconduct of the Loan Documents by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any funds of Borrower, Senior Mezzanine Borrower, Mortgage Borrower or Operating Company, including, without limitation, (A) any Revenues, (B) any Net Liquidation Proceeds or Insurance Proceeds, (C) any Awards received in connection with a Condemnation, (D) any Rents or security deposits (or any item of Revenue, from whatever source) following an Event of Default, or (E) any distribution or other payments made in connection with any part of the Collateral or Senior Mezzanine CollateralTenant;
(iii) the misappropriation, conversion or misapplication by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any security deposits or Rents paid more than one (1) month in advance;
(iv) any act of actual intentional physical waste by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor;
(v) the breach of any representation, warranty, covenant or indemnification provision in the Environmental Indemnity Agreement or in the Mortgage concerning environmental laws, hazardous substances and or asbestos and any indemnification of Lender with respect thereto in either document;
(iv) the wrongful removal or destruction of any portion of the Property by Borrower, Operating Tenant or any party acting on behalf of Borrower and/or Operating Tenant after an Event of Default;
(v) any Legal Requirement (including RICO) mandating the forfeiture by Borrower of the Property, or any portion thereof, because of the conduct or purported conduct of criminal activity by Borrower or any Significant Party in connection therewith;
(vi) if Borrowerany material misrepresentation, Mortgage Borrower, Senior Mezzanine miscertification or breach of warranty by Borrower or Operating Company fails to obtain Lender’s prior consent Tenant with respect to any voluntary intentional Transfer as required by representation, warranty or certification contained in this Agreement, the Mortgage Loan Agreement or any other Loan Document or in any document executed in connection therewith, pursuant to any of the MortgagesLoan Documents or otherwise to induce Lender to make the Loan, or any advance thereof, or to release monies from any account held by Lender (including any reserve or escrow) or to take other action with respect to the Collateral (as applicabledefined in the Mortgage);
(vii) the misappropriation or conversion by or on behalf of Borrower or Operating Tenant of (A) any Insurance Proceeds paid by reason of any Casualty, (B) any Awards received in connection with a Condemnation, (C) any Rents following an Event of Default, or (D) any Rents paid more than one (1) month in advance;
(viii) failure to pay charges for labor or materials or other charges which become Liens on of the Property which were prior to the Lien of the Mortgage;
(ix) any security deposits, advance deposits or any other deposits collected with respect to any of the Properties Property which are not delivered to Mortgage Lender upon a foreclosure of any of the Properties Property or action in lieu thereof, except to the extent any such security deposits were applied in accordance with the terms and conditions of any of the Leases prior to the occurrence of the Event of Default that gave rise to such foreclosure or action in lieu thereof;; and
(viiix) if any Significant Party fails to provide financial information in the event of:accordance with Section 5.1.11 hereof
(Aa) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Borrower and/or Operating Company or any Guarantor Tenant filing a voluntary petition under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (Bb) the filing of an involuntary petition against BorrowerBorrower and/or Operating Tenant, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law by any Person in which Borroweracting on behalf of Borrower and/or Operating Tenant, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of their respective Affiliates, agents or employees colludes with or such other Person, or Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor soliciting or causing to be solicited petitioning creditors for any involuntary petition against Borrower, Borrower and/or Operating Company or any Guarantor Tenant from any Person; (Cc) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Borrower and/or Operating Company or any Guarantor Tenant filing an answer consenting to or otherwise acquiescing in or joining in any involuntary petition filed against it it, by any other Person, other than Lender, Person under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law, or soliciting or causing to be solicited petitioning creditors for any involuntary petition from any Person; (Dd) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Borrower and/or Operating Company or any Guarantor Tenant consenting to or acquiescing in or joining in an application for the appointment of a custodian, receiver, trustee, or examiner for Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of the Properties, the Collateral, the Senior Mezzanine Collateral Tenant or any portion thereof, other than at of the request of LenderProperty; or (Ee) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Borrower and/or Operating Company or any Guarantor Tenant making an assignment for the benefit of creditors (other than Lender)creditors, or admitting, in writing or in any legal proceeding, its insolvency or inability to pay its debts as they become due;
; (ixii) if Borrower, Senior Mezzanine Borrower or Mortgage Borrower and/or Operating Tenant fails to maintain its status as a Special Single Purpose Entity or breaches any material representation or warranty set forth in Section 4.1.30 of this AgreementEntity; and
(xiii) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower or and/or Operating Company Tenant fails to obtain Lender’s prior consent to any voluntary Indebtedness (other than (x) with respect to Mortgage Borrower, Permitted Indebtedness and (y) with respect to Operating Company, Permitted Indebtedness (Operating Company), as applicable) or voluntary Lien (other than Permitted Encumbrances) encumbering any of the Properties, Senior Mezzanine Collateral or Collateral Property as required by this Agreement, the Senior Mezzanine Loan Agreement, the Mortgage Loan Agreement, the Pledge Agreement or the Mortgages. Notwithstanding anything Mortgage; or (iv) if any Restricted Party fails to the contrary under this Agreement, neither any present or future Affiliate of Borrower (other than Guarantor, to the extent provided under the Guaranty) nor any present or future shareholder, officer, director, employee, trustee, beneficiary, advisor, partner, member, principal, participant or agent of or in any Borrower or of or in any person or entity that is or becomes an Affiliate of any Borrower shall have any personal liability, directly or indirectly, under or in connection with the Loan Documents. Neither the negative capital account of any Affiliate of Borrower in Borrower, or in any other Affiliate of Borrower in any other Affiliate of Borrower, nor any obligation of any Affiliate of Borrower in any Borrower to restore a negative capital account or to contribute or loan capital obtain Lender’s prior consent to any Borrower Transfer as required by this Agreement or to any other Affiliate of Borrower shall at any time be deemed to be the property or an asset of any Borrower (or any other Affiliate of Borrower) and neither Lender nor its successors or assigns shall have any right to collect, enforce or proceed against any such negative capital account or obligation to restore, contribute or loan capitalMortgage.
(b) Notwithstanding anything to the contrary in this Agreement, the Note or any of the Loan Documents, Lender shall not be deemed to have waived any right which Lender may have under Section 506(a), 506(b), 1111(b) or any other provisions of the Bankruptcy Code to file a claim for the full amount of the Indebtedness or to require that all collateral shall continue to secure all of the Indebtedness owing to Lender in accordance with the Loan Documents.
Appears in 1 contract
Sources: Loan Agreement (Eagle Hospitality Properties Trust, Inc.)