Exculpation. (a) Subject to the qualifications below, Lender shall not enforce the liability and obligation of Borrower to perform and observe the obligations contained in the Note, this Agreement, the Pledge Agreement or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against Borrower, except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender and each Noteholder to enforce and realize upon its interest under the Note, this Agreement, the Pledge Agreement and the other Loan Documents, or in the Collateral, or any other collateral given to Lender pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower’s interest in the Collateral and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Pledge Agreement and the other Loan Documents, agrees that it shall not xxx for, seek or demand any deficiency judgment against Borrower in any such action or proceeding under, or by reason of, or in connection with, the Note, this Agreement, the Pledge Agreement or the other Loan Documents. The provisions of this Section shall not, however, (a) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (b) impair the right of Lender to name Borrower as a party defendant in any action or suit for foreclosure and sale under the Pledge Agreement; (c) affect the validity or enforceability of or any Guaranty made in connection with the Loan or any of the rights and remedies of Lender thereunder; (d) impair the right of Lender to obtain the appointment of a receiver; (e) intentionally omitted; (f) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted by the Pledge Agreement or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against all of the Collateral; or (g) constitute a waiver of the right of Lender to enforce the liability and obligation of Borrower, by money judgment or otherwise, to the extent of any actual loss, damage, cost, expense, liability, claim or other obligation incurred by Lender (including attorneys’ fees and costs reasonably incurred) arising out of or in connection with the following: (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
Samples: Mezzanine Loan Agreement (Harrahs Entertainment Inc), 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 under the Note, this Agreement, the Pledge Agreement and the other Loan Documents, or in the Collateral, or any other collateral Collateral given to Lender pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower’s interest in the Collateral and in any other collateral given to Lender, and each Lender, by accepting the Note, this Agreement, the Pledge Agreement and the other Loan Documents, agrees that it shall not xxx for, seek or demand any deficiency judgment against Borrower in any such action or proceeding under, or by reason of, or in connection with, the Note, this Agreement, the Pledge Agreement or the other Loan Documents. The provisions of this Section 9.2 shall not, however,
, (a) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (b) impair the right of Lender to name Borrower as a party defendant in any action or suit for foreclosure and sale under the Pledge Agreement; (c) affect the validity or enforceability of or any Guaranty made in connection with the Loan or any of the rights and remedies of Lender thereunder; (d) impair the right of Lender to obtain the appointment of a receiver; (e) intentionally omitted; (f) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted by the Pledge Agreement or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against all of the Collateral; or (g) constitute a waiver of the right of Lender to enforce the liability and obligation of Borrower, by money judgment or otherwise, to the extent of any actual loss, damage, cost, expense, liability, claim or other obligation incurred by or on behalf of Lender (including attorneys’ fees and costs reasonably incurred) arising out of or in connection with the following:
(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
Samples: Eighth Mezzanine Loan Agreement (Harrahs Entertainment Inc), Mezzanine Loan Agreement (Harrahs Entertainment Inc), Ninth 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, xxx for, seek or demand any deficiency judgment against Borrower in any such action or proceeding underproceeding, under or by reason of, of or under or in connection withwith this Agreement, the Note, this Agreement, the Pledge Agreement or the other Loan Documents. The provisions of this Section 15.1 shall not, however,
, (ai) constitute a waiver, release or impairment of any obligation evidenced or secured by any of this Agreement, the Note, the Pledge Agreement or the other Loan Documents; (bii) impair the right of Lender to name Borrower as a party defendant in any action or suit for judicial foreclosure and sale under this Agreement and the Pledge Agreement; (ciii) affect the validity or enforceability of any indemnity (including those contained in the Guaranty, Environmental Indemnity, Section 13.6 and Article XIV of this Agreement), guaranty, master lease or any Guaranty similar instrument made in connection with this Agreement, the Note, the Pledge Agreement and the other Loan or any of the rights and remedies of Lender thereunderDocuments; (div) impair the right of Lender to obtain the appointment of a receiver; (ev) intentionally omitted; (f) constitute a prohibition against Lender to seek a deficiency judgment against Borrower impair the enforcement of the assignment of leases provisions contained in order to fully realize the security granted by the Pledge Agreement or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against all of the CollateralAgreement; or (gvi) constitute a waiver of impair the right of Lender to enforce the liability and obligation of Borrower, by money obtain a deficiency judgment or otherwiseother judgment on the Note against Borrower if necessary to obtain any Insurance Proceeds or Awards to which Lender would otherwise be entitled under this Agreement; provided however, Lender shall only enforce such judgment to the extent of any actual loss, damage, cost, expense, liability, claim or other obligation incurred by Lender (including attorneys’ fees and costs reasonably incurred) arising out of or in connection with the following:
(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
Samples: 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 shall be sought against Borrower, except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender and each Noteholder to enforce and realize upon its interest under the Note, this Agreement, the Pledge Agreement Security Instrument and the other Loan Documents, or in the CollateralProperty, the Rents, or any other collateral given to Lender pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower’s interest in the Collateral Property, in the Rents and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Pledge Agreement Security Instrument and the other Loan Documents, agrees that it shall not xxx for, seek or demand any deficiency judgment against Borrower in any such action or proceeding under, under or by reason of, of or under or in connection with, with the Note, this Agreement, the Pledge Agreement Security Instrument or the other Loan Documents. The provisions of this Section shall not, however,
, (ai) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (bii) impair the right of Lender to name Borrower as a party defendant in any action or suit for foreclosure and sale under the Pledge Agreement; Security Instrument (ciii) affect the validity or enforceability of or any Guaranty guaranty made in connection with the Loan or any of the rights and remedies of Lender thereunder; (div) impair the right of Lender to obtain the appointment of a receiver; (ev) intentionally omittedimpair the enforcement of any security interest in Rents and Leases under any assignment of leases contained in the Security Instrument and any other Loan Document; (fvi) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted by the Pledge Agreement Security Instrument or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against all of the Collateral; 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
Samples: Loan Agreement (Rodin Global Property Trust, Inc.), Loan Agreement (Rodin Global Property Trust, Inc.), Loan Agreement (Rodin Global Property Trust, Inc.)
Exculpation. (a) Subject Effective as of the Effective Date, to the qualifications belowfullest extent permissible under applicable law and without affecting or limiting either of the Debtor Release or Third-Party Release, Lender shall not enforce the liability and obligation of Borrower to perform and observe the obligations contained except as otherwise specifically provided in the NotePlan, this each Debtor, each Reorganized Debtor, each New Property Entity, each Estate, and each Exculpated Party is hereby released and exculpated from any claim, obligation, Cause of Action, or liability for any prepetition or postpetition action taken or omitted to be taken in connection with, or related to formulating, negotiating, soliciting, preparing, disseminating, confirming, administering, or implementing the Plan, or consummating the Plan (including the Restructuring Support Agreements), the Xxxxxx Agreement, the Pledge Agreement Disclosure Statement, the New Governance Documents, the Restructuring Transactions, and/or the Separation Structure or selling or issuing the New Debt, the New Interests, the New CEC Convertible Notes, the New CEC Common Equity, and/or any other Security to be offered, issued, or distributed in connection with the Plan, the Chapter 11 Cases, or any contract, instrument, release, or other agreement or document created or entered into in connection with the Plan (including, for the avoidance of doubt, providing any legal opinion requested by any Entity regarding any transaction, contract, instrument, document, or other agreement contemplated by the Plan or the other Loan Documents reliance by any action Exculpated Party on the Plan or proceeding wherein a money judgment shall be sought against Borrower, except that Lender may bring a foreclosure action, an action for specific performance the Confirmation Order in lieu of such legal opinion) or any other appropriate action prepetition or proceeding postpetition act taken or omitted to enable Lender and each Noteholder to enforce and realize upon its interest under be taken in connection with or in contemplation of the Noterestructuring of the Debtors, this Agreementexcept for actual fraud, the Pledge Agreement and the other Loan Documentswillful misconduct, or gross negligence in connection with the CollateralPlan or the Chapter 11 Cases following the Petition Date, or any other collateral given to Lender pursuant each solely to the Loan Documentsextent as determined by a Final Order of a court of competent jurisdiction; provided, however, that, except as specifically provided herein, any judgment that in any all respects such action or proceeding Entities shall be enforceable against Borrower only entitled to reasonably rely upon the advice of counsel with respect to their duties and responsibilities pursuant to the extent Plan. Each of Borrower’s interest the Debtors, the Reorganized Debtors, the New Property Entities, the Estates, and each Exculpated Party has, and upon completion of the Plan shall be deemed to have, participated in good faith and in compliance with the applicable laws with regard to the restructuring of Claims and Interests in the Collateral Chapter 11 Cases and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Pledge Agreement and the other Loan Documents, agrees that it shall not xxx for, seek or demand any deficiency judgment against Borrower in any such action or proceeding under, or by reason of, or in connection with, the Note, this Agreement, the Pledge Agreement or the other Loan Documents. The provisions of this Section shall not, however,
(a) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (b) impair the right of Lender to name Borrower as a party defendant in any action or suit for foreclosure and sale under the Pledge Agreement; (c) affect the validity or enforceability of or any Guaranty made in connection with the Loan Restructuring Transactions, the negotiation, formulation, or preparation of the Restructuring Documents or related agreements, instruments, or other documents pursuant to the Plan, and the solicitation and distribution of the Plan and, therefore, is not, and on account of such distributions shall not be, liable at any time for the violation of any applicable law, rule, or regulation governing the solicitation of acceptances or rejections of the Plan or such distributions made pursuant to the Plan. Notwithstanding the foregoing, the Exculpation shall not release any obligation or liability of any party under the Plan or any of the rights and remedies of Lender thereunder; (d) impair the right of Lender to obtain the appointment of a receiver; (e) intentionally omitted; (f) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted by the Pledge Agreement document, instrument, or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against all of the Collateral; or (g) constitute a waiver of the right of Lender to enforce the liability and obligation of Borrower, by money judgment or otherwise, to the extent of any actual loss, damage, cost, expense, liability, claim or other obligation incurred by Lender agreement (including attorneys’ fees and costs reasonably 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
Samples: Restructuring Support and Forbearance Agreement (CAESARS ENTERTAINMENT Corp), Restructuring Support and Forbearance Agreement (CAESARS ENTERTAINMENT Corp), Restructuring Support and Forbearance Agreement (CAESARS ENTERTAINMENT Corp)
Exculpation. (a) Subject to Except as otherwise provided herein or in the qualifications belowother Loan Documents, Lender shall not enforce the liability and obligation of Borrower or Borrower Principal, as applicable, to perform and observe the obligations contained herein or in the Note, this Agreement, the Pledge Agreement or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against BorrowerBorrower or Borrower Principal, except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender and each Noteholder to enforce and realize upon its interest under the Note, this Agreement, the Pledge Agreement Note, the Mortgage and the other Loan Documents, or and the interest in the CollateralProperty, or the Rents and any other collateral given to Lender pursuant to created by this Agreement, the Note, the Mortgage and the other Loan Documents; provided, however, that, except as specifically provided herein, that any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower’s 's interest in the Collateral Property, in the Rents and in any other collateral given to Lender, and . Lender, by accepting the Note, this Agreement, the Pledge Agreement Note, the Mortgage and the other Loan Documents, agrees that it shall not not, except as otherwise provided in this Section 15.1, xxx for, seek or demand any deficiency judgment against Borrower or Borrower Principal in any such action or proceeding underproceeding, under or by reason of, of or under or in connection withwith this Agreement, the Note, this Agreement, the Pledge Agreement Mortgage or the other Loan Documents. The provisions of this Section 15.1 shall not, however,
, (ai) constitute a waiver, release or impairment of any obligation evidenced or secured by any of this Agreement, the Note, the Mortgage or the other Loan Documents; (bii) impair the right of Lender to name Borrower or Borrower Principal as a party defendant in any action or suit for judicial foreclosure and sale under this Agreement and the Pledge AgreementMortgage; (ciii) affect the validity or enforceability of any indemnity (including, without limitation, those contained in Section 12.6, with respect to Borrower or any Guaranty Borrower Principal, Section 13.5, with respect to Borrower, and Article 14 of this Agreement, with respect to Borrower), guaranty, master lease or similar instrument made in connection with this Agreement, the Note, the Mortgage and the other Loan or any of the rights and remedies of Lender thereunderDocuments; (div) impair the right of Lender to obtain the appointment of a receiver; (ev) intentionally omitted; (f) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize impair the security granted by the Pledge Agreement or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against all enforcement of the Collateralassignment of leases provisions contained in the Mortgage; or (gvi) constitute a waiver of impair the right of Lender to enforce the liability and obligation of Borrower, by money obtain a deficiency judgment or otherwiseother judgment on the Note against Borrower or Borrower Principal if necessary to obtain any Insurance Proceeds or Awards to which Lender would otherwise be entitled under this Agreement; provided however, Lender shall only enforce such judgment to the extent of any actual loss, damage, cost, expense, liability, claim or other obligation incurred by 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
Samples: Loan Agreement (Manufactured Home Communities Inc), Loan Agreement (Manufactured Home Communities Inc), Loan Agreement (Manufactured Home Communities Inc)
Exculpation. Tenant shall neither be liable for nor otherwise obligated to Landlord under any provision of this Lease with respect to (ai) Subject to any claim, remediation obligation, investigation obligation, liability, cause of action, attorney’s fees, consultants’ cost, expense or damage resulting from any Hazardous Substance present in, on or about the qualifications below, Lender shall not enforce the liability and obligation of Borrower to perform and observe the obligations contained in the Note, this AgreementPremises, the Pledge Agreement Building 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 Industrial Center to the extent of Borrower’s interest in the Collateral and in any other collateral given to Lenderneither caused nor otherwise permitted, and Lenderdirectly or indirectly, by accepting the Note, this Agreement, the Pledge Agreement and the other Loan Documents, agrees that it shall not xxx for, seek or demand any deficiency judgment against Borrower in any such action or proceeding under, or by reason of, or in connection with, the Note, this Agreement, the Pledge Agreement Tenant 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 CollateralTenant Entities; or (gii) constitute a waiver of the right of Lender to enforce the liability and obligation of Borrowerremoval, by money judgment investigation, monitoring or otherwise, to the extent remediation of any actual lossHazardous Substance present in, damageon or about the Premises, costthe Building or the Industrial Center caused by any source, expenseincluding third parties other than Tenant and the Tenant Entities, liability, claim or other obligation incurred by Lender (including attorneys’ fees and costs reasonably incurred) arising out as a result of or in connection with the following:
acts or omissions of persons other than Tenant or the Tenant Entities; provided, however, Tenant shall be fully liable for and otherwise obligated to Landlord under the provisions of this Lease for all liabilities, costs, damages, penalties, claims, judgments, expenses (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, including without limitation, (Areasonable attorneys’ and experts’ fees and costs) 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 losses 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 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 Tenant or any of the Properties, Tenant Entities contributes to the Collateral, the Senior Mezzanine Collateral presence of such Hazardous Substances 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 Tenant and/or any of the Properties, Senior Mezzanine Collateral or Collateral as required Tenant Entities exacerbates the conditions caused 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 Borrowersuch Hazardous Substances, 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 Tenant and/or the contrary in this Agreement, the Note Tenant Entities allows or permits persons over which Tenant or any of the Loan Documents, Lender shall not be deemed to have waived any right Tenant Entities has control and/or for which Lender may have under Section 506(a), 506(b), 1111(b) Tenant or any other provisions of the Bankruptcy Code Tenant Entities are legally responsible for, to file a claim for the full amount cause such Hazardous Substances to be present in, on, under, through or about any portion of the Indebtedness Premises, the Building or the Industrial Center, or does not take all reasonably appropriate actions to require that all collateral shall continue to secure all prevent such persons over which Tenant or any of the Indebtedness owing to Lender in accordance with Tenant Entities has control and/or for which Tenant or any of the Loan DocumentsTenant Entities are legally responsible from causing the presence of Hazardous Substances in, on, under, through or about any portion of the Premises, the Building or the Industrial Center.
Appears in 3 contracts
Samples: Lease (Pacific Biosciences of California Inc), Lease (Pacific Biosciences of California Inc), Lease (Pacific Biosciences of California Inc)
Exculpation. (a) Subject to the qualifications below, Lender shall not enforce the liability and obligation of Borrower to perform and observe the obligations contained in the Note, this Agreement, the Pledge Agreement Security Instruments or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against Borrower, 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 xxx sxx for, seek or demand any deficiency judgment against Borrower in any such action or proceeding under, under or by reason of, of or under or in connection with, with the Note, this Agreement, the Pledge Agreement Security 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
Samples: 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 xxx for, seek or demand any deficiency judgment against Borrower in any such action or proceeding under, or by reason of, or in connection with, the Note, this Agreement, the Pledge Agreement or the other Loan Documents. The provisions of this Section shall not, however,
(a) constitute be a waiver, release or impairment of the Guaranteed Obligations or the security therefor intended by the Guarantor Second Mortgages, or be deemed to preclude Lender from foreclosing one or more of the Guarantor Second Mortgages or from enforcing any obligation evidenced of Lender’s rights or secured by remedies in law or in equity thereunder, or in any way or manner affecting Lender’s rights and privileges under any of the Loan Documents; 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
Samples: Limited Guaranty (Hartman Short Term Income Properties XX, Inc.), Limited Guaranty (Hartman Short Term Income Properties XX, Inc.), Limited Guaranty (Hartman Short Term Income Properties XX, Inc.)
Exculpation. (a) Subject to the qualifications below, Lender shall not enforce the liability and obligation of Borrower to perform and observe the obligations contained in the Note, this Agreement, the Pledge Agreement or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against Borrower, except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender and each Noteholder to enforce and realize upon its interest under the Note, this Agreement, the Pledge Agreement and the other Loan Documents, or in the Collateral, or any other collateral given to Lender pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower’s interest in the Collateral and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Pledge Agreement and the other Loan Documents, Purchaser agrees that it shall does not xxx forhave and will not have any claims or causes of action against any Seller Party (other than Seller), seek or demand any deficiency judgment against Borrower in any such action or proceeding under, or by reason of, or in connection with, the Note, this Agreement, the Pledge Agreement or the other Loan Documents. The provisions of this Section shall not, however,
(a) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (b) impair the right of Lender to name Borrower as a party defendant in any action or suit for foreclosure and sale under the Pledge Agreement; (c) affect the validity or enforceability of or any Guaranty made in connection with the Loan or any of the rights and remedies of Lender thereunder; (d) impair the right of Lender to obtain the appointment of a receiver; (e) intentionally omitted; (f) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted by the Pledge Agreement or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against all of the Collateral; or (g) constitute a waiver of the right of Lender to enforce the liability and obligation of Borrower, by money judgment or otherwise, to the extent of any actual loss, damage, cost, expense, liability, claim or other obligation incurred by Lender (including attorneys’ fees and costs reasonably incurred) arising out of or in connection with 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 xxx 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
Samples: Purchase and Sale Agreement, Purchase and Sale Agreement (SouFun Holdings LTD), Purchase and Sale Agreement (SouFun Holdings LTD)
Exculpation. (a) Subject to the qualifications below, Lender shall not enforce the liability and obligation of Borrower to perform and observe the obligations contained in the Note, this Agreement, the Pledge Agreement Mortgages or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against Borrower, except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender and each Noteholder to enforce and realize upon its interest under the Note, this Agreement, the Pledge Agreement Mortgages and the other Loan Documents, or in the CollateralProperties, the Rents, or any other collateral given to Lender pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower’s interest in the Collateral Properties, in the Rents and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Pledge Agreement Mortgages and the other Loan Documents, agrees that it shall not xxx for, seek or demand any deficiency judgment against Borrower in any such action or proceeding under, or by reason of, or in connection with, the Note, this Agreement, the Pledge Agreement Mortgages or the other Loan Documents. The provisions of this Section shall not, however,
, (a) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (b) impair the right of Lender to name Borrower as a party defendant in any action or suit for foreclosure and sale under any of the Pledge AgreementMortgages; (c) affect the validity or enforceability of or any Guaranty made in connection with the Loan or any of the rights and remedies of Lender thereunder; (d) impair the right of Lender to obtain the appointment of a receiver; (e) intentionally omittedimpair the enforcement of any of the Assignments of Leases; (f) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted by each of the Pledge Agreement Mortgages or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against all of the CollateralProperties; or (g) constitute a waiver of the right of Lender to enforce the liability and obligation of Borrower, by money judgment or otherwise, to the extent of any actual loss, damage, cost, expense, liability, claim or other obligation incurred by Lender (including attorneys’ fees and costs reasonably incurred) arising out of or in connection with the following:
(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
Samples: Loan Agreement (Harrahs Entertainment Inc), Loan Agreement (Harrahs Entertainment Inc)
Exculpation. (a) Subject Neither Borrower nor any Guarantor shall be personally liable for payment of the principal of the Note or interest thereon, and in the event of any failure by Borrower to pay any portion of such principal or interest, Lender will look, with respect to the qualifications belowthen outstanding balance of such principal and interest, Lender solely to the Mortgaged Property and such other collateral as has been, or hereafter shall be, given to secure payment of the Note. The foregoing limitation on liability shall not enforce the liability and obligation of Borrower to perform and observe the obligations contained in the Note, this Agreement, the Pledge Agreement impair or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against Borrower, except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender and each Noteholder to enforce and realize upon its interest under the Note, this Agreement, the Pledge Agreement and the other Loan Documents, or in the Collateral, or any other collateral given to Lender pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower’s interest in the Collateral and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Pledge Agreement and the other Loan Documents, agrees that it shall not xxx for, seek or demand any deficiency judgment against Borrower in any such action or proceeding under, or by reason of, or in connection with, the Note, this Agreement, the Pledge Agreement or the other Loan Documents. The provisions of this Section shall not, however,
(a) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (b) impair the right of Lender to name Borrower as a party defendant in any action or suit for foreclosure and sale under the Pledge Agreement; (c) otherwise affect the validity or enforceability of (a) the debt evidenced by the Note or any Guaranty made in connection with the Loan Agreement or of any other obligations evidenced by the Note, the Loan Agreement, the Mortgage or any of the Loan Documents or (b) Lender's liens, security interests, 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, the remedies of foreclosure and/or sale) with respect to the Mortgaged Property or any other property, security, collateral and/or assets (Aincluding the proceeds thereof) encumbered, pledged or assigned by the Mortgages or any other security for the Loan. In addition, the foregoing limitation on liability shall not limit anyone's obligations or be applicable with respect to: (i) liability under any guaranty(ies) or indemnity(ies) delivered or afforded to Lender; (ii) any Revenuesfraud or material misrepresentation; (iii) taxes of any kind (whether characterized as transfer, (Bgains or other taxes) any Net Liquidation Proceeds or Insurance Proceeds, (C) any Awards received payable 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 the foreclosure sale of the Collateral or Senior Mezzanine Collateral;
(iii) the misappropriationMortgaged Property, conversion or misapplication by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor irrespective of any security deposits or Rents paid more than one (1) month in advance;
who pays such taxes; (iv) application of any act proceeds of actual intentional physical waste by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or the Loan to any Guarantor;
purpose other than as provided in the Loan Documents; (v) the breach application of any representation, warranty, covenant insurance or indemnification provision condemnation proceeds or other funds or payments other than strictly in accordance with the Environmental Indemnity Agreement concerning environmental laws, hazardous substances and asbestos and any indemnification of Lender with respect thereto in either document;
Loan Documents; (vi) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company fails to obtain Lender’s prior consent to the misapplication of any voluntary intentional Transfer as required by this Agreement, the Mortgage Loan Agreement or the Mortgages, as applicable;
security deposits; (vii) rents, sales proceeds, or other sums received after default under the Loan Documents which are not applied to expenses of operating the Mortgaged Property or paid to Lender or a duly appointed receiver of the Premises; (viii) any security depositsfailure to deliver to Lender, advance deposits after demand therefor, any agreements relating to the operation, management, leasing, use, occupancy or construction of the Mortgaged Property; (ix) any intentional physical waste in respect of the Mortgaged Property; (x) any failure to pay or discharge any real estate tax, other deposits collected tax, assessment, fine, penalty or lien against the Mortgaged Property to the extent revenue from leases of the Mortgaged Property was available to pay same; (xi) liability as landlord under any lease(s) relating to the Mortgaged Property which liability accrued prior to Lender's succeeding to such interest of Borrower, which Lender is or becomes obligated for by virtue of Lender succeeding to the interests of Borrower, provided, however, that such liability shall only apply with respect to any liability of Borrower under such leases which Lender assumes pursuant to subordination, non-disturbance and attornment agreements required pursuant to the terms of such leases; (xii) liability under any agreement relating to the operation or maintenance of the Properties Mortgaged Property which liability accrued prior to Lender's succeeding to such interest of Borrower which Lender is or becomes obligated for by virtue of Lender succeeding to the interests of Borrower, provided, however, that such liability shall only apply with respect to agreements which are not delivered terminable by their terms upon thirty (30) days' written notice; (xiii) liability to Mortgage Lender upon a foreclosure of any pay for the premiums on and keep in full force and effect insurance in respect of the Properties or action Mortgaged Property in lieu thereof, except accordance with the Loan Documents to the extent revenue from leases of the Mortgaged Property was available to pay same; or (xiv) liability for Hazardous Substances that may exist upon or be discharged from the Mortgaged Property. Borrower and any such security deposits were applied Guarantor shall in any event be and shall remain personally liable for each of the matters to which reference is made in the preceding sentence and Lender may seek, obtain and enforce one or more money judgments in any appropriate proceeding(s) with respect thereto. The limitation on personal liability contained in this paragraph shall become automatically null and void and shall be of no further force or effect, and Borrower and each Guarantor shall be and remain personally liable for payment of the principal of the Note and interest thereon, 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;
(viii) this Loan Agreement, in the event of:
that Borrower, or anyone acting on behalf of Borrower, shall (A) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company file a petition or answer seeking any Guarantor filing a voluntary petition relief of any kind under the Bankruptcy Code bankruptcy laws of the United States (or any other Federal or state bankruptcy or insolvency law; if an Insolvency Event shall otherwise occur), (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, assert 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 proceedings of any Borrower shall have kind that any personal liability, directly or indirectly, under or in connection with the Loan Documents. Neither the negative capital account provisions 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 DocumentsDocuments are in whole or in part unenforceable, invalid or not legally binding, or (C) fail fully to cooperate with Lender shall not be deemed or a receiver in Lender's or such receiver's efforts to have waived any right which Lender may have collect Rents directly from tenants after a default 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
Samples: Term Loan Agreement (Acadia Realty Trust), Term Loan Agreement (Acadia Realty Trust)
Exculpation. (a) 22.%2.%3.%4. Subject to the qualifications below, Lender shall not enforce the liability and obligation of Borrower Pledgor to perform and observe the obligations contained in the Note, this Agreement, the Pledge Agreement or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against BorrowerPledgor, except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender and each Noteholder to enforce and realize upon its interest under the Note, this Agreement, the Pledge Agreement and the other Loan Documents, or in the Collateral, or any other collateral Collateral given to Lender pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower Pledgor only to the extent of BorrowerPledgor’s interest in the Collateral and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Pledge Agreement and the other Loan Documents, agrees that it shall not xxx for, seek or demand any deficiency judgment against Borrower Pledgor in any such action or proceeding under, under or by reason of, of or under or in connection with, with the Note, this Agreement, the Pledge Agreement or the other Loan Documents. The provisions of this Section shall not, however,
, (a) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (b) impair the right of Lender to name Borrower Pledgor (if applicable) as a party defendant in any action or suit for foreclosure and sale under the Pledge Agreement; (c) affect the validity or enforceability of or any Guaranty guaranty made in connection with the Loan or any of the rights and remedies of Lender thereunder; (d) impair the right of Lender to obtain the appointment of a receiver; (e) intentionally omitted; or (f) constitute a prohibition against Lender to seek a deficiency judgment against Borrower (if applicable) in order to fully realize the security granted by the Pledge Agreement or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against all of the Collateral; or (g) constitute a waiver of the right of Lender to enforce the liability and obligation of Borrower, by money judgment or otherwise, to the extent of any actual loss, damage, cost, expense, liability, claim or other obligation incurred by Lender (including attorneys’ fees and costs reasonably incurred) arising out of or in connection with the following:
(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
Samples: Senior Mezzanine Loan Agreement (Ashford Hospitality Prime, Inc.), Junior Mezzanine Loan Agreement (Ashford Hospitality Prime, Inc.)
Exculpation. (a) Subject to the qualifications below, Lender shall not enforce the liability and obligation of Borrower to perform and observe the obligations contained in the Note, this Agreement, the Pledge Agreement Security Instrument or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against Borrower, except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender and each Noteholder to enforce and realize upon its interest under the Note, this Agreement, the Pledge Agreement Security Instrument and the other Loan Documents, or in the CollateralProperty (or any portion thereof), the Rents, or any other collateral given to Lender pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower’s interest in the Collateral Property, in the Rents and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Pledge Agreement Security Instrument and the other Loan Documents, agrees that it shall not xxx for, seek or demand any deficiency judgment against Borrower in any such action or proceeding under, under or by reason of, of or under or in connection with, with the Note, this Agreement, the Pledge Agreement Security Instrument or the other Loan Documents. The provisions of this Section shall not, however,
, (ai) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (bii) impair the right of Lender to name Borrower as a party defendant in any action or suit for foreclosure and sale under the Pledge AgreementSecurity Instrument; (ciii) affect the validity or enforceability of or any Guaranty guaranty made in connection with the Loan or any of the rights and remedies of Lender thereunder; (div) impair the right of Lender to obtain the appointment of a receiver; (ev) intentionally omittedimpair the enforcement of any assignment of leases contained in the Security Instrument; or (fvi) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted by the Pledge Agreement Security Instrument or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against all of the Collateral; Property (or 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
Samples: 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 Borrower to perform and observe the obligations contained in the Note, this Agreement, the Pledge Agreement Mortgages or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against Borrower, except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender and each Noteholder to enforce and realize upon its interest under the Note, this Agreement, the Pledge Agreement Mortgages and the other Loan Documents, or in the CollateralProperties, the Rents, or any other collateral given to Lender pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower’s interest in the Collateral Properties, in the Rents and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Pledge Agreement Mortgages and the other Loan Documents, agrees that it shall not xxx sue for, seek or demand any deficiency judgment against Borrower in any such action or proceeding under, or by reason of, or in connection with, the Note, this Agreement, the Pledge Agreement Mortgages or the other Loan Documents. The provisions of this Section 9.3 shall not, however,
, (ai) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (bii) impair the right of Lender to name Borrower as a party defendant in any action or suit for foreclosure and sale under any of the Pledge AgreementMortgages; (ciii) affect the validity validity, enforceability or enforceability terms of or any the Limited Recourse Guaranty made in connection with the Loan or any of the rights and remedies of Lender thereunder; (div) impair the right of Lender to obtain the appointment of a receiver; (ev) intentionally omittedimpair the enforcement of the Assignment of Leases; or (fvi) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted by the Pledge Agreement Mortgages or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against all of the Collateral; 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 (Xxxxxx Xxxx 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 (yXxxxxx Xxxx 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 Xxxxxx’s prior written consent to any Transfer, to the extent such consent is required by this Agreement.
Appears in 2 contracts
Samples: Loan Agreement (Lineage, Inc.), Loan Agreement (Lineage, 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 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, xxx for, seek or demand any deficiency judgment against Borrower in any such action or proceeding underproceeding, under or by reason of, of or under or in connection withwith this Agreement, the Note, this Agreement, the Pledge Agreement or the other Loan Documents. The provisions of this Section 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
Samples: Mezzanine Loan Agreement (Meristar Hospitality Operating Partnership Lp), Mezzanine Loan Agreement (Meristar Hospitality Corp)
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 xxx for, seek or demand any deficiency judgment against Borrower in any such action or proceeding under, or by reason of, or in connection with, the Note, this Agreement, the Pledge Agreement or the other Loan Documents. The provisions of this Section 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
Samples: 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 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 xxx for, seek or demand any deficiency judgment against Borrower in any such action or proceeding under, under or by reason of, of or under or in connection with, with the 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 Xxxxxx & Xxxxxxx 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 GuarantyXxxxxx 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
Samples: Loan Agreement (MPG Office Trust, Inc.), Loan Agreement (Maguire Properties 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 xxx for, seek or demand any deficiency judgment against Borrower in any such action or proceeding under, or by reason of, or in connection with, the Note, this Agreement, the Pledge Agreement Security Instrument or the other Loan Documents. The provisions of this Section 9.4(a) shall not, however,
, (ai) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (bii) impair the right of Lender to name Borrower as a party defendant in any action or suit for foreclosure and sale under the Pledge AgreementSecurity Instrument; (ciii) affect the validity or enforceability of or any Guaranty made in connection with the Loan or any of the rights and remedies of Lender thereunder; (div) impair the right of Lender to obtain the appointment of a receiver; (ev) intentionally omittedimpair the enforcement of the Assignment of Leases; or (fvi) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted by the Pledge Agreement Security Instrument or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against all 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
Samples: Loan Agreement (Caesars Acquisition Co), Loan Agreement (Harrahs Entertainment Inc)
Exculpation. (a) Subject to Except as otherwise provided herein, in the qualifications belowPledge Agreement or in the other Loan Documents, Lender shall not enforce the liability and obligation of Borrower Pledgor to perform and observe the obligations contained in the Note, this Agreement, the Note or the Pledge Agreement or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against BorrowerPledgor, except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender and each Noteholder to enforce and realize upon its interest under this Agreement, the Note, the Pledge Agreement, the other Loan Documents, and the Collateral, and any other collateral given to Lender created by this Agreement, the Note, the Pledge Agreement and the other Loan Documents, or in the Collateral, or any other collateral given to Lender pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, that any judgment in any such action or proceeding shall be enforceable against Borrower Pledgor only to the extent of BorrowerPledgor’s interest in the Collateral and in any other collateral given to Lender, and . Lender, by accepting the Note, this Agreement, the Pledge Agreement Note and the other Loan DocumentsPledge Agreement, agrees that it shall not not, except as otherwise provided herein or in the Pledge Agreement, xxx for, seek or demand any deficiency judgment against Borrower Pledgor in any such action or proceeding underproceeding, under or by reason of, of or under or in connection withwith this Agreement, the Note, this Agreement, the Pledge Agreement or the other Loan Documents. The provisions of this Section shall not, however,
, (ai) constitute a waiver, release or impairment of any obligation evidenced or secured by any of this Agreement, the Note, the Pledge Agreement or the other Loan Documents; (bii) impair the right of Lender to name Borrower Pledgor as a party defendant in any action or suit for judicial foreclosure and sale under the Pledge Agreement; (ciii) affect the validity or enforceability of any indemnity (including, without limitation, the Environmental Indemnity), guaranty (including, without limitation, the Guaranty), master lease or any Guaranty similar instrument made in connection with this Agreement, the Note, the Pledge Agreement, or the other Loan or any of the rights and remedies of Lender thereunderDocuments; (div) impair the right of Lender to obtain the appointment of a receiver; (ev) intentionally omitted; (f) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted by the Pledge Agreement or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against all of the Collateral; or (g) constitute a waiver of impair the right of Lender to enforce Sections 4.1.9, 4.1.29, 5.1.9 and 5.2.8 hereof; or (vi) impair the liability and obligation right of Borrower, by money Lender to obtain a deficiency judgment or otherwiseother judgment on the Note against Pledgor if necessary to (A) preserve or enforce its rights and remedies against the Collateral or (B) obtain any Insurance Proceeds or Awards to which Lender would otherwise be entitled under the terms of this Agreement or the Pledge Agreement; provided however, Lender shall only enforce such judgment to the extent of any actual 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 Xxxxxxx 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
Samples: 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 (or any of Borrower’s members, managers partners shareholders, or Affiliates, whether direct or indirect, collectively, the “Borrower Parties”) to perform and observe the obligations contained in the Note, this Agreement, the Pledge Agreement Mortgage or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against Borrower, except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender and each Noteholder to enforce and realize upon its interest under the Note, this Agreement, the Pledge Agreement Mortgage and the other Loan Documents, or in the CollateralProperty, the Rents, or any other collateral given to Lender pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower or the Borrower Parties only to the extent of Borrower’s or the Borrower Parties’ interest in the Collateral Property, in the Rents and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Pledge Agreement Mortgage and the other Loan Documents, agrees that it shall not xxx for, seek or demand any deficiency judgment against Borrower or the Borrower Parties in any such action or proceeding under, or by reason of, or in connection with, the Note, this Agreement, the Pledge Agreement Mortgage or the other Loan Documents. The provisions of this Section shall not, however,
, (a) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (b) impair the right of Lender to name Borrower as a party defendant in any action or suit for foreclosure and sale under the Pledge AgreementMortgage; (c) affect the validity or enforceability of or any Guaranty guaranty made in connection with the Loan or any of the rights and remedies of Lender thereunder; (d) impair the right of Lender to obtain the appointment of a receiver; (e) intentionally omittedimpair the enforcement of the Assignment of Leases; (f) constitute a prohibition against Lender to seek 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
Samples: Loan Agreement (Maguire Properties Inc), Loan Agreement (Maguire Properties Inc)
Exculpation. (a) Subject to If the qualifications belowClosing shall occur, Lender shall not enforce the liability and obligation of Borrower to perform and observe the obligations other than expressly contained in guaranties, indemnities or agreements entered into at Closing by Seller, 8/9 Transferee and/or MCRLP or Seller’s Affiliates for the Notebenefit of Purchaser (and/or Purchaser’s Affiliates), this AgreementPurchaser acknowledges and agrees that Purchaser shall look solely to Seller’s, AFE’s, PXURA’s, PXLA’s and PXR’s interests in the Property, the Pledge Agreement Ground Lease and the Sublease, and Seller’s LLC Interest, for the recovery of any judgment against Seller arising out of 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 relating to enable Lender and each Noteholder to enforce and realize upon its interest under the Note, this Agreement, the Pledge Agreement and the transactions contemplated herein, and no other Loan Documentsproperty or assets of Seller, or in the Collateral, Seller’s Affiliates or any other collateral given to Lender pursuant to of Seller’s and Seller’s Affiliates direct and indirect shareholders, officers, directors, partners, principals, members, employees, agents, contractors, and any successors or assigns of the Loan Documents; providedforegoing (collectively with Seller, however, that, except as specifically provided herein, any judgment in any such action or proceeding “Seller Related Parties”) shall be enforceable against Borrower only subject to levy, execution or other enforcement procedure for the extent satisfaction of BorrowerPurchaser’s interest in the Collateral and in any other collateral given remedies under or with respect to Lender, and Lender, by accepting the Note, this Agreement. Purchaser agrees to indemnify and hold the Seller Related Parties harmless from and against any and all losses, the Pledge Agreement costs, damages, liens, claims, liabilities or expenses (including, but not limited to, reasonable attorneys’ fees, court costs and the other Loan Documentsdisbursements) (collectively, agrees that it shall not xxx for, seek or demand any deficiency judgment against Borrower in any such action or proceeding under, or by reason of, or in connection with, the Note, this Agreement, the Pledge Agreement or the other Loan Documents. The provisions of this Section shall not, however,
(a“Losses”) constitute a waiver, release or impairment of any obligation evidenced or secured incurred by any of the Loan Documents; (b) impair the right of Lender to name Borrower as a party defendant in any action Seller’s Related Parties arising from 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 reason of any actual loss, damage, cost, expense, liability, claim damage to person or other obligation incurred property caused 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 Purchaser’s 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 LenderSection 17.17(a), 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 If the Closing occurs hereunder, then other than expressly contained in guaranties, indemnities or agreements entered into at Closing by Purchaser, Post-Transfer AFE, iStar or Purchaser’s Affiliates for the benefit of Seller (and/or Seller’s Affiliates), Seller acknowledges and agrees that Seller shall look solely to Purchaser’s, AFE’s, PXURA’s, PXLA’s and PXR’s interests in the contrary in this AgreementProperty, the Note Ground Lease and the Sublease, and Seller’s LLC Interest, for the recovery of any judgment against Purchaser arising out of or relating to this Agreement and the transactions contemplated herein, and no other property or assets of Purchaser, Purchaser’s Affiliates or any of the Loan DocumentsPurchaser’s and Purchaser’s Affiliates direct and indirect shareholders, Lender shall not be deemed to have waived officers, directors, partners, principals, members, employees, agents, contractors, and any right which Lender may have under Section 506(a), 506(b), 1111(b) successors or any other provisions assigns of the Bankruptcy Code foregoing (collectively with Purchaser, “Purchaser Related Parties”) shall be subject to file a claim levy, execution or other enforcement procedure for the full amount satisfaction of Seller’s remedies under or with respect to this Agreement. Seller agrees to indemnify and hold the Purchaser Related Parties harmless from and against any and all Losses incurred by any of the Indebtedness Purchaser’s Related Parties arising from or by reason of any damage to require that all collateral shall continue to secure all person or property caused by Seller’s breach of the Indebtedness owing to Lender in accordance with the Loan Documentsthis Section 17.17(b).
Appears in 2 contracts
Samples: Agreement of Sale and Purchase (Mack Cali Realty Corp), Agreement of Sale and Purchase (Mack Cali Realty 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 Mortgage or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against Borrower, except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender and each Noteholder to enforce and realize upon its interest under the Note, this Agreement, the Pledge Agreement Mortgage and the other Loan Documents, or in the CollateralProperty, the Rents, or any other collateral given to Lender pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower’s interest in the Collateral Property, in the Rents and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Pledge Agreement Mortgage and the other Loan Documents, agrees that it shall not xxx for, seek or demand any deficiency judgment against Borrower in any such action or proceeding under, under or by reason of, of or under or in connection with, with the Note, this Agreement, the Pledge Agreement Mortgage or the other Loan Documents. The provisions of this Section shall not, however,
, (a) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (b) impair the right of Lender to name Borrower as a party defendant in any action or suit for foreclosure and sale under the Pledge AgreementMortgage; (c) affect the validity or enforceability of or any Guaranty guaranty made in connection with the Loan or any of the rights and remedies of Lender thereunder; (d) impair the right of Lender to obtain the appointment of a receiver; (e) intentionally omittedimpair the enforcement of any assignment of leases contained in the Mortgage; (f) constitute a prohibition against Lender to seek a deficiency judgment against Borrower (but not Guarantor) in order to fully realize the security granted by the Pledge Agreement Mortgage or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against all of the CollateralProperty; or (g) constitute a waiver of the right of Lender to enforce the liability and obligation of Borrower, by money judgment or otherwise, to the extent of any actual loss, damage, cost, expense, liability, claim or other obligation incurred by Lender (including attorneys’ fees and costs expenses reasonably incurred) arising out of or in connection with the following:
(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
Samples: Loan Agreement (Inland Diversified Real Estate Trust, Inc.), Loan Agreement (Inland Diversified Real Estate Trust, Inc.)
Exculpation. (a) Subject Neither Borrower nor any Guarantor shall be personally liable for payment of the principal of the Note or interest thereon, and in the event of any failure by Borrower to pay any portion of such principal or interest, Lenders will look, with respect to the qualifications belowthen outstanding balance of such principal and interest, Lender solely to the Mortgaged Property and such other collateral as has been, or hereafter shall be, given to secure payment of the Note. The foregoing limitation on liability shall not enforce the liability and obligation of Borrower to perform and observe the obligations contained in the Note, this Agreement, the Pledge Agreement impair or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against Borrower, except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender and each Noteholder to enforce and realize upon its interest under the Note, this Agreement, the Pledge Agreement and the other Loan Documents, or in the Collateral, or any other collateral given to Lender pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower’s interest in the Collateral and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Pledge Agreement and the other Loan Documents, agrees that it shall not xxx for, seek or demand any deficiency judgment against Borrower in any such action or proceeding under, or by reason of, or in connection with, the Note, this Agreement, the Pledge Agreement or the other Loan Documents. The provisions of this Section shall not, however,
(a) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (b) impair the right of Lender to name Borrower as a party defendant in any action or suit for foreclosure and sale under the Pledge Agreement; (c) otherwise affect the validity or enforceability of (a) the debt evidenced by the Note or any Guaranty made in connection with the Loan Agreement or of any other obligations evidenced by the Note, the Loan Agreement, the Mortgage or any of the Loan Documents or (b) Lenders’ liens, security interests, 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, the remedies of foreclosure and/or sale) with respect to the Mortgaged Property or any other property, security, collateral and/or assets (Aincluding the proceeds thereof) encumbered, pledged or assigned by the Mortgages or any other security for the Loan. In addition, the foregoing limitation on liability shall not limit anyone’s obligations or be applicable with respect to: (i) liability under any guaranty(ies) or indemnity(ies) delivered or afforded to Lenders; (ii) any Revenuesfraud or material misrepresentation; (iii) taxes of any kind (whether characterized as transfer, (Bgains or other taxes) any Net Liquidation Proceeds or Insurance Proceeds, (C) any Awards received payable 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 the foreclosure sale of the Collateral or Senior Mezzanine Collateral;
(iii) the misappropriationMortgaged Property, conversion or misapplication by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor irrespective of any security deposits or Rents paid more than one (1) month in advance;
who pays such taxes; (iv) application of any act proceeds of actual intentional physical waste by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or the Loan to any Guarantor;
purpose other than as provided in the Loan Documents; (v) the breach application of any representation, warranty, covenant insurance or indemnification provision condemnation proceeds or other funds or payments other than strictly in accordance with the Environmental Indemnity Agreement concerning environmental laws, hazardous substances and asbestos and any indemnification of Lender with respect thereto in either document;
Loan Documents; (vi) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company fails to obtain Lender’s prior consent to the misapplication of any voluntary intentional Transfer as required by this Agreement, the Mortgage Loan Agreement or the Mortgages, as applicable;
security deposits; (vii) rents, sales proceeds, or other sums received after default under the Loan Documents which are not applied to expenses of operating the Mortgaged Property or paid to Lenders or a duly appointed receiver of the Mortgaged Property; (viii) any security depositsfailure to deliver to Lenders, advance deposits after demand therefor, any agreements relating to the operation, management, leasing, use, occupancy or construction of the Mortgaged Property; (ix) any intentional physical waste in respect of the Mortgaged Property; (x) any failure to pay or discharge any real estate tax, other deposits collected tax, assessment, fine, penalty or lien against the Mortgaged Property to the extent revenue from leases of the Mortgaged Property was available to pay same; (xi) liability as landlord under any lease(s) relating to the Mortgaged Property which liability accrued prior to Lenders’ succeeding to such interest of Borrower, which Lenders are or become obligated for by virtue of Lenders succeeding to the interests of Borrower, provided, however, that such liability shall only apply with respect to any liability of Borrower under such leases which Lenders assumes pursuant to subordination, non-disturbance and attornment agreements required pursuant to the terms of such leases; (xii) liability under any agreement relating to the operation or maintenance of the Properties Mortgaged Property which liability accrued prior to Lenders’ succeeding to such interest of Borrower which Lenders are or become obligated for by virtue of Lenders succeeding to the interests of Borrower, provided, however, that such liability shall only apply with respect to agreements which are not delivered terminable by their terms upon thirty (30) days’ written notice; (xiii) liability to Mortgage Lender upon a foreclosure of any pay for the premiums on and keep in full force and effect insurance in respect of the Properties or action Mortgaged Property in lieu thereof, except accordance with the Loan Documents to the extent revenue from leases of the Mortgaged Property was available to pay same; or (xiv) liability for Hazardous Substances that may exist upon or be discharged from the Mortgaged Property. Borrower and any such security deposits were applied Guarantor shall in any event be and shall remain personally liable for each of the matters to which reference is made in the preceding sentence and Lenders may seek, obtain and enforce one or more money judgments in any appropriate proceeding(s) with respect thereto. The limitation on personal liability contained in this paragraph shall become automatically null and void and shall be of no further force or effect, and Borrower and each Guarantor shall be and remain personally liable for payment of the principal of the Note and interest thereon, 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;
(viii) this Loan Agreement, in the event of:
that Borrower, or anyone acting on behalf of Borrower, shall (A) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company file a petition or answer seeking any Guarantor filing a voluntary petition relief of any kind under the Bankruptcy Code bankruptcy laws of the United States (or any other Federal or state bankruptcy or insolvency law; if an Insolvency Event shall otherwise occur), (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, assert 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 proceedings of any Borrower shall have kind that any personal liability, directly or indirectly, under or in connection with the Loan Documents. Neither the negative capital account provisions 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 DocumentsDocuments are in whole or in part unenforceable, Lender shall invalid or not be deemed legally binding, or (C) fail fully to have waived any right which Lender may have cooperate with Lenders or a receiver in Lenders’ or such receiver’s efforts to collect Rents directly from tenants after a default 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
Samples: Revolving Loan Agreement (Acadia Realty Trust), Loan Agreement (Acadia Realty Trust)
Exculpation. (a) Subject to the qualifications below, Lender shall not enforce the liability and obligation of Borrower to perform and observe the obligations contained in the Note, this Agreement, the Pledge Agreement Security Instrument or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against Borrower, except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender and each Noteholder to enforce and realize upon its interest under the Note, this Agreement, the Pledge Agreement Security Instrument and the other Loan Documents, or in the CollateralProperty, the Rents, or any other collateral given to Lender pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower’s interest in the Collateral Property, in the Rents and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Pledge Agreement Security Instrument and the other Loan Documents, agrees that it shall not xxx 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
Samples: Loan Agreement (Thomas Properties Group Inc), Loan Agreement (Thomas Properties Group Inc)
Exculpation. (a) Subject to the qualifications below, Lender shall not enforce the liability and obligation of Borrower (or any of Borrower’s members, managers partners shareholders, or Affiliates, whether direct or indirect, collectively, the “Borrower Parties”) to perform and observe the obligations contained in the Note, this Agreement, the Pledge Agreement Mortgage or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against Borrower, except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender and each Noteholder to enforce and realize upon its interest under the Note, this Agreement, the Pledge Agreement Mortgage and the other Loan Documents, or in the CollateralProperty, the Rents, or any other collateral given to Lender pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower or the Borrower Parties only to the extent of Borrower’s or the Borrower Parties’ interest in the Collateral Property, in the Rents and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Pledge Agreement Mortgage and the other Loan Documents, agrees that it shall not xxx for, seek or demand any deficiency judgment against Borrower or the Borrower Parties in any such action or proceeding under, or by reason of, or in connection with, the Note, this Agreement, the Pledge Agreement Mortgage or the other Loan Documents. The provisions of this Section shall not, however,
, (a) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (b) impair the right of Lender to name Borrower as a party defendant in any action or suit for foreclosure and sale under the Pledge AgreementMortgage; (c) affect the validity or enforceability of or any Guaranty guaranty made in connection with the Loan or any of the rights and remedies of Lender thereunder; (d) impair the right of Lender to obtain the appointment of a receiver; (e) intentionally omittedimpair the enforcement of the Assignment of Leases; (f) constitute a prohibition against Lender to seek seeking a deficiency judgment against Borrower in order to fully realize the security granted by the Pledge Agreement Mortgage or to commence commencing any other appropriate action or proceeding in order for Lender to exercise its remedies against all of the CollateralProperty; or (g) constitute a waiver of the right of Lender to enforce the liability and obligation of Borrower, by money judgment or otherwise, to the extent of any actual loss, damage, cost, expense, liability, claim or other obligation incurred by Lender (including reasonable attorneys’ fees and costs reasonably incurred) arising out of or in connection with the following:
(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
Samples: Loan Agreement (MPG Office Trust, Inc.), Loan Agreement (Maguire Properties Inc)
Exculpation. (a) Subject to the qualifications below, Lender Mortgagee shall not enforce the liability and obligation of Borrower Mortgagor to perform and observe the obligations contained in the Note, Note or this Agreement, the Pledge Agreement or the other Loan Documents Mortgage by any action or proceeding wherein a money judgment shall be sought against BorrowerMortgagor or any general or limited partner of Mortgagor (hereafter collectively referred to as the "Exculpated Parties"), except that Lender Mortgagee may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender and each Noteholder Mortgagee to enforce and realize upon its interest under the Note, this AgreementMortgage, the Pledge Agreement Other Security Documents, and the other Loan Documents, or interest in the CollateralMortgaged Property, or the Rents and any other collateral given to Lender pursuant to Mortgagee created by this Mortgage and the Loan Other Security Documents; provided, however, that, except as specifically provided herein, that any judgment in any such action or proceeding shall be enforceable against Borrower the Exculpated Parties only to the extent of Borrower’s Mortgagor's interest in the Collateral Mortgaged Property, in the Rents and in any other collateral given to Lender, and LenderMortgagee. Mortgagee, by accepting the Note, Note and this Agreement, the Pledge Agreement and the other Loan DocumentsMortgage, agrees that it shall not xxx for, seek or demand any deficiency judgment against Borrower the Exculpated Parties in any such action or proceeding underproceeding, under or by reason of, of or in connection with, with the Note, the Other Security Documents or this Agreement, the Pledge Agreement or the other Loan DocumentsMortgage. The provisions of this Section paragraph shall not, however,
, (ai) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan DocumentsNote, the Other Security Documents or this Mortgage; (bii) impair the right of Lender Mortgagee to name Borrower Mortgagor as a party defendant in any action or suit for judicial foreclosure and sale under the Pledge Agreementthis Mortgage; (ciii) affect the validity or enforceability of or any Guaranty guaranty made in connection with the Loan Note, this Mortgage, or any of the rights and remedies of Lender thereunderOther Security Documents; (div) impair the right of Lender Mortgagee to obtain the appointment of a receiver; (ev) intentionally omittedimpair the enforcement of the Assignment of Leases and Rents executed in connection herewith; (fvi) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted by the Pledge Agreement or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against all of the Collateral; or (g) constitute a waiver of impair the right of Lender Mortgagee to enforce 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
Samples: First Mortgage and Security Agreement (Century Properties Fund Xvi), First Mortgage and Security Agreement (Century Properties Fund Xii)
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 xxx 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
Samples: 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 Borrower to perform and observe the obligations contained in the Note, this Agreement, the Pledge Agreement Mortgage or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against Borrower, except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender and each Noteholder to enforce and realize upon its interest under the Note, this Agreement, the Pledge Agreement Mortgage and the other Loan Documents, or in the CollateralProperty, the Rents, or any other collateral given to Lender pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower’s 's interest in the Collateral Property, in the Rents and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Pledge Agreement Mortgage and the other Loan Documents, agrees that it shall not xxx sue for, seek or demand any deficiency judgment against Borrower in any xxy 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
Samples: Loan Agreement (Glimcher Realty Trust), Loan Agreement (Glimcher Realty Trust)
Exculpation. (a) Subject to the qualifications below, Lender shall not enforce the liability and obligation of Borrower to perform and observe the obligations contained in the Note, this Agreement, the Pledge Agreement or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against Borrower, except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender and each Noteholder to enforce and realize upon its interest under the Note, this Agreement, the Pledge Agreement and the other Loan Documents, or in the Collateral, or any other collateral given to Lender pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower’s interest in the Collateral and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Pledge Agreement and the other Loan Documents, agrees that it shall not xxx for, seek or demand any deficiency judgment against Borrower in any such action or proceeding under, or by reason of, or in connection with, the Note, this Agreement, the Pledge Agreement or the other Loan Documents. The provisions of this Section shall not, however,
, (a) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (b) impair the right of Lender to name Borrower as a party defendant in any action or suit for foreclosure and sale under the Pledge Agreement; (c) affect the validity or enforceability of or any Guaranty made in connection with the Loan or any of the rights and remedies of Lender thereunder; (d) impair the right of Lender to obtain the appointment of a receiver; (e) intentionally omitted; (f) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted by the Pledge Agreement or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against all of the Collateral; or (g) constitute a waiver of the right of Lender to enforce the liability and obligation of Borrower, by money judgment or otherwise, to the extent of any actual loss, damage, cost, expense, liability, claim or other obligation incurred by Lender (including attorneys’ fees and costs reasonably incurred) arising out of or in connection with the following:
(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
Samples: 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 Obligations contained in the Note, this Agreement, the Pledge Agreement Mortgage or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against Borrower, except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender and each Noteholder to enforce and realize upon its interest under the Note, this Agreement, the Pledge Agreement Mortgage and the other Loan Documents, or in the CollateralProperty, the Gross Revenues or any other collateral given to Lender pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower’s 's interest in the Collateral Property, in the Gross Revenues and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Pledge Agreement Mortgage and the other Loan Documents, agrees that it shall not xxx for, seek or demand any deficiency judgment against Borrower in any such action or proceeding under, under or by reason of, of or under or in connection with, with the Note, this Agreement, the Pledge Agreement Mortgage or the other Loan Documents. The provisions of this Section 11.22 shall not, however,
, (a) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (b) impair the right of Lender to name Borrower as a party defendant in any action or suit for foreclosure and sale under the Pledge AgreementMortgage; (c) affect the validity or enforceability of any of the Loan Documents or any Guaranty guaranty made in connection with the Loan or any of the rights and remedies of Lender thereunder; (d) impair the right of Lender to obtain the appointment of a receiver; (e) intentionally omittedimpair the enforcement of the Assignment of Leases; (f) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted by the Pledge Agreement Mortgage or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against all of the CollateralProperty; or (g) constitute a waiver of the right of Lender to enforce the liability and obligation of Borrower, by money judgment or otherwise, to the extent of any actual loss, damage, cost, expense, liability, claim or other obligation incurred by Lender (including reasonable attorneys’ ' fees and costs reasonably incurred) arising out of or in connection with the following:following (all such liability and obligation of Borrower for any or all of the following being referred to herein as "Borrower's Recourse Liabilities"):
(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
Samples: Loan Agreement (Lodging Fund REIT III, Inc.), Loan Agreement (Lodging Fund REIT III, Inc.)
Exculpation. (a) Subject to the qualifications below, Lender shall not enforce the liability and obligation of any Borrower to perform and observe the obligations contained in the Note, this Agreement, the Pledge Agreement or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against such Borrower, except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender and each Noteholder to enforce and realize upon its interest and rights under the Note, this Agreement, the Pledge Agreement and the other Loan Documents, or in the CollateralProperty, the Rents or any other collateral given to Lender pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against a Borrower only to the extent of such Borrower’s 's interest in the Collateral Property, in the Rents and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Pledge Agreement and the other Loan Documents, agrees that it Lender shall not xxx for, seek or demand any deficiency judgment against a Borrower in any such action or proceeding under, under or by reason of, of or under or in connection with, the Note, this Agreement, the Pledge Agreement or the other with any Loan DocumentsDocument. The provisions of this Section shall not, however,
, (ai) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan DocumentsDocument; (bii) impair the right of Lender to name Borrower one or more Borrowers as a party defendant in any action or suit for foreclosure and sale under the Pledge AgreementMortgage; (ciii) affect the validity or enforceability of any of the Loan Documents or any Guaranty guaranty made in connection with the Loan or any of the rights and remedies of Lender thereunder; (div) impair the right of Lender to obtain the appointment of a receiver; (ev) intentionally omittedimpair the enforcement of the Assignment of Leases; (fvi) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted by the Pledge Agreement or to commence any other appropriate action or proceeding in order for Lender to fully realize the security granted by the Mortgage or to exercise its remedies against all of the CollateralProperty; or (gvii) constitute a waiver of the right of Lender to enforce the liability and obligation of BorrowerBorrowers, by money judgment or otherwise, to the extent of any actual loss, damage, cost, expense, liability, claim or other obligation incurred by Lender (including attorneys’ ' fees and costs reasonably incurred) (collectively, "LENDER'S LOSSES") arising out of or in connection with the following:
following (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
Samples: 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 (or any of Borrower’s members, managers, partners, shareholders, or Affiliates, whether direct or indirect, collectively, the “Borrower Parties”) to perform and observe the obligations contained in the Note, this Agreement, the Pledge Agreement or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against Borrower, except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender and each Noteholder to enforce and realize upon its interest under the Note, this Agreement, the Pledge Agreement and the other Loan Documents, or in the Collateral, or any other collateral given to Lender pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower or the Borrower Parties only to the extent of Borrower’s or the Borrower Parties’ interest in the Collateral and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Pledge Agreement and the other Loan Documents, agrees that it shall not xxx for, seek or demand any deficiency judgment against Borrower or the Borrower Parties in any such action or proceeding under, or by reason of, or in connection with, the Note, this Agreement, the Pledge Agreement or the other Loan Documents. The provisions of this Section shall not, however,
, (a) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (b) impair the right of Lender to name Borrower as a party defendant in any action or suit for foreclosure and sale under the Pledge Agreement; (c) affect the validity or enforceability of or any Guaranty guaranty made in connection with the Loan or any of the rights and remedies of Lender thereunder; (d) impair the right of Lender to obtain the appointment of a receiver; (e) intentionally omitted; (f) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted by the Pledge Agreement or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against all the Collateral; (f) impair the enforcement of the CollateralAssignment of Leases and Rents; or (g) constitute a waiver of the right of Lender to enforce the liability and obligation of Borrower, by money judgment or otherwise, to the extent of any actual loss, damage, cost, expense, liability, claim or other obligation incurred by Lender (including including, without limitation, attorneys’ fees and costs reasonably incurred) ), arising out of or in connection with the following:
(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
Samples: Loan Agreement (Maguire Properties Inc), Loan Agreement (Maguire Properties Inc)
Exculpation. (a) Subject Neither Borrower nor any Principal of Borrower shall be personally liable for payment of the principal of the Note or interest thereon, and in the event of any failure by Borrower to pay any portion of such principal or interest, Lenders will look, with respect to the qualifications belowthen outstanding balance of such principal and interest, Lender solely to the Mortgaged Property and such other collateral as has been, or hereafter shall be, given to secure payment of the Note. The foregoing limitation on liability shall not enforce the liability and obligation of Borrower to perform and observe the obligations contained in the Note, this Agreement, the Pledge Agreement impair or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against Borrower, except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender and each Noteholder to enforce and realize upon its interest under the Note, this Agreement, the Pledge Agreement and the other Loan Documents, or in the Collateral, or any other collateral given to Lender pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower’s interest in the Collateral and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Pledge Agreement and the other Loan Documents, agrees that it shall not xxx for, seek or demand any deficiency judgment against Borrower in any such action or proceeding under, or by reason of, or in connection with, the Note, this Agreement, the Pledge Agreement or the other Loan Documents. The provisions of this Section shall not, however,
(a) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (b) impair the right of Lender to name Borrower as a party defendant in any action or suit for foreclosure and sale under the Pledge Agreement; (c) otherwise affect the validity or enforceability of (a) the debt evidenced by the Note or any Guaranty made in connection with the Loan Agreement or of any other obligations evidenced by the Note, the Loan Agreement, the Mortgage or any of the Loan Documents or (b) Lenders' liens, security interests, 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, the remedies of foreclosure and/or sale) with respect to the Mortgaged Property or any other property, security, collateral and/or assets (Aincluding the proceeds thereof) encumbered, pledged or assigned by the Mortgages or any other security for the Loan. In addition, the foregoing limitation on liability shall not limit anyone's obligations or be applicable with respect to: (i) liability under any guaranty(ies) or indemnity(ies) delivered or afforded to Lenders; (ii) any Revenuesfraud or material misrepresentation; (iii) taxes of any kind (whether characterized as transfer, (Bgains or other taxes) any Net Liquidation Proceeds or Insurance Proceeds, (C) any Awards received payable 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 the foreclosure sale of the Collateral or Senior Mezzanine Collateral;
(iii) the misappropriationMortgaged Property, conversion or misapplication by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor irrespective of any security deposits or Rents paid more than one (1) month in advance;
who pays such taxes; (iv) application of any act proceeds of actual intentional physical waste by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or the Loan to any Guarantor;
purpose other than as provided in the Loan Documents; (v) the breach application of any representation, warranty, covenant insurance or indemnification provision condemnation proceeds or other funds or payments other than strictly in accordance with the Environmental Indemnity Agreement concerning environmental laws, hazardous substances and asbestos and any indemnification of Lender with respect thereto in either document;
Loan Documents; (vi) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company fails to obtain Lender’s prior consent to the misapplication of any voluntary intentional Transfer as required by this Agreement, the Mortgage Loan Agreement or the Mortgages, as applicable;
security deposits; (vii) any security depositsrents, advance deposits sales proceeds, or any other deposits collected with respect to any of sums received after default under the Properties Loan Documents which are not delivered applied to Mortgage Lender upon expenses of operating the Mortgaged Property or paid to Administrative Agent for the account of Lenders or a foreclosure of any duly appointed receiver of the Properties Premises; (viii) any failure to deliver to Administrative Agent or action Lenders, after demand therefor, any agreements relating to the operation, management, leasing, use, occupancy or construction of the Mortgaged Property; (ix) any intentional physical waste in lieu thereofrespect of the Mortgaged Property; (x) any failure to pay or discharge any real estate tax, except other tax, assessment, fine, penalty or lien against the Mortgaged Property to the extent revenue from leases of the Mortgaged Property was available to pay same; (xi) liability to Lenders for the reimbursement to Administrative Agent, for the account of Lenders, together with interest as provided in the Loan Documents, of all sums advanced or expended by Lenders after or in respect of any such security deposits were applied default under the Loan Documents; (xii) liability as landlord under any lease(s) relating to the Mortgaged Property which Lenders are or become obligated for by virtue of Lenders succeeding to the interests of Borrower; (xiii) liability under any agreement relating to the operation or maintenance of the Mortgaged Property which Lenders are or become obligated for by virtue of Lenders succeeding to the interests of Borrower; (xiv) liability to pay for the premiums on and keep in full force and effect insurance in respect of the Mortgaged Property in accordance with the Loan Documents to the extent revenue from leases of the Mortgaged Property was available to pay same; or (xv) liability for Hazardous Substances that may exist upon or be discharged from the Mortgaged Property. Borrower and any Principal of Borrower shall in any event be and shall remain personally liable for each of the matters to which reference is made in the preceding sentence and Lenders may seek, obtain and enforce one or more money judgments in any appropriate proceeding(s) with respect thereto. The limitation on personal liability contained in this paragraph shall become automatically null and void and shall be of no further force or effect, and Borrower and each Principal of Borrower shall be and remain personally liable for payment of the principal of the Note and interest thereon, 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;
(viii) this Loan Agreement, in the event of:
that Borrower, or anyone acting on behalf of Borrower, shall (A) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company file a petition or answer seeking any Guarantor filing a voluntary petition relief of any kind under the Bankruptcy Code bankruptcy laws of the United States (or any other Federal or state bankruptcy or insolvency law; if an Insolvency Event shall otherwise occur), (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, assert 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 proceedings of any Borrower shall have kind that any personal liability, directly or indirectly, under or in connection with the Loan Documents. Neither the negative capital account provisions 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 DocumentsDocuments are in whole or in part unenforceable, Lender shall invalid or not be deemed legally binding, or (C) fail fully to have waived any right which Lender may have cooperate with Administrative Agent or a receiver in Administrative Agent's or such receiver's efforts to collect Rents directly from tenants after a default 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
Samples: Term Loan Agreement (Acadia Realty Trust), Term Loan Agreement (Acadia Realty Trust)
Exculpation. (a) Subject to the qualifications below, Lender shall not enforce the liability and obligation of Borrower to perform and observe the obligations contained in the Note, this Agreement, the Pledge Agreement or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against Borrower, except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender and each Noteholder to enforce and realize upon its interest under the Note, this Agreement, the Pledge Agreement and the other Loan Documents, or in the Collateral, or any other collateral Collateral given to Lender pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower’s interest in the Collateral and in any other collateral given to Lender, and each Lender, by accepting the Note, this Agreement, the Pledge Agreement and the other Loan Documents, agrees that it shall not xxx for, seek or demand any deficiency judgment against Borrower in any such action or proceeding under, or by reason of, or in connection with, the Note, this Agreement, the Pledge Agreement or the other Loan Documents. The provisions of this Section 9.2 shall not, however,
, (a) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (b) impair the right of Lender to name Borrower as a party defendant in any action or suit for foreclosure and sale under the Pledge Agreement; (c) affect the validity or enforceability of or any Guaranty made in connection with the Loan or any of the rights and remedies of Lender thereunder; (d) impair the right of Lender to obtain the appointment of a receiver; (e) intentionally omitted; (f) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted by the Pledge Agreement or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against all of the Collateral; or (g) constitute a waiver of the right of Lender to enforce the liability and obligation of Borrower, by money judgment or otherwise, to the extent of any actual loss, damage, cost, expense, liability, claim or other obligation incurred by or on behalf of Lender (including attorneys’ fees and costs reasonably incurred) arising out of or in connection with the following:
(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
Samples: 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 or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against Borrower, except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender and each Noteholder to enforce and realize upon its interest under the Note, this Agreement, the Pledge Agreement and the other Loan Documents, or in the Collateral, or any other collateral given to Lender pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower’s interest in the Collateral and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Pledge Agreement and the other Loan Documents, agrees that it shall not xxx for, seek or demand any deficiency judgment against Borrower in any such action or proceeding under, or by reason of, or in connection with, the Note, this Agreement, the Pledge Agreement or the other Loan Documents. The provisions of this Section shall not, however,
, (a) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (b) impair the right of Lender to name Borrower as a party defendant in any action or suit for foreclosure and sale under the Pledge Agreement; (c) affect the validity or enforceability of or any Guaranty made in connection with the Loan or any of the rights and remedies of Lender thereunder; (d) impair the right of Lender to obtain the appointment of a receiver; (e) intentionally omitted; (f) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted by the Pledge Agreement or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against all of the Collateral; or (g) constitute a waiver of the right of Lender to enforce the liability and obligation of Borrower, by money judgment or otherwise, to the extent of any actual loss, damage, cost, expense, liability, claim or other obligation incurred by Lender (including attorneys’ fees and costs reasonably incurred) arising out of or in connection with the following:
(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
Samples: Mezzanine Loan Agreement (Harrahs Entertainment Inc), Mezzanine Loan Agreement (Harrahs Entertainment Inc)
Exculpation. (a) Subject to the qualifications below, Lender Agent shall not enforce the liability and obligation of Borrower to perform and observe the obligations Obligations contained in the Note, this Agreement, the Pledge Agreement Mortgage or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against Borrower, except that Lender Agent may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender and each Noteholder to enforce and realize upon its (and the Lenders’) interest under the Note, this Agreement, the Pledge Agreement Mortgage and the other Loan Documents, or in all or any of the CollateralProperties, the Gross Revenues or any other collateral given to Lender Agent (on behalf of Lenders) pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower’s interest in the Collateral Properties, in the Gross Revenues and in any other collateral given to LenderAgent (on behalf of Lenders), and LenderAgent (on behalf of Lenders), by accepting the Note, this Agreement, the Pledge Agreement Mortgage and the other Loan Documents, agrees that it shall not xxx sxx for, seek or demand any deficiency judgment against Borrower in any such action or proceeding under, under or by reason of, of or under or in connection with, with the Note, this Agreement, the Pledge Agreement Mortgage or the other Loan Documents. The provisions of this Section 10.1 shall not, however,
, (a) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (b) impair the right of Lender Agent to name Borrower as a party defendant in any action or suit for foreclosure and sale under the Pledge AgreementMortgage; (c) affect the validity or enforceability of any of the Loan Documents or any Guaranty guaranty made in connection with the Loan or any of the rights and remedies of Lender Agent and Lenders thereunder; (d) impair the right of Lender Agent to obtain the appointment of a receiver; (e) intentionally omittedimpair the enforcement of the Assignment of Leases; (f) impair the enforcement of the Environmental Indemnity; (g) constitute a prohibition against Lender Agent to seek a deficiency judgment against Borrower in order to fully realize the security granted by the Pledge Agreement Mortgage or to commence any other appropriate action or proceeding in order for Lender Agent to exercise its remedies against all or any of the CollateralProperties; or (gh) constitute a waiver of the right of Lender Agent to enforce the liability and obligation of Borrower, by money judgment or otherwise, to the extent of any actual loss, damagedamage (excluding punitive damages except in the case of punitive damages paid by Agent or any Lender to a third party where such damages do not directly arise as a result of the acts of Agent), cost, expense, liability, claim or other obligation actually incurred by Agent or any Lender (including reasonable attorneys’ fees and costs reasonably incurred) arising out of or in connection with the following:following (all such liability and obligation of Borrower for any or all of the following being referred to herein as “Borrower’s Recourse Liabilities”):
(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
Samples: 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 Note, this Agreement, the Pledge Agreement Mortgages or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against Borrower, except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender and each Noteholder to enforce and realize upon its interest under the Note, this Agreement, the Pledge Agreement Mortgages and the other Loan Documents, or in the CollateralProperties, the Rents, or any other collateral given to Lender pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower’s interest in the Collateral Properties, in the Rents and in any other collateral given to Lender, and each Lender, by accepting the Note, this Agreement, the Pledge Agreement Mortgages and the other Loan Documents, agrees that it shall not xxx for, seek or demand any deficiency judgment against Borrower in any such action or proceeding under, or by reason of, or in connection with, the Note, this Agreement, the Pledge Agreement Mortgages or the other Loan Documents. The provisions of this Section 9.2 shall not, however,
, (a) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (b) impair the right of Lender to name Borrower as a party defendant in any action or suit for foreclosure and sale under any of the Pledge AgreementMortgages; (c) affect the validity or enforceability of or any Guaranty made in connection with the Loan or any of the rights and remedies of Lender thereunder; (d) impair the right of Lender to obtain the appointment of a receiver; (e) intentionally omittedimpair the enforcement of any of the Assignments of Leases; (f) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted by each of the Pledge Agreement Mortgages or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against all of the CollateralProperties; or (g) constitute a waiver of the right of Lender to enforce the liability and obligation of Borrower, by money judgment or otherwise, to the extent of any actual loss, damage, cost, expense, liability, claim or other obligation incurred by or on behalf of Lender (including attorneys’ fees and costs reasonably incurred) arising out of or in connection with the following:
(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
Samples: 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 Security Instrument or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against BorrowerBorrower or Sole Member, except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender and each Noteholder to enforce and realize upon its interest under the Note, this Agreement, the Pledge Agreement Security Instrument and the other Loan Documents, or in the CollateralProperty, the Rents, or any other collateral given to Lender pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower’s interest in the Collateral Property, in the Rents and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Pledge Agreement Security Instrument and the other Loan Documents, agrees that it shall not xxx for, seek or demand any deficiency judgment against Borrower in any such action or proceeding under, or by reason of, or in connection with, the Note, this Agreement, the Pledge Agreement Security Instrument or the other Loan Documents. The provisions of this Section 3.1 shall not, however,
, (a) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (b) impair the right of Lender to name Borrower as a party defendant in any action or suit for foreclosure and sale under the Pledge AgreementSecurity Instrument; (c) affect the validity or enforceability of the Guaranty or the Environmental Indemnity or any Guaranty guaranty or indemnity made in connection with the Loan therein or any of the rights and remedies of Lender thereunder; (d) impair the right of Lender to obtain the appointment of a receiver; (e) intentionally omittedimpair the enforcement of the Assignment of Leases; or (f) constitute a prohibition against Lender to seek seeking a deficiency judgment against Borrower in order to fully realize the security granted by the Pledge Agreement Security Instrument or to commence commencing any other appropriate action or proceeding in order for Lender to exercise its remedies against all of the Collateral; 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 Xxxxx Xxxxx 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
Samples: Loan Agreement (Inland Diversified Real Estate Trust, Inc.), Loan Agreement (Inland Diversified Real Estate Trust, Inc.)
Exculpation. (a) Subject to the qualifications below, Lender shall not enforce the liability and obligation of Borrower to perform and observe the obligations contained in the Note, this Agreement, the Pledge Agreement or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against Borrower, except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender and each Noteholder to enforce and realize upon its interest under the Note, this Agreement, the Pledge Agreement and the other Loan Documents, or in the Collateral, Collateral or any other collateral given to Lender pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower’s interest in the Collateral and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Pledge Agreement and the other Loan Documents, agrees that it shall not xxx for, seek or demand any deficiency judgment against Borrower in any such action or proceeding under, 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
Samples: 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 Mortgage or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against Borrower, except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender and each Noteholder to enforce and realize upon its interest under the Note, this Agreement, the Pledge Agreement Mortgage and the other Loan Documents, or in the CollateralProperty, the CPLV Rents, or any other collateral Collateral given to Lender pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower’s interest in the Collateral Property, in the Rents and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Pledge Agreement Mortgage and the other Loan Documents, agrees that it shall not xxx for, seek or demand any deficiency judgment against Borrower in any such action or proceeding under, under or by reason of, of or under or in connection with, with the Note, this Agreement, the Pledge Agreement Mortgage or the other Loan Documents. The provisions of this Section shall not, however,
, (a) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (b) impair the right of Lender to name Borrower as a party defendant in any action or suit for foreclosure and sale under the Pledge AgreementMortgage; (c) affect the validity or enforceability of or any Guaranty guaranty made in connection with the Loan or any of the rights and remedies of Lender thereunder; (d) impair the right of Lender to obtain the appointment of a receiver; (e) intentionally omittedimpair the enforcement of any assignment of leases contained in the Mortgage; (f) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted by the Pledge Agreement Mortgage or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against all of the CollateralProperty; or (g) constitute a waiver of the right of Lender to enforce the liability and obligation of Borrower, by money judgment or otherwise, to the extent of any actual loss, damage, cost, expense, liability, claim or other obligation actually incurred by Lender (including reasonable, out of pocket attorneys’ fees and costs expenses reasonably incurredincurred but excluding (x) consequential damages and/or lost profits, and (y) punitive, exemplary or other special damages, except to the extent claimed against or recovered from Lender by any third party which are not a result of any fraud, gross negligence or willful misconduct by Lender) arising out of or in connection with the following:
(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
Samples: Loan Agreement, Loan Agreement (Vici Properties Inc.)
Exculpation. (a) Subject to the qualifications below, Lender Payee shall not enforce the liability and obligation of Borrower Maker to perform and observe the obligations contained in the Note, this Agreement, the Pledge Agreement Note or the other Loan Documents Mortgage by any action or proceeding wherein a money judgment shall be sought against BorrowerMaker or any general or limited partner of Maker (hereinafter collectively referred to as the "Exculpated Parties"), except that Lender Payee may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender and each Noteholder Payee to enforce and realize upon its interest under the this Note, this Agreementthe Mortgage, the Pledge Agreement Other Security Documents, and the other Loan Documents, or interest in the CollateralMortgaged Property, or the Rents (as defined in the Mortgage) and any other collateral given to Lender pursuant to Payee created by this Note, the Loan Mortgage and the Other Security Documents; provided, however, that, except as specifically provided herein, that any judgment in any such action or proceeding shall be enforceable against Borrower the Exculpated Parties only to the extent of Borrower’s Maker's interest in the Collateral Mortgaged Property, in the Rents and in any other collateral given to Lender, and LenderPayee. Payee, by accepting the Note, this Agreement, the Pledge Agreement Note and the other Loan DocumentsMortgage, agrees that it shall not xxx sue for, seek or demand any deficiency judgment against Borrower the Exculpated Parties in any such action or proceeding underproceeding, under or by reason of, of or under or in connection withwith the Mortgage, the Other Security Documents or this Note, this Agreement, the Pledge Agreement or the other Loan Documents. The provisions of this Section paragraph shall not, however,
, (ai) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan DocumentsMortgage, the Other Security Documents or this Note; (bii) impair the right of Lender Payee to name Borrower Maker as a party defendant in any action or suit for judicial foreclosure and sale under the Pledge AgreementMortgage; (ciii) affect the validity or enforceability of or any Guaranty guaranty made in connection with the Loan Mortgage, this Note, or any of the rights and remedies of Lender thereunderOther Security Documents; (div) impair the right of Lender Payee to obtain the appointment of a receiver; (ev) intentionally omittedimpair the enforcement of the First Assignment of Leases and Rents dated the date hereof given by Maker to Payee executed in connection herewith; (fvi) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted by the Pledge Agreement or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against all of the Collateral; or (g) constitute a waiver of impair the right of Lender Payee to enforce 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
Samples: First Mortgage Note (Century Properties Fund Xvi), First Mortgage Note (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 shall be sought against Borrower, except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender and each Noteholder to enforce and realize upon its interest and rights under the Note, this Agreement, the Pledge Agreement and the other Loan Documents, or in the CollateralProperty, the Rents or any other collateral given to Lender pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower’s 's interest in the Collateral Property, in the Rents and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Pledge Agreement and the other Loan Documents, agrees that it Lender shall not xxx sxx for, seek or demand any deficiency judgment against Borrower in any such action or proceeding under, under or by reason of, of or under or in connection with, the Note, this Agreement, the Pledge Agreement or the other with any Loan DocumentsDocument. The provisions of this Section 10.1 shall not, however,
, (ai) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan DocumentsDocument; (bii) impair the right of Lender to name Borrower as a party defendant in any action or suit for foreclosure and sale under the Pledge AgreementMortgage; (ciii) affect the validity or enforceability of any of the Loan Documents or any Guaranty guaranty made in connection with the Loan or any of the rights and remedies of Lender thereunder; (div) impair the right of Lender to obtain the appointment of a receiver; (ev) intentionally omittedimpair the enforcement of the Assignment of Leases and Rents; (fvi) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted by the Pledge Agreement or to commence any other appropriate action or proceeding in order for Lender to fully realize the security granted by the Mortgage or to exercise its remedies against all of the CollateralProperty; or (gvii) constitute a waiver of the right of Lender to enforce the liability and C obligation of Borrower, by money judgment or otherwise, to the extent of any actual loss, damage, cost, expense, liability, claim or other obligation incurred by Lender (including attorneys’ ' fees and costs reasonably incurred) arising out of or in connection with the following:following (all such liability and obligation of Borrower for any or all of the following being referred to herein as "Borrower 's Recourse Liabilities "):
(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
Samples: Loan Agreement (Medalist Diversified REIT, Inc.), Loan Agreement (Medalist Diversified REIT, Inc.)
Exculpation. (a) Subject to Except as otherwise provided herein or in the qualifications belowother Loan Documents, Lender shall not enforce the liability and obligation of Borrower or Borrower Principal, as applicable, to perform and observe the obligations contained herein or in the Note, this Agreement, the Pledge Agreement or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against Borrower, except that Lender may bring a foreclosure actionan action under the UCC, an action for specific performance or any other appropriate action or proceeding to enable Lender and each Noteholder to enforce and realize upon its interest under this Agreement, the Note, this Agreement, the Pledge Agreement and the other Loan Documents, or and the interest in the Collateral, or Collateral and any other collateral given to Lender pursuant to created by this Agreement, the Note, the Pledge Agreement and the other Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower or Borrower Principal, as applicable, only to the extent of Borrower’s 's or Borrower Principal's interest in the Collateral and in any other collateral given to Lender, and . Lender, by accepting this Agreement, the Note, this Agreement, the Pledge Agreement and the other Loan Documents, agrees that it shall not not, except as otherwise provided in this Section 15.1, xxx for, seek or demand any deficiency judgment against Borrower or Borrower Principal in any such action or proceeding underproceeding, under or by reason of, of or under or in connection withwith this Agreement, the Note, this Agreement, the Pledge Agreement or the other Loan Documents. The provisions of this Section 15.1 shall not, however,
, (ai) constitute a waiver, release or impairment of any obligation evidenced or secured by any of this Agreement, the Note, the Pledge Agreement or the other Loan Documents; (bii) impair the right of Lender to name Borrower as a party defendant in any action or suit for judicial foreclosure and sale under this Agreement and the Pledge Agreement; (ciii) affect the validity or enforceability of any indemnity (including, without limitation, those contained in Section 13.5 and Article 14 of this Agreement and the Environmental Indemnity), guaranty, master lease or any Guaranty similar instrument made in connection with this Agreement, the Note, the Pledge Agreement and the other Loan or any of the rights and remedies of Lender thereunderDocuments; (div) impair the right of Lender to obtain the appointment of a receiver; (ev) intentionally omitted; (f) constitute a prohibition against Lender to seek a deficiency judgment against Borrower impair the enforcement of the assignment of leases provisions contained in order to fully realize the security granted by the Pledge Agreement or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against all of the CollateralAgreement; or (gvi) constitute a waiver of impair the right of Lender to enforce the liability and obligation of Borrower, by money obtain a deficiency judgment or otherwiseother judgment on the Note against Borrower or Borrower Principal if necessary to obtain any Insurance Proceeds or Awards to which Lender would otherwise be entitled under this Agreement; provided however, Lender shall only enforce such judgment to the extent of any actual 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
Samples: 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 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 LenderLender pursuant to the Loan Documents, and Lender, by accepting the Note, this Agreement, the Pledge Agreement Mortgages and the other Loan Documents, agrees that it shall not xxx sue for, seek or demand any deficiency judgment against Borrower in any such action or proceeding under, or by reason of, or in connection with, the Note, this Agreement, the Pledge Agreement Mortgages or the other Loan Documents. The provisions of this Section 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 Borrower as a party defendant in any action or suit for foreclosure and sale under any of the Pledge AgreementMortgages; (cC) affect the validity or enforceability of the Guaranty or any Guaranty made in connection with the Loan Environmental Indemnity or any of the rights and remedies of Lender thereunder; (dD) impair the right of Lender to obtain the appointment of a receiver; (eE) intentionally omittedimpair the enforcement of the collateral assignment of leases and rents contained in the Mortgage; (fF) 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 (gG) 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 Losses to the extent actually incurred by Lender (including attorneys’ fees Xxxxxx and costs reasonably incurred) arising out of or in connection with the following:
(i) fraud or intentional material and willful misrepresentation by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company Borrower or any SPE Constituent Entity or any of their respective Affiliates that are Controlled by Guarantor (each, a “Recourse Party”) 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 willful misconduct of any Recourse Party which results in physical damage or waste to the Property (provided, there shall be no liability for any physical damage or waste to the extent caused by (x) a failure to pay expenses due to insufficient funds of having been generated from the Property for Borrower, Senior Mezzanine Borrower, Mortgage ’s business operations or (y) if reserve funds held by Lender (or Administrative Agent) and specifically allocated for such amount or Excess Cash Flow Reserve Funds permitted to be used for such purpose under this Agreement have not been made available to Borrower by Lender (or Operating CompanyAdministrative Agent) to pay such outstanding amounts and Borrower fails to pay such outstanding amounts);
(iii) other than in connection with Approved Alterations, including, without limitation, after a Casualty or Condemnation, the intentional and wrongful removal or disposal by or on behalf of any Recourse Party of any portion of any Individual Property in violation of the Loan Documents during the continuance of an Event of Default;
(iv) the misappropriation or conversion by any Recourse Party of any of the following in violation of the Loan Documents (A) any RevenuesInsurance Proceeds received by any Recourse Party with respect to the Property paid by reason of any Casualty or proceeds of the PLL Policy in connection with the Property, (B) any Net Liquidation Proceeds Awards or Insurance Proceeds, (C) other amounts received by any Awards received Recourse Party with respect to the Property from a Governmental Authority in connection with a Condemnation, (DC) any Rents or security deposits (or received by any item Recourse Party with respect to the Property during the continuance of Revenue, from whatever source) following an Event of Default, or (ED) any distribution or other payments made in connection Rents received by any Recourse Party with any part of respect to 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 Property paid more than one (1) month in advance;
(iv) , provided that, in no event will it be deemed misappropriation by a Recourse Party to the extent any act of actual intentional physical waste by Borrowerthe foregoing are applied to pay costs and expenses incurred in connection with the ownership, Mortgage Borroweroperation or management of the Properties in accordance with the terms of this Agreement or applied to pay other obligations required to be paid pursuant to the Loan Documents, Senior Mezzanine Borrower, Operating Company or any Guarantorotherwise delivered to Lender;
(v) a material breach by Borrower or any SPE Constituent Entity or material failure by Borrower or any SPE Constituent Entity to comply with the breach of any representationcovenants set forth in Section 5.1.28(b) hereof (provided, warranty, covenant however that (1) there shall be no liability hereunder (x) for trade payables or indemnification provision other operational Debt incurred in the Environmental Indemnity ordinary course of business or as may otherwise be permitted in accordance with this Agreement concerning environmental lawsor for the failure to pay such trade payables or operational debt as a result of insufficient funds having been generated from the Property or (y) if reserve funds held by Lender (or Administrative Agent) and specifically allocated for such amount or Excess Cash Flow Reserve Funds permitted to be used for such purpose under this Agreement have not been made available to Borrower by Lender (or Administrative Agent) to pay such outstanding amounts, hazardous substances and asbestos and (2) the foregoing shall not require Borrower’s equityholders, Guarantor or Sponsor to make any indemnification of Lender with respect thereto in either documentadditional capital contributions to Borrower);
(vi) except as permitted by the Loan Documents, if Borrower, Mortgage Borrower, Senior Mezzanine Borrower voluntarily encumbers any Individual Property by any Lien securing indebtedness for borrowed money (other than (i) a Permitted Encumbrance or Operating Company fails (ii) a Lien arising out of indebtedness that was Permitted Debt when incurred but which subsequently became prohibited because of a failure to obtain Lender’s prior consent to any voluntary intentional Transfer repay the same as required by this Agreement, Agreement solely as the Mortgage Loan Agreement result of insufficient funds having been generated by the Property) without Lender’s prior written consent; 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) 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 Affiliates fail to obtain Xxxxxx’s prior written consent to any voluntary Transfer of title to an Individual Property (or any Guarantor soliciting material portion thereof constituting real property) or causing any direct or indirect interest in Borrower in any case in which such consent is required to be solicited petitioning creditors for obtained pursuant to Section 5.2.10 hereof, provided, however, that if such violation or breach arises solely from a failure to provide any involuntary petition against Borrowerrequired notice or information pursuant to the applicable provisions of the Loan Documents with respect to a Transfer that is otherwise permitted in accordance with the terms of this Agreement (including, Operating Company or any Guarantor without limitation, a Permitted Transfer), there shall be no liability hereunder. For the avoidance of doubt, a Transfer resulting 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 the exercise of Lender, ’s rights under the Bankruptcy Code Loan Documents, Mezzanine Lender’s rights under the Mezzanine Loan Documents, the consummation of any remedial or enforcement action by the Lender or the holder of the Mezzanine Loan of the collateral for the Loan or the Mezzanine Loan, including, without limitation, any other Federal foreclosure, power of sale, deed-in-lieu or state bankruptcy assignment-in-lieu of foreclosure and the exercise of any rights of Lender under the Mortgages or insolvency law; (D) Borrowera New Mezzanine Lender under any Pledge Agreement, Mortgage Borrowerincluding, Senior Mezzanine Borrowerwithout limitation, Operating Company or any Guarantor consenting to or acquiescing in or joining in an application for the appointment of a receiver, custodian, receiver, trustee, trustee or examiner for Borrowerby Xxxxxx or a New Mezzanine Lender, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company any right to vote any pledged securities or any Guarantor or right to replace officers and directors of any of the PropertiesPerson (collectively, 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 Lendera “Foreclosure”), or admitting, shall not be a Transfer 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 violation of Section 4.1.30 of this Agreement5.2.10 hereof; and
(xvii) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company fails subject 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 a cap equal to the contrary under this Agreement, neither any present or future Affiliate of Borrower (other than GuarantorPLL Policy Limit, to the extent provided that Borrower obtains PLL Policies that do not run through the Required PLL Period and Borrower fails to renew, replace or extend such PLL Policy through the Required PLL Period as required under Section 6.1(a)(x), any liability pursuant to Section 4 (other than Section 4(a)(l)) of the GuarantyEnvironmental Indemnity) nor any present that first arises after the expiration of such PLL Policy and that would have otherwise been covered by the PLL Policy had it been renewed, replaced or future shareholderextended through the Required PLL Period, officerexcept, directorin each case, employee, trustee, beneficiary, advisor, partner, member, principal, participant to the extent such loss is caused by or agent results from the gross negligence or willful misconduct 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 capitalLender.
(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 Borrower in the event of:
(i) Borrower or any SPE Constituent Entity filing a voluntary petition under the Bankruptcy Code (other than at the request or direction of Lender); (ii) the filing by any Person (other than Lender) of an involuntary petition against Borrower or any SPE Constituent Entity under the Bankruptcy Code in which any Recourse Party affirmatively colludes in writing with the petitioning Person (other than Lender) filing such involuntary petition against Borrower or any SPE Constituent Entity; (iii) any Recourse Party filing an answer consenting to or otherwise joining in any involuntary petition filed against Borrower or any SPE Constituent Entity, by any other Person under the Bankruptcy Code (other than Lender); or (iv) any Recourse Party consenting in writing to or joining in an application for the appointment of a custodian, receiver, trustee, or examiner for Borrower or any SPE Constituent Entity, any Individual Property (or any portion thereof) other than with the prior written consent of Lender; provided, that with respect to the foregoing clauses (iii) and (iv), there shall be no liability for (x) failing to file an objection to any such filing or (y) providing a response in any such proceeding if such response is required by applicable law, rule or court order.
Appears in 1 contract
Exculpation. (a) Subject to the qualifications below, Lender i. The Intercreditor Collateral Agent shall not enforce the liability and obligation of Borrower to perform and observe the obligations contained have no duties or responsibilities except those expressly set forth in the Note, this Agreement, the Pledge Agreement or the other Loan Collateral Documents, and the Intercreditor Collateral Agent shall not by reason of this Agreement or the Collateral Documents by (or otherwise) be a trustee for any Secured Party or have any fiduciary obligation to any Secured Party. Neither the Intercreditor Collateral Agent nor any of its directors, officers, employees or agents (collectively, the "Related Parties") shall be liable to any Secured Party for any action taken or proceeding wherein a money judgment shall omitted to be sought against Borrower, except that Lender may bring a foreclosure action, an action for specific performance taken by it under this Agreement or any other appropriate action or proceeding to enable Lender and each Noteholder to enforce and realize upon its interest under of the Note, this Agreement, the Pledge Agreement and the other Loan Collateral Documents, or in connection herewith or therewith, if directed to do so (or to refrain from taking any action) by the CollateralRequisite Secured Parties, except for its own wilful misconduct or gross negligence, nor shall the Intercreditor Collateral Agent or any other collateral given to Lender pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, Related Parties be responsible for any judgment in any such action recitals or proceeding shall be enforceable against Borrower only to the extent of Borrower’s interest in the Collateral and representations or warranties herein or therein or in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Pledge Agreement and the other Loan Documents, agrees that it shall not xxx for, seek or demand any deficiency judgment against Borrower agreement delivered in any such action or proceeding underconnection therewith, or by reason offor the effectiveness, enforceability, validity or in connection with, the Note, this Agreement, the Pledge Agreement or the other Loan Documents. The provisions due execution 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 Agreement or any of the rights and remedies Collateral Documents or in any other agreement delivered in connection therewith, nor for the creation, perfection or priority of Lender thereunder; (d) impair any Liens purported to be created under any Collateral Document or the right validity, genuineness, enforceability, existence, value or sufficiency of Lender any Collateral, nor shall the Intercreditor Collateral Agent or any Related Parties be obligated to obtain make any inquiry respecting the appointment performance by any Obligor of a receiver; (e) intentionally omitted; (f) constitute a prohibition against Lender to seek a deficiency judgment against Borrower its obligations hereunder or thereunder or in order to fully realize the security granted any other agreement delivered in connection therewith. Any such inquiry by the Pledge Agreement Intercreditor Collateral Agent shall not obligate it to make any further inquiry or to commence take any action. The Intercreditor Collateral Agent shall be entitled to rely upon advice of counsel concerning legal matters and upon any notice, consent, certificate, statement, or writing which it believes to be genuine and to have been presented by a proper Person. The Intercreditor Collateral Agent may employ agents and attorneys-in-fact and shall not be responsible for the negligence or misconduct of any such agents or attorneys-in-fact selected by it with reasonable care.
ii. The Intercreditor Collateral Agent shall be entitled to rely upon any certification, notice or other appropriate action communication (including any thereof by telex, telecopy, telegram or proceeding in order for Lender cable) reasonably believed by it to exercise its remedies against all be genuine and correct and to have been signed or sent by or on behalf of the Collateral; proper Person or (g) constitute a waiver Persons, and upon advice and statements 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 legal counsel (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 counsel to any voluntary intentional Transfer as required Obligor), independent accountants and other experts selected by the Intercreditor Collateral Agent with reasonable care. As to any matters not expressly provided for by this Agreement, the Mortgage Loan Agreement Intercreditor 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 the applicable Notifying Secured Parties, and such instructions of the applicable Notifying Secured Parties, and any action taken or failure to act pursuant thereto, shall be binding on all of the Secured Parties.
iii. The Intercreditor Collateral Agent shall not be required to take any action that is in its opinion contrary to law or to the terms and conditions of this Agreement or any or all of the Leases prior to the occurrence of the Event of Default that gave rise to such foreclosure Collateral Documents, 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 Party to liability. The Intercreditor 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 Collateral Documents 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 reason of taking or continuing to take any such action.
iv. The Intercreditor Collateral Agent may deem and treat the payee of any promissory note or other Person, other than Lender, under evidence of indebtedness relating to 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 Secured Obligations as the owner thereof for the appointment of all purposes hereof unless and until a custodian, receiver, trustee, or examiner for Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any written notice of the Properties, the Collateral, the Senior Mezzanine Collateral assignment or any portion transfer thereof, other than signed by such payee and in form reasonably satisfactory to the Intercreditor Collateral Agent, shall have been filed with the Intercreditor Collateral Agent. Any request, authority or consent of any Person who at the time of making such request of Lender; or (E) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company giving such authority or any Guarantor making an assignment for consent is 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 holder of any Borrower such note or other evidence of indebtedness shall have be conclusive and binding on any personal liabilitysubsequent holder, directly transferee or indirectly, under assignee of such note or in connection with the Loan Documents. Neither the negative capital account other evidence of indebtedness and of any Affiliate note or notes or other evidences of Borrower indebtedness issued 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 capitalexchange therefor.
(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 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 xxx for, seek or demand any deficiency judgment against Borrower in any such action or proceeding under, or by reason of, or in connection with, the Note, this Agreement, the Pledge Agreement 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 CollateralProperty, the Rents, or any other collateral given to Lender pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower’s interest in the Collateral and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Pledge Agreement and the other Loan Documents, agrees that it shall not xxx for, seek or demand any deficiency judgment against Borrower in any such action or proceeding under, under or by reason of, of or under or in connection with, with the Note, this Agreement, the Pledge Agreement or the other Loan Documents. The provisions of this Section shall not, however,
, (a) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (b) impair the right of Lender to name Borrower as a party defendant in any action or suit for foreclosure and sale under the Pledge Agreement; (c) affect the validity or enforceability of or any Guaranty guaranty made in connection with the Loan or any of the rights and remedies of Lender thereunder; (d) impair the right of Lender to obtain the appointment of a receiver; (e) intentionally omitted; (f) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted by the Pledge Agreement Mortgage or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against all of the Collateral; or (g) constitute a waiver of the right of Lender to enforce the liability and obligation of Borrower, by money judgment or otherwise, to the extent of any actual loss, damage, cost, expense, liability, claim or other obligation incurred by Lender (including attorneys’ fees and costs reasonably incurred) arising out of or in connection with and Borrower shall be personally liable for the following:
(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 willful misconduct of the Loan Documents by Borrower, Borrower or 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 such document;
(iv) Intentionally Omitted;
(v) the misapplication or conversion by Mortgage Borrower or 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, (C) any Net Liquidation Proceeds After Debt Service or other amount due to Lender, (D) any Rents or Revenues following an Event of Default, (E) any Rents collected for more than one 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 or (F) any distributions or other payments made in connection with any part of the Collateral;
(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) 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’s failure to maintain or cause to be maintained insurance as required by this Agreement or to pay or cause to be paid any taxes or assessments affecting the Property;
(x) Intentionally Omitted;
(xi) any intentional failure of Borrower, Senior Mezzanine Mortgage Borrower or Mortgage Borrower fails SPC Party to maintain its status as a Special Purpose Entity single purpose entity as required by, and in accordance with, the terms hereof;
(xii) the breach of any representation, warranty or breaches covenant in Section 3.1.24 or in Section 4 of the Pledge Agreement; or if any statement in Section 3.1.24(a) and (c) shall have been untrue in any material representation or warranty set forth in Section 4.1.30 of this Agreementrespect when made; andor
(xxiii) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company fails ’s failure 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 Property 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 capitalCollateral.
(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 belowbelow and to Section 7.10 of the Mortgage, Lender shall not enforce the liability and obligation of Borrower to perform and observe the obligations contained in the Note, this Agreement, the Pledge Agreement Mortgage or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against Borrower, except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender and each Noteholder to enforce and realize upon its interest under the Note, this Agreement, the Pledge Agreement Mortgage and the other Loan Documents, or in the CollateralProperty, the Rents, or any other collateral given to Lender pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower’s interest in the Collateral Property, in the Rents and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Pledge Agreement Mortgage and the other Loan Documents, agrees that it shall not xxx for, seek or demand any deficiency judgment against Borrower in any such action or proceeding under, under or by reason of, of or under or in connection with, with the Note, this Agreement, the Pledge Agreement Mortgage or the other Loan Documents. The provisions of this Section 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 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 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 (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 willful material 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) 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, warranty or covenant in the Mortgage 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;
(iv) physical waste of the Property or the removal or disposal of any portion of the Property after an Event of Default;
(v) the misapplication, misappropriation 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 Borrowerfailure to pay, Mortgage Borrowerprior to same becoming delinquent, 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 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) in the event of:
(A) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company Borrower 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 Required SPE 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 BorrowerEntity, 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 breach 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) the provisions of Section 3.1.24. 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 interest under the Note is not paid when due; (ii) Borrower fails to obtain Lender’s prior consent to any subordinate financing or other voluntary Lien encumbering the Property in violation of the terms of this Agreement; (iii) a Transfer occurs in violation of Section 4.2.1 or the Mortgage, other than as expressly permitted pursuant to Article VIII of this Agreement; (iv) Borrower 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 files, or joins in the filing of, an involuntary petition against Borrower 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 from any Person; (vi) 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
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 NoteNotes, this Agreement, the Pledge Agreement Mortgages or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against BorrowerBorrowers (or any of them) or their members or 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 NoteNotes, this Agreement, the Pledge Agreement Mortgages and the other Loan Documents, or in any or all of the CollateralProperties, the Gross Revenue or any other collateral given to Lender pursuant to the Loan Documents; providedPROVIDED, howeverHOWEVER, 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 's respective interest in the Collateral Properties, in the Gross Revenue and in any other collateral given to Lender, and Lender, by accepting the NoteNotes, this Agreement, the Pledge Agreement Mortgages and the other Loan Documents, agrees that it shall not xxx for, seek or demand any deficiency judgment against Borrower Borrowers (or any of them) or their members or managers 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 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 Borrowers (or any of them) as a party defendant in any action or suit for foreclosure and sale under the Pledge AgreementMortgages; (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 Borrowers (or any of them) 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 any or 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 actually incurred by Lender (which shall be exclusive of any cancellation rights) (including attorneys’ ' fees and costs reasonably incurred) arising out of or in connection with the following:
(i) fraud or intentional material misrepresentation of a material fact by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or on behalf of Borrowers (or any Guarantor of them) or either or both Guarantors 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");
(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 Borrower, Operating Company Borrowers (or any Guarantor of them) or either or both Guarantors or any funds of Borrower, Senior Mezzanine Borrower, Mortgage Borrower their respective 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 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 Borrower 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;
(iv) wrongful removal or willful destruction of any portion of the Properties after an Event of Default; 170 Properties after an Event of Default;
(v) any intentional, physical waste of any Individual Property resulting from the action or inaction of Borrowers (or any of them) or Manager which materially adversely affects the value of such Individual Property;
(vi) if Borrowerany Legal Requirement (including RICO) resulting in the forfeiture by Borrowers (or any of them) of any Individual Property, Mortgage Borroweror any material portion thereof, Senior Mezzanine Borrower because of the conduct or Operating Company fails to obtain Lender’s prior consent to purported conduct of criminal activity by Borrowers (or any voluntary intentional Transfer as required by this Agreement, the Mortgage Loan Agreement of them) or the Mortgages, as applicableeither or both Guarantors or any of their respective agents or representatives in connection therewith;
(vii) any material misrepresentation, miscertification or breach of warranty by any Borrower with respect to any 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 any of the collateral for the Loan;
(viii) the misapplication or conversion by or on behalf of Borrowers (or any of them) of (A) any Insurance Proceeds paid by reason of any loss, damage or destruction to any Individual Property, (B) any Awards or other amounts received in connection with the Condemnation of all or a portion of any Individual Property, or (C) any Gross Revenue (including Rents, security deposits, advance deposits or any other deposits and Lease Termination Payments);
(ix) failure to pay charges for labor or materials or other charges that can create Liens on any portion of any Individual Property, to the extent such Liens are not bonded over or discharged in accordance with Section 3.6 of the Mortgages;
(x) 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 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; (Bxi) 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 failure to pay its debts as they become dueTaxes with respect to any Individual Property if such Individual Property generates sufficient Gross Revenue to pay such Taxes;
(ixxii) if Borrower, Senior Mezzanine Borrower failure to obtain and maintain the fully paid for Policies in accordance with SECTION 5.1.1 hereof;
(xiii) the failure of any or Mortgage Borrower fails all of the Borrowers to maintain its status permit on-site inspections of any or all of the Properties as a Special Purpose Entity required by SECTION 4.1.5 hereof or breaches any material representation or warranty to provide financial information as required by SECTION 4.1.7 hereof; and/or 171
(xiv) Borrowers' indemnification of 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 MortgagesSECTION 9.2 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 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) any or all of the Borrowers fail to maintain its/their status as a single purpose entity or fail to appoint a new property manager upon the request of Lender after the occurrence of any of the events set forth in SECTION 7.3, each as required by, and in accordance with the terms and provisions of, this Agreement and the Mortgages; (ii) any or all of the Borrowers fail to obtain Lender's prior consent to any subordinate financing or other voluntary Lien encumbering any Individual Property; (iii) any or all of the Borrowers fail to obtain Lender's prior consent to any Transfer of any Individual Property or any interest therein or any Transfer of any direct or indirect interest in Borrowers (or any of them), in either case as required by the Mortgages or this Agreement other than a Permitted Transfer; (iv) Borrowers (or any of them) file 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, any Borrower files, or joins in the filing of, an involuntary petition against Borrowers (or any of them) 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 Borrowers (or any of them) from any Person; (vi) Borrowers (or any of them) file 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 Borrowers (or any of them) consent to, or acquiesces in, or joins in, an application for the appointment of a custodian, receiver, trustee or examiner for Borrowers (or any of them) or any portion of any Individual Property; (viii) Borrowers (or any of them) make an assignment for the benefit of creditors or admit, in writing or in any legal proceeding, its insolvency or inability to pay its/their debts as they become due; or (ix) if either or both Guarantors (or any Person comprising either or both Guarantors), Borrowers (or any of them) 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 Notes, 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); provided, however, that Borrowers shall be entitled to assert a good faith defense of payment or performance of the obligations in question without incurring recourse hereunder.
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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, Net Proceeds and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Pledge Agreement Mortgage and the other Loan Documents, agrees that it shall not xxx for, seek or demand any deficiency judgment against Borrower in any such action or proceeding under, under or by reason of, of or under or in connection with, with the Note, this Agreement, the Pledge Agreement Mortgage or the other Loan Documents. The provisions of this Section shall not, however,
, (a) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (b) impair the right of Lender to name Borrower as a party defendant in any action or suit for foreclosure and sale under the Pledge AgreementMortgage; (c) affect the validity or enforceability of or any Guaranty guaranty made in connection with the Loan or any of the rights and remedies of Lender thereunder; (d) impair the right of Lender to obtain the appointment of a receiver; (e) intentionally omittedimpair the enforcement of the Assignment of Leases; (f) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted by the Pledge Agreement Mortgage or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against all of the CollateralProperty; or (g) constitute a waiver of the right of Lender to enforce the liability and obligation of Borrower, by money judgment or otherwise, to the extent of any actual loss, damage, cost, expense, liability, claim or other obligation incurred by Lender (including attorneys’ ' fees and costs reasonably incurred) arising out of or in connection with and Borrower shall be personally liable for the following:
(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 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;
(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 this Agreement, portion of the Mortgage Loan Agreement or the Mortgages, as applicableProperty after an Event of Default;
(viiv) 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 or any Rents collected for more than one 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) misappropriation or conversion of 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;
(vii) Borrower's failure to maintain insurance as required by this Agreement or to pay any taxes or assessments affecting the Property as required by this Agreement;
(viii) misappropriation, removal or disposal (except in the event of:ordinary course of Borrower's business) of any Personal Property (as defined in the Mortgage) affixed to the Property which constitutes a portion of the collateral for the Loan;
(Aix) Borrowerfailure to pay any charges when due for labor or materials that create Liens on the Property (to the extent net cash flow from the Property is available for payment of such charges) unless the same are being contested in accordance with this Agreement;
(x) failure to restore physical waste of the Property; or
(xi) Borrower fails 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.
(i) Borrower fails to obtain Lender's prior consent to any subordinate financing or other voluntary Lien encumbering the Property (other than Permitted Encumbrances); (ii) Borrower fails to obtain Lender's prior consent to any Prohibited Transfer as required by the Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing this Agreement; (iii) Borrower files a voluntary petition under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (Biv) an Affiliate which controls, directly or indirectly, Borrower files, or joins in the filing of 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 or any Guarantor or any of their respective Affiliates, agents or employees colludes with or such other Personlaw, 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; (Cv) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing Borrower files 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 solicits or causes to be solicited petitioning creditors for any involuntary petition from any Person; (Dvi) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor consenting Affiliate which controls Borrower consents to or acquiescing acquiesces in or joining joins 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.or
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Exculpation. (a) Subject to the qualifications below, Lender shall not enforce the liability and obligation of Borrower to perform and observe the obligations contained in the Note, this Agreement, the Pledge Agreement Security Instrument or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against Borrower, except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender and each Noteholder to enforce and realize upon its interest under the Note, this Agreement, the Pledge Agreement Security Instrument and the other Loan Documents, or in the CollateralProperty, the Rents, or any other collateral given to Lender pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower’s interest in the Collateral Property, in the Rents and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Pledge Agreement Security Instrument and the other Loan Documents, agrees that it shall not xxx sxx for, seek or demand any deficiency judgment against Borrower in any such action or proceeding under, under or by reason of, of or under or in connection with, with the Note, this Agreement, the Pledge Agreement Security Instrument or the other Loan Documents. The provisions of this Section shall not, however,
, (ai) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (bii) impair the right of Lender to name Borrower as a party defendant in any action or suit for foreclosure and sale under the Pledge AgreementSecurity Instrument; (ciii) affect the validity or enforceability of the Guaranty or any Guaranty made in connection with the Loan Environmental Indemnity or any of the rights and remedies of Lender thereunder; (div) impair the right of Lender to obtain the appointment of a receiver; (ev) intentionally omittedimpair the enforcement of any assignment of leases and rents contained in the Security Instrument and any other Loan Documents; or (fvi) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted by the Pledge Agreement Security Instrument or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against all of the Collateral; 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) incurred or suffered by Lender arising out of or in connection with the following:
(i) fraud or intentional material willful misrepresentation by Borrower, Mortgage Master Tenant , Principal or Guarantor (or any of their respective Affiliates which are controlled by Borrower, Senior Mezzanine Master Tenant, Principal and/or Guarantor) or any agent, employee or other person with actual or apparent authority to make statements or representations on behalf of Borrower, Operating Company Master Tenant, Principal, or Guarantor (or any Guarantor of their respective Affiliates which are controlled by Borrower, Master Tenant, Principal and/or 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, conversion Principal, Master Tenant or misapplication in contravention Guarantor (or any of the Loan Documents their respective Affiliates which are controlled by Borrower, Mortgage Master Tenant, Principal and/or Guarantor), agent, or employee of the foregoing;
(iii) material physical waste of the Property;
(iv) the removal or disposal of any portion of the Property during the continuation of an Event of Default without the replacement of same, to the extent the same is material to the operation of the Property;
(v) the misapplication, misappropriation, or conversion by Borrower (or any of its Affiliates which are controlled by Borrower, Senior Mezzanine BorrowerMaster Tenant, Operating Company Principal and/or Guarantor), Principal, Master Tenant 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, (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) during the continuation 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 any item to pay taxes and assessments (unless Lender is escrowing funds therefor and fails to make such payments or has taken possession of Revenue, from whatever source) 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 items are due, and thereafter fails to make such payments) to the extent that the revenue from the Property is sufficient to pay such amounts as well as other costs of servicing the Collateral or Senior Mezzanine CollateralDebt and of operating the Property;
(iiiviii) failure to pay charges for labor or materials or other charges or judgments that can create Liens on any portion of the misappropriationProperty, conversion or misapplication to the extent that the revenue from the Property is sufficient to pay such amounts as well as other costs of servicing the Debt and of operating the Property (and other than any election by BorrowerLender not to make funds held in any applicable Reserve Fund available therefor, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor so long as no Event of any security deposits or Rents paid more than one (1) month in advanceDefault then exists and Borrower has otherwise complied with the applicable terms of the Loan Documents related to such disbursement);
(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;
(viiix) 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) 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) Borrower and/or Master Tenant fails to permit on-site inspections of the event of:Property, 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 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;
(xii) Borrower and/or Master Tenant’s failure to comply with Section 2.7 hereof and/or the Cash Management Agreement relating to the establishment of a Cash Management Account and/or the institution of cash management generally;
(xiii) any amendment, modification or termination of the Master Lease without Lender’s consent;
(xiv) any amendment or modification of the Franchise Agreement without Lender’s consent (to the extent such consent is required under the Loan Documents);
(xv) the termination, surrender or cancellation of the Franchise Agreement by Master Tenant without Lender’s prior written consent or the termination or cancellation of the Franchise Agreement by Franchisor (as a result of the action or omission of Borrower or Master Tenant) prior to the expiration date of the Franchise Agreement unless such termination or cancellation is solely the result of Master Tenant’s failure to pay the franchise fees and other charges due under the Franchise Agreement and such failure to pay is solely the result of revenue from the Property being insufficient to pay such amounts as well as other costs of servicing the Debt and of operating the Property provided that the foregoing shall not apply to the extent that (A) Borrower would otherwise be liable under this subsection (xv) and (B) during the continuance of a Cash Sweep Period, Lender has not made funds available to Borrower to pay the charges described above;
(xvi) Breakage Costs not being paid;
(xvii) Borrower’s failure to obtain and/or maintain the Interest Rate Cap Agreement or Replacement Interest Rate Cap Agreement, Mortgage Borroweras applicable, Senior Mezzanine Borroweras required pursuant to Section 2.2.17 hereof; and/or
(xviii) any loss, Operating Company cost, expense, damage, claim or other obligation (including reasonable attorneys’ fees and court costs) incurred or suffered by Lender related, directly or indirectly, to the removal and/or modification of any shoring mechanisms located at or adjacent to the Property (including, without limitation, any tie-back rods and anchors and/or pins) pursuant to the Easement Agreement.
(c) Notwithstanding anything to the contrary in this Agreement, the Note or any Guarantor filing of the other Loan Documents,
(i) Borrower and any general partner of Borrower shall be personally liable for the Debt if (A) Borrower fails to obtain Lender’s prior written consent to any voluntary Transfer if as required by this Agreement or the Security Instrument, which Transfer results in (x) the transfer of the Property, (y) a voluntary petition under the Bankruptcy Code change in control of Borrower and/or Master Tenant, and/or (z) a transfer of a fifty percent (50%) or any other Federal greater direct or state bankruptcy indirect interest in Borrower or insolvency lawMaster Tenant; (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 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 PersonProperty; (C) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or Borrower and/or Master Tenant 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; (D) Borrower and/or Master Tenant 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 as required by, and in accordance with, the terms and provisions of this Agreement or the Security Instrument, and such failure is cited as a factor in the substantive consolidation of Borrower and/or Master Tenant with any other person; (E) other than at Lender)’s written request, Borrower, Master Tenant or admittingany Principal 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 make the first full monthly payment of principal and interest on or before the first Payment Date; (G) Borrower and/or Master Tenant files (other than at Lender’s request), consents to, or acquiesces in a petition for bankruptcy, insolvency, dissolution or liquidation under the Bankruptcy Code or any other Federal or State bankruptcy or insolvency law, or there is a filing of an involuntary petition against Borrower, Master Tenant or any Principal under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law in which Borrower, Master Tenant or Guarantor or any Principal 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, Master Tenant or such Principal from any party; or (H) there is substantive consolidation of Borrower, Master Tenant or any Restricted Party with any other Person in connection with any federal or state bankruptcy proceeding involving Guarantor or any of Affiliate of Guarantor and one of the factors cited as the bases therefor is a Special Purpose Entity breach by Borrower or breaches Master Tenant of any material representation representation, warranty or warranty set forth covenant contained in Section 4.1.30 of this Agreement; and.
(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 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 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 Mortgage, 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 CollateralIndividual Properties, 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 Individual Properties, in the Rents and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Pledge Agreement and Mortgage, the other Loan Documents, agrees that it shall not xxx for, seek or demand any deficiency judgment against Borrower in any such action or proceeding under, under or by reason of, of or under or in connection with, with the Note, this Agreement, the Pledge Agreement or Mortgage, 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 of the Assignments of Leases; (f) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize on any security given by Borrower in connection with the security granted by the Pledge Agreement Loan or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against all of the Collateralsuch security; or (g) constitute a waiver of the right of Lender to enforce the liability and obligation of Borrower, by money judgment or otherwise, to the extent of any actual loss, damage, cost, expense, liability, claim or other obligation incurred by Lender (including attorneys’ fees and costs reasonably incurred) arising out of or in connection with the following:
(i) fraud or intentional misrepresentation by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company any Other Borrower or any Guarantor guarantor in connection with the execution and delivery Loan or any of the Loan Documents and/or the LoanOther Loans;
(ii) the misappropriation, conversion gross negligence or misapplication in contravention intentionally tortious conduct of the Loan Documents by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company Borrower or any Guarantor of any funds of Other 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 Indemnity, in the Mortgage or in any Other Loan Documents by Borrower or the Other Borrowers, respectively, 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 Individual Properties or the Other Properties after an Event of Default;
(v) the misapplication or conversion by Borrower or any of the Other Borrowers of (A) any insurance proceeds paid by reason of any loss, damage or destruction to the Individual Properties or any of the Other Properties, respectively, (B) any Awards or other amounts received in connection with the Condemnation of all or a portion of the Individual Properties or any of the Other Properties, respectively, (C) any Rents following an Event of Default or (D) any Rents (as defined in the Other Loan Agreements) following an Event of Default;
(vi) if Borrower, Mortgage Borrower, Senior Mezzanine failure to pay charges for labor or materials or other charges that can create Liens on any portion of the Individual Properties or the Other Properties unless 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 applicable Other Borrowers promptly bonds off the resulting Lien from the affected Individual Property or the Mortgagesaffected Other Properties, as applicable, to the reasonable satisfaction of the Lender and in compliance with applicable law;
(vii) any security deposits, advance deposits or any other deposits collected with respect to any of the Individual Properties or the Other Properties which are not delivered to Mortgage Lender upon a foreclosure of the Individual Properties or any of the Properties Other Properties, as applicable, 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 Section 9.2 hereof or 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 Other Borrowers’ indemnification 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 Lender pursuant to Section 9.2 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 dueOther Loan Agreements;
(ix) if Borrower’s failure to obtain the prior consent of Lender as required pursuant to this Agreement in connection with any amendment, Senior Mezzanine modification or termination of the NASA Lease (this clause (ix) shall survive payment of the Note and the satisfaction of all other obligations of 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 under this Agreement; andAgreement and the Loan Documents);
(x) if Borrower, Mortgage Borrower, Senior Mezzanine The failure of any Other Borrower or Operating Company fails to obtain Lender’s the prior consent of Lender as required pursuant to the Other Loan Agreements in connection with any voluntary Indebtedness amendment, modification or termination of any of the following Leases: the Aventis Lease, Gemini Lease, Harcourt Lease and State Street Lease (as such terms are defined in the Other Loan Agreement entered into by the Other Borrowers (other than Xxxxx REIT – Orange County, CA, L.P)) (this clause (x) with respect to Mortgage Borrower, Permitted Indebtedness shall survive payment of the Note and the satisfaction of all other obligations of (1) the Other Borrowers under the Other Loan Agreements and the Other Loan Documents) and (y2) 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 Borrower under this AgreementAgreement and the Loan Documents);
(xi) any mortgage recordation taxes or assessments (or similar charges) which are, neither any present or future Affiliate of Borrower (other than Guarantorbecome, 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 due and owing in connection with the Loan or any assignment or transfer thereof from Lender in connection with a Securitization (this clause (xi) shall survive payment of the Note and the satisfaction of all other obligations of Borrower under this Agreement and the Loan Documents. Neither ); and
(xii) the negative capital account breach of any Affiliate representation or warranty of Borrower set forth in Borrower, Sections 3.1.25 or in any other Affiliate 3.1.26 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) this Agreement. 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) Borrower or the Other Borrowers fail to obtain Lender’s prior written consent to any subordinate financing or other voluntary Lien encumbering the Individual Properties or the Other Properties; (ii) Borrower or the Other Borrowers fail to obtain Lender’s prior written consent to any assignment, transfer, or conveyance of the Individual Properties or the Other Properties or any interest therein as required by the Mortgage or this Agreement or the Other Loan Documents, respectively; (iii) Borrower or any of the Other Borrowers file a voluntary petition under the Bankruptcy code or any other Federal or state bankruptcy or insolvency law; (iv) an Affiliate, officer, director, or representative which controls, directly or indirectly, Borrower or any Other Borrower files, or joins in the filing of, an involuntary petition against Borrower or any Other Borrower 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 any Other Borrower from any Person; (v) Borrower or any Other 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, or solicits or causes to be solicited petitioning creditors for any involuntary petition from any Person; (vi) any Affiliate, officer, director, or representative which controls Borrower or any
Appears in 1 contract
Samples: Loan Agreement (Wells Real Estate Investment Trust Inc)
Exculpation. (a) Subject to the qualifications below, Lender shall not enforce the liability and obligation of Borrower or IDOT Guarantor, as applicable, to perform and observe the obligations contained in the Note, this Agreement, the Pledge Agreement IDOT Guaranty, the Mortgages or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against BorrowerBorrower or IDOT Guarantor, as applicable, 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 IDOT Guaranty, the 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 or IDOT Guarantor only to the extent of Borrower’s or IDOT Guarantor’s interest in the Collateral Properties, in the Rents and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Pledge Agreement Mortgages and the other Loan Documents, agrees that it shall not xxx for, seek or demand any deficiency judgment against Borrower or IDOT Guarantor, as applicable, in any such action or proceeding under, or by reason of, or in connection with, the Note, this Agreement, the Pledge Agreement IDOT Guaranty, the 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 or IDOT Guarantor, as applicable, 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 or IDOT Guarantor against Borrower, IDOT Guarantor and Guarantor only, 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 any 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) damage to the misappropriationProperties caused by the gross negligence or willful misconduct of any Borrower, conversion IDOT Guarantor or misapplication Operating Tenant;
(iii) Borrower’s, IDOT Guarantor’s or Operating Tenant’s acts and omissions occurring after the Closing Date related to using, storing, or manufacturing hazardous or toxic substances in contravention violation of applicable environmental laws, provided that this provision in no way includes the acts and omissions of any unaffiliated Manager;
(iv) other than in the ordinary course of operation and maintenance of the Properties, the removal or disposal of any material portion of the Property by any Borrower, IDOT Guarantor or Operating Tenant during the continuance an Event of Default in violation of the Loan Documents Documents;
(v) the misappropriation or conversion by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any IDOT Guarantor of any funds of Borrower, Senior Mezzanine Borrower, Mortgage Borrower or Operating Company, including, without limitation, Tenant of (A) any RevenuesInsurance Proceeds paid by reason of any Casualty, (B) any Net Liquidation Proceeds or Insurance Proceeds, (C) any Awards received by Borrower or IDOT Guarantor in connection with a Condemnation, or (DC) any Rents or security deposits (or any item during the continuance of Revenue, from whatever source) following an Event of Default, to the extent such proceeds or (E) any distribution Rents are within the possession and control of Borrower, IDOT Guarantor or other payments made Operating Tenant, and were not applied to debt service, ordinary and necessary operating expenses in connection accordance with any part the provisions of the Collateral Loan Documents 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 documentto Lender;
(vi) if failure to pay Taxes (or deposits into reserves held by Lender funds sufficient to pay taxes) or pay charges for labor or materials or other charges that can create Liens on any portion of the Properties with priority over Liens created under the Loan Documents, provided Borrower, Mortgage Borrower, Senior Mezzanine Borrower IDOT Guarantor 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 MortgagesTenant, as applicable;, is in possession and control of such Individual Property and funds were available from the Properties to pay such Taxes and other charges; and
(vii) any security deposits, advance to the extent such deposits are in Borrower’s or any other deposits collected with respect to any of the Properties IDOT Guarantor’s possession and control, 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, (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 owing to Lender Obligations in accordance with the Loan Documents, and (B) the Debt shall be fully recourse to Borrower and (1) in the event of any Borrower, IDOT Guarantor or Operating Tenant filing a voluntary petition under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (2) if any Borrower, IDOT Guarantor or Operating Tenant fails to obtain Lender’s prior consent as required by this Agreement to any Indebtedness secured by a Lien encumbering the Properties or any direct equity interests in the Borrower, IDOT Guarantor, Principal or Operating Tenant; or (3) if any Restricted Party fails to obtain Lender’s prior consent to any Transfer as required by this Agreement if consent is required.
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 Security Instrument or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against Borrower, except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender and each Noteholder to enforce and realize upon its interest under the Note, this Agreement, the Pledge Agreement Security Instrument and the other Loan Documents, or in the CollateralProperty (or any portion thereof), the Rents, or any other collateral given to Lender pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower’s interest in the Collateral Property, in the Rents and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Pledge Agreement Security Instrument and the other Loan Documents, agrees that it shall not xxx for, seek or demand any deficiency judgment against Borrower in any such action or proceeding under, under or by reason of, of or under or in connection with, with the Note, this Agreement, the Pledge Agreement Security Instrument or the other Loan Documents. The provisions of this Section shall not, however,
, (ai) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (bii) impair the right of Lender to name Borrower as a party defendant in any action or suit for foreclosure and sale under the Pledge AgreementSecurity Instrument; (ciii) affect the validity or enforceability of or any Guaranty guaranty made in connection with the Loan or any of the rights and remedies of Lender thereunder; (div) impair the right of Lender to obtain the appointment of a receiver; (ev) intentionally omittedimpair the enforcement of any assignment of leases contained in the Security Instrument or any other Loan Document; 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) Borrower fails to permit on-site inspections of any Individual Property, 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;
(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 cooperate with Lender in instituting the cash management system provided for in the event of:Loan Documents, including, without limitation, setting up the Clearing Account or the Cash Management Account as and when required pursuant to this Agreement; or
(xii) the inability of Borrower to complete the Restoration of the Property in accordance with all applicable Legal Requirements (including the inability to obtain a variance or special use permit to allow Restoration of the Property) as required pursuant to Section 6.4 hereof after a Casualty or Condemnation, due to the existence of any use, improvement or other condition at or on the Property that is nonconforming or legally nonconforming under applicable Legal Requirements (including zoning, building or land use laws, ordinances or regulations).
(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 maintain its status as a Special Purpose Entity or comply with any representation, warranty or admittingcovenant set forth in Section 4.1.30 hereof; (E) Borrower admits, in writing or in any legal proceeding, its insolvency or inability to pay its debts as they become due;
; (ixF) if Borrowerintentionally omitted; (G) Borrower files, Senior Mezzanine consents to, or acquiesces in a petition for bankruptcy, insolvency, dissolution or liquidation under the Bankruptcy Code or any other Federal or 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 which Borrower or Mortgage Borrower fails to maintain its status as a Special Purpose Entity Guarantor colludes with, or breaches otherwise assists 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 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 1 contract
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 xxx 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
Samples: Loan Agreement (Hcp, Inc.)
Exculpation. (a) Subject to the qualifications below, Lender shall not enforce the liability and obligation of Borrower to perform and observe the obligations contained in the Note, this Agreement, the Pledge Agreement or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against Borrower, except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender and each Noteholder to enforce and realize upon its interest under the Note, this Agreement, the Pledge Agreement and the other Loan Documents, or in the Collateral, or any other collateral given to Lender pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower’s interest in the Collateral and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Pledge Agreement and the other Loan Documents, Purchaser agrees that it shall does not xxx forhave and will not have any claims or causes of action against any Seller Party (other than Seller), seek or demand any deficiency judgment against Borrower in any such action or proceeding under, or by reason of, or in connection with, the Note, this Agreement, the Pledge Agreement or the other Loan Documents. The provisions of this Section shall not, however,
(a) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (b) impair the right of Lender to name Borrower as a party defendant in any action or suit for foreclosure and sale under the Pledge Agreement; (c) affect the validity or enforceability of or any Guaranty made in connection with the Loan or any of the rights and remedies of Lender thereunder; (d) impair the right of Lender to obtain the appointment of a receiver; (e) intentionally omitted; (f) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted by the Pledge Agreement or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against all of the Collateral; or (g) constitute a waiver of the right of Lender to enforce the liability and obligation of Borrower, by money judgment or otherwise, to the extent of any actual loss, damage, cost, expense, liability, claim or other obligation incurred by Lender (including attorneys’ fees and costs reasonably incurred) arising out of or in connection with 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 (viisubject to the limitations contained herein) 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 deposits collected agreements of Seller contained herein, and further agrees not to sxx or otherwise seek to enforce any personal obligation of Seller against any Seller Parties (other than Seller) or their assets or properties or against any of Seller’s other assets or properties, with respect to any matters arising out 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 this Agreement or 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 capitaltransactions contemplated hereby.
(b) Notwithstanding anything Seller agrees that it does not have and will not have any claims or causes of action against any disclosed or undisclosed, direct and indirect shareholders, officers, directors, trustees, partners, principals, members, employees, agents, affiliates, representatives, consultants, accountants, contractors and attorneys of Purchaser, and any successors or assigns of the foregoing (collectively with Purchaser, “Purchaser Parties”), arising out of or in connection with this Agreement or the transactions contemplated hereby. Seller agrees to look solely to Purchaser or if the contrary Closing has occurred, to Purchaser’s interest in the Property for the satisfaction of any liability or obligation arising under this AgreementAgreement or the transactions contemplated hereby, or for the Note or performance of any of the Loan Documentscovenants, Lender shall warranties or other agreements of Purchaser contained herein, and further agrees not be deemed to have waived sxx or otherwise seek to enforce any right which Lender may have under Section 506(a)personal obligation of Purchaser against any Purchaser Parties other than Purchaser (or their assets or properties) or, 506(b)if the Closing has occurred, 1111(bagainst any of Purchaser’s assets other than the Premises with respect to any matters arising out of or in connection with this Agreement or the transactions contemplated hereby.
(c) or any other The provisions of this Section 36 shall survive the Bankruptcy Code to file a claim for termination of this Agreement and 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 DocumentsClosing.
Appears in 1 contract
Exculpation. (a) Subject Notwithstanding anything the contrary, subject to the qualifications below, Lender shall not enforce the liability and obligation of Borrower to perform and observe the obligations contained in the Note, this Agreement, the Pledge Agreement Mortgage or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against Borrower, except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender and each Noteholder to enforce and realize upon its interest under the Note, this Agreement, the Pledge Agreement Mortgage and the other Loan Documents, or in the CollateralProperty, the Rents, or any other collateral given to Lender pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower’s interest in the Collateral Property, in the Rents and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Pledge Agreement Mortgage and the other Loan Documents, agrees that it shall not xxx for, seek or demand any deficiency judgment against Borrower in any such action or proceeding under, under or by reason of, of or under or in connection with, with the Note, this Agreement, the Pledge Agreement Mortgage or the other Loan Documents. The provisions of this Section shall not, however,
, (a) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (b) impair the right of Lender to name Borrower as a party defendant in any action or suit for foreclosure and sale under the Pledge AgreementMortgage; (c) affect the validity or enforceability of or any Guaranty guaranty made in connection with the Loan or any of the rights and remedies of Lender thereunder; (d) impair the right of Lender to obtain the appointment of a receiver; (e) intentionally omittedimpair the enforcement of the Assignment of Leases; (f) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize 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 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 or in this Agreement concerning environmental laws, hazardous substances and asbestos and any indemnification of Lender with respect thereto in either document;
(viiii) 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, waste of the Mortgage Loan Agreement Property or the Mortgages, as applicableremoval or disposal (other than in the ordinary course) of any portion of the Property following the occurrence and during the continuance of an Event of Default;
(viiiv) 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 and (C) any Rents during the continuance of an Event of Default;
(v) 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;
(vi) Borrower’s indemnifications of Lender set forth in Section 9.2 hereof;
(vii) Borrower fails to obtain Lender’s prior written consent to any subordinate financing or other voluntary lien encumbering the Property;
(viii) in Borrower fails to obtain Lender’s prior written consent to any assignment, transfer, or conveyance of the event of:Property or any interest therein as required by the Loan Agreement or the Mortgage; and
(Aix) BorrowerBorrower fails to maintain its status as a single purpose entity, Mortgage Borroweras required by, Senior Mezzanine Borrower, Operating Company or any Guarantor and in accordance with the terms and provisions of the Loan Agreement.
(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 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; (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;
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 or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against Borrower, except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender and each Noteholder to enforce and realize upon its interest under in the Note, this Agreement, the Pledge Agreement, the other Loan Documents, and the interest in the Collateral and any other collateral given to Lender pursuant to the Note, this Agreement, the Pledge Agreement and or the other Loan Documents, or in the Collateral, or any other collateral given to Lender pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, that any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower’s interest in the Collateral Collateral, the Rent and in any other collateral given to Lender. In no event shall any Related Party have any personal liability for the payment of the indebtedness or any other sums due hereunder, and under the Note, the Pledge Agreement or the other Loan Documents, or for the performance or observance of any other obligation of Borrower other than pursuant to a written instrument executed by such Related Party specifically providing for such liability. Lender, by accepting the Note, this Agreement, the Pledge Agreement and the other Loan DocumentsPledge Agreement, agrees that it shall not not, except as otherwise provided herein xxx for, seek or demand any deficiency judgment against Borrower and/or any Related Party in any such action or proceeding underproceeding, under or by reason of, of or under or in connection with, with the Note, this Agreement, the Pledge Agreement or the other Loan Documents. The provisions of this Section 9.4 shall not, however,
, (ai) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Note, this Agreement, the Pledge or the other Loan Documents; (bii) impair the right of Lender to name Borrower as a party defendant in any action or suit for judicial foreclosure and sale under the Pledge AgreementAgreement or any other Loan Document; (ciii) affect the validity or enforceability of any indemnity (including, without limitation, the Environmental Indemnity), guaranty, master lease or any Guaranty similar instrument made in Table of Contents connection with the Note, this Agreement, the Mortgages or the other Loan or any of the rights and remedies of Lender thereunder; Documents, (div) impair the right of Lender to obtain the appointment of a receiver; (ev) intentionally omitted; (f) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted by the Pledge Agreement or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against all of the Collateral; or (g) constitute a waiver of impair the right of Lender to enforce the liability provisions of Sections 4.1.9, 4.1.29, 5.1.10 and obligation 5.2.9 of Borrower, by money this Agreement; or (vii) impair the right of Lender to obtain a deficiency judgment or otherwise, other judgment on the Note against Borrower if necessary to preserve or enforce its rights and remedies against any collateral given to Lender pursuant to the extent Loan Documents, including any Awards or Insurance Proceeds to which Lender would otherwise be entitled under this Agreement or the other Loan Documents; provided, however, Lender shall only enforce such judgment against such collateral, including the Awards and/or Insurance Proceeds, as applicable.
(b) Notwithstanding the provisions of any this Section 9.4 to the contrary, Borrower shall be personally liable to Lender for the direct, actual losslosses, damagedamages, costcosts, expenseexpenses, liabilityliabilities, claim claims or other obligation obligations incurred by Lender (including attorneys’ fees and costs reasonably incurredcollectively, “Losses”) arising out of or in connection with the following:
due to: (i) fraud or intentional misrepresentation by BorrowerXxxxxx Borrowers, Mortgage BorrowerXxxxxx Cushion Entity, Senior Mezzanine BorrowerGuarantor, Operating Company any Individual Borrower or any Guarantor other person or entity in connection with the execution and the delivery of the Note, this Agreement, the Pledge Agreement or the other Loan Documents and/or the Loan;
Documents; (ii) the misappropriation, conversion any intentional misapplication or misapplication in contravention misappropriation of the Loan Documents Rents received by any Individual Borrower, Mortgage BorrowerGuarantor, Senior Mezzanine Borrower, Operating Company or any Guarantor of any funds of Borrower, Senior Mezzanine Borrower, Mortgage Xxxxxx 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 Xxxxxx Cushion Entity after the occurrence 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 any intentional misapplication or misapplication misappropriation by any Individual Borrower, Mortgage BorrowerGuarantor, Senior Mezzanine Borrower, Operating Company any Xxxxxx Borrower or any Guarantor Xxxxxx Cushion Entity of any tenant security deposits or Rents paid collected more than one (1) month in advance;
; (iv) the intentional misapplication or the misappropriation of any Award or Insurance Proceeds or any Net Liquidation Proceeds after Debt Service; (v) any failure to pay Taxes, ground rent, Other Charges, charges for labor or materials or other charges that can create liens on any of the Properties (except to the extent that sums sufficient to pay such amounts have been deposited in the escrow with Lender pursuant to the terms of this Agreement or Xxxxxx Lender pursuant to the Xxxxxx Loan Documents but only to the extent that the Net Operating Income from the Properties available to Borrower, Guarantor, Xxxxxx Cushion Entity or any Xxxxxx Borrower was sufficient to permit Xxxxxx Borrower, as applicable, to pay the same when due); (vi) any failure by Borrower, Guarantor, Xxxxxx Cushion Entity or any Xxxxxx Borrower, as applicable, to return or to reimburse Lender for all Personal Property taken from any of the Properties by or on behalf of Borrower, any Xxxxxx Borrower or Xxxxxx Cushion Entity after the occurrence of an Event of Default and in violation of the terms of this Agreement and the other Loan Documents and not replaced with Personal Property of the same utility and of the same or greater value; (vii) any act of actual intentional physical waste or arson by any Individual Borrower, any Xxxxxx Borrower, Xxxxxx Cushion Entity or any affiliate, general partner, managing member or principal thereof or by Guarantor that is not attributable to a lack of sufficient Net Operating Income from the Properties available to Borrower, any Xxxxxx Borrower or Xxxxxx Cushion Entity to perform all of Borrower’s, any Xxxxxx Borrower’s, Xxxxxx Cushion Entity’s or such affiliate’s, general partner’s, managing member’s, principal’s, or Guarantor’s obligations under the Note, this Agreement, the Pledge Agreement or the other Loan Documents; (viii) any fees or commissions paid by any Individual Borrower, any Xxxxxx Borrower or Xxxxxx Cushion Entity to affiliate, general partner, managing member or principal thereof or Guarantor in violation of the terms of the Note, this Agreement, the Pledge Agreement or the other Loan Documents; (ix) the breach by Borrower, Mortgage BorrowerXxxxxx Cushion Entity, Senior Mezzanine Borrower, Operating Company any Xxxxxx Borrower or Guarantor in any Guarantor;
(v) the breach material respect of any representation, warranty, covenant or indemnification provision in the Environmental Indemnity Agreement concerning environmental lawsor in any Mortgage or in the Pledge Agreement; (x) if Table of Contents any Individual Property or any part thereof shall become an asset in any involuntary bankruptcy or insolvency proceeding commenced by any Person (other than Lender) and Borrower, hazardous substances and asbestos and Guarantor any indemnification Xxxxxx Borrower or Xxxxxx Cushion Entity fail to use its commercially reasonable efforts to obtain or cause to be obtained a dismissal of Lender with respect thereto in either document;
such proceedings; (vixi) if Borrower, Mortgage Xxxxxx Cushion Entity and Xxxxxx Borrowers are in default of Sections 5.1.32 and 5.1.33 hereof; or (xii) if any of the Xxxxxx Borrowers or the Xxxxxx Cushion Entity become personally liable to the Xxxxxx Lender pursuant to the terms of the Xxxxxx Guaranty.
(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 any Borrower’s willful default to provide any financial statement, report or information under Section 5.1.11(b), (c) and (f) hereof, but a failure to provide such financial statements, 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 written notice is delivered to Borrower; provided, however, that if (A) Borrower is prevented by an unaffiliated third party from delivering such information and (B) Borrower uses reasonable efforts (including the reasonable expenditure of money) to obtain such financial statements, report and information, then such failure shall not be deemed willful so long as Borrower continuously endeavors in good faith to obtain the required financial statements, reports and information and delivers same to Lender as soon as it becomes available to Borrower, Senior Mezzanine (ii) in the event of a default under Section 4.1.30 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 any Individual Borrower, Guarantor, Xxxxxx Cushion Entity or any Xxxxxx Borrower with the assets of another person or Operating Company entity or (B) as a result thereof, Lender suffers any material Losses (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 Borrower only to the extent of Losses for its failure to comply with the provisions of Section 4.1.30 of this Agreement or (iii) in the event of a default under Section 5.2.10 of this Agreement or Article 5 the Pledge Agreement or in the event Borrower, Guarantor, Xxxxxx Cushion Entity or any Xxxxxx Borrower fails to obtain Lender’s prior written consent to any voluntary intentional Transfer as required by this Agreementassignment, the Mortgage Loan Agreement transfer, encumbrance 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 conveyance of any of the Properties or action in lieu thereofany Collateral or any interest therein if and as required by the Pledge Agreement or the Loan Agreement; provided, except to the extent any such security deposits were applied in accordance with the terms and conditions however, if an agent or employee of any Individual Borrower, Guarantor, Xxxxxx Cushion Entity or any Xxxxxx Borrower or the manager of any Individual Property enters into an Equipment lease or Equipment financing in violation of any Mortgage, the Pledge Agreement or the Loan Agreement and without express authorization from an executive officer of such Individual Borrower, Guarantor, Xxxxxx Cushion Entity or any Xxxxxx Borrower, then such violation for purposes of this clause (iii) shall not result in a nullification of Section 9.4(a) hereof (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 Leases prior earlier of (A) Lender’s written notice to Borrower of such violation or (B) the occurrence date that any executive officer of any Individual Borrower, Guarantor, Xxxxxx Cushion Entity or any Xxxxxx Borrower actually becomes aware of such violation; (iv) if the Event first full payment of Default that gave rise to such foreclosure monthly Debt Service is not paid when due or action in lieu thereof;
(viiiv) in the event of:
any Individual Property or any part thereof shall become an asset in (A) the filing by any Individual Borrower, Mortgage BorrowerGuarantor, Senior Mezzanine Borrower, Operating Company Xxxxxx Cushion Table of Contents Entity or any Guarantor filing Xxxxxx Borrower of a voluntary petition under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; creditors rights laws, (B) any Individual Borrower, Guarantor, Xxxxxx Cushion Entity or any Xxxxxx Borrower or any Affiliate of any Individual Borrower, Guarantor, Xxxxxx Cushion Entity or any Xxxxxx Borrower joining in the filing of, or filing an answer consenting to or otherwise acquiescing in unless in the opinion of Borrower, upon advice of counsel, there are no valid grounds to contest) an involuntary petition against any Individual Borrower under any creditors rights laws, or (C) any Individual Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company Principal or any Guarantor under the Bankruptcy Code Affiliate of any Individual Borrower 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 Principal soliciting or causing to be solicited petitioning creditors for any such involuntary petition against any Individual Borrower, Operating Company Guarantor, Xxxxxx Cushion Entity or any Guarantor from any Person; (C) Xxxxxx 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;.
(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), 506(6) or 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 the Note, this Agreement, the Pledge Agreement and the other Loan Documents.
Appears in 1 contract
Samples: Mezzanine Loan Agreement (Wyndham International Inc)
Exculpation. (a) Subject Notwithstanding anything herein or in any other Loan Document to the qualifications belowcontrary, Lender Mortgagee shall not enforce the liability and obligation of Borrower Mortgagor or (a) if Mortgagor is a partnership, its constituent partners or any of their respective partners, (b) if Mortgagor is a trust, its beneficiaries or any of their respective Partners (as hereinafter defined), (c) if Mortgagor is a corporation, any of its shareholders, directors, principals, officers or employees, or (d) if Mortgagor is a limited liability company, any of its members (the Persons described in the foregoing clauses (a)-(d), as the case may be, are hereinafter referred to as the "Partners") to perform and observe the obligations contained in the Note, this Agreement, the Pledge Agreement Mortgage or any of the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against BorrowerMortgagor or the Partners, except that Lender Mortgagee may bring a foreclosure action, an action for specific performance performance, or any other appropriate action or proceeding (including, without limitation, an action to enable Lender and each Noteholder obtain a deficiency judgment) solely for the purpose of enabling Mortgagee to enforce and realize upon (i) Mortgagor's interest in the Mortgaged Property, (ii) the Rent to the extent (x) received by Mortgagor (or actually received by its interest under Partners) after the Note, this Agreement, the Pledge Agreement and the other Loan Documentsoccurrence of an Event of Default, or (y) distributed to Mortgagor (or its Partners, but only to the extent received by its Partners) during or with respect to any period for which Mortgagee did not receive a Manager Certification accurate in all material respects confirming and certifying that all Operating Expenses with respect to the CollateralMortgaged Property which had accrued as of the applicable date of such Manager Certification had been paid (or if same had not been paid, or that Manager had taken adequate reserves therefor) (all Rent covered by clauses (x) and (y) being hereinafter referred to as the "Recourse Distributions") and (iii) any other collateral given to Lender pursuant to Mortgagee under the Loan DocumentsDocuments (collectively, the "Default Collateral"); provided, however, that, except as specifically provided herein, that any judgment in any such action or proceeding shall be enforceable against Borrower Mortgagor and the Partners only to the extent of Borrower’s interest in the Collateral and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Pledge Agreement and the other Loan Documents, agrees that it shall not xxx for, seek or demand any deficiency judgment against Borrower in any such action or proceeding under, or by reason of, or in connection with, the Note, this Agreement, the Pledge Agreement or the other Loan DocumentsDefault Collateral. The provisions of this Section shall not, however,
, (a) constitute a waiver, release impair the validity of the Debt evidenced by the Note or impairment in any way affect or impair the lien of any obligation evidenced this Mortgage or secured by any of the other Loan DocumentsDocuments or the right of Mortgagee to foreclose this Mortgage following the occurrence of an Event of Default; (b) 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; (c) affect the validity or enforceability of or any Guaranty made in connection with the Loan Note, this Mortgage, or any of the rights and remedies other Loan Documents, or impair the right of Lender thereunderMortgagee to seek a personal judgment against the Indemnitor; (d) impair the right of Lender Mortgagee to obtain the appointment of a receiver; (e) intentionally omittedimpair the enforcement of the Assignment; (f) impair the right of Mortgagee to obtain Loss Proceeds due to Mortgagee pursuant to this Mortgage; (g) impair the right of Mortgagee to enforce the provisions of Sections 5.12, 12.01 or 16.01, inclusive of this Mortgage, even after repayment in full by Mortgagor of the Debt; (h) prevent or in any way hinder Mortgagee from exercising, or constitute a prohibition defense, or counterclaim, or other basis for relief in respect of the exercise of, any other remedy against Lender any or all of the collateral securing the Note as provided in the Loan Documents; or (i) impair the right of Mortgagee to sue for, seek or demand a deficiency judgment against Borrower in order to fully realize Mortgagor solely for the security granted by purpose of foreclosing the Pledge Agreement Mortgaged Property or to commence any other appropriate action part thereof, or proceeding in order for Lender to exercise its remedies against all of realizing upon the Default Collateral; or provided, however, that any such deficiency judgment referred to in this clause (gi) constitute a waiver of shall be enforceable against Mortgagor and the right of Lender Partners (but only to enforce the liability extent distributed to and obligation of Borrower, actually received by money judgment or otherwise, such Partner) only to the extent of any actual lossof the Default Collateral. The provisions of this Section 18.32 shall be inapplicable to Mortgagor if any proceeding, damageaction, costpetition or filing under the Federal Bankruptcy Reform Act of 1978, expenseas amended, 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 similar state or federal law now or hereafter in connection with the execution and delivery of the Loan Documents and/or the Loan;
(ii) the misappropriationeffect relating to bankruptcy, conversion reorganization 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 Defaultinsolvency, or (E) any distribution the arrangement or other payments made adjustment of debts, shall be filed by, consented to or acquiesced in connection with any part of the Collateral by 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 PersonMortgagor, or Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company if Mortgagor shall institute any proceeding for its dissolution 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, trusteeliquidation, 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 shall make an assignment for the benefit of creditors (other than Lender), or admittingcreditors, 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 which event Mortgagee shall have recourse against all of the Propertiesassets of Mortgagor including, Senior Mezzanine Collateral or Collateral as required by this Agreementwithout limitation, the Senior Mezzanine Loan Agreementany right, the Mortgage Loan Agreement, the Pledge Agreement or the Mortgages. Notwithstanding anything title and interest of Mortgagor in and to the contrary under this AgreementMortgaged Property, neither any present or future Affiliate partnership interests in Mortgagor and any Recourse Distributions received by the Partners of Borrower Mortgagor (but excluding the other than Guarantor, assets of such Partners 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 Mortgagee would not 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 had recourse thereto 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 than in accordance with the Loan Documentsprovisions of this Section 18.32).
Appears in 1 contract
Samples: Mortgage, Security Agreement, Assignment of Rents and Fixture Filing (Motels of America Inc)
Exculpation. (a) Subject to the qualifications Except as set forth below, Lender Guarantor shall not enforce the liability and obligation of Borrower be personally liable to perform and observe the obligations contained in the Notepay any obligation, under this Agreement, the Pledge Agreement Guaranty 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 Guaranty Documents, or and Lender agrees to look solely to the Property as defined in the Collateral, or Leasehold Mortgage and any other collateral given heretofore, now, or hereafter pledged by any party to Lender pursuant to secure the Loan Documents; providedGuaranteed Obligations. Notwithstanding the foregoing, however, that, except as specifically provided herein, any judgment in any such action or proceeding Guarantor shall be enforceable against Borrower only to the extent of Borrower’s interest in the Collateral and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Pledge Agreement and the other Loan Documents, agrees that it shall not xxx personally liable 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 waiverall losses, 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 damages, costs 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 expenses including reasonable attorneys' fees 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 expenses incurred by Lender (including attorneys’ fees and costs reasonably incurred) arising out of or in connection with the followingas a result of:
(i) fraud the collection and receipt of proceeds and income from the Property and the other assets and obligations securing the Guaranteed Obligations by or intentional misrepresentation by for the benefit of Borrower, Mortgage BorrowerGuarantor or Brookdale Living Communities, Senior Mezzanine Borrower, Operating Company Inc. ("Parent") following an Event of Default which are not paid to Lender or any Guarantor applied to the Property in connection with the execution and delivery ordinary course of the Loan Documents and/or the Loanbusiness;
(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 Collateralfraud;
(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 advancematerial misrepresentation;
(iv) any act misapplication or misappropriation of actual intentional physical waste by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company funds which come into the possession of Maker or any GuarantorPrincipal;
(v) intentional and material waste 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 of Lender with respect thereto in either documentProperty;
(vi) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company fails the breach of the obligations set forth in the Hazardous Substance Indemnification Agreement from Guarantor and Parent to obtain Lender’s prior consent to any voluntary intentional Transfer as required by this Agreement, the Mortgage Loan Agreement or the MortgagesLender of even date herewith, as applicablehereafter amended, if at all;
(vii) any security deposits, advance deposits or any other deposits collected with respect to any the breach of the Properties which are not delivered to Mortgage Lender upon a foreclosure of any provisions contained in Paragraph 15 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 thereofLeasehold Mortgage;
(viii) the breach of the provisions contained in Paragraph 16 of the event of:Leasehold Mortgage; and
(Aix) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company the breach of the provisions contained in Paragraph 17 of the Leasehold Mortgage; and
(b) any claim for any commissions or any Guarantor filing a voluntary petition under brokerage fees relating to the Bankruptcy Code Loan. The foregoing shall in no way limit or impair the enforcement against the Property or any other Federal or state bankruptcy or insolvency law; (B) security granted by 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 Guaranty Documents or any of the PropertiesLender's rights and remedies pursuant to the Guaranty Documents. By its acceptance hereof, Lender, acknowledges and agrees that except for the Collateralliability of Parent under the letter agreement and the Hazardous Substance Indemnification Agreement, the Senior Mezzanine Collateral or any portion thereofeach of even date herewith, other than at the request executed by Parent in favor 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 no shareholder, officer, director, employee, trustee, beneficiary, advisor, partner, member, principal, participant agent or agent representative of Guarantor or in any Borrower or of or in any person or entity that is or becomes an Affiliate of any Borrower Parent 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 be personally liable 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 for 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(bGuaranteed Obligations except for (i) distributions of rent or any other provisions proceeds of the Bankruptcy Code Property, including insurance or condemnation proceeds actually received (and only to file a claim for the full amount extent received) by such person, after an Event of Default (as defined in the Leasehold Mortgage) occurs or otherwise in violation of the Indebtedness Borrower Loan Documents or to require that all collateral shall continue to secure all the Guaranty Documents and (ii) Lender's costs of the Indebtedness owing to Lender in accordance with the Loan Documentscollection of such amount, including reasonable attorneys' fees and costs.
Appears in 1 contract
Exculpation. (a) Subject to the qualifications below, Lender Tower C SPV agrees that it shall not enforce the liability and obligation of Borrower Coach 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 Coach Exculpated Party (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 Lenderhereinafter defined), and Lender, by accepting the Note, this Agreement, the Pledge Agreement and the other Loan Documents, agrees that it shall not xxx sxx for, seek or demand any deficiency money judgment against Borrower any direct or indirect member, manager, shareholder, partner, beneficiary or other owner of beneficial ownership interests in Coach, or any such action director, officer, agent, attorney, employee or proceeding undertrustee of any of the foregoing (each, a “Coach Exculpated Party” and, collectively, the “Coach Exculpated Parties”) under or by reason of, of or in connection with, the Note, with this Agreement, the Pledge Agreement or the other Loan Documents. The provisions of this Section 18(a) shall not, however,
, (ai) constitute a waiver, release or impairment of any obligation evidenced of Coach hereunder; or secured by any of the Loan Documents; (bii) impair the right of Lender Tower C SPV to name Borrower Coach as a party defendant in any action or suit for foreclosure and sale under the Pledge this Agreement; .
(cb) 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 Coach agrees that it shall not enforce the liability and obligation of BorrowerTower C SPV to perform and observe the obligations contained in this Agreement (if any) by any action or proceeding against any Tower C SPV Exculpated Party (as hereinafter defined), by and shall not sxx for, seek or demand any money judgment against any direct or otherwiseindirect member, to the extent manager, shareholder, partner, beneficiary or other owner of beneficial ownership interests in Tower C SPV, or any director, officer, agent, attorney, employee or trustee of any actual lossof the foregoing (each, damagea “Tower C SPV Exculpated Party” and, costcollectively, expense, liability, claim the “Tower C SPV Exculpated Parties”) under or other obligation incurred by Lender (including attorneys’ fees and costs reasonably incurred) arising out reason of or in connection with the following:
this Agreement. The provisions of this Section 18(b) shall not, however, (i) fraud constitute a waiver, release or intentional misrepresentation by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company impairment of any obligation of Tower C SPV hereunder (if any); or any Guarantor in connection with the execution and delivery of the Loan Documents and/or the Loan;
(ii) impair the misappropriation, conversion right of Coach to name Tower C SPV as a party defendant in any action 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;suit under this Agreement.
(iiic) The provisions of this Section 18 shall survive the misappropriation, conversion termination 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 expiration 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 Security Instruments or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against Borrower, except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender and each Noteholder to enforce and realize upon its interest under the Note, this Agreement, the Pledge Agreement Security Instruments and the other Loan Documents, or in the CollateralProperties or any Property, the Rents, or any other collateral given to Lender pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower’s interest in the Collateral Properties, in the Rents and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Pledge Agreement Security Instruments and the other Loan Documents, agrees that it shall not xxx sxx for, seek or demand any deficiency judgment against Borrower in any such action or proceeding under, or by reason of, or in connection with, the Note, this Agreement, the Pledge Agreement Security Instruments or the other Loan Documents. The provisions of this Section 3.1 shall not, however,
, (ai) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (bii) impair the right of Lender to name Borrower as a party defendant in any action or suit for foreclosure and sale under the Pledge Agreementany Security Instrument; (ciii) affect the validity or enforceability of or any Guaranty made in connection with the Loan or any of the rights and remedies of Lender thereunder; (div) impair the right of Lender to obtain the appointment of a receiver; (ev) intentionally omittedimpair the enforcement of the Assignments of Leases; or (fvi) constitute a prohibition against Lender to seek seeking a deficiency judgment against Borrower in order to fully realize the security granted by the Pledge Agreement each Security Instrument or to commence commencing any other appropriate action or proceeding in order for Lender to exercise its remedies against all of the Collateral; Properties or any Property.
(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 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 misrepresentation by or on behalf of Borrower, Mortgage BorrowerGuarantor, Senior Mezzanine Borrower, Operating Company or any Guarantor Affiliate of any of them in connection with the execution and delivery of the Loan Documents and/or the Loanor any Property;
(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 Guarantor or Operating Company, including, without limitation, (A) any Revenues, (B) Affiliate of any Net Liquidation Proceeds or Insurance Proceeds, (C) any Awards received of 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 CollateralProperty;
(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, the Loan Agreement or the Security Instruments concerning environmental lawsEnvironmental Statutes or Hazardous Substances;
(iv) material physical waste of any Property resulting from intentional misconduct or gross negligence by or on behalf of Borrower, hazardous substances and asbestos and Guarantor or any indemnification Affiliate of any of them;
(v) intentional removal or disposal of any portion of any Property (A) at any time after a monetary Event of Default occurs (without any notice from Lender with respect thereto in either documentof the occurrence of such Event of Default) or (B) at any time after Borrower receives notice from Lender that a non-monetary Event of Default has occurred;
(vi) if Borrowerbreach of any Legal Requirement (including RICO) mandating the forfeiture by Borrower of the Properties or any Property, Mortgage Borroweror any portion thereof, Senior Mezzanine because of the conduct or purported conduct of criminal activity by 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 applicableRestricted Party in connection therewith;
(vii) any intentional misrepresentation, intentionally misleading or incorrect certification by Borrower or Guarantor or breach of any representation, warranty or certification contained in this Agreement or any other Loan Document or in any document executed in connection therewith by Borrower or Guarantor, 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 or on behalf of Borrower of (A) any Insurance Proceeds, (B) any Awards, (C) any Rents, (D) any Rents paid more than one (1) month in advance, (E) any reserves held by Borrower pursuant to any Lease, or (F) any other monetary collateral for the Loan (including Borrower’s failure to deliver to Lender any insurance proceeds received in connection with the 2000 Xxxxxx Parcel, whether from fire or other casualty or otherwise, as required by Section 1.9(c)(v) of Schedule V attached hereto);
(ix) failure to pay charges for Taxes or Other Charges (except to the extent that (A) sums sufficient to pay such amounts have been deposited in escrow with Lender pursuant to the terms of this Agreement and there exists no impediment to Lender’s utilization thereof; or (B) the Property to which such Taxes or Other Charges relate fails to generate sufficient revenues to pay such items when payments are made in the order set forth in the waterfall at Section 2.7.2(b) hereof), or failure to pay labor or materials or judgments that can create Liens on any portion of any Property, unless (1) 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, or (2) any Property fails to generate sufficient revenue to pay for such labor or materials or judgment, provided that this limitation (2) shall not apply if any such Lien(s) would be senior to the lien of the Security Instruments (or any of them) or otherwise impair the priority of the Security Instruments (or any of them);
(x) failure by Borrower, Manager or any Affiliate of either to deliver to Lender any security deposits, advance deposits or any other deposits or reserves collected with respect to any of the Properties which are not delivered to Mortgage Lender Property upon a foreclosure of any of the Properties such Property or action in lieu thereof, except to the extent any such security deposits or reserves 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;
(viiixi) 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 (except to the extent with respect to the payment of Insurance Premiums only: (a) (I) Lender is paying such Insurance Premiums subject to and in accordance with Section 7.2 of this Agreement, and (II) sums sufficient to pay such Insurance Premiums have been deposited into the Tax and Insurance Escrow Fund and there exists no impediment to Lender’s utilization thereof or an Event of Default, or (b) the applicable Property fails to generate sufficient revenues to pay the Insurance Premiums when payments are made in the event of:order set forth in the waterfall at Section 2.7.2(b) hereof and Borrower has provided written notice to Lender stating that the Properties are not able to generate sufficient revenues to pay the Insurance Premiums next becoming due and such notice is delivered to Lender not less than thirty (30) days prior to the earliest date upon which the payment of Insurance Premiums are next due and payable);
(xii) any act or omission of Borrower, Principal or Guarantor which hinders, delays or interferes with Lender’s enforcement of its rights under any Loan Document or the realization of the collateral, including the assertion by any of Borrower, Principal or Guarantor of defenses or counterclaims, unless Borrower, Principal or Guarantor prevails in any legal proceeding with respect to such matters;
(xiii) breach or violation by Borrower of any Occupancy Reserve Lease (except to the extent that such breach or violation was directly caused by Borrower having inadequate funds to satisfy its obligations under such Occupancy Reserve Lease and the applicable Property fails to generate sufficient revenues to satisfy such obligations when payments are made in the order set forth in the waterfall at Section 2.7.2(b) hereof and Borrower has provided written notice to Lender stating that the applicable Property is not able to generate sufficient revenues to satisfy such obligations and such notice is delivered to Lender not less than ten (10) Business Days prior to the expiration of (A) the applicable notice and cure periods under the applicable Occupancy Reserve Lease or (B) if the applicable Occupancy Reserve Lease contains no notice and cure periods in favor of Borrower, Mortgage the earliest date upon which such obligations are due and payable or are required to be performed pursuant to the applicable Occupancy Reserve Lease;
(xiv) Borrower, Senior Mezzanine Borrower, Operating Company ’s indemnifications of Lender set forth in Section 9.2 of this Agreement and Section 8.1 of the Security Instruments;
(xv) the creation of any security interest or lien pursuant to this Agreement or any Guarantor filing a voluntary petition of the other Loan Documents, or any other transfer of property described in the Loan Documents, being deemed fraudulent conveyances or preferences or otherwise being deemed void pursuant to any principles limiting the rights of creditors, whether such claims, demands or assertions are made under the Bankruptcy Code or under any other Federal applicable state fraudulent conveyance statutes or state bankruptcy or insolvency lawsimilar laws; (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
(ixxvi) if BorrowerBorrower failing to comply with 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 covenant set forth in Section 4.1.30 of this Agreement; and
(x) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company fails hereof specifically related 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 Propertiesfollowing items set forth in the definition of “Special Purpose Entity” at Section 1.1 hereof: (j) - (l), Senior Mezzanine Collateral (o) - (r), (u) - (w), (y), (z), (bb), (dd), (ee), (hh) or Collateral as required by this Agreement(ii) (unless such failure is de minimis and promptly cured) (each such item collectively, the Senior Mezzanine Loan Agreement, “Above 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 capitalLine SPE Triggers”).
(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 Instruments 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 (ii) Borrower shall be personally liable for the payment of the Debt in the event of: (A) Borrower, Principal or 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, Principal or Guarantor under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law, in which Borrower, Principal, Guarantor or any Person owning an interest (directly or indirectly) in Borrower, Principal or Guarantor 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; (C) Borrower, Principal or Guarantor or any Person (other than a Passive Owner) owning an interest (directly or indirectly) in Borrower, Principal or Guarantor filing an answer consenting to or otherwise acquiescing or joining in any involuntary petition filed against Borrower, Principal or Guarantor, by any other Person under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (D) Borrower, Principal or Guarantor or any Person owning an interest (directly or indirectly) in Borrower, Principal or Guarantor consenting to or otherwise acquiescing or joining in an application for the appointment of a custodian, receiver, trustee, or examiner for Borrower or any portion of any Property; (E) Borrower, Principal or Guarantor making an assignment for the benefit of creditors, or admitting, in writing to any creditor of Borrower, Principal or Guarantor (other than Lender or Servicer) or in any legal proceeding, its insolvency or inability to pay its debts as they become due (provided, however, that Borrower’s failure to deny a truthful, factual allegation that it is insolvent or failing to pay its debts in the ordinary course shall not be deemed to be included in the events described in this clause (E)); (F) Borrower or Principal failing to obtain Lender’s prior written consent to any Indebtedness or voluntary Lien encumbering any Property as required by this Agreement or the Security Instrument; (G) Borrower or Principal failing to obtain Lender’s prior written consent to any Transfer, as required by this Agreement or the Security Instrument; (H) Borrower failing to comply with any representation, warranty or covenant set forth in Section 4.1.30 hereof specifically related to any of the following items set forth in the definition of “Special Purpose Entity” at Section 1.1 hereof: (a)-(i), (m), (n), (s), (t), (x), (aa), (cc), (ff) or (gg) (unless such failure is de minimis and promptly cured), as required by, and in accordance with, the terms and provisions of this Agreement or the Security Instrument; or (I) Borrower failing to comply with any representation, warranty or covenant set forth in Section 4.1.30 hereof specifically related to any of the Above the Line SPE Triggers, but only if Borrower’s assets are substantively consolidated with the assets of another Person; (I) the first Monthly Debt Service Payment Amount is not paid when due; or (J) any amendment, modification, termination or surrender of any Occupancy Reserve Lease in violation of 5.1.20 hereof.
(d) Notwithstanding anything to the contrary in this Agreement, the Note or any of the Loan Documents, Borrower shall be personally liable for the payment of the TI/LC Reserve Funds.
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 may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender and each Noteholder to enforce and realize upon its interest under the Note, this Agreement, the Pledge Agreement Mortgage and the other Loan Documents, or in the CollateralProperty, the Rents, or any other collateral given to Lender pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower’s interest in the Collateral Property, in the Rents and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Pledge Agreement Mortgage and the other Loan Documents, agrees that it shall not xxx for, seek or demand any deficiency judgment against Borrower in any such action or proceeding under, under or by reason of, of or under or in connection with, with the Note, this Agreement, the Pledge Agreement Mortgage or the other Loan Documents. The provisions of this Section shall not, however,
, (a) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (b) impair the right of Lender to name Borrower as a party defendant in any action or suit for foreclosure and sale under the Pledge AgreementMortgage; (c) affect the validity or enforceability of or any Guaranty guaranty made in connection with the Loan or any of the rights and remedies of Lender thereunder; (d) impair the right of Lender to obtain the appointment of a receiver; (e) intentionally omittedimpair the enforcement of the Assignment of Leases; (f) constitute a prohibition against Lender to seek a deficiency judgment against Borrower commence any appropriate action or proceeding in order to fully realize on any security given by Borrower in connection with the security granted by the Pledge Agreement Loan or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against all of the Collateralsuch security; or (g) constitute a waiver of the right of Lender to enforce the liability and obligation of Borrower, by money judgment or otherwise, to the extent of any actual loss, damagedamage (excluding consequential damages), 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:
(ia) 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;
(iib) 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 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;
(vc) 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;
(vid) 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 this Agreement, portion of the Mortgage Loan Agreement or the Mortgages, as applicableProperty after an Event of Default;
(viie) 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 during the existence of an Event of Default;
(f) failure to pay charges for labor or materials or other charges that can create Liens on any portion of the Property;
(g) 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;
(viiih) Borrower’s indemnification of Lender set forth in the event of:Section 9.2 hereof;
(Ai) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor the Borrower filing a voluntary petition under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; ;
(Bj) an Affiliate, officer, director, or representative which controls, directly or indirectly, Borrower filing, or joining in the filing of 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 or any Guarantor or any of their respective Affiliates, agents or employees colludes with or such other Personlaw, or Borrowerthe soliciting, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor soliciting or causing to be solicited solicited, petitioning creditors for any involuntary petition against Borrower, Operating Company or any Guarantor Borrower from any Person; ;
(Ck) 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;
(Dl) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor Affiliate of 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 of the request of Lender; or Property;
(Em) 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, admitting in writing or in any legal proceeding, proceeding its insolvency or inability to pay its debts as they become due;
(ixn) 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 failure to obtain Lender’s prior 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, except to the extent expressly permitted herein; and
(other than Permitted Encumbranceso) encumbering failure to obtain Lender’s prior consent to any assignment, transfer, or 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 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.
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 NoteNotes, 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 NoteNotes, 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 NoteNotes, this Agreement, the Pledge Agreement Security Instruments and the other Loan Documents, agrees that it shall not xxx for, seek or demand any deficiency judgment against Borrower in any such action or proceeding under, or by reason of, or in connection with, the NoteNotes, this Agreement, the Pledge Agreement Security Instruments 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 Instruments; (ciii) affect the validity or enforceability of or any the 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 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 Collateral; Properties.
(a) 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 attorneys’ fees and costs reasonably incurredcourt costs) incurred or suffered by Lender arising out of or in connection with any of the following:
(i) fraud or intentional material 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 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 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 or material physical waste of the Properties;
(v) the misapplication, misappropriation or conversion by Borrower or Guarantor 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 materials or other charges or judgments that can create Liens on any portion of the Properties except to obtain Lender’s prior consent to any voluntary intentional Transfer as required by the extent the same are being contested in good faith in accordance with 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 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 dueintentionally omitted;
(ix) a breach of Section 9.2 and/or Section 10.21 hereof;
(x) the failure to pay Taxes or Insurance Premiums in accordance with the terms of the Loan Documents or the failure to maintain the Policies required pursuant to the terms of the Loan Documents in full force and effect, in each case to the extent that there is sufficient cash flow from the Properties (on an aggregate basis) to pay therefor or funds are available in the Tax and Insurance Reserve Accounts to pay the same;
(xi) if Borrower or any Affiliate of Borrower, Senior Mezzanine in any judicial or quasi-judicial case, action or proceeding relating to the Debt brought by Lender (a) contests the validity or enforceability of the Loan Documents or (b) directly or indirectly contests or intentionally hinders, delays or obstructs the pursuit of any rights or remedies by Lender (including the commencement and/or prosecution of a foreclosure action, judicial or non-judicial, the appointment of a receiver for the Property or any portion thereof or any enforcement of the terms of the Assignment of Leases) after an Event of Default; provided, however, that there shall be no liability to Borrower under this subsection for raising and pursuing good faith actions or Mortgage defenses;
(xii) intentionally omitted;
(xiii) any material amendment or modification of any Lease affecting any Individual Property in violation of the terms of this Agreement or any cancellation or termination of any Lease (other than a termination of a Lease due to the Tenant’s unilateral right to terminate as set forth in such Lease at the time of Lender’s approval or deemed approval thereof) in violation of the terms of the Loan Documents;
(xiv) the failure by any Individual Borrower fails to comply with any representation, warranty or covenant set forth in Section 4.1.30 hereof;
(xv) the failure by any Individual Borrower to maintain its status as a Special Purpose Entity Entity, which failure is cited as a factor in the substantive consolidation of such Individual Borrower with any other Person in connection with any federal or breaches any material representation or warranty set forth in Section 4.1.30 of this Agreementstate bankruptcy proceeding; andand/or
(xxvi) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company fails any cash flow not being deposited into the Rollover Reserve Fund pursuant to obtain Lender’s prior consent to any voluntary Indebtedness subsection (other than (xb) of the definition of “Lease Sweep Event” with respect to Mortgage Borrowereach Lease which caused the Lease Sweep Event to occur (or, Permitted Indebtedness and (yfor the avoidance of doubt, would have caused a Lease Sweep Period to commence if a Lease Sweep Period did not already exist) 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 required 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 Loan Documents during the period commencing on the date Tenant notifies 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 it does not intend to renew such Lease and ending on the Loan Documents. Neither date 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 Lease Sweep Period pursuant 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.
subsection (b) of the definition of “Lease Sweep Event” actually commences hereunder. Notwithstanding anything to the contrary in this Agreement, the Note Notes 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 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 (II) the Debt shall be fully recourse to Borrower in the event of any of the following: (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 in which Borrower 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 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 Properties other than at Lender’s request; (E) Borrower making an assignment for the benefit of creditors other than at Lender’s request, or admitting, in writing or in any legal proceeding other than at Lender’s request, its insolvency or inability to pay its debts as they become due; (F) if any Individual Borrower fails to maintain its status as a Special Purpose Entity and such failure results in the substantive consolidation of such Individual Borrower with any other Person in connection with any federal or state bankruptcy proceeding; (G) if Borrower fails to obtain Lender’s prior written consent to any Indebtedness not permitted under the Loan Documents or voluntary Lien encumbering the Properties, other than as expressly permitted without Lender’s consent pursuant to the Loan Documents; and/or (H) if Borrower fails to obtain Lender’s prior written consent to any Transfer to the extent such consent is required by this Agreement or the Security Instruments.
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 Mortgages or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against Borrower, except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender and each Noteholder to enforce and realize upon its interest under the Note, this Agreement, the Pledge Agreement Mortgages and the other Loan Documents, or in the CollateralProperties, the Rents, or any other collateral given to Lender pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower’s interest in the Collateral Properties, in the Rents and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Pledge Agreement Mortgages and the other Loan Documents, agrees that it shall not xxx sue for, seek or demand any deficiency judgment against Borrower in any such action or proceeding under, 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 the Mortgages; (f) impair the enforcement of the Pledge Agreement or (g) 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 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 out-of-pocket loss, damage, cost, expense, liabilitydamage, claim or other obligation incurred by Lender (including without limitation reasonable attorneys’ fees and costs reasonably incurredcourt costs, but expressly excluding indirect, consequential and punitive damages of any kind, except to the extent of consequential and indirect damages owed by Lxxxxx to an unaffiliated third party) arising incurred or suffered by Lxxxxx xxxxxxx out of or in connection with the following:
(i) fraud or intentional material misrepresentation by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company any Individual Borrower or any Guarantor in connection with the execution and delivery origination or funding of the Loan Documents and/or the Loan;
(ii) the misappropriation, conversion gross negligence or misapplication willful misconduct of any Individual Borrower or Guarantor in connection with the Loan or any Property;
(iii) physical waste of any Individual Property caused by the intentional acts of any Individual Borrower or Guarantor (except for physical waste caused by any omissions resulting from insufficient net cash flow from the Property or a failure or refusal of Lender to make cash flow from the Property available to Borrower to the extent Lender is required to make such disbursement under this Agreement);
(iv) the removal or disposal of any portion of any Individual Property in contravention of the Loan Documents by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor at the direction of any funds of Borrower, Senior Mezzanine Borrower, Mortgage Borrower or Operating Company, including, without limitation, Guarantor during the continuance of an Event of Default;
(v) the misappropriation or conversion by any Individual Borrower or Guarantor in contravention of the Loan Documents 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 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;
(ivvi) any act Borrower’s failure to pay Taxes (other than those that are being contested in accordance with the terms of actual intentional physical waste by Borrowerthis Agreement); provided, 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;
that there shall be no liability under this clause (vi) if Borrower, Mortgage Borrower, Senior Mezzanine (A) available cash flow which Borrower actually receives is insufficient to pay such amounts or Operating Company (B) there are sufficient funds in the Tax and Insurance Escrow Fund to pay such Taxes prior to the date upon which such payment becomes delinquent and Lender is required to use such amounts for the payment of such Taxes and fails to obtain Lender’s prior consent to any voluntary intentional Transfer as required by make such payment in accordance with this Agreement, the Mortgage Loan Agreement or the Mortgages, as applicable;
(1) Borrower’s failure to obtain and maintain the fully paid for Policies in accordance with and to the extent required by Section 6.1 hereof; provided, that there shall be no liability under this clause (vii) if (A) available cash flow which Borrower actually receives is insufficient to pay such amounts or (B) there are sufficient funds in the Tax and Insurance Escrow Fund to pay such insurance premiums prior to the date upon which such payment becomes delinquent and Lender is required to use such amounts for the payment of such insurance premiums and fails to make such payment in accordance with this Agreement or (2) the failure of the windstorm/named storm Policies maintained by Borrower to meet the requirements described in the Letter Agreement (Insurance);
(viii) Borrower’s 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 those that are being contested in accordance with the terms of the Loan Documents), except to the extent of insufficient net cash flow from the Property or a failure or refusal of Lender to make a disbursement of any Reserve Funds available to Borrower to the extent Lender is required to make such disbursement under this Agreement;
(ix) 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 by Borrower upon a foreclosure of any of the Properties Individual Borrower or any 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 commencement of the Event of Default that gave rise to such foreclosure or action in lieu thereof;
(viiix) 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 dueintentionally omitted;
(ixxi) if Borrowerthe 3900 Paramount Parkway HVAC Issue and any actions, Senior Mezzanine Borrower suits or Mortgage Borrower fails proceedings in connection therewith until such time as the same is settled, dismissed pursuant to maintain its status as a Special Purpose Entity final non-appealable decision of a court of competent jurisdiction or breaches otherwise resolved in favor of Bxxxxxxx;
(xii) a material breach of any material representation or warranty set forth in Section 4.1.30 of this Agreement; and
hereof that is not set forth in clause (xc)(ii)(E) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company fails to obtain Lender’s prior consent to any voluntary Indebtedness below (other than a failure to comply with the requirements set forth in clause (xxii) with respect to Mortgage Borrower, Permitted Indebtedness and (yxxiiii) of the definition of “Special Purpose Entity”);
(xiii) for any Individual Property for which an updated Survey was not delivered to Lender in connection with respect this Agreement, any Liens, encumbrances or other matters which would have been disclosed in an updated Survey for such Individual Property that was not disclosed in the Title Insurance Policy for such Individual Property received by Lender prior to Operating Companythe Closing Date; provided, Permitted Indebtedness that prior to seeking any recovery pursuant to this clause (Operating Company)xiii) Lender shall first seek recovery under the applicable Title Insurance Policy for a period not to exceed six (6) months; provided, further, that (A) Borrower shall cooperate with Lender in making such claim and shall reimburse Lender for the reasonable out-of-pocket costs and expenses incurred by Lxxxxx in connection with seeking to recover such losses from such Title Insurance Policy, and (B) to the extent Borrower or Guarantor has paid or reimbursed Lender for any Losses under this clause (xiii) and Lender subsequently obtains recovery under the applicable Title Insurance Policy, Lxxxxx shall reimburse Borrower and/or Guarantor, 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 up 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 Losses so paid or to require that all collateral shall continue to secure all of the Indebtedness owing to Lender in accordance with the Loan Documents.reimbursed);
Appears in 1 contract
Samples: Loan Agreement (W. P. Carey 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; providedPROVIDED, howeverHOWEVER, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower’s 's interest in the Collateral Property, in the Rents and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Pledge Agreement Mortgage and the other Loan Documents, agrees that it shall not xxx for, seek or demand any deficiency judgment against Borrower in any such action or proceeding under, under or by reason of, of or under or in connection with, with the Note, this Agreement, the Pledge Agreement Mortgage or the other Loan Documents. The provisions of this Section shall not, however,
, (a) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (b) impair the right of Lender to name Borrower as a party defendant in any action or suit for foreclosure and sale under the Pledge AgreementMortgage; (c) affect the validity or enforceability of or any Guaranty guaranty made in connection with the Loan or any of the rights and remedies of Lender thereunder; (d) impair the right of Lender to obtain the appointment of a receiver; (e) intentionally omittedimpair the enforcement of the Assignment of Leases; (f) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize 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 or misapplication in contravention willful misconduct of Borrower (except that this clause (ii) shall not apply to any failure to make payments with respect to 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 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 concerning environmental lawsIndemnity;
(iv) the removal or disposal by Borrower or any Affiliate of Borrower of any portion of the Property after notice to Borrower of an Event of Default;
(v) the misapplication or conversion by Borrower of (A) any insurance proceeds paid by reason of any loss, hazardous substances and asbestos and damage or destruction to the Property, (B) any indemnification Awards or other amounts received in connection with the Condemnation of Lender with respect thereto in either documentall or a portion of the Property, or (C) any Rents following notice to Borrower of an Event of Default;
(vi) if Borrower, Mortgage Borrower, Senior Mezzanine 's failure to pay charges for labor or materials or other charges for work performed by or on behalf of Borrower that can create a mechanics' lien on any portion of the Property (unless Borrower is negotiating such charges in good faith or Operating Company fails to obtain Lender’s prior consent to any voluntary intentional Transfer as required by is contesting such lien in accordance with this Agreement) if the Property generates sufficient funds to make such payments after payment of amounts due under the Loan and the Mezzanine Loan (including, without limitation, payments of the Mortgage Loan Agreement or the Mortgages, as applicableReserve Funds) and other Operating Expenses;
(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) 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 the failure of Borrower or Mortgage to appoint a new property manager upon the request of Lender after notice to Borrower fails of an Event of Default as required pursuant to maintain its status as a Special Purpose Entity or breaches any material representation or warranty set forth in the last sentence of Section 4.1.30 7.3 of this Agreement; and
(x) if Borrower, Mortgage Borrower, Senior Mezzanine the failure of Borrower or Operating Company to direct any Tenant to pay its Rent in accordance with the Cash Management Agreement.
(i) Borrower fails to obtain Lender’s 's prior consent to any subordinate financing or other voluntary Lien (other than a Permitted Encumbrance) encumbering Borrower's interest in the Property; or
(ii) Borrower fails to obtain Lender's prior consent to any voluntary Indebtedness (other than (x) with respect to Mortgage Borrowerassignment, 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 PropertiesProperty or any interest therein or any interest, Senior Mezzanine Collateral direct or Collateral as required by this Agreementindirect, 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, if such consent is required by the Mortgage 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 Mortgages or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against Borrower, except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender and each Noteholder to enforce and realize upon its interest under the Note, this Agreement, the Pledge Agreement Mortgages and the other Loan Documents, or in the CollateralProperties, the Rents, or any other collateral given to Lender pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower’s interest in the Collateral Properties, in the Rents and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Pledge Agreement Mortgages and the other Loan Documents, agrees that it shall not xxx for, seek or demand any deficiency judgment against Borrower in any such action or proceeding under, or by reason of, or in connection with, the Note, this Agreement, the Pledge Agreement Mortgages or the other Loan Documents. The provisions of this Section 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 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 Lessee 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 Mezzanine Borrower, Operating Company or any Guarantor of any funds of Borrower, Senior Mezzanine Borrower, Mortgage Borrower or Operating Company, including, without limitation, Lessee in connection with the Loan;
(iii) the misappropriation or conversion by Borrower or Operating Lessee of (A) any RevenuesInsurance Proceeds paid by reason of any Casualty, (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 received 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 the misappropriation or conversion 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) Lessee of 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 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;
(viiiv) if Borrower or Operating Lessee fails to maintain its status as a Special Purpose Entity as required by and in accordance with the event of:terms and provisions of this Agreement or the Mortgages; or
(vi) if Borrower fails to obtain Lender’s prior written consent to (A) any voluntary transfer of any Individual Property or (B) direct or indirect transfer in Borrower, Mortgage Borrower, Senior Mezzanine Borrower, in each case as required by the terms of the Loan Documents.
(i) Borrower or Operating Company or any Guarantor Lessee filing a voluntary petition under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (Bii) the filing of an involuntary petition against Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Borrower or 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 Lessee 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, unless there are no legitimate grounds for contesting such petition (in which case an answer consenting otherwise acquiescing in or joining in any involuntary petition will not cause recourse liability under this Section 9.4), or soliciting or causing to be solicited petitioning creditors for any involuntary petition from any Person; (Diii) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Borrower or Operating Company or any Guarantor Lessee 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, Borrower or Operating Company or any Guarantor or any of the Properties, the Collateral, the Senior Mezzanine Collateral Lessee or any portion thereof, other than at the request of Lenderany Individual Property; or (Eiv) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Borrower or Operating Company or any Guarantor Lessee 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 generally 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 Mortgage or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against Borrower, except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender and each Noteholder to enforce and realize upon its interest under the Note, this Agreement, the Pledge Agreement Mortgage and the other Loan Documents, or in the CollateralProperty, the Rents, or any other collateral given to Lender pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower’s interest in the Collateral Property, in the Rents and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Pledge Agreement Mortgage and the other Loan Documents, agrees that it shall not xxx for, seek or demand any deficiency judgment against Borrower in any such action or proceeding under, under or by reason of, of or under or in connection with, with the Note, this Agreement, the Pledge Agreement Mortgage or the other Loan Documents. The provisions of this Section shall not, however,
, (a) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (b) impair the right of Lender to name Borrower as a party defendant in any action or suit for foreclosure and sale under the Pledge AgreementMortgage; (c) affect the validity or enforceability of or any Guaranty guaranty made in connection with the Loan or any of the rights and remedies of Lender thereunder; (d) impair the right of Lender to obtain the appointment of a receiver; (e) intentionally omittedimpair the enforcement of the Assignment of Leases; (f) constitute a prohibition against Lender to seek a deficiency judgment against Borrower commence any appropriate action or proceeding in order to fully realize on any security given by Borrower in connection with the security granted by the Pledge Agreement Loan or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against all of the Collateralsuch security; or (g) constitute a waiver of the right of Lender to enforce the liability and obligation of Borrower, by money judgment or otherwise, to the extent of any actual loss, damagedamage (excluding consequential damages), 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:
(ia) fraud or intentional material 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;
(iib) actual physical waste or damage to the misappropriation, conversion or misapplication in contravention of Property resulting from 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;
(vc) 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;
(vid) 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 this Agreement, portion of the Mortgage Loan Agreement or the Mortgages, as applicableProperty after an Event of Default;
(viie) 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 during the existence of an Event of Default, in each case to the extent of such misapplication or conversion;
(f) if the Property generates sufficient cash flow from operation after payment of Taxes and Other Charges, failure to pay charges for labor or materials or other charges that can create Liens on any portion of the Property other than those being contested in accordance with the terms of this Agreement;
(g) if the Property generates sufficient cash flow from operation to pay for Taxes and Other Charges, failure to pay such Taxes and Other Charges (subject to the Borrower’s right to contest the same in accordance with the terms set forth in this Agreement);
(h) the mechanics’ lien filed by Xxxxx Construction Company of Illinois and the litigation resulting therefrom;
(i) 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;
(viiij) Borrower’s indemnification of Lender set forth in the event of:Section 9.2 hereof;
(Ak) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor the Borrower filing a voluntary petition under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; ;
(Bl) an Affiliate, officer, director, or representative which controls, directly or indirectly, Borrower filing, or joining in the filing of 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 or any Guarantor or any of their respective Affiliates, agents or employees colludes with or such other Personlaw, or Borrowerthe soliciting, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor soliciting or causing to be solicited solicited, petitioning creditors for any involuntary petition against Borrower, Operating Company or any Guarantor Borrower from any Person; ;
(Cm) 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 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 against Borrower from any Person;
(Dn) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor Affiliate of 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 of the request of Lender; or Property;
(Eo) 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, admitting in writing or in any legal proceeding, proceeding its insolvency or inability to pay its debts as they become due;
(ixp) 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 failure to obtain Lender’s prior 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, except to the extent expressly permitted herein; and
(other than Permitted Encumbrancesq) encumbering failure to obtain Lender’s prior consent to any assignment, transfer, or 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 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.
Appears in 1 contract
Exculpation. (a) Subject to the qualifications below, Lender shall not enforce the liability and obligation of Borrower and 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 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 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 and Operating Lessee only to the extent of Borrower’s and Operating Lessee’s interest in the Collateral Property, in the Gross Revenues and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Pledge Agreement Mortgage and the other Loan Documents, agrees that it shall not xxx for, seek or demand any deficiency judgment against Borrower 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 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 of the CollateralProperty; or (gh) 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, 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 (i) fraud or intentional misrepresentation by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, all such liability and obligation of Borrower and 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 Lessee 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 following being referred to Lender in accordance with the Loan Documents.herein as “Borrower’s Recourse Liabilities”):
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 may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender and each Noteholder to enforce and realize upon its interest under the Note, this Agreement, the Pledge Agreement Mortgage and the other Loan Documents, or in the CollateralProperty, the Rents, or any other collateral given to Lender pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower’s interest in the Collateral Property, in the Rents and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Pledge Agreement Mortgage and the other Loan Documents, agrees that it shall not xxx for, seek or demand any deficiency judgment against Borrower in any such action or proceeding under, under or by reason of, of or under or in connection with, with the Note, this Agreement, the Pledge Agreement Mortgage or the other Loan Documents. The provisions of this Section shall not, however,
, (a) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (b) impair the right of Lender to name Borrower as a party defendant in any action or suit for foreclosure and sale under the Pledge AgreementMortgage; (c) affect the validity or enforceability of or any Guaranty guaranty made in connection with the Loan or any of the rights and remedies of Lender thereunder; (d) impair the right of Lender to obtain the appointment of a receiver; (e) intentionally omittedimpair the enforcement of any assignment of leases contained in the Mortgage; (f) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted by the Pledge Agreement Mortgage or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against all of the CollateralProperty; or (g) constitute a waiver of the right of Lender to enforce the liability and obligation of Borrower, by money judgment or otherwise, to the extent of any actual loss, damage, cost, expense, liability, claim or other obligation incurred by Lender (including attorneys’ fees and costs expenses reasonably incurred) arising out of or in connection with the following:
(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, (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 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;
(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 or judgments 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) the breach of the representation by Borrower that on the Closing Date, all Improvements at the Property were in material compliance with applicable law; or
(ix) failure to have a certificate occupancy issued by (and on file with) the event ofCity of Arlington for the premises currently occupied by the following Tenants:
(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 AgreementX.X. Xxx Tire and Auto; 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 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 xxx for, seek or demand any deficiency judgment against Borrower in any such action or proceeding under, under or by reason of, of or under or in connection with, with the Note, this Agreement, the Pledge Agreement Mortgage or the other Loan Documents. The provisions of this Section 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 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 67 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 ail 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
Samples: 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 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 Lender shall not xxx for, seek or demand any deficiency judgment against Borrower in any such action or proceeding under, under or by reason of, of or under or in connection with, the Note, this Agreement, the Pledge Agreement or the other with any Loan DocumentsDocument. The provisions of this Section shall not, however,
, (ai) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan DocumentsDocument; (bii) impair the right of Lender to name Borrower as a party defendant in any action or suit for foreclosure and sale under the Pledge Agreement; (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[intentionally omitted]; (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 fully realize the security granted by the Pledge Agreement or 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 attorneys’ fees and costs reasonably incurred) (collectively, “Lender’s Losses”) arising out of or in connection with any of the following:
following (iall such liability and obligation of Borrower for any or all of the following being referred to herein as “Borrower’s Recourse Liabilities”): (a) fraud or intentional misrepresentation by 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 Borrower and Mortgage 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 Borrower or Mortgage Borrower after an Event of Default and not applied to payment of Principal and interest due under the Note or the Mortgage Note pursuant to the terms of the Loan Documents or the Mortgage Loan Documents, and to the payment of actual and reasonable operating expenses of the Property, as they become due or payable (other than acts committed by a third party non-affiliated property manager) (except to the extent that such application of such funds is prevented by bankruptcy, receivership, or any item similar judicial proceeding in which Borrower and Mortgage Borrower is legally prevented from directing the disbursement of Revenuesuch sums); (e) misappropriation (including failure to turn over to Lender or Mortgage Lender, from whatever source) as applicable, on demand following an Event of Default) of tenant security deposits and rents collected in advance, or of funds held by Borrower or Mortgage Borrower for the benefit of another party (Eother than acts committed by a third party non-affiliated property manager); (f) any distribution the failure to pay Taxes, provided that Borrower shall not be liable (A) to the extent funds to pay such amounts are available in the Tax and Insurance Subaccount and Lender or other payments made in connection with any part Mortgage Lender, as applicable, failed to pay same or has elected not to pay the same pursuant to Section 3.3 hereof or Section 3.3 of the Collateral Mortgage Loan Agreement, as applicable or Senior Mezzanine Collateral;
(iiiB) 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 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) any representation or warranty made by Borrower in Section 4.1 shall be false or misleading in any material respect as of the Environmental Indemnity Agreement concerning environmental lawsdate made, 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 breach of the Properties which are not delivered to Mortgage Lender upon covenants set forth in Section 5.13 (other than a foreclosure breach of any of the Properties or action covenants described in lieu thereofclauses (x) and (xxi) (with respect to unsecured trade payables) set forth in the definition of “Special Purpose Bankruptcy Remote Entity” on Schedule 5, except to if the extent any such security deposits were applied in accordance with the terms and conditions of any same occurs as a result of the Leases prior to the occurrence economic performance 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 lawCollateral); (Bi) the filing of an involuntary petition against Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company 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 Affiliatesdirect or indirect Affiliates taking any action or making any omission intended or reasonably likely to hinder, agents delay, impair or employees colludes with prevent Lender in or such other Personfrom enforcing any and all of its rights and remedies under or pursuant to the Loan Documents or at law or in equity (unless the same is brought in good faith and is determined in favor of Borrower or Guarantor pursuant to a final, non-appealable judgment of a court of competent jurisdiction); (j) the termination of the Management Agreement or the removal of the then-current Manager as property manager thereunder without Lender’s consent; (k) Borrower, ’s or Mortgage Borrower, Senior Mezzanine Borrower, Operating Company ’s misappropriation 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 failure to pay its debts as they become due;
(ix) if Borrower, Senior Mezzanine Borrower to the appropriate parties the amounts due and owing to such parties for which a disbursement request was made pursuant to Section 3.13 hereof 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 3.13 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, as applicable, where such disbursement was made directly to Borrower or Mortgage Borrower (provided, however, there shall be no liability with respect to a particular disbursement in the Pledge Agreement or the Mortgages. Notwithstanding anything event that evidence reasonably satisfactory to Lender has been delivered which shows that such disbursement has been applied to the contrary under this Agreement, neither any present payment of sums for which such disbursement was requested); (l) Borrower’s or future Affiliate Mortgage Borrower’s misappropriation of Borrower Net Liquidation Proceeds After Debt Service; or (other than Guarantor, m) Borrower’s making a distribution to its equity owners during the extent provided under the Guaranty) nor any present or future shareholder, officer, director, employee, trustee, beneficiary, advisor, partner, member, principal, participant or agent existence of or in any Borrower or an Event 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 capitalDefault.
(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
Samples: Mezzanine Loan Agreement (Behringer Harvard Opportunity REIT I, Inc.)
Exculpation. (a) Subject to the qualifications below, Lender shall not enforce the liability and obligation of Borrower Borrowers to perform and observe the obligations contained in the Note, this Agreement, the Pledge Agreement Mortgages or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against BorrowerBorrowers, 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 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 jointly and severally enforceable against Borrower the Borrowers only to the extent of Borrower’s Borrowers' 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 Mortgages and the other Loan Documents, agrees that it shall not xxx for, seek or demand any deficiency judgment against Borrower the Borrowers 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 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 the Borrowers 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 the 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 the Borrowers but only 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 CollateralProperty; or (g) constitute a waiver of the right of Lender to enforce the liability and obligation of Borrowerthe Borrowers, by money judgment or otherwiseotherwise 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) fraud or intentional misrepresentation by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company Borrowers 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 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 CollateralBorrowers;
(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 Property after an Event of Default;
(v) the misapplication or conversion by Borrowers 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;; 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 Borrowers' 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
9.2 (xSecuritization Indemnification) if Borrowerhereof, and in Section 9.2 (Mortgage Borrower, Senior Mezzanine Borrower or Operating Company fails to obtain Lender’s prior consent to any voluntary Indebtedness Transfer Tax) and Section 9.3 (other than (xERISA Indemnification) 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 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 xxx for, seek or demand any deficiency judgment against Borrower in any such action or proceeding under, under or by reason of, of or under or in connection withwith this Agreement, the Note, this Agreement, the Pledge Agreement Security Instrument or the other Loan Documents. The provisions of this Section 11.22 shall not, however,
, (a) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (b) impair the right of Lender to name Borrower as a party defendant in any action or suit for foreclosure and sale under the Pledge AgreementSecurity Instrument; (c) affect the validity or enforceability of any guaranty or any Guaranty indemnity made in connection with the Loan or any of the rights and remedies of Lender thereunder; (d) impair the right of Lender to obtain the appointment of a receiver; (e) intentionally omittedimpair the enforcement of the Assignment of Leases; (f) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order for Lender to fully realize the security granted by the Pledge Agreement Security Instrument or to commence any other appropriate action or proceeding in order for Lender to exercise its rights and remedies against all of the CollateralProperty, the Rents or any other collateral given to Lender pursuant to the Loan Documents; or (g) constitute a waiver of the right of Lender to enforce the liability and obligation of Borrower, by money judgment or otherwise, to the extent of any actual loss, damage, cost, expense, liability, claim or other obligation incurred by Lender (including attorneys’ fees and costs reasonably incurred) arising out of or in connection with with, and Borrower shall be personally liable for, the following:following (all such liability and obligation of Borrower for any or all of the following being referred to herein as the “Borrower’s Recourse Liabilities”):
(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 Notwithstanding anything to the contrary contained in this Agreement, in the Note or in any other Loan Document, but subject to the qualifications below, Lender shall not enforce the liability and obligation of Borrower to perform and observe the obligations contained in the Note, this Agreement, the Pledge Agreement Mortgage or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against Borrower, except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender and each Noteholder to enforce and realize upon its interest under the Note, this Agreement, the Pledge Agreement Mortgage and the other Loan Documents, or in the CollateralProperty, the Rents, or any other collateral given to Lender pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower’s interest in the Collateral Property, in the Rents, Net Proceeds and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Pledge Agreement Mortgage and the other Loan Documents, agrees that it shall not xxx for, seek or demand any deficiency judgment against Borrower in any such action or proceeding under, under or by reason of, of or under or in connection with, with the Note, this Agreement, the Pledge Agreement Mortgage or the other Loan Documents. The provisions of this Section shall not, however,
, (a) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (b) impair the right of Lender to name Borrower as a party defendant in any action or suit for foreclosure and sale under the Pledge AgreementMortgage; (c) affect the validity or enforceability of or any Guaranty guaranty made in connection with the Loan or any of the rights and remedies of Lender thereunder; (d) impair the right of Lender to obtain the appointment of a receiver; (e) intentionally omittedimpair the enforcement of the Assignment of Leases; (f) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted by the Pledge Agreement Mortgage or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against all of the CollateralProperty; or (g) constitute a waiver of the right of Lender to enforce the liability and obligation of Borrower, by money judgment or otherwise, to the extent of any actual loss, damage, cost, expense, liability, claim or other obligation incurred by Lender (including attorneys’ fees and costs reasonably incurred) arising out of or in connection with and Borrower shall be personally liable for the following:
(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;
(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 or any Rents collected for more than one 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 or Operating Company fails subject to obtain Lender’s prior consent to any voluntary intentional Transfer as required by the provisions of Section 4.1.2 of this Agreement, failure to pay and discharge any mechanic’s or materialmen’s Liens on any 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 Subject to Sections 4.1.2, 6.2, 6.3 and 7.1, Borrower’s failure to maintain insurance as required by this Agreement or to pay any Taxes or Other Charges affecting the Property;
(x) damage or destruction to the Property caused by the gross negligence or willful misconduct of Borrower, Senior Mezzanine its agents, employees, or contractors;
(xi) any intentional failure of Borrower or Mortgage Borrower fails to maintain its status as a Special Purpose Entity single purpose entity as required by, and in accordance with, the terms hereof; or
(xii) Borrower’s commission of a criminal act;
(xiii) the breach of any representation, warranty or breaches any material representation or warranty covenant set forth in Section 4.1.30 of this Agreement3.1.24 hereof; andor
(xxiv) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company fails ’s failure 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 permit on-site inspections of the PropertiesProperty, Senior Mezzanine Collateral failure to provide financial information, failure to maintain its status as a single purpose entity or Collateral failure to appoint a new property manager upon the request of Lender after an Event of Default, each as required by this Agreementby, 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.terms and provisions of, this Agreement and the Mortgage;
Appears in 1 contract
Exculpation. (a) Subject to the qualifications below, Lender neither Collateral Agent nor Administrative Agent shall not enforce the liability and obligation of Borrower to perform and observe the obligations contained in the Note, this Agreement, the Pledge Agreement or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against Borrower, except that Lender Collateral Agent or Administrative Agent, as applicable, may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender and each Noteholder Collateral Agent or Administrative Agent, as applicable, to enforce and realize upon its or the Lenders’ interest under the Note, this Agreement, the Pledge Agreement and the other Loan Documents, or in the Collateral, Collateral or any other collateral given to Lender Collateral Agent pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower’s interest in the Collateral and in any other collateral given to Collateral Agent, and each Lender, Collateral Agent and LenderAdministrative Agent, by accepting the Note, this Agreement, the Pledge Agreement and the other Loan Documents, as applicable, agrees that it shall not xxx for, seek or demand any deficiency judgment against Borrower in any such action or proceeding under, under or by reason of, of or under or in connection with, the Note, with this Agreement, the Pledge Agreement or the other Loan Documents. The provisions of this Section shall not, however,
, (a) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (b) impair the right of Lender Collateral Agent or Administrative Agent, as applicable, to name Borrower as a party defendant in any action or suit for foreclosure and sale under the Pledge Agreement; (c) affect the validity or enforceability of or any Guaranty guaranty made in connection with the Loan or any of the rights and remedies of Lender Collateral Agent or Administrative Agent, as applicable, thereunder; (d) impair the right of Lender Collateral Agent or Administrative Agent, as applicable, to obtain the appointment of a receiver, custodian, sequestrator or other similar designee; (e) intentionally omitted; (f) constitute a prohibition against Lender Collateral Agent or Administrative Agent, as applicable, to seek a deficiency judgment against Borrower in order to fully realize the security granted by the Pledge Agreement or to commence any other appropriate action or proceeding in order for Lender Collateral Agent to exercise its remedies against all of the Collateral; or (g) constitute a waiver of the right of Lender Collateral Agent or Administrative Agent, as applicable, to enforce the liability and obligation of Borrower, by money judgment or otherwise, to the extent of any actual loss, damage, cost, expense, liability, claim or other obligation actually incurred by Collateral Agent and/or Administrative Agent, as applicable, or any Lender (including reasonable, out of pocket attorneys’ fees and costs expenses reasonably incurredincurred but excluding (x) consequential damages and/or lost profits, and (y) punitive, exemplary or other special damages, except to the extent claimed against or recovered from Collateral Agent or Administrative Agent or a Lender, as applicable, by any third party which are not a result of any fraud, gross negligence or willful misconduct by Collateral Agent or Administrative Agent or a Lender, as applicable) arising out of or in connection with the following:
(i) fraud or intentional misrepresentation by Borrower, Mortgage Borrower, Senior Mezzanine A Borrower, Operating Company Mezzanine B Borrower, Borrower 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 Mezzanine A Borrower, Operating Company Mezzanine B Borrower, Borrower or Guarantor;
(iii) voluntary material physical waste of the Property by Mortgage Borrower, Mezzanine A Borrower, Mezzanine B Borrower, Borrower, 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 Mortgage Borrower, Mezzanine A Borrower, Mezzanine B Borrower, Borrower, Guarantor or any Affiliates thereof));
(iv) the removal or disposal of any funds portion of the Property by Mortgage Borrower, Senior Mezzanine A Borrower, Mezzanine B Borrower, Borrower, Guarantor or any of 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 Mortgage Borrower Borrower’s business;
(v) the misappropriation or Operating Companyconversion by Mortgage Borrower, includingMezzanine A Borrower, without limitationMezzanine B Borrower, Borrower, Guarantor or 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, (D) any CPLV Rents paid more than one month in advance, 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 Net Liquidation Proceeds After Debt Service received by Borrower, Mezzanine B Borrower, Mezzanine A Borrower, or 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 Borrowerfailure to pay or cause to be paid charges for labor or materials or other charges or judgments incurred by or on behalf of Mortgage Borrower that can create Liens on any portion of the Property (except to the extent such failure occurs solely as a result of Mortgage Lender or Administrative Agent, as applicable, applying CPLV Rents to the Mortgage BorrowerDebt or the Debt, Senior Mezzanine Borrower as applicable, or Operating Company fails to obtain Lender’s prior consent to any voluntary intentional Transfer holding CPLV Rents as required by this Agreement, additional collateral for the Mortgage Loan Agreement or Loan, during the Mortgagescontinuance of an Event of Default, Mortgage Loan Default or a Cash Sweep Period, as applicable, and such charges or judgments relate to or otherwise arose in respect of work, matters or other actions that commenced prior to the occurrence of such Event of Default, Mortgage Loan Default or Cash Sweep Event);
(vii) any security deposits, advance deposits or any other deposits collected by Mortgage 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 Mortgage Loan 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 Section 4.1.30, failure by Mezzanine B Borrower to maintain its status as a Single Purpose Entity or comply with any representation, warranty or covenant set forth in Section 4.1.30 of the event of:Mezzanine B Loan Agreement, failure by Mezzanine A Borrower to maintain its status as a Single Purpose Entity or comply with any representation, warranty or covenant set forth in Section 4.1.30 of the Mezzanine A Loan Agreement, or failure by Mortgage Borrower to maintain its status as a Single Purpose Entity or comply with any representation, warranty or covenant set forth in Section 4.1.30 of the Mortgage Loan Agreement;
(ix) if Borrower fails to obtain Administrative Agent’s prior written consent to any Indebtedness or voluntary Lien encumbering the Collateral (other than a Permitted Encumbrance);
(x) any material modification or termination of the CPLV Lease, CPLV Lease Guaranty or Ground Lease by Borrower, Mezzanine B Borrower, Mezzanine A Borrower, or Mortgage Borrower without Administrative Agent’s consent in violation of the terms hereunder;
(xi) any termination or cancellation of the Management Agreement by Borrower, Mezzanine B Borrower, Mezzanine A Borrower, or Mortgage Borrower without Administrative Agent’s, Mezzanine B Administrative Agent’s, Mezzanine A Administrative Agent’s and/or Mortgage Lender’s prior written consent in violation of the terms hereunder, the Mezzanine B Loan Agreement, the Mezzanine A Loan Agreement or the Mortgage Loan Agreement, and Mortgage Borrower fails to enter into a Replacement Management Agreement in accordance with the terms hereunder and the Mortgage Loan Agreement;
(xii) if Guarantor, Mortgage Borrower, Mezzanine A Borrower, Mezzanine B Borrower, 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 Administrative Agent and/or Collateral Agent under or in connection with the Guaranty, the Pledge Agreement 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 any Lender, Administrative Agent and/or Collateral Agent or any right in connection with any security for the Loan (other than any defense that is raised in good faith by Mortgage Borrower, Mezzanine A Borrower, Mezzanine B Borrower, Borrower or Guarantor); and/or
(A) any obligation of Borrower, Mezzanine B Borrower, Mezzanine A Borrower, Mortgage Borrower, Senior Guarantor or any Affiliate of any of them (each, a “Borrower Party” and collectively the “Borrower Parties”) to indemnify any Person that, immediately prior to any acquisition of title to the Collateral pursuant to a UCC foreclosure sale, a UCC strict foreclosure, an assignment in lieu of foreclosure or other enforcement action under the Loan Documents (collectively, an “Equity Collateral Enforcement Action”; and the date on which an Equity Collateral Enforcement Action is consummated, an “Equity Collateral Transfer Date”), was an Affiliate of any Borrower Party, to the extent such obligation continues to be the obligation of the transferee at such Equity Collateral Enforcement Action and is not expressly waived in writing by the Persons covered by such indemnification obligation, and (B) any obligation of any Borrower Party accruing prior to, on or after the Equity Collateral Transfer Date to pay (1) legal fees to legal counsel engaged by any Borrower Party prior to the Equity Collateral Transfer Date incurred in objecting to, resisting or otherwise impeding exercise of Administrative Agent’s and/or Collateral Agent’s rights and remedies under the Loan Documents, Mezzanine B Administrative Agent’s and/or Mezzanine B Collateral Agent’s rights and remedies under the Mezzanine B Loan Documents, Mezzanine A Administrative Agent’s and/or Mezzanine A Collateral Agent’s rights and remedies under the Mezzanine A Loan Documents, or Mortgage Lender’s rights and remedies under the Mortgage Loan Documents, (2) amounts due under any contract between any Borrower Party, on the one hand, and any Affiliate of any Borrower Party, on the other hand (unless such contract is assumed in writing by the Person acquiring the Collateral on or after the Equity Collateral Transfer Date), and/or (3) any income tax or indemnity liability of any Borrower Party to any other Borrower Party.
(a) Borrower, Operating Company Mezzanine B Borrower, Mezzanine A Borrower or any Guarantor 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, Mortgage Mezzanine B Borrower, Senior Mezzanine Borrower, Operating Company A Borrower or any Guarantor Mortgage Borrower under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law by any Person in which Borrower, Mortgage Mezzanine B 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 A Borrower, Mortgage BorrowerBorrower or Guarantor colludes with, Senior Mezzanine Borrower, Operating Company or any Guarantor soliciting otherwise solicits or causing causes to be solicited petitioning creditors for any involuntary petition against Borrower, Operating Company Mezzanine B Borrower, Mezzanine A Borrower or any Guarantor Mortgage Borrower from any Person; (Cc) Borrower, Mortgage Mezzanine B 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 A 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.Mortgage
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 may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender and each Noteholder to enforce and realize upon its interest under the Note, this Agreement, the Pledge Agreement Mortgage and the other Loan Documents, or in the CollateralProperty, the Rents, or any other collateral given to Lender pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower’s interest in the Collateral Property, in the Rents and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Pledge Agreement Mortgage and the other Loan Documents, agrees that it shall not xxx for, seek or demand any deficiency judgment against Borrower in any such action or proceeding under, under or by reason of, of or under or in connection with, with the Note, this Agreement, the Pledge Agreement Mortgage or the other Loan Documents. The provisions of this Section shall not, however,
, (a) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (b) impair the right of Lender to name Borrower as a party defendant in any action or suit for foreclosure and sale under the Pledge AgreementMortgage; (c) affect the validity or enforceability of or any Guaranty guaranty made in connection with the Loan or any of the rights and remedies of Lender thereunder; (d) impair the right of Lender to obtain the appointment of a receiver; (e) intentionally omittedimpair the enforcement of any assignment of leases contained in the Mortgage; (f) constitute a prohibition against Lender to seek a deficiency judgment against Borrower (but not Guarantor) in order to fully realize the security granted by the Pledge Agreement Mortgage or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against all of the CollateralProperty; or (g) constitute a waiver of the right of Lender to enforce the liability and obligation of Borrower, by money judgment or otherwise, to the extent of any actual loss, damage, cost, expense, liability, claim or other obligation incurred by Lender (including attorneys’ fees and costs expenses reasonably incurred) arising out of or in connection with the following:
(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;
(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;; or
(viiiix) in failure by Borrower to obtain a release of the event of:Memorandum of Development Agreement from Home Depot.
(Aa) 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 1 contract
Samples: 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 xxx for, seek or demand any deficiency judgment against Borrower in any such action or proceeding under, or by reason of, or in connection with, the Note, this Agreement, the Pledge Agreement Security Instrument or the other Loan Documents. The provisions of this Section 9.4(a) shall not, however,
, (ai) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (bii) impair the right of Lender to name Borrower as a party defendant in any action or suit for foreclosure and sale under the Pledge AgreementSecurity Instrument; (ciii) affect the validity or enforceability of or any Guaranty made in connection with the Loan or any of the rights and remedies of Lender thereunder; (div) impair the right of Lender to obtain the appointment of a receiver; (ev) intentionally omittedimpair the enforcement of the Assignment of Leases; or (fvi) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted by the Pledge Agreement Security Instrument or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against all 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 following:
(i) fraud or 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) any willful act of material waste of the misappropriationProperty or any damage to the Property arising from the intentional misconduct or gross negligence of Borrower, conversion Guarantor or misapplication any of their respective principals or any removal of the Property in contravention violation 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 CollateralDocuments;
(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 (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) failure by OpBiz to continue to operate the Casino Component and maintain the Gaming Licenses at any time in accordance with the requirements of Section 5.1.26(e);
(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;
(viiiix) any distribution, dividend or other payment made 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 contravention of the Properties, the Collateral, the Senior Mezzanine Collateral or any portion thereof, other than at the request provisions 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 capital5.2.9.
(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 (A) in the event of: (I) Borrower 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 Borrower under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law by any other Person in which Borrower, Principal or Guarantor or any of their respective Affiliates, agents or employees colludes with or otherwise assists such other Person, or Borrower, Principal 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; (III) 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; (IV) 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; (V) 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; (B) if any SPE Entity fails to maintain its status as a Special Purpose Entity as required by, and in accordance with, the terms and provisions of this Agreement or the Security Instrument and by reason thereof any of the assets of such SPE Entity are consolidated into the bankruptcy estate of any other Person; (C) if Borrower fails to obtain Lender’s prior consent to any Indebtedness or voluntary Lien encumbering the Property as required by this Agreement or the Security Instrument; or (D) if Borrower fails to obtain Lender’s prior consent to any Transfer as required by this Agreement or the Security Instrument.
Appears in 1 contract
Samples: Loan Agreement (Bh Re LLC)
Exculpation. (a) Subject to the qualifications below, Lender shall not enforce the liability and obligation of Borrower to perform and observe the obligations contained in the Note, this Agreement, the Pledge Agreement 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 xxx for, seek or 70 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 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 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) 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 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 the Indemnity Agreement 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(b111l(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 (I) the 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 five (5) day grace period relates only to the recourse trigger described in this paragraph), or (II) Borrower fails to permit on-site inspections of the Property subject to the rights of Tenants 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 a tenant pursuant to the applicable Lease that has not been delivered to Borrower, provided Borrower has requested such financial information from such tenant), or to comply with Section 4.1.30 hereof, or (III) Borrower fails to obtain Lender's prior written consent (to the extent such consent is required) to any subordinate financing or other voluntary lien encumbering the Property, or (IV) Borrower fails 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, so long as any of the events described in clauses (I), (II), (III) or (IV) of this paragraph continue to exist. 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
Samples: 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 this 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 its Affiliates 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 this 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 this Note, this Agreement, the Pledge Agreement Security Instrument and the other Loan Documents, agrees that it shall not xxx sue for, seek or demand any deficiency judgment against Borrower in any such action or proceeding under, under or by reason of, of or under or in connection withwith this Note, the Note, this Agreement, the Pledge Agreement Security Instrument 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 (but not Borrower’s Affiliates or members) 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 (but not against Xxxxxxxx’s Affiliates or members) 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 (but not against Borrower’s Affiliates or members), by money judgment or otherwise, to the extent of any actual loss, damage, reasonable out-of-pocket 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 concerning environmental lawsIndemnity;
(iv) the removal or disposal of any portion of the Property other than in the ordinary course of business of owning, hazardous substances and asbestos and operating or managing the Property after an Event of Default which is continuing;
(v) the misapplication or conversion by Xxxxxxxx of (A) any indemnification insurance proceeds paid by reason of Lender any loss, damage or destruction to the Property, (B) any condemnation awards or other amounts received in connection with respect thereto in either documentthe condemnation of all or a portion of the Property, or (C) any Rents following an Event of Default which is continuing;
(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 deleted;
(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) 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 dueintentionally deleted;
(ix) if BorrowerBorrower fails to permit on-site inspections of the Property, Senior Mezzanine Borrower or Mortgage Borrower fails to provide financial information, fails to maintain its status as a Special Purpose Entity single purpose entity or breaches any material representation or warranty set forth fails to appoint a new property manager upon the request of Xxxxxx during the existence of an Event of Default, each as required by, and in Section 4.1.30 of this Agreement; andaccordance with the terms and provisions of, the Security Instrument;
(x) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company Xxxxxxxx fails to obtain LenderXxxxxx’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 Encumbrancesxi) encumbering Xxxxxxxx fails to obtain Xxxxxx’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 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 capitalSecurity Instrument.
(b) Notwithstanding anything to the contrary in this AgreementNote, the Note Security Instrument 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 Debt owing to Lender in accordance with the Loan Documents, and (B) the Debt shall be fully recourse to Borrower in the event that the first full monthly payment of principal and interest under this Note is not paid when due.
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 xxx for, seek or demand any deficiency judgment against Borrower in any such action or proceeding under, under or by reason of, of or under or in connection withwith this Agreement, the Note, this Agreement, the Pledge Agreement Security Instrument or the other Loan Documents. The provisions of this Section 11.22 shall not, however,
, (a) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (b) impair the right of Lender to name Borrower as a party defendant in any action or suit for foreclosure and sale under the Pledge AgreementSecurity Instrument; (c) affect the validity or enforceability of any guaranty or any Guaranty indemnity made in connection with the Loan or any of the rights and remedies of Lender thereunder; (d) impair the right of Lender to obtain the appointment of a receiver; (e) intentionally omittedimpair the enforcement of the Assignment of Leases; (f) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order for Lender to fully realize the security granted by the Pledge Agreement Security Instrument or to commence any other appropriate action or proceeding in order for Lender to exercise its rights and remedies against all of the CollateralProperty, the Rents or any other collateral given to Lender pursuant to the Loan Documents; or (g) constitute a waiver of the right of Lender to enforce the liability and obligation of Borrower, by money judgment or otherwise, to the extent of any actual loss, damage, cost, expense, liability, claim or other obligation incurred by Lender (including attorneys’ fees and costs reasonably incurred) arising out of or in connection with with, and Borrower shall be personally liable for, the following:following (all such liability and obligation of Borrower for any or all of the following being referred to herein as the “Borrower’s Recourse Liabilities”):
(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 Mortgage or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against Borrower, except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender and each Noteholder to enforce and realize upon its interest under the Note, this Agreement, the Pledge Agreement Mortgage and the other Loan Documents, or in the CollateralProperty, the Rents, or any other collateral given to Lender pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower’s interest in the Collateral Property, in the Rents and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Pledge Agreement Mortgage and the other Loan Documents, agrees that it shall not xxx for, seek or demand any deficiency judgment against Borrower in any such action or proceeding under, under or by reason of, of or under or in connection with, with the Note, this Agreement, the Pledge Agreement Mortgage or the other Loan Documents. The provisions of this Section shall not, however,
, (a) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (b) impair the right of Lender to name Borrower as a party defendant in any action or suit for foreclosure and sale under the Pledge AgreementMortgage; (c) affect the validity or enforceability of or any Guaranty guaranty made in connection with the Loan or any of the rights and remedies of Lender thereunder; (d) impair the right of Lender to obtain the appointment of a receiver; (e) intentionally omittedimpair the enforcement of the Assignment of Leases; (f) 0 constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize on any security given by Borrower in connection with the security granted by the Pledge Agreement Loan or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against all of the Collateralsuch security which, in any event, shall only be enforced against such security; or (g) constitute a waiver of the right of Lender to enforce the liability and obligation of Borrower, by money judgment or otherwise, to the extent of any actual loss, damage, cost, expense, liability, claim or other obligation incurred by Lender (including attorneys’ fees and costs reasonably incurred) arising out of or in connection with any of the following:
(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;
(viiv) if Borrowerthe removal or disposal of any portion of the Property after an Event of Default other than in accordance with the terms of the Loan Documents (including, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company fails to obtain Lender’s prior consent to any voluntary intentional Transfer as required by this Agreementwithout limitation, the Mortgage Loan Agreement or the Mortgages, as applicableCash Management Agreement);
(viiv) 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) 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:
(Avii) 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 indemnification 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 Agreement9.2 hereof; 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, Purchaser agrees that it shall does not xxx for, seek have and will not have any claims or demand any deficiency judgment causes of action 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 Seller Knowledge Individual 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 BorrowerSeller Party, 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 its assets for the satisfaction of any liability or obligation arising under this Agreement or the transactions contemplated hereby, as applicable;
(vii) or for the performance of any security depositsof the covenants, advance deposits warranties or other agreements contained herein, and further agrees not to sue or otherwise seek to enforce any other deposits collected personal obligation against any Seller Party 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 foregoing provisions of this Section 15.19, 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 a Seller Party, and hereby unconditionally and irrevocably releases and discharges all Seller Parties from any and all liability whatsoever which are may now or hereafter accrue in favor of Purchaser against any Seller Party in connection with or arising out of this Agreement or the transactions contemplated hereby. Seller agrees that it does not delivered have and will not have any claims or causes of action against the Xxxxxx Xxx (“Purchaser’s Knowledge Individual”) or any affiliates or subsidiaries of Purchaser (“Purchaser Party”), arising out of or in connection with this Agreement or the transactions contemplated hereby. Seller agrees to Mortgage Lender upon a foreclosure look solely to Purchaser and its assets for the satisfaction of any liability or obligation arising under this Agreement or the transactions contemplated hereby, or for the performance of any of the Properties covenants, warranties or action in lieu thereofother agreements contained herein, except and further agrees not 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 sue or otherwise acquiescing in or joining in seek to enforce any involuntary petition filed personal obligation 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) Purchaser Party 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 matters arising out 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 this Agreement or 29 the Loan Documentstransactions contemplated hereby. Neither Without limiting the negative capital account generality of the foregoing provisions of this Section 15.19, Seller hereby unconditionally and irrevocably waives any and all claims and causes of action of any Affiliate nature whatsoever it may now or hereafter have against Purchaser’s Knowledge Individual or a Purchaser Party, and hereby unconditionally and irrevocably releases and discharges all Purchaser Parties from any and all liability whatsoever which may now or hereafter accrue in favor 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 Seller against any such negative capital account Purchaser Party in connection with or obligation to restore, contribute arising out of this Agreement 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 transactions contemplated hereby. The provisions of this Section 15.19 shall survive the Bankruptcy Code to file a claim for termination of this Agreement and 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.Closing.
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 xxx sxx 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 below, Lender shall not enforce the liability and obligation of Borrower to perform and observe the obligations Obligations contained in the Note, this Agreement, the Pledge Agreement Mortgage or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against Borrower, except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender and each Noteholder to enforce and realize upon its interest under the Note, this Agreement, the Pledge Agreement Mortgage and the other Loan Documents, or in the CollateralProperty, the Gross Revenues or any other collateral given to Lender pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower’s interest in the Collateral Property, in the Gross Revenues and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Pledge Agreement Mortgage and the other Loan Documents, agrees that it shall not xxx for, seek or demand any deficiency judgment against Borrower in any such action or proceeding under, under or by reason of, of or under or in connection with, with the Note, this Agreement, the Pledge Agreement Mortgage or the other Loan Documents. The provisions of this Section 10.1 shall not, however,
, (a) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (b) impair the right of Lender to name Borrower as a party defendant in any action or suit for foreclosure and sale under the Pledge AgreementMortgage; (c) affect the validity or enforceability of any of the Loan Documents or any Guaranty guaranty made in connection with the Loan or any of the rights and remedies of Lender thereunder; (d) impair the right of Lender to obtain the appointment of a receiver; (e) intentionally omittedimpair the enforcement of the Assignment of Leases; (f) impair the enforcement of the Environmental Indemnity; (g) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted by the Pledge Agreement Mortgage or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against all of the CollateralProperty; or (gh) constitute a waiver of the right of Lender to enforce the liability and obligation of Borrower, by money judgment or otherwise, to the extent of any actual loss, damage, cost, expense, liability, claim or other obligation incurred by Lender (including attorneys’ fees and costs reasonably incurred) arising out of or in connection with the following:following (all such liability and obligation of Borrower for any or all of the following being referred to herein as “Borrower’s Recourse Liabilities”):
(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 Lockbox Trigger Event, 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) failure to pay charges for labor or materials or other charges that can create Liens on any portion of the Property; provided, however, there shall be no liability under this clause (vii) if Rents received during the period in question are insufficient to pay all of Borrower’s current and/or past due liabilities (including such charges) with respect to the Property, but for purposes of such determination excluding any liabilities incurred in violation of the Loan Documents;
(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 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 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 dueLoan Documents;
(ix) the failure to pay (A) Taxes; provided, however, there shall be no liability under this clause (ix)(A) if Rents received during the period in question are insufficient to pay all of Borrower’s current and/or past due liabilities (including such Taxes) with respect to the Property, Senior Mezzanine Borrower but for purposes of such determination excluding any liabilities incurred in violation of the Loan Documents, or Mortgage Borrower fails (B) transfer taxes;
(x) failure to obtain and maintain the fully paid for Policies in accordance with Section 5.1.1 hereof; provided, however, there shall be no liability under this clause (x) if the 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 Property, but for purposes of such determination excluding any liabilities incurred in violation of the Loan Documents;
(xi) intentionally omitted;
(xii) following any Casualty or Condemnation to the Property, Borrower’s inability to restore the Property to its status pre-existing condition and use as a Special Purpose Entity existed immediately prior to such Casualty or breaches any material representation or warranty Condemnation in compliance with and permitted under all applicable Legal Requirements;
(xiii) Borrower’s indemnification of Lender set forth in Section 4.1.30 of this Agreement9.2 hereof; andand/or
(xxiv) 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, 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 capital.
(b) Loan Document. 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 Section 4.4 hereof or a breach of any of the representations set forth in the “Recycled SPE Certificate” delivered to Lender in connection with the Loan;
(ii) Borrower fails to obtain Lender’s prior consent to any subordinate financing secured by the Property or other voluntary Lien encumbering the Property;
(iii) 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;
(iv) Intentionally omitted;
(v) Borrower files a voluntary petition under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law;
(vi) 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 sixty (60) days following the occurrence of such consolidation;
(vii) 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 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;
(viii) 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;
(ix) 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;
(x) 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;
(xi) 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;
(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; or
(xiii) 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.
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 their interest in the Collateral and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Pledge Agreement and the other Loan Documents, agrees that it shall not xxx for, seek or demand any deficiency judgment against Borrower in any such action or proceeding under, under or by reason of, of or under or in connection with, with the Note, this Agreement, the Pledge Agreement or the other Loan Documents. The provisions of this Section 9.4 shall not, however,
, (ai) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (bii) impair the right of Lender to name Borrower as a party defendant in any action or suit for foreclosure and sale under the Pledge AgreementAgreement or any other Loan Document; (ciii) affect the validity or enforceability of or any Guaranty guaranty made in connection with the Loan or any of the rights and remedies of Lender thereunder; (div) impair the right of Lender to obtain the appointment of a receiver; (ev) intentionally omitted; (fvi) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted by the Pledge Agreement or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against all of the Collateral; .
(b) Nothing contained herein shall in any manner or (g) constitute a waiver of the way release, affect or impair 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 to the extent actually incurred by Lender (including attorneys’ fees and costs reasonably incurred) arising out of or incurred in connection with the following:following (it being acknowledged that with respect to subsection (v) below, losses, damages, liabilities, and claims shall in no event be less than the amount misappropriated or converted, as applicable):
(i) fraud or intentional misrepresentation by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company Borrower or any other Mortgage Loan Party or 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 or any Guarantor of any funds of Borrower, Senior Mezzanine Borrower, Mortgage Borrower or Operating Companyany other Mortgage Loan Party that results in physical damage or waste to any Collateral or Mortgage Loan Collateral;
(iii) the removal or disposal of any Individual Property or any other Mortgage Loan Collateral or any Collateral during the continuance of an Event of Default other than (A) in the ordinary course of its business or (B) with the prior written consent of Lender;
(iv) intentionally omitted;
(v) the misappropriation or conversion by Borrower, including, without limitation, or Mortgage Borrower or any other Mortgage Loan Party of (A) any RevenuesInsurance Proceeds paid by reason of any loss, damage or destruction to the Properties, (B) any Net Liquidation Proceeds or Insurance Proceeds, (C) any Awards received in connection with a CondemnationCondemnation of all or a portion of the Properties, (C) any Rents, (D) any Rents or security deposits (or any item of Revenue, from whatever source) following an Event of Defaultpaid more than one month in advance, 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 documentNet Liquidation Proceeds After Debt Service;
(vi) if Borrower, the termination of (A) any Trademark License Agreement (unless a Replacement Trademark License Agreement is entered into by Mortgage Borrower or Operating Lessee) or (B) in connection with a Bankruptcy Action of Mortgage Borrower, Senior Operating Lessee or IP Owner, a rejection of any Trademark License Agreement by Mortgage Borrower, Operating Lessee or IP Owner, as applicable; provided, that without limiting the liability of Borrower pursuant to Section 9.4(c), with respect to a termination of the Trademark License Agreement or the rejection of a Trademark License Agreement in a Bankruptcy Action, (x) damages shall be limited to the reasonable costs associated with re-signing and renaming the Individual Properties, and (y) the liability of Borrower under this Section 9.4(b)(vi), the liability of Mortgage Borrower under Section 9.4(b)(vi) of the Mortgage Loan Agreement, the liability of any Other Mezzanine Borrower under Section 9.4(b)(vi) of any Other Mezzanine Loan Agreement, the liability of Guarantor under Section 1.2 of the Guaranty with respect to this Section 9.4(b)(vi), the liability of Mortgage Guarantor under Section 1.2 of the Mortgage Guaranty with respect to Section 9.4(b)(vi) of the Mortgage Loan Agreement, and the liability of Other Mezzanine Guarantor under Section 1.2 of each Other Mezzanine Guaranty with respect to Section 9.4(b)(vi) of the related Other Mezzanine Loan Agreement, shall not exceed Ten Million and No/100 Dollars ($10,000,000.00) in the aggregate (it being acknowledged and agreed that this for purposes of this Section 9.4(b)(vi), Lender shall only look to the assets of Borrower and not Mortgage Borrower or Operating Company any Other Mezzanine Borrower, or Guarantor in its capacity as a guarantor under the Mortgage Loan or any Other Mezzanine Loan);
(vii) if Borrower fails to obtain Lender’s prior written consent to any subordinate financing or other voluntary intentional Transfer as required by this Agreement, Lien encumbering the Collateral or the Mortgage Loan Agreement or the MortgagesCollateral, 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 if such security deposits were applied consent is required in accordance with the terms and conditions of any applicable 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) Borrowerif Borrower fails to obtain Lender’s prior written consent to any assignment, 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 Persontransfer, 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 conveyance of the Properties, Collateral or the Collateral, the Senior Mezzanine Mortgage Loan Collateral or any portion thereofinterest in a Restricted Party in violation of the negative covenants set forth in Section 5.2.10 hereof; provided however, other than at that a Transfer resulting from the request consummation of Lender; or (E) Borrower, any enforcement action by the holder of the Mortgage Borrower, Senior Mezzanine Borrower, Operating Company Loan or any Guarantor making an assignment Other Mezzanine Loan shall not be a violation of Section 5.2.10 which gives rise to personal liability 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 dueBorrower under this Section 9.4;
(ix) a violation of the negative covenants set forth Section 5.2.11(c) hereof; and
(x) if Borrower, Senior Mezzanine Borrower or Mortgage Borrower fails to maintain its status as a Special Purpose Entity by reason of a material breach of Section 4.1.30 hereof, or breaches Mortgage Borrower or any other Mortgage Loan Party fails to maintain its status as a Special Purpose Entity (as defined in the Mortgage Loan Agreement) by reason of a material representation or warranty set forth in breach of 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, (except with respect to (A) Borrower, or Mortgage Borrower or any other Mortgage Loan Party remaining solvent or maintaining adequate capital, (B) in the Pledge Agreement case of Mortgage Borrower or any other Mortgage Loan Party, complying with clause (xxii) of the Mortgages. Notwithstanding anything definition of Special Purpose Entity (as defined in the Mortgage Loan Agreement) with respect to Trade Payables, and (C) in the contrary under this Agreementcase of Borrower, neither any present complying with clause (xxii) of the definition of Special Purpose Entity with respect to Indebtedness, or future Affiliate of Borrower (other than Guarantor, to the extent provided under otherwise resulting solely from the Guaranty) nor any present or future shareholderinsufficiency of Rents), officer, director, employee, trustee, beneficiary, advisor, partner, member, principal, participant or agent of or in any Borrower or of or each case to the extent such breach is cited as a factor 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 a substantive consolidation 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 Loan Party into the bankruptcy estate 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 capitalother Person.
(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 Instruments or to require that all collateral 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 or Mortgage Borrower or any other Mortgage Loan Party filing a voluntary petition under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law, the BIA or the Companies’ Creditors Arrangement Act (Canada) (“CCAA”), (B) the filing of an involuntary petition against Borrower or Mortgage Borrower or any other Mortgage Loan Party under the Bankruptcy Code, the BIA, the CCAA or any other Federal or state bankruptcy or insolvency law by any Affiliate of Borrower, or any Affiliate of Borrower or Mortgage Borrower or any other Mortgage Loan Party soliciting or causing to be solicited petitioning creditors for any involuntary petition against Borrower or Mortgage Borrower or any other Mortgage Loan Party from any Person, (C) Borrower or Mortgage Borrower or any other Mortgage Loan Party filing an answer consenting to or joining in any involuntary petition filed against it by any other Person under the Bankruptcy Code, the BIA, the CCAA or any other Federal or state bankruptcy or insolvency law, or colluding with or soliciting or causing to be solicited petitioning creditors for any involuntary petition from any Person, (D) Borrower or Mortgage Borrower or any other Mortgage Loan Party consenting to or joining in an application for the appointment of a custodian, receiver, trustee, or examiner for Borrower or Mortgage Borrower or any other Mortgage Loan Party or any portion of any Individual Property, (E) Borrower or Mortgage Borrower or any other Mortgage Loan Party making an assignment for the benefit of creditors, (F) Borrower or Mortgage Borrower or any other Mortgage Loan Party seeking substantive consolidation in connection with a proceeding under the Bankruptcy Code, the BIA, the CCAA or under federal, state or foreign insolvency law involving Borrower or Mortgage Borrower or any other Mortgage Loan Party, or any respective Affiliate thereof or (G) (i) the filing of a voluntary petition by IP Owner commencing a case under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law, the BIA or the CCAA, in which any Trademark License Agreement is rejected, (ii) (A) the filing of an involuntary petition against IP Owner commencing a case under the Bankruptcy Code, the CCAA, the BIA or any other Federal or state bankruptcy or insolvency law by any Affiliate of Borrower or Mortgage Borrower or (B) IP Owner or any Affiliate of Borrower or Mortgage Borrower or any other Mortgage Loan Party soliciting, or causing to be solicited, petitioning creditors for any involuntary petition against IP Owner which results in the commencement of a case under the Bankruptcy Code, the CCAA, the BIA, or any other Federal or state bankruptcy or insolvency law, and in each of (A) and (B) above, in which such Trademark License Agreement is rejected, or (iii) any other filing of an involuntary petition against IP Owner commencing a case under the Bankruptcy Code, the CCAA, the BIA or any other Federal or state bankruptcy or insolvency law in which IP Owner, as debtor in possession (A) affirmatively consents to or affirmatively votes for the rejection of the Trademark License Agreement in any such proceeding or (B) fails to object (where it has the legal right to object) to a motion filed in any such proceeding seeking the rejection of the Trademark License Agreement and, in each of (A) and (B) above, such Trademark License Agreement is rejected.
Appears in 1 contract
Exculpation. (a) Subject to the qualifications below, Lender neither Collateral Agent nor Administrative Agent shall not enforce the liability and obligation of Borrower to perform and observe the obligations contained in the any Note, this Agreement, the Pledge Agreement or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against Borrower, except that Lender Collateral Agent or Administrative Agent, as applicable, may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender and each Noteholder Collateral Agent or Administrative Agent, as applicable, to enforce and realize upon its or the Lenders’ interest under the any Note, this Agreement, the Pledge Agreement and the other Loan Documents, or in the Collateral, Collateral or any other collateral given to Lender Collateral Agent pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower’s interest in the Collateral and in any other collateral given to Collateral Agent, and each Lender, Collateral Agent and LenderAdministrative Agent, by accepting the any Note, this Agreement, the Pledge Agreement and the other Loan Documents, as applicable, agrees that it shall not xxx for, seek or demand any deficiency judgment against Borrower in any such action or proceeding under, under or by reason of, of or under or in connection with, the with any Note, this Agreement, the Pledge Agreement or the other Loan Documents. The provisions of this Section shall not, however,
, (a) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (b) impair the right of Lender Collateral Agent or Administrative Agent, as applicable, to name Borrower as a party defendant in any action or suit for foreclosure and sale under the Pledge Agreement; (c) affect the validity or enforceability of or any Guaranty guaranty made in connection with the Loan or any of the rights and remedies of Lender Collateral Agent or Administrative Agent, as applicable, thereunder; (d) impair the right of Lender Collateral Agent or Administrative Agent, as applicable, to obtain the appointment of a receiver, custodian, sequestrator or other similar designee; (e) intentionally omitted; (f) constitute a prohibition against Lender Collateral Agent or Administrative Agent, as applicable, to seek a deficiency judgment against Borrower in order to fully realize the security granted by the Pledge Agreement or to commence any other appropriate action or proceeding in order for Lender Collateral Agent to exercise its remedies against all of the Collateral; or (g) constitute a waiver of the right of Lender Collateral Agent or Administrative Agent, as applicable, to enforce the liability and obligation of Borrower, by money judgment or otherwise, to the extent of any actual loss, damage, cost, expense, liability, claim or other obligation actually incurred by Collateral Agent and/or Administrative Agent, as applicable, or any Lender (including reasonable, out of pocket attorneys’ fees and costs expenses reasonably incurredincurred but excluding (x) consequential damages and/or lost profits, and (y) punitive, exemplary or other special damages, except to the extent claimed against or recovered from Collateral Agent or Administrative Agent or a Lender, as applicable, by any third party which are not a result of any fraud, gross negligence or willful misconduct by Collateral Agent or Administrative Agent or a Lender, as applicable) arising out of or in connection with the following:
(i) fraud or intentional misrepresentation by Borrower, Mortgage Borrower, Senior Mezzanine A 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 or misapplication in contravention willful misconduct of the Loan Documents by Borrower, Mortgage Borrower, Senior Mezzanine A Borrower, Operating Company Borrower or Guarantor;
(iii) voluntary material physical waste of the Property by Mortgage Borrower, Mezzanine A Borrower, Borrower, 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 Mortgage Borrower, Mezzanine A Borrower, Borrower, Guarantor or any Affiliates thereof));
(iv) the removal or disposal of any funds portion of the Property by Mortgage Borrower, Senior Mezzanine A Borrower, Borrower, Guarantor or any of 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 Mortgage Borrower Borrower’s business;
(v) the misappropriation or Operating Companyconversion by Mortgage Borrower, includingMezzanine A Borrower, without limitationBorrower, Guarantor or 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, (D) any CPLV Rents paid more than one month in advance, 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 Net Liquidation Proceeds After Debt Service received by Borrower, Mezzanine A Borrower, or 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 Borrowerfailure to pay or cause to be paid charges for labor or materials or other charges or judgments incurred by or on behalf of Mortgage Borrower that can create Liens on any portion of the Property (except to the extent such failure occurs solely as a result of Mortgage Lender or Administrative Agent, as applicable, applying CPLV Rents to the Mortgage BorrowerDebt or the Debt, Senior Mezzanine Borrower as applicable, or Operating Company fails to obtain Lender’s prior consent to any voluntary intentional Transfer holding CPLV Rents as required by this Agreement, additional collateral for the Mortgage Loan Agreement or Loan, during the Mortgagescontinuance of an Event of Default, Mortgage Loan Default or a Cash Sweep Period, as applicable, and such charges or judgments relate to or otherwise arose in respect of work, matters or other actions that commenced prior to the occurrence of such Event of Default, Mortgage Loan Default or Cash Sweep Event);
(vii) any security deposits, advance deposits or any other deposits collected by Mortgage 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 Mortgage Loan 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 Section 4.1.30, failure by Mezzanine A Borrower to maintain its status as a Single Purpose Entity or comply with any representation, warranty or covenant set forth in Section 4.1.30 of the event of:Mezzanine A Loan Agreement, or failure by Mortgage Borrower to maintain its status as a Single Purpose Entity or comply with any representation, warranty or covenant set forth in Section 4.1.30 of the Mortgage Loan Agreement;
(ix) if Borrower fails to obtain Administrative Agent’s prior written consent to any Indebtedness or voluntary Lien encumbering the Collateral (other than a Permitted Encumbrance);
(x) any material modification or termination of the CPLV Lease, CPLV Lease Guaranty or Ground Lease by Borrower, Mezzanine A Borrower, or Mortgage Borrower without Administrative Agent’s consent in violation of the terms hereunder;
(xi) any termination or cancellation of the Management Agreement by Borrower, Mezzanine A Borrower, or Mortgage Borrower without Administrative Agent’s, Mezzanine A Administrative Agent’s and/or Mortgage Lender’s prior written consent in violation of the terms hereunder, the Mezzanine A Loan Agreement or the Mortgage Loan Agreement, and Mortgage Borrower fails to enter into a Replacement Management Agreement in accordance with the terms hereunder and the Mortgage Loan Agreement;
(xii) if Guarantor, Mortgage Borrower, Mezzanine A Borrower, 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 Administrative Agent and/or Collateral Agent under or in connection with the Guaranty, any Note, the Pledge Agreement 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 any Lender, Administrative Agent and/or Collateral Agent or any right in connection with any security for the Loan (other than any defense that is raised in good faith by Mortgage Borrower, Mezzanine A Borrower, Borrower or Guarantor); and/or
(A) any obligation of Borrower, Mezzanine A Borrower, Mortgage Borrower, Senior Guarantor or any Affiliate of any of them (each, a “Borrower Party” and collectively the “Borrower Parties”) to indemnify any Person that, immediately prior to any acquisition of title to the Collateral pursuant to a UCC foreclosure sale, a UCC strict foreclosure, an assignment in lieu of foreclosure or other enforcement action under the Loan Documents (collectively, an “Equity Collateral Enforcement Action”; and the date on which an Equity Collateral Enforcement Action is consummated, an “Equity Collateral Transfer Date”), was an Affiliate of any Borrower Party, to the extent such obligation continues to be the obligation of the transferee at such Equity Collateral Enforcement Action and is not expressly waived in writing by the Persons covered by such indemnification obligation, and (B) any obligation of any Borrower Party accruing prior to, on or after the Equity Collateral Transfer Date to pay (1) legal fees to legal counsel engaged by any Borrower Party prior to the Equity Collateral Transfer Date incurred in objecting to, resisting or otherwise impeding exercise of Administrative Agent’s and/or Collateral Agent’s rights and remedies under the Loan Documents, Mezzanine A Administrative Agent’s and/or Mezzanine A Collateral Agent’s rights and remedies under the Mezzanine A Loan Documents, or Mortgage Lender’s rights and remedies under the Mortgage Loan Documents, (2) amounts due under any contract between any Borrower Party, on the one hand, and any Affiliate of any Borrower Party, on the other hand (unless such contract is assumed in writing by the Person acquiring the Collateral on or after the Equity Collateral Transfer Date), and/or (3) any income tax or indemnity liability of any Borrower Party to any other Borrower Party.
(a) Borrower, Operating Company Mezzanine A Borrower or any Guarantor 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, Mezzanine A Borrower or 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 or any Guarantor or any of their respective Affiliates, agents or employees colludes with or such other Person, or A Borrower, Mortgage BorrowerBorrower or Guarantor colludes with, Senior Mezzanine Borrower, Operating Company or any Guarantor soliciting otherwise solicits 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 A Borrower or Mortgage Borrower fails to maintain its status as a Special Purpose Entity or breaches from 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.Person;
Appears in 1 contract
Exculpation. (ai) Subject The Collateral Agent is acting in such capacity hereunder solely as an accommodation to the qualifications belowHolders, Lender and shall not enforce have any liability to any Holder other than (i) for monies or properties actually received by the liability Collateral Agent hereunder, and obligation (ii) by reason of Borrower to perform and observe any gross negligence, bad faith or willful misconduct by the Collateral Agent hereunder. The Collateral Agent shall have no duties or obligations contained hereunder other than as expressly set forth in the Note, this Agreement, and no other duties or obligations shall be inferred upon the Pledge Agreement Collateral Agent at any time. The Collateral Agent shall be entitled to rely upon and assume to be accurate all notices and advice given to the Collateral Agent hereunder to rely upon any document and/or signature believed by it in good faith to be genuine and rendered by a representative of the subject person, and to seek and rely upon (and be protected in relying upon) advice of counsel in taking or the other Loan Documents by refraining from taking any action or proceeding wherein a money judgment shall be sought against Borrower, except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender and each Noteholder to enforce and realize upon its interest under the Note, this Agreement, the Pledge Agreement and the other Loan Documents, or in the Collateral, or any other collateral given to Lender pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower’s interest in the Collateral and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Pledge Agreement and the other Loan Documents, agrees that it shall not xxx for, seek or demand any deficiency judgment against Borrower in any such action or proceeding under, or by reason of, or in connection with, the Note, this Agreement, the Pledge Agreement or the other Loan Documentshereunder. The provisions Collateral Agent may assume that any person purporting to have authority to give notices on behalf 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 parties 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 accordance with the Loan or any provisions hereof has been duly authorized to do so. Upon the Collateral Agent’s performance of its obligations hereunder, the rights and remedies Collateral Agent shall be relieved 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 liability, responsibility and obligation of Borrower, by money judgment or otherwise, with respect to the extent of any actual loss, damage, cost, expense, liability, claim Collateral or other obligation incurred by Lender (including attorneys’ fees and costs reasonably incurred) arising out of or in connection with under this Agreement or 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 Notes. Without limitation of the Loan Documents and/or foregoing, the Loan;
Collateral Agent may refrain from taking action hereunder (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 actions to be taken upon the occurrence of Revenue, from whatever source) following an Event of Default) pending written instructions from a Majority in Interest of the Holders, and shall be under no obligation (regardless of any instructions of any Holders) to take any action which the Collateral Agent reasonably deems to be unlawful, inappropriate or potentially exposing the Collateral Agent to liability to any person or entity.
(Eii) Absent direction from a Majority in Interest of the Holders, the Collateral Agent shall not be under any distribution or other payments made obligation to take any legal action 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 Mortgagestowards its enforcement or performance, as applicable;
(vii) or to appear in, prosecute or defend any security depositsaction or legal proceeding, advance deposits or to file any return, or pay or withhold any income or other deposits collected tax payable with respect to any of the Properties which are not delivered Collateral. None of the provisions of this Agreement shall require the Collateral Agent to Mortgage Lender upon a foreclosure expend or risk its own funds or otherwise to incur any liability, financial or otherwise, in the performance of any of its duties hereunder, or in the Properties exercise of any of its rights or powers. The Collateral Agent may consult with independent counsel and the advice or any opinion of such counsel shall be full and complete authorization and protection in respect of any action taken or omitted by it hereunder in lieu thereof, except to the extent any such security deposits were applied good faith and in accordance with such advice or opinion of counsel.
(iii) The Collateral Agent may at any time resign by giving ten (10) days written notice of resignation to the terms Company and conditions of any Holders. The Collateral Agent may be removed by a Majority in Interest of the Leases prior Holders with notice to the occurrence Company. Upon receiving such notice of resignation or notice of removal, a Majority in Interest of the Event Holders shall promptly appoint a successor and, upon the acceptance by the successor of Default that gave rise such appointment, release the resigning Collateral Agent from its obligations hereunder by written instrument, a copy of which instrument shall be delivered to the resigning Collateral Agent and the successor. If no successor shall have been so appointed and have accepted appointment within forty-five (45) days after the giving of such foreclosure or action in lieu thereof;
(viii) in notice of resignation, the event of:
(A) Borrowerresigning Collateral Agent may, Mortgage Borrowerat the expense of the Grantor, Senior Mezzanine Borrower, Operating Company or petition any Guarantor filing a voluntary petition under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (B) the filing court 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 competent jurisdiction for the appointment of a custodiansuccessor.
(iv) The Holders hereby agree, receiverseverally and not jointly, trusteeto indemnify, or examiner for Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any ratably according to their pro rata share of the Propertiesaggregate principal amount of the Notes then outstanding, and hold the Collateral Agent harmless from any and all liabilities, obligations, damages, losses, claims, encumbrances, costs or expenses (including reasonable attorneys’ fees and expenses) (any or all of the foregoing herein referred to as a “Loss”) arising hereunder or under or with respect to the Collateral, unless it is finally determined that such Losses resulted from the Senior Mezzanine Collateral willful misconduct, bad faith 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 gross negligence of the Properties, Senior Mezzanine Collateral or Collateral as required by Agent. Anything in this Agreement, the Senior Mezzanine Loan Agreement, the Mortgage Loan Agreement, the Pledge Agreement or the Mortgages. Notwithstanding anything to the contrary under this Agreementnotwithstanding, neither any present in no event shall the Collateral Agent be liable for special, indirect or future Affiliate of Borrower (other than Guarantor, to the extent provided under the Guaranty) nor any present consequential loss 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 damage of any Borrower shall have any personal liabilitykind whatsoever (including but not limited to lost profits), directly or indirectly, under or in connection with even if 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 Collateral Agent has been advised 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) likelihood of such loss or any other provisions damage and regardless of the Bankruptcy Code to file a claim for the full amount form 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 Documentsaction.
Appears in 1 contract
Samples: Security Agreement (Power Medical Interventions, Inc.)
Exculpation. (a) Subject Notwithstanding anything to the qualifications below, Lender shall not enforce the liability and obligation of Borrower to perform and observe the obligations contrary 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 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 it is intended that the Collateral, or any other collateral given to Lender pursuant to obligations of the Borrower under this 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 Note and the other Loan Documents shall be payable only out of the Projects encumbered by Mortgages in effect from time to time, the enforcement of the provisions contained in such Mortgages or any other Loan Documents and out of any other property, security or guaranties securing or given for such obligations (the "Additional Property"), and, accordingly, except as hereafter provided, no liability shall be asserted or be enforceable against the Borrower, its successors and assigns, or their assets and estates (other than such Projects and the Additional Property) because of or in respect of the Loan or any other obligations of the Borrower under the Loan Documents, agrees that it all such liability, if any, being expressly waived by the Bank. The foregoing provisions shall not xxx for, seek limit or demand any deficiency judgment be construed to limit or impair the Bank's rights against the Borrower for costs or damages arising from (the following being referred to as the "Non-Recourse Exceptions"): (a) fraud or material misrepresentations made by the Borrower in any such action or proceeding under, or by reason of, or in connection with, with the Note, this Agreement, the Pledge Agreement any Mortgage or the any 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 DocumentsDocument; (b) impair the right misapplication by the Borrower of Lender insurance proceeds or condemnation awards paid in connection with a Project prior to name Borrower as foreclosure of the Mortgage encumbering the same or conveyance of such Project by a party defendant power of sale or a deed in any action or suit for foreclosure and sale under the Pledge Agreementlieu of foreclosure; (c) affect the validity misapplication by Borrower of gross receipts from rental of a Project encumbered by a Mortgage applicable to the period after an Event of Default and prior to the foreclosure of such Mortgage or enforceability conveyance of such Project by a power of sale or any Guaranty made a deed in connection with the Loan or any lieu of the rights and remedies foreclosure after an Event of Lender thereunder; Default, (d) impair the right unauthorized removal by Borrower of Lender to obtain the appointment any portion of a receiverProject encumbered by a Mortgage; (e) intentionally omittedwaste committed by the Borrower with respect to a Project encumbered by a Mortgage; (f) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted failure by the Pledge Agreement Borrower to provide the insurance coverage or to commence any other appropriate action pay taxes or proceeding in order for Lender to exercise its remedies against all of the Collateralassessments required by a Mortgage; or (g) constitute a waiver the misapplication by Borrower 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 proceeds of the Loan Documents and/or the Loan;
(ii) the misappropriation, conversion or misapplication in contravention violation of the Loan Documents by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor provisions 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 Nothing herein shall at any time be deemed to be a waiver by the property or an asset Bank 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 the Bank may have under Section 506(a), 506(b), 1111(b) or any other provisions of pursuant to the Bankruptcy Code of the United States of America or any similar state law to file a claim for the full amount of the Indebtedness indebtedness and other obligations of the Borrower under the Loan Documents or to require that all collateral or security for such indebtedness and obligations shall continue to secure all the entire amount of the Indebtedness owing to Lender such indebtedness and obligations in accordance with the Loan Documents. In addition, nothing herein contained shall affect or impair the liability or obligation of the Guarantor under any Transaction Guaranty or of any other guarantor or co-maker or other person who by separate instrument shall be or become liable upon or obligated for any of the indebtedness and other obligations of the Borrower under the Loan Documents or any of the covenants or agreements contained in the Loan Documents, and nothing herein contained shall limit the Borrower's personal liability under Section 6.09 hereof and under Section 4.10 of any Mortgage from the Borrower to the Bank or the Borrower's and the Guarantor's personal liability under any Environmental Indemnity Agreement from the Borrower and the Guarantor to the Bank.
Appears in 1 contract
Samples: Loan Agreement (Trammell Crow 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 or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against Borrower, except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender and each Noteholder to enforce and realize upon its interest under the Note, this Agreement, the Pledge Agreement and the other Loan Documents, or in the Collateral, or any other collateral given to Lender pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower’s their interest in the Collateral and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Pledge Agreement and the other Loan Documents, agrees that it shall not xxx for, seek or demand any deficiency judgment against Borrower in any such action or proceeding under, under or by reason of, of or under or in connection with, with the Note, this Agreement, the Pledge Agreement or the other Loan Documents. The provisions of this Section 9.4 shall not, however,
, (ai) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (bii) impair the right of Lender to name Borrower as a party defendant in any action or suit for foreclosure and sale under the Pledge AgreementAgreement or any other Loan Document; (ciii) affect the validity or enforceability of or any Guaranty guaranty made in connection with the Loan or any of the rights and remedies of Lender thereunder; (div) impair the right of Lender to obtain the appointment of a receiver; (ev) intentionally omitted; (fvi) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted by the Pledge Agreement or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against all of the Collateral; .
(b) Nothing contained herein shall in any manner or (g) constitute a waiver of the way release, affect or impair 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 to the extent actually incurred by Lender (including attorneys’ fees and costs reasonably incurred) arising out of or incurred in connection with the following:following (it being acknowledged that with respect to subsection (v) below, losses, damages, liabilities, and claims shall in no event be less than the amount misappropriated or converted, as applicable):
(i) fraud or intentional misrepresentation by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company Mortgage Borrower or any other Mortgage Loan Party or 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 willful misconduct of Borrower, Senior Mezzanine Borrower, Mortgage Borrower or Operating Companyany other Mortgage Loan Party that results in physical damage or waste to any Collateral, includingSenior Mezzanine Collateral or Mortgage Loan Collateral;
(iii) the removal or disposal of any Individual Property or any other Mortgage Loan Collateral, without limitationSenior Mezzanine Collateral or any Collateral during the continuance of an Event of Default other than (A) in the ordinary course of its business or (B) with the prior written consent of Lender;
(iv) intentionally omitted;
(v) the misappropriation or conversion by Borrower, Senior Mezzanine Borrower or Mortgage Borrower or any other Mortgage Loan Party of (A) any RevenuesInsurance Proceeds paid by reason of any loss, damage or destruction to the Properties, (B) any Net Liquidation Proceeds or Insurance Proceeds, (C) any Awards received in connection with a CondemnationCondemnation of all or a portion of the Properties, (C) any Rents, (D) any Rents or security deposits (or any item of Revenue, from whatever source) following an Event of Defaultpaid more than one month in advance, 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 documentNet Liquidation Proceeds After Debt Service;
(vi) if Borrower, the termination of (A) any Trademark License Agreement (unless a Replacement Trademark License Agreement is entered into by Mortgage Borrower or Operating Lessee) or (B) in connection with a Bankruptcy Action of Mortgage Borrower, Senior Operating Lessee or IP Owner, a rejection of any Trademark License Agreement by Mortgage Borrower, Operating Lessee or IP Owner, as applicable; provided, that without limiting the liability of Borrower pursuant to Section 9.4(c), with respect to a termination of the Trademark License Agreement or the rejection of a Trademark License Agreement in a Bankruptcy Action, (x) damages shall be limited to the reasonable costs associated with re-signing and renaming the Individual Properties, and (y) the liability of Borrower under this Section 9.4(b)(vi), the liability of Mortgage Borrower under Section 9.4(b)(vi) of the Mortgage Loan Agreement, the liability of any Other Mezzanine Borrower under Section 9.4(b)(vi) of any Other Mezzanine Loan Agreement, the liability of Guarantor under Section 1.2 of the Guaranty with respect to this Section 9.4(b)(vi), the liability of Mortgage Guarantor under Section 1.2 of the Mortgage Guaranty with respect to Section 9.4(b)(vi) of the Mortgage Loan Agreement, and the liability of Other Mezzanine Guarantor under Section 1.2 of each Other Mezzanine Guaranty with respect to Section 9.4(b)(vi) of the related Other Mezzanine Loan Agreement, shall not exceed Ten Million and No/100 Dollars ($10,000,000.00) in the aggregate (it being acknowledged and agreed that this for purposes of this Section 9.4(b)(vi), Lender shall only look to the assets of Borrower and not Mortgage Borrower or Operating Company any Other Mezzanine Borrower, or Guarantor in its capacity as a guarantor under the Mortgage Loan or any Other Mezzanine Loan);
(vii) if Borrower fails to obtain Lender’s prior written consent to any subordinate financing or other voluntary intentional Transfer as required by this AgreementLien encumbering the Collateral, Senior Mezzanine Collateral or the Mortgage Loan Agreement or the MortgagesCollateral, 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 if such security deposits were applied consent is required in accordance with the terms and conditions of any applicable 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) Borrowerif Borrower fails to obtain Lender’s prior written consent to any assignment, 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 Persontransfer, 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 conveyance 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 Loan Collateral or any Guarantor making an assignment interest in a Restricted Party in violation of the negative covenants set forth in Section 5.2.10 hereof; provided however, that a Transfer resulting from the consummation of any enforcement action by the holder of the Mortgage Loan or Other Mezzanine Loan shall not be a violation of Section 5.2.10 which gives rise to personal liability 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 dueBorrower under this Section 9.4;
(ix) a violation of the negative covenants set forth Section 5.2.11(c) hereof; and
(x) if Borrower, Senior Mezzanine Borrower or Mortgage Borrower fails to maintain its status as a Special Purpose Entity by reason of a material breach of Section 4.1.30 hereof, or breaches Mortgage Borrower or any other Mortgage Loan Party fails to maintain its status as a Special Purpose Entity (as defined in the Mortgage Loan Agreement) by reason of a material representation or warranty set forth in breach of Section 4.1.30 of this the Mortgage Loan Agreement or Senior Mezzanine Borrower fails to maintain its status as a Special Purpose Entity (as defined in the Senior Mezzanine Loan Agreement; and
) by reason of a material breach of Section 4.1.30 of the applicable Senior Mezzanine Loan Agreement (xexcept with respect to (A) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company fails to obtain Lender’s prior consent to Mortgage Borrower or any voluntary Indebtedness other Mortgage Loan Party remaining solvent or maintaining adequate capital, (B) in the case of Mortgage Borrower or any other than Mortgage Loan Party, complying with clause (xxxii) of the definition of Special Purpose Entity (as defined in the Mortgage Loan Agreement) with respect to Mortgage Trade Payables, and (C) in the case of Borrower or Senior Mezzanine Borrower, Permitted Indebtedness and complying with clause (yxxii) of the definition of Special Purpose Entity in the applicable Mezzanine Loan Agreement with respect to Operating CompanyIndebtedness, 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 otherwise resulting solely from the Guaranty) nor any present or future shareholderinsufficiency of Rents), officer, director, employee, trustee, beneficiary, advisor, partner, member, principal, participant or agent of or in any Borrower or of or each case to the extent such breach is cited as a factor 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 a substantive consolidation 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 Loan Party into the bankruptcy estate 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 capitalother Person.
(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 Instruments or to require that all collateral 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, Senior Mezzanine Borrower or Mortgage Borrower or any other Mortgage Loan Party filing a voluntary petition under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law, the BIA or the Companies’ Creditors Arrangement Act (Canada) (“CCAA”), (B) the filing of an involuntary petition against Borrower, Senior Mezzanine Borrower or Mortgage Borrower or any other Mortgage Loan Party under the Bankruptcy Code, the BIA, the CCAA or any other Federal or state bankruptcy or insolvency law by any Affiliate of Borrower, or any Affiliate of Borrower, Senior Mezzanine Borrower or Mortgage Borrower or any other Mortgage Loan Party soliciting or causing to be solicited petitioning creditors for any involuntary petition against Borrower, Senior Mezzanine Borrower or Mortgage Borrower or any other Mortgage Loan Party from any Person, (C) Borrower, Senior Mezzanine Borrower or Mortgage Borrower or any other Mortgage Loan Party filing an answer consenting to or joining in any involuntary petition filed against it by any other Person under the Bankruptcy Code, the BIA, the CCAA or any other Federal or state bankruptcy or insolvency law, or colluding with or soliciting or causing to be solicited petitioning creditors for any involuntary petition from any Person, (D) Borrower, Senior Mezzanine Borrower or Mortgage Borrower or any other Mortgage Loan Party consenting to or joining in an application for the appointment of a custodian, receiver, trustee, or examiner for Borrower, Senior Mezzanine Borrower or Mortgage Borrower or any other Mortgage Loan Party or any portion of any Individual Property, (E) Borrower, Senior Mezzanine Borrower or Mortgage Borrower or any other Mortgage Loan Party making an assignment for the benefit of creditors (F) Borrower, Senior Mezzanine Borrower or Mortgage Borrower or any other Mortgage Loan Party seeking substantive consolidation in connection with a proceeding under the Bankruptcy Code, the BIA, the CCAA or under federal, state or foreign insolvency law involving Borrower, Senior Mezzanine Borrower or Mortgage Borrower or any other Mortgage Loan Party, or any respective Affiliate thereof, or (G) (i) the filing of a voluntary petition by IP Owner commencing a case under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law, the BIA or the CCAA, in which any Trademark License Agreement is rejected, (ii) (A) the filing of an involuntary petition against IP Owner commencing a case under the Bankruptcy Code, the CCAA, the BIA or any other Federal or state bankruptcy or insolvency law by any Affiliate of Borrower or Mortgage Borrower or (B) IP Owner or any Affiliate of Borrower or Mortgage Borrower or any other Mortgage Loan Party, soliciting, or causing to be solicited, petitioning creditors for any involuntary petition against IP Owner which results in the commencement of a case under the Bankruptcy Code, the CCAA, the BIA, or any other Federal or state bankruptcy or insolvency law and, in each of (A) and (B) above, in which such Trademark License Agreement is rejected, or (iii) any other filing of an involuntary petition against IP Owner commencing a case under the Bankruptcy Code, the CCAA, the BIA or any other Federal or state bankruptcy or insolvency law in which IP Owner, as debtor in possession (A) affirmatively consents to or affirmatively votes for the rejection of the Trademark License Agreement in any such proceeding or (B) fails to object (where it has the legal right to object) to a motion filed in any such proceeding seeking the rejection of the Trademark License Agreement and, in each of (A) and (B) above, such Trademark License Agreement is rejected.
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 xxx for, seek or demand any deficiency judgment against Borrower in any such action or proceeding under, under or by reason of, of or under or in connection with, with the Note, this Agreement, the Pledge Agreement or the other Loan Documents. The provisions of this Section shall not, however,
, (a) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (b) impair the right of Lender to name Borrower as a party defendant in any action or suit for foreclosure and sale under the Pledge Agreement; (c) affect the validity or enforceability of or any Guaranty guaranty made in connection with the Loan or any of the rights and remedies of Lender thereunder; (d) impair the right of Lender to obtain the appointment of a receiver; (e) intentionally omitted; (f) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted by the Pledge Agreement 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 BorrowerMortgage Borrower 1 Principal, Operating Company Lessee or any Limited Guarantor or 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 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 CollateralLessee;
(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 by Borrower, Mortgage Borrower or Operating Lessee 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 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 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 Philadelphia West Property 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)(xix) hereof.
(viiia) in the event of:
(A) Mortgage Borrower, Mortgage Borrower, Senior Mezzanine BorrowerBorrower 1 Principal, 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, Borrower, Guarantor, Operating Lessee or any Affiliate of an involuntary petition against Borrower, Mortgage Borrower, Senior Mezzanine BorrowerMortgage Borrower 1 Principal, 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 AffiliatesOperating Lessee, agents solicits 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, Mortgage Borrower, Mortgage Borrower 1 Principal, 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
Samples: Mezzanine Loan Agreement (Sunstone Hotel Investors, Inc.)
Exculpation. (a) 26.%2.%3.%4. Subject to the qualifications below, Lender shall not enforce the liability and obligation of Borrower Borrower, Principal or Operating Company 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, Principal or Operating Company, 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 Borrower, Principal or Operating Company only to the extent of Borrower’s, Principal’s or Operating Company’s interest in the Collateral Property, in the Rents and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Pledge Agreement Mortgage and the other Loan Documents, agrees that it shall not xxx for, seek or demand any deficiency judgment against Borrower Borrower, Principal or Operating Company 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 Borrower, Principal or Operating Company (if applicable) 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 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; or (f) constitute a prohibition against Lender to seek a deficiency judgment against Borrower Borrower, Principal or Operating Company (if applicable) in order to fully realize the security granted by the Pledge Agreement Mortgage or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against all of the Collateral; or (g) constitute a waiver of the right of Lender to enforce the liability and obligation of Borrower, by money judgment or otherwise, to the extent of any actual loss, damage, cost, expense, liability, claim or other obligation incurred by Lender (including attorneys’ fees and costs reasonably incurred) arising out of or in connection with 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 capitalProperty.
(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 Notwithstanding any other provision in the Loan Documents to the contrary, but subject to the qualifications below, Lender shall not enforce the liability and obligation of Borrower or Operating Lessee 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 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 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 and Operating Lessee only to the extent of Borrower’s and 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 and the other Loan Documents, agrees that it Lender shall not xxx sxx 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 withwith any Loan Document. In addition, for the avoidance of doubt, in no event shall the Debt or any other liabilities or obligations of Borrower or Operating Lessee be recourse to the Borrower Representative or any Person that directly or indirectly owns any equity interests or otherwise controls any Borrower Representative, or any partner, member, director officer or representative thereof (other than, in each case, the Note, this Agreement, the Pledge Agreement or the other Loan DocumentsGuarantor). 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 Loan Document, except to the Loan Documentsextent Lender has expressly waived in this Section 10.1 the right to sxx Borrower and Operating Lessee for a money judgment; (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 AgreementSecurity Instrument; (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, except to the extent Lender has expressly waived in this Section 10.1 the right to sxx Borrower and Operating Lessee for a money judgment; (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 Security Instrument or to exercise its remedies against all of the Collateralany Individual Property; 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 (iall such liability and obligation of Borrower for any or all of the following being referred to herein as “Borrower’s Recourse Liabilities”): (a) fraud or intentional misrepresentation by Borrower, Mortgage BorrowerOperating Lessee, Senior Mezzanine BorrowerGuarantor, Operating Company any Cindat Entity or any Guarantor Affiliate of the foregoing in connection with the execution and delivery of the Loan Documents and/or the Loan;
; (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, Lessee; (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 the any Loan Document concerning Environmental Indemnity Agreement concerning environmental lawsLaws or Hazardous Substances, hazardous substances including Sections 4.19 and asbestos 5.7, 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 through (xi) of Section 5.18; (d) intentional physical waste of any Individual Property resulting from the event of:
(A) Borrower, Mortgage Borrower, Senior Mezzanine acts or omissions of Borrower, Operating Company or Lessee, Guarantor, 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 Cindat 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 Borrowerthe foregoing or after an Event of Default, the removal or in any other Affiliate of Borrower in any other Affiliate of Borrower, nor any obligation disposal 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 portion of any Borrower (or any other Affiliate Individual Property without the concurrent replacement thereof with property of Borrower) at least equivalent utility and neither Lender nor its successors or assigns shall have any right to collectvalue, enforce or proceed against any unless 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 portion 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.such Individual Property is obsolete 100
Appears in 1 contract
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 xxx 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. (a) Subject to the qualifications below, Lender shall not enforce the liability and obligation of Borrower to perform and observe the obligations Obligations contained in the Note, this Agreement, the Pledge Agreement or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against Borrower, except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender and each Noteholder to enforce and realize upon its interest under the Note, this Agreement, the Pledge Agreement and the other Loan Documents, or in 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 xxx for, seek or demand any deficiency judgment against Borrower in any such action or proceeding under, under or by reason of, of or under or in connection with, with the Note, this Agreement, the Pledge Agreement or the other Loan Documents. The provisions of this Section 10.20 shall not, however,
, (a) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (b) impair the right of Lender to name Borrower as a party defendant in any action or suit for foreclosure and sale under the Pledge Agreement; (c) affect the validity or enforceability of any of the Loan Documents or any Guaranty guaranty made in connection with the Loan or any of the rights and remedies of Lender thereunder; (d) impair the right of Lender to obtain the appointment of a 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 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, diminution in value, expense, liability, claim or other obligation incurred by Lender (including attorneys’ fees and costs reasonably incurred, but specifically excluding any special, exemplary, punitive, treble or consequential damages except to the extent the same are actually incurred by Lender to a third party) arising out of or in connection with the following:96 Mezzanine Loan Agreement 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 material misrepresentation, willful misconduct or willful failure to disclose a material fact (related to the Property or the Collateral, and but for the failure to disclose Lender would not have made the Loan) by Borrower, Mortgage any Senior Borrower, Senior Mezzanine BorrowerGuarantor, Operating Company any Affiliate of Borrower 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 or the Mortgage concerning environmental laws, laws or hazardous substances and asbestos and any indemnification of Lender with respect thereto in this Agreement or in either documentof said documents;
(iii) intentional physical waste of any Individual Property by Borrower, any Senior Borrower, Guarantor or any Affiliate of Borrower or Guarantor;
(iv) the misapplication or conversion by Borrower, any Senior Borrower, Guarantor or any Affiliate of Borrower, any Senior Borrower or Guarantor, in contravention of the Loan Documents, of (A) any Insurance Proceeds paid by reason of any loss, damage or destruction to any Individual Property, (B) any Awards or other amounts received in connection with the Condemnation of all or a portion of any Individual Property, or (C) any Gross Revenue (including security deposits, advance deposits or any other deposits and Lease Termination Payments (as defined in the Senior Loan Agreement) in contravention of the Loan Documents);
(v) all Gross Revenue of the Property received or collected by or on behalf of Borrower or any Affiliate during the continuance of an Event of Default and not applied as required by the Loan Documents (except to the extent that such application of such funds is prevented by bankruptcy, receivership, or similar judicial proceeding in which Borrower or Senior Borrower is legally prevented from directing the disbursement of such sums);
(vi) if Borrower’s or any Senior Borrower’s failure to pay charges for labor or materials or other charges which result in Liens (excluding Taxes) on any portion of any Individual Property to the extent such Liens are not bonded over or discharged in accordance with the Loan Documents, Mortgage Borrowerto the extent Net Operating Income, after payment of Debt Service, is sufficient to pay such charges; provided, that, Borrower shall not be liable to the extent funds to pay such amounts are being held in escrow by Senior Mezzanine Borrower or Operating Company fails Lender pursuant to obtain Lender’s prior consent the Senior Loan Documents for the purposes of paying for such labor, materials and other charges and Senior Lender failed to any voluntary intentional Transfer as required by this Agreement, pay same in violation of the Mortgage Senior 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 Individual Property which are not delivered to Mortgage Senior Lender upon after a foreclosure of any of the Properties or action a deed in lieu thereof, except to the extent any such security deposits were applied thereof as required 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 thereof;Senior Loan Documents; 97 Mezzanine Loan Agreement
(viii) the failure to pay Taxes or obtain and maintain the fully paid for Policies in accordance with the event of:
Loan Documents, to the extent Net Operating Income, after payment of Debt Service, is sufficient to pay such charges, provided that Borrower shall not be liable (A1) Borrower, Mortgage Borrower, to the extent funds to pay such amounts are being held in escrow by Senior Mezzanine Borrower, Operating Company or any Guarantor filing a voluntary petition under Lender pursuant to the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (B) Senior Loan Documents for the filing purpose of an involuntary petition against Borrower, Mortgage Borrower, paying such Taxes and Senior Mezzanine Borrower, Operating Company or any Guarantor under Lender failed to pay same in violation 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 PersonLoan Documents, or Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company (2) for Taxes which accrue after a receiver is appointed or any Guarantor soliciting after Lender takes title to the Collateral by foreclosure 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 assignment 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 lieu 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 dueforeclosure;
(ix) if Borrower, any Senior Mezzanine Borrower or Mortgage Guarantor or any Affiliate of Borrower, any Senior Borrower fails or Guarantor raises defenses to maintain its status as Lender’s pursuit of any remedies under the Loan Documents which defenses are found by a Special Purpose Entity or breaches court of competent jurisdiction to be without merit and raised in bad faith;
(x) any material representation or warranty breach of the covenants set forth in Section 4.1.30 of this Agreement; and4.4 hereof (other than a breach that constitutes a Springing Recourse Event);
(xxi) if Borrowerexcept to the extent such failure results in a Springing Recourse Event, 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) Transfer of any direct or voluntary Lien (other than Permitted Encumbrances) encumbering indirect equity interest in Borrower or any of the Properties, Senior Mezzanine Collateral or Collateral Borrower as required by this Agreement, the Senior Mezzanine Loan Agreement, the Mortgage Loan Agreement, the Pledge Agreement or this Agreement other than a Permitted Transfer; and/or
(xii) any amendment, modification, cancellation or termination of the Mortgages. Notwithstanding anything 350 X. Xxxxxxxx Property Documents which is consented to, agreed to or voted for by Borrower or any Senior Borrower, in each case, in violation of the contrary under terms of 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
Samples: Mezzanine Loan Agreement (Brookfield DTLA Fund Office Trust Investor 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 xxx for, seek or demand any deficiency judgment against Borrower in any such action or proceeding under, or by reason of, or in connection with, the Note, this Agreement, the Pledge Agreement or the other Loan Documents. The provisions of this Section shall not, however,
, (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 the Guaranty or any Guaranty made in connection with the Loan Environmental Indemnity or any of the rights and remedies of Lender thereunder; (d4) impair the right of Lender to obtain the appointment of a receiver; (e) intentionally omitted; (f5) 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 (g6) constitute a waiver of the right of Lender to enforce the liability and obligation of Borrower, by money judgment or otherwise, to the extent of any actual loss, damage, cost, expense, liability, claim or other obligation incurred by Lender (including attorneys’ fees fees, costs and costs expenses reasonably incurred) arising out of or in connection with the following:
(i) fraud or intentional misrepresentation by Borrower, Mortgage Borrower, Senior Mezzanine Borrowerany Mortgage SPE Constituent Entity, Operating Company any SPE Constituent Entity, Guarantor or any Guarantor of their respective Affiliates 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 Mortgage Borrower, any Mortgage SPE Constituent Entity, any SPE Constituent Entity, or misapplication in contravention Guarantor;
(iii) the failure to return, or to reimburse Lender for, all Personal Property removed from any Individual Property by or on behalf of Mortgage Borrower or Borrower and not replaced with Personal Property of the Loan Documents same utility and of the same or greater value;
(iv) material physical waste of any Individual Property by Mortgage Borrower or Borrower;
(v) the removal or disposal of any portion of any Individual Property during the continuance of an Event of Default;
(vi) the misapplication or conversion by Borrower, Mortgage Borrower, Senior Junior Mezzanine Borrower, Operating Company any SPE Constituent Entity, any Mortgage SPE Constituent Entity, any Junior Mezzanine SPE Constituent Entity, 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 Casualty or proceeds of the EIL 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;
advance or (ivE) 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 applicableNet Liquidation Proceeds After Debt Service;
(vii) any distribution made in violation of Section 5.2.13;
(viii) failure to pay charges for labor or materials or other charges or judgments that can create Liens on any portion of any Individual Property to the extent that Mortgage Borrower has sufficient revenue from such Individual Property with which to make such payment;
(ix) 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 (A) the terms of the Mortgage Loan Agreement or (B) 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 the event of:
(A) failure by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company any Mortgage SPE Constituent Entity or any Guarantor filing a voluntary petition under the Bankruptcy Code or SPE Constituent Entity to comply with 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 covenant set forth in Section 4.1.30 51.32 hereof (other than to the extent relating to a failure of this AgreementMortgage Borrower to comply, on a prospective basis only, with clause (xii) of the definition of Special Purpose Entity in Section 1.1 of the Mortgage Loan Agreement or of Borrower to comply, on a prospective basis only, with clause (xii) of the definition of Special Purpose Entity in Section 1.1 hereof); and
(xxi) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower (A) the termination 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 cancellation of any Borrower shall have any personal liability, directly Ground Lease or indirectly, under or in connection with the Loan Documents. Neither the negative capital account surrender of any Affiliate of Borrower in Borrower, Ground Lease Property for any reason or in under any other Affiliate of Borrower in circumstances whatsoever or (B) any other Affiliate of Borrower, nor any obligation of any Affiliate of Borrower in any failure by Borrower to restore a negative capital account or to contribute or loan capital to comply with 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 capitalcovenant set forth in Section 5.2.17.
(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 Pledge Agreement or to require that all collateral 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, Mortgage Borrower, any Mortgage SPE Constituent Entity or any SPE Constituent Entity filing a voluntary petition under the Bankruptcy Code; (b) the filing of an involuntary petition against Borrower, Mortgage Borrower, any Mortgage SPE Constituent Entity or any SPE Constituent Entity under the Bankruptcy Code in which Borrower, Mortgage Borrower, any Mortgage SPE Constituent Entity, any SPE Constituent Entity or Guarantor colludes with, or otherwise assists such Person, or solicits or causes to be solicited petitioning creditors for any involuntary petition against Borrower, Mortgage Borrower, any Mortgage SPE Constituent Entity or any SPE Constituent Entity; (c) Borrower, Mortgage Borrower, any Mortgage SPE Constituent Entity or any SPE Constituent Entity 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; (d) Borrower, Mortgage Borrower, any Mortgage SPE Constituent Entity or any SPE Constituent Entity consenting to or acquiescing in or joining in an application for the appointment of a custodian, receiver, trustee, or examiner for Borrower, Mortgage Borrower, any Mortgage SPE Constituent Entity or any SPE Constituent Entity or any Individual Property (or any portion thereof) or the Collateral (or any portion thereof); (e) Borrower, Mortgage Borrower, any Mortgage SPE Constituent Entity or any SPE Constituent Entity 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 (A) Borrower encumbers the Collateral (or causes the Collateral to be encumbered) by any Lien (other than any Lien that is expressly permitted by this Agreement) or (B) Mortgage Borrower encumbers any Individual Property (or causes any Individual Property to be encumbered) by any Lien (other than Permitted Encumbrances), in either case, without Lender’s prior written consent; or (iii) if Borrower fails to obtain Lender’s prior written consent to any Transfer in any case in which such consent is required to be obtained pursuant to Section 5.2.10 hereof.
Appears in 1 contract
Samples: Senior Mezzanine Loan Agreement (Brixmor Property Group Inc.)
Exculpation. (a) Subject to the qualifications below, Lender shall not enforce the liability and obligation of Borrower to perform and observe the obligations contained in the this Note, this Agreement, the Pledge Agreement Mortgage or in any of the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against Borrower (or any Member of Borrower), except that Lender may bring a foreclosure action, a trustee's sale, a non-judicial foreclosure, an action for specific performance performance, or any other appropriate action or proceeding to enable Lender and each Noteholder to enforce and realize upon its interest under interests in the Note, this AgreementMortgaged Property, the Pledge Agreement and the other Loan Documents, or in the CollateralRents, or any other collateral given to Lender pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower’s 's interest in the Collateral Mortgaged 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 Mortgage and the other Loan Documents, Lxxxxx agrees that it shall not xxx except as otherwise herein provided, sue for, seek or demand any deficiency judgment against Borrower (or any Member of 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 Mortgage 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 AgreementMortgage; (c) affect the validity or enforceability of the Guaranty or any Guaranty other guaranty or indemnity made in connection with the Gxxxxxx Sxxxx Commercial Mortga Capital Mortgage Note Hartford Aurora Healthcare Clinic 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, but only to the extent of any actual loss, damage, cost, expense, liability, claim or other obligation Losses (defined below) incurred by Lender (including attorneys’ fees and costs reasonably incurred) Lxxxxx arising out of or in connection with the following:
(i) fraud fraud, material misrepresentation or intentional misrepresentation willful misconduct by Borrower, Mortgage Borrowerany of its pat tilers, Senior Mezzanine Borrowerofficers, Operating Company principals, or any members, or Guarantor in connection with the execution and delivery of the Loan Documents and/or the Loan;
(ii) physical waste committed on the misappropriationMortgaged Property by Borrower (including physical waste resulting from mold, conversion mildew, fungus, mushroom, spores or misapplication other microorganism of any type); damage to the Mortgaged Property as a result of the intentional misconduct or gross negligence of Borrower, any of its principals, officers, shareholders, partners or members, or any agent or employee of any such persons; or the removal of any portion of the Mortgaged Property by Borrower, any of its principals, officers, shareholders, partners or members, or any agent or employee of any such persons 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 while an Event of Default, or (E) any distribution or other payments made in connection with any part of the Collateral or Senior Mezzanine CollateralDefault exists;
(iii) the misappropriation, conversion or misapplication by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor subject to Bxxxxxxx's right to contest as provided for in Paragraph 29 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 and Axxxxx's rights to contest under of the Aurora Lease, failure to pay any valid Taxes, mechanic's liens, materialmen's liens or other liens on any portion of the MortgagesMortgaged Property which would be superior to the lien of the Mortgage, as applicable;
(vii) to the full extent of the amount lawfully claimed by any security depositssuch lien claimant, advance deposits but only to the extent the same was assessed or any other deposits collected incurred with respect to any the Mortgaged Property (regardless of the Properties date on 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 lien therefore attaches) prior to the occurrence of the Event of Default that gave rise to such foreclosure or action in lieu thereof;
date (viiix) 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 receiver appointed at the request of Lender; Lxxxxx holds possession (to the exclusion of Borrower) of the Mortgaged Property 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 after Lender or its successors or assigns take possession (to Operating Companythe exclusion of Borrower) of the Mortgaged Property pursuant to any foreclosure, Permitted Indebtedness conveyance in lieu of foreclosure, or other transfer of title to (Operating Company), as applicableor possession of) the Mortgaged Property to any of such parties; provided that if Borrower's failure to make required payments into the Tax and Insurance Impound (when and if such deposits are required by the Mortgage) or voluntary Lien otherwise to pay such Taxes and other liens is due solely to insufficient net cash flow (i.e., actual gross revenues derived from the Mortgaged Property less actual regular payments made by Borrower on the Note and other than Permitted Encumbrances) encumbering any of the PropertiesLoan Documents and all other actual normal, Senior Mezzanine Collateral or Collateral as required reasonable and ordinary operating expenses made 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 Mortgaged Property) derived from the negative capital account Mortgaged Property during the Look Back Period (defined below), Borrower's liability for unpaid Taxes and other liens under this clause (iii) shall be limited to the sum of any Affiliate (x) the amount, if any, of Borrower in Borrower, the revenues derived from the Mortgaged Property that were distributed 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 paid at any time be deemed during the Look Back Period to be the property any person owning a direct 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 indirect Gxxxxxx Sxxxx Commercial Mortga Capital Mortgage 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.Hartford Aurora Healthcare Clinic
Appears in 1 contract
Samples: Mortgage Note (American Realty Capital Healthcare Trust Inc)
Exculpation. (a) Subject to the qualifications below, Lender shall not enforce the liability liabilities and obligation obligations of Borrower to perform and observe the obligations contained in the Note, this Agreement, the Pledge Agreement Security Instrument or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against Borrower, except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender and each Noteholder to enforce and realize upon its interest under the Note, this Agreement, the Pledge Agreement Security Instrument and the other Loan Documents, or in the CollateralProperty, the Rents, or any other collateral given to Lender pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower’s interest in the Collateral Property, in the Rents and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Pledge Agreement Security Instrument and the other Loan Documents, agrees that it shall not xxx sxx for, seek or demand any deficiency judgment against Borrower in any such action or proceeding under, 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 Environmental Indemnity 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; 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:following (“Losses”):
(i) fraud or intentional misrepresentation by or on behalf of Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company Guarantor or any Guarantor Affiliate of any of them in connection with the execution and delivery of Loan or the Loan Documents and/or the LoanProperty;
(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 BorrowerGuarantor, Mortgage Borrower or Operating Company, including, without limitation, (A) any Revenues, (B) Affiliate of any Net Liquidation Proceeds or Insurance Proceeds, (C) any Awards received of them 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 CollateralProperty;
(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, the Loan Agreement or the Security Instrument concerning environmental lawsEnvironmental Statutes or Hazardous Substances;
(iv) active, hazardous substances intentional material physical waste of the Property or any portion thereof by Borrower, Guarantor, or any Affiliate of any of them;
(v) intentional removal or disposal of any portion of the Property during the continuance of an Event of Default which is not promptly replaced with property of comparable utility and asbestos and any indemnification of Lender with respect thereto in either documentvalue;
(vi) if 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, Mortgage Borrower, Senior Mezzanine Borrower Guarantor or Operating Company fails to obtain Lender’s prior consent to any voluntary intentional Transfer as required by this Agreement, the Mortgage Loan Agreement Restricted Party or the Mortgages, as applicableany Affiliate of any of them in connection therewith;
(vii) intentionally omitted;
(viii) misapplication, misappropriation or conversion by or on behalf of Borrower, Guarantor, or any Affiliate of any of them of (A) any insurance proceeds, (B) any Awards, (C) any Rents, (D) any Rents paid more than one (1) month in advance, or (E) any other monetary collateral for the Loan;
(ix) failure to pay charges for Taxes, Other Charges, labor or materials or judgments that can create Liens on any portion of the Property, unless (1) such charges are the subject of a bona fide dispute in which Borrower is contesting the amount or validity thereof in accordance with Section 5.1.2, in a manner which prevents any interest or penalties from accruing, or any Lien from attaching, (2) with respect to Taxes, sufficient funds to pay such charges are available in the Tax and Insurance Escrow Account and Lender fails to pay same or (3) there is insufficient Rents to pay same;
(x) failure 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 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;
(viiixi) failure by Borrower to obtain and maintain, from time to time, the fully paid for insurance policies in accordance with the terms hereof unless (1) sufficient funds to pay such amounts are available in the event of:Tax and Insurance Escrow Account and Lender fails to pay same or (2) there is insufficient Rents to pay same;
(xii) an act or omission of any of Borrower, Principal or Guarantor, or any Affiliate of any of them which hinders, delays or interferes with Lender’s enforcement of its rights under any Loan Document or the realization of the collateral, including the assertion by Borrower, Principal or Guarantor, or any Affiliate of any of them of defenses or counterclaims, in each case, other than good faith defenses and compulsory counterclaims;
(xiii) Borrower’s indemnifications of Lender set forth in Section 9.2 of this Agreement;
(xiv) intentionally omitted;
(xv) failure by Borrower or License Holder to (A) comply with its obligations in all material respects pursuant to the Liquor License Cooperation Agreement or a loss of the Liquor License as a result of (x) any act or omission (to the extent such omission is in the reasonable control of License Holder, Borrower or their respective Affiliates) of License Holder, Borrower or any Affiliate thereof, or (y) the conduct of criminal activity by License Holder, Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or Guarantor or any Guarantor filing a voluntary petition under Affiliate of any of the Bankruptcy Code them, or any other Federal or state bankruptcy or insolvency law; (B) cooperate with Lender or Lender’s designee during the filing continuance of an involuntary petition against BorrowerEvent of Default after notice from Lender, Mortgage Borrowerin making application to the License Authority to transfer the Liquor License and inventory of beer, Senior Mezzanine Borrowerwine, Operating Company and distilled spirits that is subject to the Liquor License or any Guarantor under take such action as may be necessary to transfer the Bankruptcy Code Liquor License to Lender or any other Federal or state bankruptcy or insolvency law its designee upon Lender’s written request therefor, to the extent permitted 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 Personapplicable law, or Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor soliciting or causing continue 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 hold 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 Liquor License for the benefit of creditors Lender (other than for a reasonable period of time pursuant to a customary interim beverage agreement reasonably acceptable to Lender), or admitting, ) until such time as Lender can obtain a liquor license for the Property in writing or in any legal proceeding, the name of its insolvency or inability to pay its debts as they become due;nominee; or
(ixxvi) if Borrowerexcept as set forth in clause (c)(x) below, Senior Mezzanine Borrower or Mortgage Borrower fails Principal failing to comply with any representation, warranty or covenant set forth in Section 4.1.30 hereof or failing to maintain its status as a Special Purpose Entity, as required by, and in accordance with, the terms and provisions of this Agreement or the Security Instrument, including, without limitation, the breach of the covenant in Section 5.2.12 to provide thirty (30) days’ prior written notice prior to the removal of an Independent Director, or the breach of any Backward-Looking Special Purpose Entity or breaches any material representation or warranty Representations and Warranties 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 capital4.1.30.
(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 entire amount of the Debt in the event of:
(i) Borrower, Principal or Guarantor 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 Borrower, Principal or Guarantor under the Bankruptcy Code or any other federal or state bankruptcy or insolvency law, by any Person that is an Affiliate of Borrower, Principal or Guarantor;
(iii) Borrower, Principal or Guarantor consenting to or otherwise or joining in an any involuntary petition filed against it, by any other Person under the Bankruptcy Code or any other federal or state bankruptcy or insolvency law;
(iv) Borrower, Principal or Guarantor consenting to or otherwise or joining in an application for the appointment of a custodian, receiver, trustee or examiner for Borrower or any portion of the Property (other than an application by Lender in connection with the enforcement of Lender’s remedies under the Loan Documents);
(v) Borrower, Principal or Guarantor or any Affiliate of any of them soliciting or causing to be solicited petitioning creditors or any other Person for any involuntary petition against Borrower, Principal or Guarantor by any Person (other than by Lender in connection with the exercise of Lender’s remedies under the Loan Documents);
(vi) Borrower, Principal 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 (other than merely Borrower’s inability to repay or as a result of Borrower’s mere failure to repay, in either case, the Debt on the Maturity Date);
(vii) Borrower or Principal failing to obtain Lender’s prior written consent to any subordinate financing (to the extent such consent is required hereunder);
(viii) Borrower encumbers the Property, the Collateral or any portion thereof with a voluntary Lien, in each instance, other than in accordance with the terms of the Loan Documents;
(ix) Borrower or Principal failing to obtain Lender’s prior written consent to any Transfer, as required by this Agreement or the other Loan Documents; or
(x) Borrower or Principal failing to comply with any representation, warranty or covenant set forth in Section 4.1.30 hereof or failing to maintain its status as a Special Purpose Entity, as required by, and in accordance with, the terms and provisions of this Agreement or the Security Instrument, including, without limitation, the breach of the covenant in Section 5.2.12 to provide thirty (30) days’ prior written notice prior to the removal of an Independent Director, or the breach of any Backward-Looking Special Purpose Entity Representations and Warranties set forth in Section 4.1.30; provided that such failure to comply or breach results in a substantive consolidation of either Borrower or either Principal with any other Person in any federal or state bankruptcy proceeding.
Appears in 1 contract
Samples: Loan Agreement (Lightstone Value Plus Real Estate Investment Trust V, Inc.)
Exculpation. 20.1 Notwithstanding any contrary provision hereof, (a) Subject the liability of the Landlord Parties to Tenant shall be limited to an amount equal to the qualifications below, Lender shall not enforce the liability and obligation lesser of Borrower to perform and observe the obligations contained (i) Landlord’s interest in the NoteBuilding, this Agreementor (ii) the equity interest Landlord would have in the Building if the Building were encumbered by third-party debt in an amount equal to 80% of the value of the Building (as such value is determined by Landlord); (b) Tenant shall look solely to Landlord’s interest in the Building for the recovery of any judgment or award against any Landlord Party; (c) no Landlord Party shall have any personal liability for any judgment or deficiency, the Pledge Agreement and Tenant waives and releases such personal liability on behalf of itself and all parties claiming by, through or the other Loan Documents by any action or proceeding wherein a money judgment under Tenant; and (d) no Landlord Party shall be sought against Borrower, except that Lender may bring a foreclosure action, an action liable for specific performance any injury 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 Documentsdamage to, or interference with, Xxxxxx’s business, including loss of profits, loss of rents or other revenues, loss of business opportunity, loss of goodwill or loss of use, or for any form of special or consequential damage. For purposes of this Section 20, “Landlord’s interest in the CollateralBuilding” shall include rents paid by tenants, or any other collateral given to Lender pursuant to insurance proceeds, condemnation proceeds, and proceeds from the Loan Documentssale of the Building (collectively, “Owner Proceeds”); provided, however, thatthat Tenant shall not be entitled to recover Owner Proceeds from any Landlord Party (other than Landlord) or any other third party after they have been distributed or paid to such party; provided further, except however, that nothing in this sentence shall diminish any right Tenant may have under Law, as specifically provided hereina creditor of Landlord, to initiate or participate in an action to recover Owner Proceeds from a third party on the grounds that such third party obtained such Owner Proceeds when Landlord was, or could reasonably be expected to become, insolvent or in a transfer that was preferential or fraudulent as to Landlord’s creditors.
20.2 Notwithstanding any judgment in any such action or proceeding contrary provision hereof, no Tenant Party shall be enforceable against Borrower only to the extent liable for any form of Borrower’s interest in the Collateral and in any other collateral given to Lenderspecial or consequential damages; provided, and Lenderhowever, by accepting the Note, this Agreement, the Pledge Agreement and the other Loan Documents, agrees that it shall not xxx for, seek or demand any deficiency judgment against Borrower in any such action or proceeding under, or by reason of, or in connection with, the Note, this Agreement, the Pledge Agreement or the other Loan Documents. The provisions for purposes of this Section shall not20.2, 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 New Tenant Damages shall not be deemed to have waived any right which Lender may have under Section 506(a), 506(b), 1111(b) special 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 Documentsconsequential damages.
Appears in 1 contract
Samples: Office Lease (ServiceTitan, Inc.)
