Exculpation. (a) Subject to the qualifications below, Lender shall not enforce the liability and obligation of Borrower to perform and observe the obligations contained in the Note, this Agreement, the Security Instrument or the other Loan Documents by any action or proceeding wherein a money judgment or any deficiency judgment or other judgment establishing personal liability shall be sought against Borrower or any principal, director, officer, employee, beneficiary, shareholder, partner, member, trustee, agent, or Affiliate of Borrower or any legal representatives, successors or assigns of any of the foregoing (collectively, the “Exculpated Parties”), except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender to enforce and realize upon its interest under the Note, this Agreement, the Security Instrument and the other Loan Documents, or in the 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 Property, in the Rents and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Security Instrument and the other Loan Documents, shall not xxx for, seek or demand any deficiency judgment against Borrower or any of the Exculpated Parties in any such action or proceeding under or by reason of or under or in connection with the Note, this Agreement, the Security Instrument or the other Loan Documents. The provisions of this Section shall not, however, (1) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (2) impair the right of Lender to name Borrower as a party defendant in any action or suit for foreclosure and sale under the Security Instrument; (3) affect the validity or enforceability of any indemnity, guaranty or similar instrument (including, without limitation, indemnities set forth in Article 12 hereof, Section 11.2 hereof, in the Guaranty and the Environmental Indemnity) made in connection with the Loan or any of the rights and remedies of Lender thereunder (including, without limitation, Lender’s right to enforce said rights and remedies against Borrower and/or Guarantor (as applicable) personally and without the effect of the exculpatory provisions of this Article 13); (4) impair the rights of Lender to (A) obtain the appointment of a receiver and/or (B) enforce its rights and remedies provided in Articles 8 and 9 hereof; (5) impair the enforcement of the assignment of leases and rents contained in the Security Instrument and in any other Loan Documents; (6) impair the right of Lender to enforce Section 4.12(e) of this Agreement; (7) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted by the Security Instrument or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against the Property; or (8) constitute a waiver of the right of Lender to enforce the liability and obligation of Borrower, by money judgment or otherwise, to the extent of any Loss incurred by Lender (including attorneys’ fees and costs reasonably incurred) arising out of or in connection with the following: (i) fraud or intentional misrepresentation by any Borrower Party in connection with the Loan; (ii) the gross negligence or willful misconduct of any Borrower Party; (iii) any litigation or other legal proceeding related to the Debt filed by any Borrower Party 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 other Loan Documents; (iv) waste to the Property caused by the intentional acts or intentional omissions of any Borrower Party and/or the removal or disposal of any portion of the Property after an Event of Default; (v) the misapplication, misappropriation or conversion by any Borrower Party 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 Rents following an Event of Default or (D) any Tenant security deposits or Rents collected in advance; (vi) any act of arson by any Borrower Party or of which any Borrower Party has knowledge; (vii) failure to pay Taxes, charges for labor or materials or other charges that can create liens on any portion of the Property in accordance with the terms and provisions hereof; (viii) failure to pay Insurance Premiums, to maintain the Policies in full force and effect and/or to provide Lender evidence of the same, in each case, as expressly provided herein; (ix) any security deposits, advance deposits or any other deposits collected with respect to the Property which are not delivered to Lender upon a foreclosure of the 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; (x) any tax on the making and/or recording of the Security Instrument, the Note or any of the other Loan Documents or any transfer or similar taxes (whether due upon the making of the same or upon Lender’s exercise of its remedies under the Loan Documents), but excluding any income, franchise or other similar taxes; (xi) the seizure or forfeiture of the Property, or any portion thereof, or Borrower’s interest therein, resulting from criminal wrongdoing by any Borrower Party; (xii) the failure to make any Condemnation Payment and/or any Balancing Payment, to permit on-site inspections of the Property and/or to provide the Required Financial Items, in each case, as and when required herein; (xiii) Intentionally Omitted; (xiv) the failure to make repairs, renewals or replacements (including, without limitation, structural and nonstructural, exterior and interior, ordinary and extraordinary, foreseen and unforeseen) to the Property or any portion thereof (including, without limitation, the Improvements now or at any time hereafter erected on the Property) as and when required pursuant to the terms of the Loan Documents or as and when necessary to maintain the Property in good and safe condition, in a rentable and tenantable state of repair and/or in the condition required pursuant to the terms of the Loan Documents; and/or (xv) any indemnity obligations of Lender to Bank under the Restricted Account Agreement (other than those arising as a direct result of Lender’s gross negligence or willful misconduct). (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 Debt or to require that all collateral shall continue to secure all of the Debt owing to Lender in accordance with the Loan Documents, and (B) the Debt shall be fully recourse to Borrower in the event that: (i) the first full monthly payment of principal and interest under the Note is not paid when due; (ii) Borrower fails to comply with any provisions hereof relating to cash management or fails to appoint a new property manager upon the request of Lender, fails to cooperate with any New Manager or fails to comply with any limitations on instructing the property manager, each as required by and in accordance with, as applicable, the terms and provisions of, this Agreement, the Assignment of Management Agreement and the Security Instrument; (iii) any representation, warranty or covenant contained in Article 5 or Article 6 hereof is violated or breached; (iv) a Bankruptcy Event occurs; or (v) Sections 11.1 or 11.6 hereof are violated or breached in any material respect.
Appears in 4 contracts
Samples: Loan Agreement (Independence Realty Trust, Inc), Loan Agreement (Independence Realty Trust, Inc), Loan Agreement (Independence Realty Trust, Inc)
Exculpation. (a) Subject to the qualifications belowExcept as otherwise provided herein, Lender shall not enforce the liability and obligation of Borrower to perform and observe the obligations contained herein or in the Note, this Agreement, the Security Instrument or the other Loan Documents by any action or proceeding wherein a money judgment or any deficiency judgment or other judgment establishing personal liability shall be sought against Borrower or any principal, director, officer, employee, beneficiary, shareholder, partner, member, trustee, agent, or Affiliate of Borrower or any legal representatives, successors or assigns of any of the foregoing (collectively, the “Exculpated Parties”)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 to enforce and realize upon its interest under the Note, this Agreement, the Security Instrument Note, the Pledge Agreement and the other Loan Documents, or and the interest in the Property, the Rents, 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 Property, in the Rents Collateral and in any other collateral given to Lender, and . Lender, by accepting the Note, this Agreement, the Security Instrument Note, 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 any of the Exculpated Parties in any such action or proceeding proceeding, under or by reason of or under or in connection with the Note, this Agreement, the Security Instrument Note, the Pledge Agreement or the other Loan Documents. The provisions of this Section 15.1 shall not, however, (1i) 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; (2ii) 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 Security InstrumentPledge Agreement; (3iii) affect the validity or enforceability of any indemnityindemnity (including those contained in the Guaranty, guaranty Environmental Indemnity, Section 13.6 and Article XIV of this Agreement), guaranty, master lease or similar instrument (including, without limitation, indemnities set forth in Article 12 hereof, Section 11.2 hereof, in the Guaranty and the Environmental Indemnity) made in connection with this Agreement, the Note, the Pledge Agreement and the other Loan or any of the rights and remedies of Lender thereunder (including, without limitation, Lender’s right to enforce said rights and remedies against Borrower and/or Guarantor (as applicable) personally and without the effect of the exculpatory provisions of this Article 13)Documents; (4iv) impair the rights right of Lender to (A) obtain the appointment of a receiver and/or (B) enforce its rights and remedies provided in Articles 8 and 9 hereofreceiver; (5v) impair the enforcement of the assignment of leases and rents provisions contained in the Security Instrument and in any other Loan DocumentsPledge Agreement; or (6vi) impair the right of Lender to enforce Section 4.12(e) of obtain a deficiency judgment or other 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; (7) constitute a prohibition against provided however, Lender to seek a deficiency shall only enforce such judgment against Borrower in order to fully realize the security granted by the Security Instrument or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against the Property; or (8) constitute a waiver of the right of Lender to enforce the liability and obligation of Borrower, by money judgment or otherwise, to the extent of any Loss incurred by Lender (including attorneys’ fees and costs reasonably incurred) arising out of or in connection with the following:
(i) fraud or intentional misrepresentation by any Borrower Party in connection with the Loan;
(ii) the gross negligence or willful misconduct of any Borrower Party;
(iii) any litigation or other legal proceeding related to the Debt filed by any Borrower Party 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 other Loan Documents;
(iv) waste to the Property caused by the intentional acts or intentional omissions of any Borrower Party Insurance Proceeds and/or the removal or disposal of any portion of the Property after an Event of Default;
(v) the misapplication, misappropriation or conversion by any Borrower Party 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 Rents following an Event of Default or (D) any Tenant security deposits or Rents collected in advance;
(vi) any act of arson by any Borrower Party or of which any Borrower Party has knowledge;
(vii) failure to pay Taxes, charges for labor or materials or other charges that can create liens on any portion of the Property in accordance with the terms and provisions hereof;
(viii) failure to pay Insurance Premiums, to maintain the Policies in full force and effect and/or to provide Lender evidence of the same, in each case, as expressly provided herein;
(ix) any security deposits, advance deposits or any other deposits collected with respect to the Property which are not delivered to Lender upon a foreclosure of the 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;
(x) any tax on the making and/or recording of the Security Instrument, the Note or any of the other Loan Documents or any transfer or similar taxes (whether due upon the making of the same or upon Lender’s exercise of its remedies under the Loan Documents), but excluding any income, franchise or other similar taxes;
(xi) the seizure or forfeiture of the Property, or any portion thereof, or Borrower’s interest therein, resulting from criminal wrongdoing by any Borrower Party;
(xii) the failure to make any Condemnation Payment and/or any Balancing Payment, to permit on-site inspections of the Property and/or to provide the Required Financial Items, in each case, as and when required herein;
(xiii) Intentionally Omitted;
(xiv) the failure to make repairs, renewals or replacements (including, without limitation, structural and nonstructural, exterior and interior, ordinary and extraordinary, foreseen and unforeseen) to the Property or any portion thereof (including, without limitation, the Improvements now or at any time hereafter erected on the Property) as and when required pursuant to the terms of the Loan Documents or as and when necessary to maintain the Property in good and safe condition, in a rentable and tenantable state of repair and/or in the condition required pursuant to the terms of the Loan Documents; and/or
(xv) any indemnity obligations of Lender to Bank under the Restricted Account Agreement (other than those arising as a direct result of Lender’s gross negligence or willful misconduct)Awards.
(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 Debt or to require that all collateral shall continue to secure all of the Debt owing to Lender in accordance with the Loan Documents, and (B) the Debt shall be fully recourse to Borrower in the event that: (i) the first full monthly payment of principal and interest under the Note is not paid when due; (ii) Borrower fails to comply with any provisions hereof relating to cash management or fails to appoint a new property manager upon the request of Lender, fails to cooperate with any New Manager or fails to comply with any limitations on instructing the property manager, each as required by and in accordance with, as applicable, the terms and provisions of, this Agreement, the Assignment of Management Agreement and the Security Instrument; (iii) any representation, warranty or covenant contained in Article 5 or Article 6 hereof is violated or breached; (iv) a Bankruptcy Event occurs; or (v) Sections 11.1 or 11.6 hereof are violated or breached in any material respect.
Appears in 4 contracts
Samples: Mezzanine Loan Agreement (Ashford Hospitality Trust Inc), Mezzanine Loan Agreement (Ashford Hospitality Trust Inc), Mezzanine Loan Agreement (Ashford Hospitality Trust Inc)
Exculpation. No Manager, Officer, Member, Affiliate of a Member, any of their respective direct or indirect officers, directors, equityholders, employees or managers or any liquidating trustee or fiduciary of the Company (aeach a “Covered Person”) Subject shall be liable to the qualifications below, Lender shall not enforce the liability and obligation of Borrower to perform and observe the obligations contained in the Note, this Agreement, the Security Instrument or the other Loan Documents by any action or proceeding wherein a money judgment Company or any deficiency judgment or other judgment establishing personal liability shall be sought against Borrower or Member under any principaltheory of law, directorincluding tort, officer, employee, beneficiary, shareholder, partner, member, trustee, agent, or Affiliate of Borrower or any legal representatives, successors or assigns of any of the foregoing (collectively, the “Exculpated Parties”), except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender to enforce and realize upon its interest under the Note, this Agreement, the Security Instrument and the other Loan Documents, or in the 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 Property, in the Rents and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Security Instrument and the other Loan Documents, shall not xxx for, seek or demand any deficiency judgment against Borrower or any of the Exculpated Parties in any such action or proceeding under or by reason of or under or in connection with the Note, this Agreement, the Security Instrument or the other Loan Documents. The provisions of this Section shall not, however, (1) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (2) impair the right of Lender to name Borrower as a party defendant in any action or suit for foreclosure and sale under the Security Instrument; (3) affect the validity or enforceability of any indemnity, guaranty or similar instrument (including, without limitation, indemnities set forth in Article 12 hereof, Section 11.2 hereof, in the Guaranty and the Environmental Indemnity) made in connection with the Loan or any of the rights and remedies of Lender thereunder (including, without limitation, Lender’s right to enforce said rights and remedies against Borrower and/or Guarantor (as applicable) personally and without the effect of the exculpatory provisions of this Article 13); (4) impair the rights of Lender to (A) obtain the appointment of a receiver and/or (B) enforce its rights and remedies provided in Articles 8 and 9 hereof; (5) impair the enforcement of the assignment of leases and rents contained in the Security Instrument and in any other Loan Documents; (6) impair the right of Lender to enforce Section 4.12(e) of this Agreement; (7) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted by the Security Instrument or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against the Property; or (8) constitute a waiver of the right of Lender to enforce the liability and obligation of Borrower, by money judgment or otherwise, to the extent of any Loss incurred by Lender (including attorneys’ fees and costs reasonably incurred) arising out of or in connection with the following:
(i) fraud or intentional misrepresentation by any Borrower Party in connection with the Loan;
(ii) the gross negligence or willful misconduct of any Borrower Party;
(iii) any litigation or other legal proceeding related to the Debt filed by any Borrower Party that delays, opposes, impedes, obstructs, hinders, enjoins contract 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 other Loan Documents;
(ivINCLUDING A COVERED PERSON’S OWN NEGLIGENCE OR GROSS NEGLIGENCE) waste to the Property caused by the intentional acts or intentional omissions of any Borrower Party and/or the removal or disposal of any portion of the Property after an Event of Default;
(v) the misapplication, misappropriation or conversion by any Borrower Party of (A) any insurance proceeds paid by reason of for any loss, damage or destruction claim incurred by reason of any act or omission by such Covered Person in good faith on behalf of the Company and in a manner reasonably believed to be within the scope of authority conferred on such Covered Person by this Agreement, including any such loss, damage or claim attributable to errors in judgment, negligence or gross negligence or other fault of such Covered Person, except that a Covered Person shall be liable for any such loss, damage or claim incurred by reason of Culpable Acts of such Covered Person. A Covered Person shall be fully protected in relying in good faith upon the records of the Company and upon such information, opinions, reports or statements presented to the Property, (B) Company by any Awards Person as to matters the Covered Person reasonably believes are within such other Person’s professional or other amounts received in connection expert competence and who has been selected with the Condemnation of all reasonable care by or a portion on behalf of the PropertyCompany, (C) any Rents following an Event of Default including information, opinions, reports or (D) any Tenant security deposits or Rents collected in advance;
(vi) any act of arson by any Borrower Party or of which any Borrower Party has knowledge;
(vii) failure statements as to pay Taxes, charges for labor or materials or other charges that can create liens on any portion the value and amount of the Property in accordance with the terms and provisions hereof;
(viii) failure to pay Insurance Premiumsassets, to maintain the Policies in full force and effect and/or to provide Lender evidence of the sameliabilities, in each caseprofits, as expressly provided herein;
(ix) any security deposits, advance deposits losses or any other deposits collected with respect facts pertinent to the Property existence and amount of assets from which are not delivered distributions to Lender upon a foreclosure of the Property or action in lieu thereofMembers might properly be paid. IN NO EVENT WILL A COVERED PERSON BE LIABLE TO THE COMPANY OR ANY MEMBER FOR CONSEQUENTIAL, 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;
INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR ANY OTHER NON-DIRECT DAMAGES INCLUDING, WITHOUT LIMITATION, LOST PROFITS OR FUTURE REVENUES, COST OF CAPITAL, LOSS OF BUSINESS REPUTATION OR OPPORTUNITY OR ANY CLAIM OR DEMAND AGAINST THE COMPANY BY ANY OTHER PARTY DUE TO ANY CAUSE WHATSOEVER (x) any tax on the making and/or recording of the Security InstrumentINCLUDING, the Note or any of the other Loan Documents or any transfer or similar taxes (whether due upon the making of the same or upon Lender’s exercise of its remedies under the Loan DocumentsWITHOUT LIMITATION, THE COVERED PERSON’S OWN NEGLIGENCE OR GROSS NEGLIGENCE), but excluding any income, franchise or other similar taxes;
(xi) the seizure or forfeiture of the Property, or any portion thereof, or Borrower’s interest therein, resulting from criminal wrongdoing by any Borrower Party;
(xii) the failure to make any Condemnation Payment and/or any Balancing Payment, to permit on-site inspections of the Property and/or to provide the Required Financial Items, in each case, as and when required herein;
(xiii) Intentionally Omitted;
(xiv) the failure to make repairs, renewals or replacements (including, without limitation, structural and nonstructural, exterior and interior, ordinary and extraordinary, foreseen and unforeseen) to the Property or any portion thereof (including, without limitation, the Improvements now or at any time hereafter erected on the Property) as and when required pursuant to the terms of the Loan Documents or as and when necessary to maintain the Property in good and safe condition, in a rentable and tenantable state of repair and/or in the condition required pursuant to the terms of the Loan Documents; and/or
(xv) any indemnity obligations of Lender to Bank under the Restricted Account Agreement (other than those arising as a direct result of Lender’s gross negligence or willful misconduct)EVEN IF A COVERED PERSON HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
(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 Debt or to require that all collateral shall continue to secure all of the Debt owing to Lender in accordance with the Loan Documents, and (B) the Debt shall be fully recourse to Borrower in the event that: (i) the first full monthly payment of principal and interest under the Note is not paid when due; (ii) Borrower fails to comply with any provisions hereof relating to cash management or fails to appoint a new property manager upon the request of Lender, fails to cooperate with any New Manager or fails to comply with any limitations on instructing the property manager, each as required by and in accordance with, as applicable, the terms and provisions of, this Agreement, the Assignment of Management Agreement and the Security Instrument; (iii) any representation, warranty or covenant contained in Article 5 or Article 6 hereof is violated or breached; (iv) a Bankruptcy Event occurs; or (v) Sections 11.1 or 11.6 hereof are violated or breached in any material respect.
Appears in 4 contracts
Samples: Limited Liability Company Agreement (Darling Ingredients Inc.), Limited Liability Company Agreement (Darling Ingredients Inc.), Limited Liability Company Agreement (Darling Ingredients Inc.)
Exculpation. (a) Subject to the qualifications belowbelow and except as set forth in the Guaranty and Environmental Indemnity, Lender neither Agent nor Lenders shall not enforce the liability and obligation of the Borrower or any holder of a direct or indirect interest in ESBA or any supervisor of either party comprising Borrower or Controlling either party comprising Borrower to perform and observe the obligations Obligations contained in the Note, this Agreement, the Security Instrument Mortgage or the other Loan Documents by any action or proceeding wherein a money judgment or any deficiency judgment or other judgment establishing personal liability shall be sought against Borrower or any principal, director, officer, employee, beneficiary, shareholder, partner, member, trustee, agent, or Affiliate of Borrower or any legal representatives, successors or assigns of any of the foregoing (collectively, the “Exculpated Parties”)a Credit Party, except that Lender Agent may bring a foreclosure action, terminate the Ground Lease, Operating Lease and Observatory Lease, bring an action for specific performance or any other appropriate action or proceeding to enable Lender Agent to enforce and realize upon its interest under the Note, this Agreement, the Security Instrument Mortgage and the other Loan Documents, or in the Property, the Rents, Rents or any other collateral given to Lender Agent and/or Lenders pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower’s interest in the Property, in the Rents Rents, in the Cash Collateral and in any other collateral given to LenderAgent and/or Lenders, and LenderLenders, by accepting the Note, this Agreement, the Security Instrument Mortgage and the other Loan Documents, shall not xxx for, seek or demand any deficiency judgment against Borrower or any of the Exculpated Parties in any such action or proceeding under or by reason of or under or in connection with the Note, this Agreement, the Security Instrument Mortgage or the other Loan Documents; provided, further, that, subject to the terms and provisions of the Sublease as the same is amended, modified or supplemented after the date hereof with the consent of Agent, nothing herein shall constitute an acknowledgement by any party hereto that Operating Company or Observatory Tenant is liable for all or any portion of the Loans or other Obligations of Borrower. The provisions of this Section shall not, however, (1a) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (2b) impair the right of Lender Agent or Lenders to name Borrower any Credit Party as a party defendant in any action or suit for foreclosure and sale under the Security InstrumentMortgage and termination of the Operating Lease and Observatory Lease; (3c) affect the validity or enforceability of any indemnity, guaranty or similar instrument (including, without limitation, indemnities set forth in Article 12 hereof, Section 11.2 hereof, in the Guaranty and the Environmental Indemnity) indemnification agreement made in connection with the Loan or any of the rights and remedies of Lender thereunder (including, without limitation, Lender’s right to enforce said rights and remedies against Borrower and/or Guarantor (as applicable) personally and without the effect of the exculpatory provisions of this Article 13)Agent or Lenders thereunder; (4d) impair the rights right of Lender Agent or Lenders to (A) obtain the appointment of a receiver and/or (B) enforce its rights and remedies provided in Articles 8 and 9 hereofreceiver; (5e) impair the enforcement of the assignment Assignment of leases and rents contained in the Security Instrument and in any other Loan DocumentsLeases; (6) impair the right of Lender to enforce Section 4.12(e) of this Agreement; (7f) constitute a prohibition against Lender Agent or Lenders to seek a deficiency judgment against Borrower in order to fully realize on any security given by Borrower in connection with the security granted by the Security Instrument Loan or to commence any other appropriate action or proceeding in order for Lender Agent or Lenders to exercise its remedies against the Propertysuch security; or (8) g) constitute a waiver of the right of Lender Agent or Lenders to enforce the liability and obligation of BorrowerBorrower or Guarantor, by money judgment or otherwise, to the extent of any Loss loss, damage, cost, expense, liability, claim or other obligation incurred by Agent and/or any Lender (including reasonable attorneys’ fees and costs reasonably incurred) arising out of or in connection with the following:
(i) fraud or any material intentional misrepresentation by any Borrower Credit Party in connection with the Loan;
(ii) the gross negligence fraudulent acts or willful misconduct of any Borrower Credit Party, Guarantor or Manager, if applicable (so long as Manager is an Affiliate of any Credit Party or Guarantor);
(iii) during a Trigger Period or during the continuance of an Event of Default, any litigation misappropriation of the Rents by Manager, if applicable (so long as Manager is an Affiliate of any Credit Party or other legal proceeding related to the Debt filed by Guarantor or any Borrower Party that delaysAffiliate thereof), opposesany Credit Party, impedes, obstructs, hinders, enjoins Guarantor 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 other Loan DocumentsAffiliate thereof;
(iv) waste to the Property caused by the intentional acts or intentional omissions of any Borrower Party and/or the removal or disposal of any portion failure of the Property after Observatory Tenant, during the continuance of an Event of DefaultDefault or during a Trigger Period, to pay all Rent under the Observatory Lease into the HSBC Collection Account in accordance with the Loan Documents and Net Observatory Deck Revenue under the Observatory Lease directly into the JP Collection Account in accordance with the Loan Documents;
(v) the misapplication, misappropriation or conversion by any Borrower Party of (A) any insurance proceeds paid by reason of any loss, damage or destruction to the Property, or (B) any Awards or other amounts received in connection with the Condemnation of all or a portion of the PropertyProperty by Manager, if applicable (C) so long as Manager is an Affiliate of any Rents following an Event of Default Credit Party or (D) Guarantor or any Tenant security deposits Affiliate thereof), any Credit Party or Rents collected in advanceGuarantor or any Affiliate thereof;
(vi) any act failure by Manager, if applicable (so long as Manager is an Affiliate of arson by any Borrower Credit Party or Guarantor), any Credit Party or Guarantor or any Affiliate thereof to use current Rents to pay then current material operating expenses with respect to the Property in the ordinary course of which any Borrower Party has knowledgebusiness (except with respect to Taxes, Other Charges and Trade Payables being contested in accordance with Section 4.1.2);
(vii) failure intentional physical waste of the Property (but excluding any matter that arises by reason of lack of cash flow with respect to pay Taxesthe Property, charges for labor except to the extent that such lack of cash flow arises from the misappropriation of revenue with respect to the Property as described in clauses (iii), (iv), (v) and (vi) above);
(viii) any removal or materials or other charges that can create liens on disposal of any portion of the Property after an Event of Default in accordance with any manner prohibited by the terms and provisions hereof;
(viii) failure to pay Insurance Premiums, to maintain the Policies in full force and effect and/or to provide Lender evidence of the same, in each case, as expressly provided hereinLoan Documents;
(ix) any Credit Party’s failure to obtain Agent’s prior consent to any Transfer, as applicable, as required by the Mortgage or Article VIII hereof (except with respect to a mechanic’s, tax, judgment or similar Lien arising from insufficient Property cash flow except to the extent that such lack of cash flow arises from the misappropriation of revenue with respect to the Property as described in clauses (iii), (iv), (v) and (vi) above);
(x) a voluntary Lien remains an encumbrance on all or any portion of the Property, the Operating Lease or the Observatory Lease in violation of the Loan Documents;
(xi) subject to the provisions of Section 8.3(a)(v), the failure by any Credit Party to comply with the material single purpose entity requirements of this Agreement including those set forth in Section 4.2.19 hereof if such failure leads to a consolidation of the assets of any Credit Party with the assets of another Person (other than the other Credit Parties);
(xii) the incurrence of Indebtedness in violation of the Loan Documents;
(xiii) the breach of any indemnification provision in the Environmental Indemnity Agreement concerning environmental laws, Hazardous Substances and asbestos;
(xiv) any security deposits, advance deposits or any other deposits collected with respect to the Property which are not delivered to Lender Agent upon a foreclosure of the Property or action transfer in lieu thereof, except to the extent any such security deposits were applied in accordance with the terms and conditions of any of the Leases prior to the occurrence of the Event of Default that gave rise to such foreclosure or action transfer in lieu thereof;
(x) any tax on the making and/or recording of the Security Instrument, the Note or any of the other Loan Documents or any transfer or similar taxes (whether due upon the making of the same or upon Lender’s exercise of its remedies under the Loan Documents), but excluding any income, franchise or other similar taxes;
(xi) the seizure or forfeiture of the Property, or any portion thereof, or Borrower’s interest therein, resulting from criminal wrongdoing by any Borrower Party;
(xii) the failure to make any Condemnation Payment and/or any Balancing Payment, to permit on-site inspections of the Property and/or to provide the Required Financial Items, in each case, as and when required herein;
(xiii) Intentionally Omitted;
(xiv) the failure to make repairs, renewals or replacements (including, without limitation, structural and nonstructural, exterior and interior, ordinary and extraordinary, foreseen and unforeseen) to the Property or any portion thereof (including, without limitation, the Improvements now or at any time hereafter erected on the Property) as and when required pursuant to the terms of the Loan Documents or as and when necessary to maintain the Property in good and safe condition, in a rentable and tenantable state of repair and/or in the condition required pursuant to the terms of the Loan Documents; and/orand
(xv) any indemnity obligations modifications, amendments, restatements and/or supplements made to the Ground Lease, Sublease or the Observatory Lease without the consent of Lender to Bank under Agent and any termination of the Restricted Account Agreement (other than those arising as a direct result Observatory Lease without the consent of Lender’s gross negligence or willful misconduct).
(b) Agent. Notwithstanding anything to the contrary in this Agreement, the Note or any of the Loan Documents, (A) Lender neither Agent nor Lenders shall not be deemed to have waived any right which Lender Agent and/or Lenders may have under Section 506(a), 506(b), 1111(b) or any other provisions of the Bankruptcy Code to file a claim for the full amount of the Debt or to require that all collateral shall continue to secure all of the Debt owing to Lender Lenders in accordance with the Loan Documents, and (B) the Debt shall be fully recourse to Borrower, but not to any holder of a direct or indirect interest in ESBA or any party supervising either party comprising Borrower (other than as provided in the Guaranty and Environmental Indemnity) or Controlling either party comprising Borrower, in the event that: (i1) the first full monthly payment of principal and interest any Credit Party files a voluntary petition under the Note is not paid when dueBankruptcy Code or any other Federal or state bankruptcy or insolvency law; (ii2) Borrower fails an Affiliate, officer, trustee, director, or representative which Controls, directly or indirectly, any Credit Party or Guarantor files or any Credit Party or Guarantor joins in the filing of an involuntary petition against any Credit Party under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law, or solicits or causes to comply with be solicited petitioning creditors for any provisions hereof relating to cash management involuntary petition against any Credit Party or fails to appoint a new property manager upon from any Person; (3) there is the request filing of Lenderan involuntary petition against any Credit Party under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law, fails to cooperate with in which any New Manager Credit Party or fails to comply with any limitations on instructing the property manager, each as required by and in accordance Guarantor colludes with, as applicableor otherwise assists such Person, the terms and provisions of, this Agreement, the Assignment of Management Agreement and the Security Instrumentor solicits or causes to be solicited petitioning creditors for any involuntary petition against any Credit Party from any Person; (iii4) any representationCredit Party files an answer joining in any involuntary petition filed against it, warranty by any other Person under the Bankruptcy Code or covenant contained in Article 5 any other Federal or Article 6 hereof is violated state bankruptcy or breachedinsolvency law, or solicits or causes to be solicited petitioning creditors for any involuntary petition from any Person; (iv5) any Affiliate, officer, trustee, director, or representative which Controls any Credit Party or Guarantor joins in an application for the appointment of a Bankruptcy Event occurscustodian, receiver, trustee, or examiner for any Credit Party or any portion of the Property; (6) any Credit Party makes a general assignment for the benefit of creditors, or admits, in writing or in any legal proceeding, its insolvency or inability to pay its debts as they become due unless such admission is true; or (v7) Sections 11.1 in connection with any enforcement action or 11.6 hereof exercise or assertion of any right or remedy upon the continuance of an Event of Default and acceleration of the Loan by or on behalf of the Agent and Lenders under or in connection with the Guaranty, Mortgage, Subordinations, Negative Pledges or any other Loan Document, any Credit Party, or Manager, if applicable (if the Manager is an Affiliate of any Credit Party or Guarantor) (I) seeks a defense, judicial intervention or injunctive or other equitable relief of any kind, or (II) asserts, or causes a third party to assert, in a pleading filed in connection with a judicial proceeding any defense against Agent and/or the Lenders, or (III) any right in connection with any security for the Loan, in each of (I), (II) or (III) that the Subordinations or the Negative Pledges or the subordination provisions of the Sublease or Observatory Lease are violated void, voidable or breached in any material respectunenforceable.
Appears in 4 contracts
Samples: Loan Agreement, Loan Agreement (Empire State Realty Trust, Inc.), Loan Agreement (Empire State Building Associates L.L.C.)
Exculpation. (a) Subject to the qualifications below, Lender shall not enforce the liability and obligation of Borrower to perform and observe the obligations contained in the Note, this Agreement, the Security Instrument Instrument, the Pledge Agreement or the other Loan Documents by any action or proceeding wherein a money judgment or any deficiency judgment or other judgment establishing personal liability shall be sought against Borrower, any other Borrower Party or any principal, director, officer, employee, beneficiary, shareholder, partner, member, trustee, agent, or Affiliate of Borrower, any other Borrower Party or any legal representatives, successors or assigns of any of the foregoing (collectively, the “Exculpated Parties”), except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender to enforce and realize upon its interest under the Note, this Agreement, the Security Instrument Instrument, the Pledge Agreement and the other Loan Documents, or in the PropertyProperty (or any portion thereof), the Collateral, the Rents, or any other collateral given to Lender pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower and any other Borrower Party only to the extent of Borrower’s and any other Borrower Party’s interest in the Property, in the Collateral, in the Rents and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Security Instrument Instrument, the Pledge Agreement and the other Loan Documents, shall not xxx for, seek or demand any deficiency judgment against Borrower, any other Borrower Party or any of the Exculpated Parties in any such action or proceeding under or by reason of or under or in connection with the Note, this Agreement, the Security Instrument Instrument, the Pledge Agreement or the other Loan Documents. The provisions of this Section shall not, however, (1) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (2) impair the right of Lender to name Borrower or any other Borrower Party as a party defendant in any action or suit for foreclosure and sale under the Security InstrumentInstrument or the Pledge Agreement; (3) affect the validity or enforceability of any indemnity, guaranty or similar instrument (including, without limitation, indemnities set forth in Article 12 hereof, Section 11.2 hereof, in the Guaranty Environmental Indemnity and in the Environmental IndemnityGuaranty) made in connection with the Loan or any of the rights and remedies of Lender thereunder (including, without limitation, Lender’s right to enforce said rights and remedies against Borrower and/or Guarantor (as applicable) personally and without the effect of the exculpatory provisions of this Article 13); (4) impair the rights of Lender to (A) obtain the appointment of a receiver and/or (B) enforce its rights and remedies provided in Articles 8 and 9 hereof; (5) impair the enforcement of the assignment of leases and rents contained in the Security Instrument and in any other Loan Documents; (6) impair the right of Lender to enforce Section 4.12(e) of this Agreement; (7) constitute a prohibition against Lender to seek a deficiency judgment against Borrower or any other Borrower Party in order to fully realize the security granted by the Security Instrument or the Pledge Agreement or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against the PropertyCollateral or the Property (or any portion thereof); or (8) constitute a waiver of the right of Lender to enforce the liability and obligation of Borrower, by money judgment or otherwise, to the extent of any Loss incurred by Lender (including attorneys’ fees and costs reasonably incurred) arising out of or in connection with the following:
(i) fraud or intentional material misrepresentation by any Borrower Party or any of their respective Affiliates in connection with the Loan;
(ii) the gross negligence or willful misconduct of any Borrower PartyParty or any of their respective Affiliates in connection with the Loan or any Individual Property;
(iii) any litigation or other legal proceeding related to the Debt filed by in which any Borrower Party or their respective Affiliates files or raises a defense that delays, opposes, impedes, obstructs, hinders, enjoins or otherwise intentionally interferes with or frustrates the efforts of Lender to exercise exercising any rights and remedies available to Lender as provided herein in under this Agreement and in the other Loan DocumentsDocuments only to the extent a court of competent jurisdiction, in a final non-appealable decision, finds the applicable defenses were not raised in good faith by Borrower;
(iv) intentional physical waste to the any Individual Property caused by the intentional acts or intentional omissions by any Borrower Party or any of their respective Affiliates (provided that the foregoing is not the result of the insufficiency of cash flow from the Properties to prevent such intentional omissions, and if there is any insufficiency of cash flow, such insufficiency is not a result of misappropriation of Rents by any Borrower Party and/or the removal or disposal of any portion of the Property property by any Borrower Party or any of their respective Affiliates after an Event event of Defaultdefault other than in the ordinary course of owning and managing the Properties or otherwise in violation of this Agreement and the other Loan Documents);
(v) the misapplication, misappropriation or conversion by any Borrower Party or any of their respective Affiliates of (A) any insurance proceeds paid by reason of any loss, damage (including BI Proceeds or destruction Casualty Proceeds) with respect to the PropertyProperties, (B) any Awards or other amounts received in connection with the any Condemnation of all or a any portion of the any Individual Property, or (C) any Rents following an Event (provided that, in each case there shall be no liability under this subsection to the extent that the turnover of Default such funds is prohibited by any applicable law or (D) any Tenant security deposits or Rents collected in advancecourt order);
(vi) any act of arson by any Borrower Party or of which any Borrower Party has knowledge;
(vii) Borrower’s failure to pay Taxes(or cause to be paid) real property taxes, charges for labor or materials Ground Rent or other charges due in connection with the Properties that can create results in liens on any portion of the any Individual Property in accordance with the terms and provisions hereofof this Agreement and the other Loan Documents (other than if such failure is caused by the acts of a Tenant) to the extent that (i) any such liens are not bonded over or discharged in accordance with this Agreement and the other Loan Documents and (ii) the Properties generated sufficient revenue in the immediately preceding six (6) month period to pay the same and Borrower failed to apply such revenue to such real property taxes or other charges, unless such charges are the subject of a bona fide dispute in which Borrower is contesting the amount or validity thereof in accordance with the terms of this Agreement and the other Loan Documents (provided, however, that there shall be no personal liability under this subsection solely for the failure to pay real property taxes or Ground Rent if (a) sufficient sums had been reserved hereunder for the express purpose of paying the real property taxes, Ground Rent or charges in question and Lender failed to pay same, and (b) Lender’s access to such sums was not restricted or constrained by any action taken by or on behalf of any Borrower Party in any manner);
(viiivii) Borrower’s failure to pay Insurance PremiumsPremiums or the amount of any deductible following a Casualty, Condemnation or other insurance claim, to maintain the Policies in full force and effect and/or to provide Lender evidence of the sameeffect, in each case, as expressly provided hereinherein (provided, however, that there shall be no personal liability under this subsection for the aforementioned failures to the extent that, in each case, (A) the Properties generated insufficient revenue in the immediately preceding six (6) month period to pay the Insurance Premiums in question or (B)(i) sufficient sums had been reserved hereunder for the express purpose of paying the Insurance Premiums in question and Lender failed to pay same, and (ii) Lender’s access to such sums was not restricted or constrained by any action taken by or on behalf any Borrower Party in any manner);
(ixviii) any security deposits, advance deposits or any other deposits collected by any Borrower Party or any of their respective Affiliates in connection with respect to the Property Properties which are not delivered to Lender upon request upon a foreclosure of the 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 thereofthereof except to the extent such amounts have been previously applied by Borrower in accordance with this Agreement and the other Loan Documents, the existing leases or in accordance with a court order (provided that, in each case there shall be no liability under this subsection to the extent that the failure to turn over such funds is prohibited by any applicable law or court order);
(x) any tax on the making and/or recording of the Security Instrument, the Note or any of the other Loan Documents or any transfer or similar taxes (whether due upon the making of the same or upon Lender’s exercise of its remedies under the Loan Documents), but excluding any income, franchise or other similar taxes;
(xiix) the seizure or forfeiture of the Property, or any portion thereof, or Borrower’s interest therein, Individual Property resulting from criminal wrongdoing by any Borrower PartyParty or any of their respective Affiliates;
(x) breach or violation by any Borrower Party or any of their respective Affiliates of any of the material terms of Sections 11.1, 11.2, 11.6, 11.8 and/or 11.9 of the Loan Agreement;
(xi) any liability or obligation pursuant to any purchase and sale agreement entered into by a Borrower for the sale by Borrower of a Previously-Owned Property or any other liability or obligation otherwise related to a Previously-Owned Property;
(xii) the failure to make any Condemnation Payment and/or any Balancing Payment, to permit on-site inspections comply with the terms and provisions of the Property and/or to provide the Required Financial Items, in each case, as and when required hereinArticle 15 hereof;
(xiii) Intentionally Omittedany amendment or modification of the Ground Lease in violation of the terms hereof or any cancellation, expiration or termination (for any reason whatsoever) of the Ground Lease, or the surrender of the leasehold estate thereunder in violation of the terms hereof;
(xiv) the failure to make repairswithout limiting Section 13.1(b)(B)(ii) below, renewals any voluntary debt, lien or replacements (including, without limitation, structural and nonstructural, exterior and interior, ordinary and extraordinary, foreseen and unforeseen) to the transfer of any Individual Property or any portion thereof (including, without limitation, the Improvements now or at any time hereafter erected on the Property) as and when required pursuant to the terms Collateral in violation of the Loan Documents or as and when necessary to maintain the Property (other than liens being contested in good and safe condition, faith in a rentable and tenantable state of repair and/or in the condition required pursuant to accordance with the terms and provisions of the Loan Documentsthis Agreement); and/or
(xv) without limiting Section 13.1(b)(B)(i) below, any indemnity obligations breach of Lender to Bank under the Restricted Account Agreement (violation by Borrower, Pledgor, Additional Obligor and/or any SPE Component Entity of Article 5 hereof, other than those arising as a direct result of Lender’s gross negligence or willful misconduct)immaterial breaches which are promptly cured by Borrower.
(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 Debt or to require that all collateral shall continue to secure all of the Debt owing to Lender in accordance with the Loan Documents, and (B) the Debt shall be fully recourse to Borrower in the event thatof: (i) any breach or violation by Borrower, Pledgor, Additional Obligor or any SPE Component Entity of Article 5 hereof, as a result of which, a court orders the first full monthly payment substantive consolidation of principal Borrower, Pledgor, Additional Obligor or any SPE Component Entity with one or more constituent owner(s) of Borrower, Pledgor, Additional Obligor and/or SPE Component Entity (any such person or entity, a “Bankrupt Person”) and interest under which court cites such breach or violation as a material factor in ordering the Note is not paid when duesubstantive consolidation of the assets and liabilities of Borrower, Pledgor, Additional Obligor and/or SPE Component Entity with the assets and liabilities of the Bankrupt Person; (ii) Borrower fails any violation or breach of Article 6 hereof caused by (1) any voluntary transfer of the Collateral or fee simple title to comply all or any portion of the Property (other than with Lender’s prior written consent or as expressly permitted by this Agreement or the other Loan Documents) or (2) any provisions hereof relating to cash management sale or fails to appoint pledge of the ownership interests in any Restricted Party in violation of the terms of the Loan Documents, which, in the case of any sale or pledge described in this clause (2) remains uncured for a new property manager upon period of ten (10) days following Borrower’s obtaining knowledge of such violation (or Borrower’s receipt of notice from Lender of such violation); (iii) a Bankruptcy Event with occurs, or (iv) the request incurrence of Lenderany voluntary debt secured by all or any portion of any Individual Property or other Collateral or any direct or indirect interests in Borrower, fails to cooperate with any New Manager or fails to comply with any limitations on instructing the property managerexcept Indebtedness and liens (including, each as required by and liens being contested in good faith in accordance with, as applicable, with the terms and provisions of, of this Agreement, the Assignment of Management Agreement and the Security Instrument; (iii) any representation, warranty or covenant contained in Article 5 or Article 6 hereof is violated or breached; (iv) a Bankruptcy Event occurs; or (v) Sections 11.1 or 11.6 hereof are violated or breached in any material respectexpressly permitted pursuant to this Agreement.
Appears in 3 contracts
Samples: Loan Agreement (Retail Value Inc.), Loan Agreement (Retail Value Inc.), Loan Agreement (DDR Corp)
Exculpation. (a) Subject to the qualifications below, Lender shall not enforce the liability and obligation of Borrowers (or any of Borrowers’ members, managers, partners shareholders, officers, directors or Affiliates, whether direct or indirect, collectively, the “Borrower Parties”) to perform and observe the obligations contained in the NoteNotes, this Agreement, the Security Instrument Mortgage or the other Loan Documents by any action or proceeding wherein a money judgment or any deficiency judgment or other judgment establishing personal liability shall be sought against Borrower or any principal, director, officer, employee, beneficiary, shareholder, partner, member, trustee, agent, or Affiliate of Borrower or any legal representatives, successors or assigns of any of the foregoing (collectively, the “Exculpated Parties”)either Borrower, except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender to enforce and realize upon its interest under the NoteNotes, this Agreement, the Security Instrument Mortgage and the other Loan Documents, or in any or all of the PropertyProperties, the Rents, the Vacant Space Rent or any other collateral given to Lender pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrowers or the Borrower Parties only to the extent of Borrower’s Borrowers’ or the Borrower Parties’ interest in the PropertyProperties, in the Rents Rents, in the Vacant Space Rent and in any other collateral given to Lender, and Lender, by accepting the NoteNotes, this Agreement, the Security Instrument Mortgage and the other Loan Documents, agrees that it shall not xxx for, seek or demand any deficiency judgment against either Borrower or any of the Exculpated Borrower Parties in any such action or proceeding under under, or by reason of or under of, or in connection with with, the NoteNotes, this Agreement, the Security Instrument Mortgage or the other Loan Documents. The provisions of this Section shall not, however, (1a) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (2b) impair the right of Lender to name Borrower Borrowers as a party defendant defendants in any action or suit for foreclosure and sale under the Security InstrumentMortgage; (3c) affect the validity or enforceability of any indemnity, guaranty or similar instrument (including, without limitation, indemnities set forth in Article 12 hereof, Section 11.2 hereof, in the Guaranty and the Environmental Indemnity) made in connection with the Loan or any of the rights and remedies of Lender thereunder (including, without limitation, Lender’s right to enforce said rights and remedies against Borrower and/or Guarantor (as applicable) personally and without the effect of the exculpatory provisions of this Article 13)thereunder; (4) impair the rights of Lender to (A) obtain the appointment of a receiver and/or (B) enforce its rights and remedies provided in Articles 8 and 9 hereof; (5) impair the enforcement of the assignment of leases and rents contained in the Security Instrument and in any other Loan Documents; (6d) impair the right of Lender to enforce Section 4.12(e) obtain the appointment of this Agreementa receiver; (7e) impair the enforcement of the Assignment of Leases; (f) constitute a prohibition against Lender to seek seeking a deficiency judgment against Borrower Borrowers in order to fully realize the security granted by the Security Instrument Mortgage or to commence commencing any other appropriate action or proceeding in order for Lender to exercise its remedies against the PropertyProperties; or (8) g) constitute a waiver of the right of Lender to enforce the liability and obligation of BorrowerBorrowers, by money judgment or otherwise, to the extent of any Loss 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 either Borrowers or any Borrower Party Guarantor in connection with the Loan, including by reason of any claim under RICO;
(ii) the gross negligence or willful misconduct of either of the Borrowers, any Borrower Guarantor, either of the Principals or any other Restricted Party;
(iii) the breach of any litigation representation, warranty, covenant or other legal proceeding related to indemnification provision in the Debt filed by Environmental Indemnity, the Parking Easement or in the Mortgage concerning environmental laws, hazardous substances or asbestos and any Borrower Party that delays, opposes, impedes, obstructs, hinders, enjoins or otherwise interferes with or frustrates the efforts indemnification of Lender to exercise with respect thereto in any rights and remedies available to Lender as provided herein and in the other Loan DocumentsDocument;
(iv) waste to the Property caused by the intentional acts or intentional omissions of any Borrower Party and/or the wrongful removal or disposal destruction by either Borrower or any Affiliate of either Borrower of any portion of the Property Properties after the occurrence of an Event of DefaultDefault or any intentional physical waste of the Properties or any portion thereof by either Borrower or any Affiliate thereof, provided, however, that such physical waste shall exclude wear and tear to the Properties or any portion thereof that occurs in the ordinary course of business of the Properties;
(v) any Legal Requirement (including RICO) mandating the misapplicationforfeiture by either Borrower of either of the Properties, or any portion thereof, because of the conduct or purported conduct of criminal activity by any Borrower or any Restricted Party in connection therewith;
(vi) any misrepresentation, miscertification or breach of warranty by either Borrower or any Guarantor 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 the Collateral (as defined in the Mortgage);
(vii) the misappropriation or conversion by or on behalf of either Borrower or any Borrower Party of its Affiliates of (A) any insurance proceeds paid by reason of any loss, damage or destruction to the PropertyInsurance Proceeds, (B) any Awards or other amounts received in connection with the Condemnation of all or a portion of the PropertyProceeds, (C) any Rents and/or Vacant Space Rent following an Event of Default Default, or (D) any Tenant security deposits or Rents collected and/or Vacant Space Rent 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 either Property;
(vi) any act of arson by any Borrower Party or of which any Borrower Party has knowledge;
(viiviii) failure to pay Taxes, charges for labor or materials or other charges that can create liens Liens on any portion of the Property Properties that are superior to the Lien of the Mortgage, unless such charges are being contested in accordance with the terms and provisions hereof;
(viii) failure to pay Insurance Premiums, to maintain the Policies in full force and effect and/or to provide Lender evidence of the same, in each case, as expressly provided hereinherewith;
(ix) any security deposits, advance deposits or any other deposits collected by either Borrower or any Affiliate thereof with respect to the either Property or any part thereof which are not delivered to Lender upon a foreclosure of the Property Properties or any part thereof or action in lieu thereof, except to the extent any such security deposits were applied in accordance with the terms and conditions of any of the Leases prior to the occurrence of the Event of Default that gave rise to such foreclosure or action in lieu thereof;
(x) any tax on the making and/or recording of the Security Instrument, the Note or any of the other Loan Documents or any transfer or similar taxes (whether due upon the making of the same or upon Lender’s exercise of its remedies under the Loan Documents), but excluding any income, franchise or other similar taxes;
(xi) the seizure or forfeiture of the Property, or any portion thereof, or Borrower’s interest therein, resulting from criminal wrongdoing by any if either Borrower Party;
(xii) the failure to make any Condemnation Payment and/or any Balancing Payment, fails to permit on-site inspections of the Property and/or Properties or any part thereof, fails to provide financial information specifically required by this Agreement or fails to appoint a new Manager upon the Required Financial Itemsrequest of Lender, each as required by, and in each caseaccordance with, as the terms and when required hereinprovisions of this Agreement or the Mortgage;
(xiiixi) Intentionally Omitted;(A) if the Operating Partnership shall default under either of the Master Leases beyond any applicable notice and/or cure period contained therein, or (B) if either Master Lease shall have been amended or modified (except as specified in Section 3.1.21 hereof) without Lender’s prior written consent, or (C) if either Master Lease shall have been terminated, cancelled or surrendered without Lender’s prior written consent in violation of Section 5.2.13 hereof (except as specified in Section 3.1.21 hereof), or (D) if the Operating Partnership is the subject of a Bankruptcy Action, other than an involuntary Bankruptcy Action which is dismissed within ninety (90) days; or
(xivxii) (A) if there shall exist an event of default by Tower Borrower under the failure to make repairsParking Easement beyond any applicable notice and/or cure period contained therein, renewals or replacements (includingB) if the Parking Easement shall have been amended or modified in violation of Section 5.2.11 hereof) without Lender’s prior written consent, without limitationor (C) if the Parking Easement shall have been terminated, structural and nonstructural, exterior and interior, ordinary and extraordinary, foreseen and unforeseen) to the Property cancelled or any portion thereof surrendered (including, without limitation, the Improvements now or at any time hereafter erected on the Property) as and when required pursuant to other than by the terms of the Loan Documents or as and when necessary to maintain the Property in good and safe condition, in a rentable and tenantable state of repair and/or in the condition required pursuant to the terms of the Loan Documents; and/or
(xvParking Easement) any indemnity obligations of Lender to Bank under the Restricted Account Agreement (other than those arising as a direct result of without Lender’s gross negligence or willful misconduct).
(b) prior written consent in violation of Section 5.2.11 hereof. Notwithstanding anything to the contrary in this Agreement, the Note Notes 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 Debt secured by the Mortgage or to require that all collateral shall continue to secure all of the Debt owing to Lender Obligations in accordance with the Loan Documents, and (B) Borrowers shall be jointly and severally personally liable for the payment of the Debt shall be fully recourse to Borrower (1) in the event thatof: (ia) either Borrower filing a voluntary petition under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (b) the first full monthly payment filing of principal and interest an involuntary petition against either Borrower under the Note Bankruptcy Code or any other Federal or state bankruptcy or insolvency law by any other Person in which either Borrower colludes with or otherwise assists such Person, or solicits or causes to be solicited petitioning creditors for any involuntary petition against either Borrower from any Person; (c) either 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) either Borrower consenting to or acquiescing in or joining in an application for the appointment of a custodian, receiver, trustee, or examiner for either Borrower or any portion of the Properties; or (e) either 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; (2) if the first Monthly Interest Payment is not paid when due; (ii3) if either Borrower fails to comply with any provisions hereof relating to cash management or fails to appoint maintain its status as a new property manager upon the request of Lender, fails to cooperate with any New Manager or fails to comply with any limitations on instructing the property manager, each Special Purpose Entity as required by and in accordance with, as applicable, with the terms and provisions of, of this Agreement, the Assignment of Management Agreement and the Security Instrumentthere is a substantive consolidation of either Borrower with any other Person; (iii4) if either Borrower fails to obtain Lender’s prior consent to any representation, warranty Indebtedness or covenant contained in Article 5 voluntary Lien encumbering the Properties or Article 6 hereof is violated any part thereof as required by this Agreement or breached; (iv) a Bankruptcy Event occursthe Mortgage; or (v5) Sections 11.1 if either Borrower fails to obtain Lender’s prior consent to any Transfer as required by this Agreement or 11.6 hereof are violated or breached in any material respectthe Mortgage.
Appears in 3 contracts
Samples: Loan Agreement (MPG Office Trust, Inc.), Loan Agreement (MPG Office Trust, Inc.), Loan Agreement (Maguire Properties Inc)
Exculpation. (a) Subject to Except as otherwise provided herein or in the qualifications belowother Loan Documents, Lender shall not enforce the liability and obligation of Borrower to perform and observe the obligations contained herein or in the Note, this Agreement, the Security Instrument or the other Loan Documents by any action or proceeding wherein a money judgment or any deficiency judgment or other judgment establishing personal liability shall be sought against (1) Borrower (except as set forth in this Section 15.1 and the Environmental Indemnity), (2) Guarantor (except as set forth in the Guaranty and the Environmental Indemnity), (3) any Affiliate of Borrower, (4) any Person owning, directly or indirectly, any legal or beneficial interest in Borrower or any principal, director, officer, employee, beneficiary, shareholder, Affiliate of Borrower or (5) any direct or indirect limited partner, member, principal, officer, beneficiary, trustee, agentshareholder, Affiliate or Affiliate of Borrower or any legal representatives, successors or assigns director of any of the foregoing Persons described in clauses (1) through (5) above (collectively, subject to the exceptions in clauses (i) and (ii) below, the “Exculpated Parties”), except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender to enforce and realize upon its interest under the Note, this Agreement, the Security Instrument Note, the Pledge Agreements and the other Loan Documents, or and the interest in the Property, the Rents, or Collateral and any other collateral given to Lender pursuant to created by this Agreement, the Note, the Pledge Agreements and the other Loan Documents; provided, however, that, except as specifically provided herein, that any judgment in any such action or proceeding shall be enforceable against Borrower Borrower, only to the extent of Borrower’s interest in the Property, in the Rents Collateral and in any other collateral given to Lender, and . Lender, by accepting the Note, this Agreement, the Security Instrument Note, the Pledge Agreements and the other Loan Documents, agrees that it shall not not, except as otherwise provided in this Section 15.1, xxx for, seek or demand any deficiency judgment against Borrower or any of the Exculpated Parties Party in any such action or proceeding proceeding, under or by reason of or under or in connection with the Note, this Agreement, the Security Instrument Note, the Pledge Agreements or the other Loan Documents. The provisions of this Section 15.1 shall not, however, (1i) constitute a waiver, release or impairment of any obligation evidenced or secured by any of this Agreement, the Note, the Pledge Agreements or the other Loan Documents; (2ii) impair the right of Lender to name Borrower or Ashford Keys Senior Operating Lessee as a party defendant in any action or suit for judicial foreclosure and sale under this Agreement and the Security InstrumentPledge Agreements; (3iii) affect the validity or enforceability of any indemnity, guaranty or similar instrument indemnity (including, without limitation, indemnities set forth those contained in Article 12 hereof, Section 11.2 hereof, in the Guaranty 14 of this Agreement and the Environmental Indemnity) ), guaranty, master lease or similar instrument made in connection with this Agreement, the Loan or any of Note, the rights Pledge Agreements and remedies of Lender thereunder (including, without limitation, Lender’s right to enforce said rights and remedies against Borrower and/or Guarantor (as applicable) personally and without the effect of the exculpatory provisions of this Article 13); (4) impair the rights of Lender to (A) obtain the appointment of a receiver and/or (B) enforce its rights and remedies provided in Articles 8 and 9 hereof; (5) impair the enforcement of the assignment of leases and rents contained in the Security Instrument and in any other Loan Documents; (6iv) impair the right of Lender to enforce Section 4.12(e) obtain the appointment of this Agreementa receiver; (7v) constitute a prohibition against Lender to seek a deficiency judgment against Borrower impair the enforcement of the provisions contained in order to fully realize the security granted by the Security Instrument or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against the PropertyPledge Agreements; or (8) constitute a waiver of vi) impair the right of Lender to enforce the liability and obligation of Borrower, by money obtain a deficiency judgment or otherwiseother judgment on the Note against Borrower if necessary to obtain any Net Liquidation Proceeds After Debt Service to which Lender would otherwise be entitled under this Agreement; provided, however, Lender shall only enforce such judgment to the extent of any Loss the Insurance Proceeds and/or Awards.
(b) Notwithstanding the provisions of this Section 15.1 to the contrary, Borrower shall be personally liable to Lender for Losses incurred by Lender (including attorneys’ fees and costs reasonably incurred) arising out of or in connection with the followingdue to:
(i) fraud or intentional misrepresentation by Borrower, Mortgage Borrower, Operating Lessee, Ashford Keys Senior Operating Lessee, Guarantor or any Borrower Party Affiliate of any of the foregoing in connection with the execution and the delivery of this Agreement, the Note, the Pledge Agreements, 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 or during the term of the Loan;
(ii) the gross negligence or willful misconduct of any Borrower an Exculpated Party;
(iii) Remington’s or any litigation Exculpated Party’s misapplication, misappropriation or other legal proceeding related to conversion of Rents received by Mortgage Borrower during the Debt filed by any Borrower Party that delays, opposes, impedes, obstructs, hinders, enjoins or otherwise interferes with or frustrates the efforts continuance of Lender to exercise any rights and remedies available to Lender as provided herein and in the other Loan Documentsan Event of Default;
(iv) waste any Exculpated Party’s misapplication, misappropriation or conversion of tenant security deposits (including the failure to deliver to Mortgage Lender tenant security deposits upon foreclosure or deed in lieu thereof, to the Property caused by extent not applied in accordance with the intentional acts or intentional omissions applicable Leases prior to the occurrence of any Borrower Party and/or the removal or disposal of any portion of the Property after an Event of Default) or Rents collected in advance;
(v) the misapplication, misappropriation or conversion of Insurance Proceeds or Awards by any Borrower Party 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 Rents following an Event of Default or (D) any Tenant security deposits or Rents collected in advanceExculpated Party;
(vi) any act of arson by any Borrower Party Borrower’s or of which any Borrower Party has knowledge;
(vii) Mortgage Borrower’s failure to pay Property Taxes, Insurance Premiums, Other Charges (provided that there shall be no liability hereunder to the extent that (A) sums sufficient to pay such amounts have been deposited in escrow with Lender or Mortgage Lender pursuant to the terms hereof or the Mortgage Loan Agreement and neither Borrower nor Mortgage Borrower has made a claim against such escrowed amounts or otherwise taken action to restrict Lender or Mortgage Lender from applying such sums for the purpose of paying such items) or (B) there is insufficient cash flow from the operation of the Properties to pay such items), charges for labor or materials or other charges that can create liens on any portion Individual Property beyond any applicable notice and cure periods specified herein;
(vii) Borrower’s or Mortgage Borrower’s failure to return or to reimburse Lender for all Personal Property taken from any Individual Property by or on behalf of Borrower, Mortgage Borrower, Ashford Keys Senior Operating Lessee or Operating Lessee and not replaced with Personal Property of the Property in accordance with same utility and of the terms and provisions hereofsame or greater value;
(viii) failure material physical waste to pay Insurance Premiums, to maintain any Individual Property caused by the Policies in full force and effect and/or to provide Lender evidence of the same, in each case, as expressly provided herein;
(ix) any security deposits, advance deposits intentional acts or any other deposits collected with respect to the Property which are not delivered to Lender upon a foreclosure of the Property or action in lieu thereof, except to the extent any such security deposits were applied in accordance with the terms and conditions omissions of any Exculpated Party when there is sufficient cash flow from the operation of the Leases prior any Individual Property to the occurrence of the Event of Default that gave rise to avoid such foreclosure or action in lieu thereofwaste from occurring;
(x) any tax on the making and/or recording of the Security Instrument, the Note or any of the other Loan Documents or any transfer or similar taxes (whether due upon the making of the same or upon Lender’s exercise of its remedies under the Loan Documents), but excluding any income, franchise or other similar taxes;
(xi) the seizure or forfeiture of the Property, or any portion thereof, or Borrower’s interest therein, resulting from criminal wrongdoing by any Borrower Party;
(xii) the failure to make any Condemnation Payment and/or any Balancing Payment, to permit on-site inspections of the Property and/or to provide the Required Financial Items, in each case, as and when required herein;
(xiii) Intentionally Omitted;
(xiv) the failure to make repairs, renewals or replacements (including, without limitation, structural and nonstructural, exterior and interior, ordinary and extraordinary, foreseen and unforeseen) to the Property or any portion thereof (including, without limitation, the Improvements now or at any time hereafter erected on the Property) as and when required pursuant to the terms of the Loan Documents or as and when necessary to maintain the Property in good and safe condition, in a rentable and tenantable state of repair and/or in the condition required pursuant to the terms of the Loan Documents; and/or
(xv) any indemnity obligations of Lender to Bank under the Restricted Account Agreement (other than those arising as a direct result of Lender’s gross negligence or willful misconduct).
(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 Debt or to require that all collateral shall continue to secure all of the Debt owing to Lender in accordance with the Loan Documents, and (B) the Debt shall be fully recourse to Borrower in the event that: (i) the first full monthly payment of principal and interest under the Note is not paid when due; (ii) Borrower fails to comply with any provisions hereof relating to cash management or fails to appoint a new property manager upon the request of Lender, fails to cooperate with any New Manager or fails to comply with any limitations on instructing the property manager, each as required by and in accordance with, as applicable, the terms and provisions of, this Agreement, the Assignment of Management Agreement and the Security Instrument; (iii) any representation, warranty or covenant contained in Article 5 or Article 6 hereof is violated or breached; (iv) a Bankruptcy Event occurs; or (v) Sections 11.1 or 11.6 hereof are violated or breached in any material respect.
Appears in 3 contracts
Samples: Senior Mezzanine Loan Agreement (Ashford Hospitality Trust Inc), Senior Mezzanine Loan Agreement (Ashford Hospitality Trust Inc), Senior Mezzanine Loan Agreement (Ashford Hospitality Trust Inc)
Exculpation. (a) Subject to Except as otherwise provided herein or in the qualifications belowother Loan Documents, Lender shall not enforce the liability and obligation of Borrower to perform and observe the obligations contained herein or in the Note, this Agreement, the Security Instrument or the other Loan Documents by any action or proceeding wherein a money judgment or any deficiency judgment or other judgment establishing personal liability shall be sought against (1) Borrower (except as set forth in this Section 15.1 and the Environmental Indemnity), (2) Guarantor (except as set forth in the Guaranty and the Environmental Indemnity), (3) any Affiliate of Borrower, (4) any Person owning, directly or indirectly, any legal or beneficial interest in Borrower or any principal, director, officer, employee, beneficiary, shareholder, Affiliate of Borrower or (5) any direct or indirect limited partner, member, principal, officer, beneficiary, trustee, agentshareholder, Affiliate or Affiliate of Borrower or any legal representatives, successors or assigns director of any of the foregoing Persons described in clauses (1) through (5) above (collectively, subject to the exceptions in clauses (i) and (ii) below, the “Exculpated Parties”), except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender to enforce and realize upon its interest under the Note, this Agreement, the Security Instrument Note, the Pledge Agreements and the other Loan Documents, or and the interest in the Property, the Rents, or Collateral and any other collateral given to Lender pursuant to created by this Agreement, the Note, the Pledge Agreements and the other Loan Documents; provided, however, that, except as specifically provided herein, that any judgment in any such action or proceeding shall be enforceable against Borrower Borrower, only to the extent of Borrower’s interest in the Property, in the Rents Collateral and in any other collateral given to Lender, and . Lender, by accepting the Note, this Agreement, the Security Instrument Note, the Pledge Agreements and the other Loan Documents, agrees that it shall not not, except as otherwise provided in this Section 15.1, xxx for, seek or demand any deficiency judgment against Borrower or any of the Exculpated Parties Party in any such action or proceeding proceeding, under or by reason of or under or in connection with the Note, this Agreement, the Security Instrument Note, the Pledge Agreements or the other Loan Documents. The provisions of this Section 15.1 shall not, however, (1i) constitute a waiver, release or impairment of any obligation evidenced or secured by any of this Agreement, the Note, the Pledge Agreements or the other Loan Documents; (2ii) impair the right of Lender to name Borrower or Ashford Keys Junior Operating Lessee as a party defendant in any action or suit for judicial foreclosure and sale under this Agreement and the Security InstrumentPledge Agreements; (3iii) affect the validity or enforceability of any indemnity, guaranty or similar instrument indemnity (including, without limitation, indemnities set forth those contained in Article 12 hereof, Section 11.2 hereof, in the Guaranty 14 of this Agreement and the Environmental Indemnity) ), guaranty, master lease or similar instrument made in connection with this Agreement, the Loan or any of Note, the rights Pledge Agreements and remedies of Lender thereunder (including, without limitation, Lender’s right to enforce said rights and remedies against Borrower and/or Guarantor (as applicable) personally and without the effect of the exculpatory provisions of this Article 13); (4) impair the rights of Lender to (A) obtain the appointment of a receiver and/or (B) enforce its rights and remedies provided in Articles 8 and 9 hereof; (5) impair the enforcement of the assignment of leases and rents contained in the Security Instrument and in any other Loan Documents; (6iv) impair the right of Lender to enforce Section 4.12(e) obtain the appointment of this Agreementa receiver; (7v) constitute a prohibition against Lender to seek a deficiency judgment against Borrower impair the enforcement of the provisions contained in order to fully realize the security granted by the Security Instrument or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against the PropertyPledge Agreements; or (8) constitute a waiver of vi) impair the right of Lender to enforce the liability and obligation of Borrower, by money obtain a deficiency judgment or otherwiseother judgment on the Note against Borrower if necessary to obtain any Net Liquidation Proceeds After Debt Service to which Lender would otherwise be entitled under this Agreement; provided, however, Lender shall only enforce such judgment to the extent of any Loss the Insurance Proceeds and/or Awards.
(b) Notwithstanding the provisions of this Section 15.1 to the contrary, Borrower shall be personally liable to Lender for Losses incurred by Lender (including attorneys’ fees and costs reasonably incurred) arising out of or in connection with the followingdue to:
(i) fraud or intentional misrepresentation by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Lessee, Ashford Keys Senior Operating Lessee, Ashford Keys Junior Operating Lessee, Guarantor or any Borrower Party Affiliate of any of the foregoing in connection with the execution and the delivery of this Agreement, the Note, the Pledge Agreements, 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 or during the term of the Loan;
(ii) the gross negligence or willful misconduct of any Borrower an Exculpated Party;
(iii) Remington’s or any litigation Exculpated Party’s misapplication, misappropriation or other legal proceeding related to conversion of Rents received by Mortgage Borrower during the Debt filed by any Borrower Party that delays, opposes, impedes, obstructs, hinders, enjoins or otherwise interferes with or frustrates the efforts continuance of Lender to exercise any rights and remedies available to Lender as provided herein and in the other Loan Documentsan Event of Default;
(iv) waste any Exculpated Party’s misapplication, misappropriation or conversion of tenant security deposits (including the failure to deliver to Mortgage Lender tenant security deposits upon foreclosure or deed in lieu thereof, to the Property caused by extent not applied in accordance with the intentional acts or intentional omissions applicable Leases prior to the occurrence of any Borrower Party and/or the removal or disposal of any portion of the Property after an Event of Default) or Rents collected in advance;
(v) the misapplication, misappropriation or conversion of Insurance Proceeds or Awards by any Borrower Party 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 Rents following an Event of Default or (D) any Tenant security deposits or Rents collected in advance;
(vi) any act of arson by any Borrower Party or of which any Borrower Party has knowledge;
(vii) failure to pay Taxes, charges for labor or materials or other charges that can create liens on any portion of the Property in accordance with the terms and provisions hereof;
(viii) failure to pay Insurance Premiums, to maintain the Policies in full force and effect and/or to provide Lender evidence of the same, in each case, as expressly provided herein;
(ix) any security deposits, advance deposits or any other deposits collected with respect to the Property which are not delivered to Lender upon a foreclosure of the 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;
(x) any tax on the making and/or recording of the Security Instrument, the Note or any of the other Loan Documents or any transfer or similar taxes (whether due upon the making of the same or upon Lender’s exercise of its remedies under the Loan Documents), but excluding any income, franchise or other similar taxes;
(xi) the seizure or forfeiture of the Property, or any portion thereof, or Borrower’s interest therein, resulting from criminal wrongdoing by any Borrower Exculpated Party;
(xii) the failure to make any Condemnation Payment and/or any Balancing Payment, to permit on-site inspections of the Property and/or to provide the Required Financial Items, in each case, as and when required herein;
(xiii) Intentionally Omitted;
(xiv) the failure to make repairs, renewals or replacements (including, without limitation, structural and nonstructural, exterior and interior, ordinary and extraordinary, foreseen and unforeseen) to the Property or any portion thereof (including, without limitation, the Improvements now or at any time hereafter erected on the Property) as and when required pursuant to the terms of the Loan Documents or as and when necessary to maintain the Property in good and safe condition, in a rentable and tenantable state of repair and/or in the condition required pursuant to the terms of the Loan Documents; and/or
(xv) any indemnity obligations of Lender to Bank under the Restricted Account Agreement (other than those arising as a direct result of Lender’s gross negligence or willful misconduct).
(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 Debt or to require that all collateral shall continue to secure all of the Debt owing to Lender in accordance with the Loan Documents, and (B) the Debt shall be fully recourse to Borrower in the event that: (i) the first full monthly payment of principal and interest under the Note is not paid when due; (ii) Borrower fails to comply with any provisions hereof relating to cash management or fails to appoint a new property manager upon the request of Lender, fails to cooperate with any New Manager or fails to comply with any limitations on instructing the property manager, each as required by and in accordance with, as applicable, the terms and provisions of, this Agreement, the Assignment of Management Agreement and the Security Instrument; (iii) any representation, warranty or covenant contained in Article 5 or Article 6 hereof is violated or breached; (iv) a Bankruptcy Event occurs; or (v) Sections 11.1 or 11.6 hereof are violated or breached in any material respect.
Appears in 3 contracts
Samples: Junior Mezzanine Loan Agreement (Ashford Hospitality Trust Inc), Junior Mezzanine Loan Agreement (Ashford Hospitality Trust Inc), Junior Mezzanine Loan Agreement (Ashford Hospitality Trust Inc)
Exculpation. Notwithstanding anything in this Note or the Loan Documents to the contrary, but subject to the qualifications hereinbelow set forth, Xxxxxx agrees that:
(a) Subject Borrower shall be liable upon the indebtedness evidenced hereby and for the other obligations arising under the Loan Documents to the qualifications belowfull extent (but only to the extent) of the security therefor, Lender shall not enforce the liability same being all properties (whether real or personal), rights, estates and obligation interests now or at any time hereafter securing the payment of this Note and/or the other obligations of Borrower to perform and observe under the obligations contained in the Note, this Agreement, the Security Instrument or the other Loan Documents by any action or proceeding wherein a money judgment or any deficiency judgment or other judgment establishing personal liability shall be sought against Borrower or any principal, director, officer, employee, beneficiary, shareholder, partner, member, trustee, agent, or Affiliate of Borrower or any legal representatives, successors or assigns of any of the foregoing (collectively, the “Exculpated PartiesProperty”), except that Lender may bring ;
(b) if a foreclosure action, an action for specific performance default occurs in the timely and proper payment of all or any part of such indebtedness evidenced hereby or in the timely and proper performance of the other appropriate action or proceeding to enable Lender to enforce and realize upon its interest obligations of Borrower under the Note, this Agreement, the Security Instrument and the other Loan Documents, any judicial proceedings brought by Lender against Borrower shall be limited to the preservation, enforcement and foreclosure, or in any thereof, of the liens, security titles, estates, assignments, rights and security interests now or at any time hereafter securing the payment of this Note and/or the other obligations of Borrower under the Loan Documents, and no attachment, execution or other writ of process shall be sought, issued or levied upon any assets, properties or funds of Borrower other than the Property, except with respect to the Rentsliability described below in this section; and
(c) in the event of a foreclosure of such liens, security titles, estates, assignments, rights or any security interests securing the payment of this Note and/or the other collateral given to Lender pursuant to obligations of Borrower under the Loan Documents, no judgment for any deficiency upon the indebtedness evidenced hereby shall be sought or obtained by Lender against Borrower, except with respect to the liability described below in this Section; provided, however, that, except as specifically provided hereinnotwithstanding the foregoing provisions of this Section and to the fullest extent permitted by law, any judgment in any such action or proceeding Borrower shall be enforceable fully and personally liable and subject to legal action (i) for proceeds paid under any insurance policies (or paid as a result of any other claim or cause of action against Borrower only any person or entity) by reason of damage, loss or destruction to the extent all or any portion of Borrower’s interest in the Property, in to the Rents and in any other collateral given full extent of such proceeds not previously delivered to Lender, and Lenderbut which, by accepting under the Note, this Agreement, terms of the Security Instrument and the other Loan Documents, shall should have been delivered to Lender, (ii) for proceeds or awards resulting from the condemnation or other taking in lieu of condemnation of all or any portion of the Property, to the full extent of such proceeds or awards not xxx forpreviously delivered to Lender, seek but which, under the terms of the Loan Documents, should have been delivered to Lender, (iii) for all tenant security deposits or demand other refundable deposits paid to or held by Borrower or any deficiency judgment against other person or entity in connection with leases of all or any portion of the Property which are not applied in accordance with the terms of the applicable lease or other agreement, (iv) for rent and other payments received from tenants under leases of all or any portion of the Property paid more than one (1) month in advance, (v) for rents, issues, profits and revenues of all or any portion of the Property received or applicable to a period after the occurrence of any Event of Default hereunder or under the Loan Documents or any event which, with notice or the passage of time, or both, would constitute an Event of Default, hereunder or under the Loan Documents which are not either applied to the ordinary and necessary expenses of owning and operating the Property or paid to Lender, (vi) for waste committed on the Property, damage to the Property as a result of the intentional misconduct or gross negligence of Borrower or any of the Exculpated Parties in its principals, officers, general partners or members, any guarantor, any indemnitor, or any agent or employee of any such action person, or proceeding under any removal of all or any portion of the Property in violation of the terms of the Loan Documents, to the full extent of the losses or damages incurred by reason Lender on account of such occurrence, (vii) for failure to pay any valid taxes, assessments, mechanic’s liens, materialmen’s liens or under other liens which could create liens on any portion of the Property which would be superior to the lien or in connection with the Note, this Agreement, security title of the Security Instrument or the other Loan Documents. The provisions , to the full extent of this Section shall not, however, (1) constitute a waiver, release or impairment of any obligation evidenced or secured the amount claimed by any of the Loan Documents; (2) impair the right of Lender such lien claimant except, with respect to name Borrower as a party defendant in any action such taxes or suit for foreclosure and sale under the Security Instrument; (3) affect the validity or enforceability of any indemnity, guaranty or similar instrument (including, without limitation, indemnities set forth in Article 12 hereof, Section 11.2 hereof, in the Guaranty and the Environmental Indemnity) made in connection with the Loan or any of the rights and remedies of Lender thereunder (including, without limitation, Lender’s right to enforce said rights and remedies against Borrower and/or Guarantor (as applicable) personally and without the effect of the exculpatory provisions of this Article 13); (4) impair the rights of Lender to (A) obtain the appointment of a receiver and/or (B) enforce its rights and remedies provided in Articles 8 and 9 hereof; (5) impair the enforcement of the assignment of leases and rents contained in the Security Instrument and in any other Loan Documents; (6) impair the right of Lender to enforce Section 4.12(e) of this Agreement; (7) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted by the Security Instrument or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against the Property; or (8) constitute a waiver of the right of Lender to enforce the liability and obligation of Borrower, by money judgment or otherwiseassessments, to the extent of any Loss incurred by that funds have been deposited with 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 Party in connection with the Loan;
(ii) the gross negligence or willful misconduct of any Borrower Party;
(iii) any litigation or other legal proceeding related to the Debt filed by any Borrower Party 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 other Loan Documents;
(iv) waste to the Property caused by the intentional acts or intentional omissions of any Borrower Party and/or the removal or disposal of any portion of the Property after an Event of Default;
(v) the misapplication, misappropriation or conversion by any Borrower Party 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 Rents following an Event of Default or (D) any Tenant security deposits or Rents collected in advance;
(vi) any act of arson by any Borrower Party or of which any Borrower Party has knowledge;
(vii) failure to pay Taxes, charges for labor or materials or other charges that can create liens on any portion of the Property in accordance with the terms and provisions hereof;
(viii) failure to pay Insurance Premiums, to maintain the Policies in full force and effect and/or to provide Lender evidence of the same, in each case, as expressly provided herein;
(ix) any security deposits, advance deposits or any other deposits collected with respect to the Property which are not delivered to Lender upon a foreclosure of the 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;
(x) any tax on the making and/or recording of the Security Instrument, the Note or any of the other Loan Documents or any transfer or similar taxes (whether due upon the making of the same or upon Lender’s exercise of its remedies under the Loan Documents), but excluding any income, franchise or other similar taxes;
(xi) the seizure or forfeiture of the Property, or any portion thereof, or Borrower’s interest therein, resulting from criminal wrongdoing by any Borrower Party;
(xii) the failure to make any Condemnation Payment and/or any Balancing Payment, to permit on-site inspections of the Property and/or to provide the Required Financial Items, in each case, as and when required herein;
(xiii) Intentionally Omitted;
(xiv) the failure to make repairs, renewals or replacements (including, without limitation, structural and nonstructural, exterior and interior, ordinary and extraordinary, foreseen and unforeseen) to the Property or any portion thereof (including, without limitation, the Improvements now or at any time hereafter erected on the Property) as and when required pursuant to the terms of the Security Instrument specifically for the applicable taxes or assessments and not applied by Lender to pay such taxes and assessments, (viii) for all obligations and indemnities of Borrower under the Loan Documents relating to Hazardous Substances (as defined in the Security Instrument) or radon or compliance with Environmental Laws (as defined in the Security Instrument) and regulations to the full extent of any losses or damages (including those resulting from diminution in value of any Property) incurred by Lender and/or any of its affiliates as a result of the existence of such Hazardous Substances or radon or failure to comply with such Environmental Laws or regulations, or (ix) for fraud, intentional misrepresentation, failure to disclose a material fact, any untrue statement of a material fact or omission to state a material fact in the written materials and/or information provided to Lender or any of its affiliates by or on behalf of Borrower or any of its affiliates, principals, officers, general partners or members, any guarantor, any indemnitor or any agent, employee or other person authorized or apparently authorized to make statements, representations or disclosures on behalf of Borrower, any affiliate, principal, officer, general partner or member of Borrower, any guarantor or any indemnitor, to the full extent of any losses, damages and expenses of Lender and/or any of its affiliates on account thereof. References herein to particular sections of the Loan Documents shall be deemed references to such sections as affected by other provisions of the Loan Documents relating thereto. Nothing contained in this Section shall (1) be deemed to be a release or impairment of the indebtedness evidenced by this Note or the other obligations of Borrower under the Loan Documents or as and when necessary to maintain the Property in good and safe condition, in a rentable and tenantable state of repair and/or in the condition required pursuant to the terms lien of the Loan Documents; and/or
Documents upon the Property, or (xv2) preclude Lender from foreclosing the Loan Documents in case of any indemnity obligations default or from enforcing any of the other rights of Lender to Bank under except as stated in this Section, or (3) limit or impair in any way whatsoever (A) the Restricted Account Indemnity and Guaranty Agreement (other than those arising the “Indemnity Agreement”) or (B) the Environmental Indemnity Agreement (the “Environmental Indemnity Agreement”), each of even date herewith executed and delivered in connection with the indebtedness evidenced by this Note or release, relieve, reduce, waive or impair in any way whatsoever, any obligation of any party to the Indemnity Agreement or the Environmental Indemnity Agreement. Notwithstanding the foregoing, the agreement of Lender not to pursue recourse liability as set forth in this Section 2.6 SHALL BECOME NULL AND VOID and shall be of no further force and effect in the event of (i) a direct result default by Borrower, Indemnitor (as defined in the Security Instrument) or any general partner, manager or managing member of Lender’s gross negligence Borrower of any of the covenants set forth in Section 2.9 or willful misconduct).
Section 2.29 of the Security Instrument, or (bii) if the Property or any part thereof shall become an asset in (A) a voluntary bankruptcy or insolvency proceeding of Borrower or Indemnitor, or (B) an involuntary bankruptcy or insolvency proceeding of Borrower or Indemnitor in which the Borrower or the Indemnitor colludes with creditors in such bankruptcy or insolvency proceeding and which is not dismissed within sixty (60) days of filing. Notwithstanding anything to the contrary in this AgreementNote, the Note Security Instrument 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 U.S. Bankruptcy Code to file a claim for the full amount of the Debt indebtedness evidenced hereby or secured by the Security Instrument or any of the other Loan Documents or to require that all collateral shall continue to secure all of the Debt indebtedness owing to Lender in accordance with this Note, the Security Instrument and the other Loan Documents, and (B) the Debt shall be fully recourse to Borrower in the event that: (i) the first full monthly payment of principal and interest under the Note is not paid when due; (ii) Borrower fails to comply with any provisions hereof relating to cash management or fails to appoint a new property manager upon the request of Lender, fails to cooperate with any New Manager or fails to comply with any limitations on instructing the property manager, each as required by and in accordance with, as applicable, the terms and provisions of, this Agreement, the Assignment of Management Agreement and the Security Instrument; (iii) any representation, warranty or covenant contained in Article 5 or Article 6 hereof is violated or breached; (iv) a Bankruptcy Event occurs; or (v) Sections 11.1 or 11.6 hereof are violated or breached in any material respect.
Appears in 3 contracts
Samples: Promissory Note (NNN Healthcare/Office REIT, Inc.), Promissory Note (NNN Healthcare/Office REIT, Inc.), Promissory Note (NNN Healthcare/Office 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 Security Instrument or the other Loan Documents by any action or proceeding wherein a money judgment or any deficiency judgment or other judgment establishing personal liability shall be sought against Borrower or any principal, director, officer, employee, beneficiary, shareholder, partner, member, trustee, agent, or Affiliate of Borrower or any legal representatives, successors or assigns of any of the foregoing (collectively, the “Exculpated Parties”)Principal, except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender to enforce and realize upon its interest under the Note, this Agreement, the Security Instrument Note, the Mortgage and the other Loan Documents, or and the interest in the Property, the Rents, or Rents and any other collateral given to Lender pursuant to created by this Agreement, the Note, the Mortgage and the other Loan Documents; provided, however, that, except as specifically provided herein, that any judgment in any such action or proceeding shall be enforceable against Borrower or Borrower Principal, as applicable, only to the extent of Borrower’s or Borrower Principal’s interest in the Property, in the Rents and in any other collateral given to Lender, and . Lender, by accepting the Note, this Agreement, the Security Instrument 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 any of the Exculpated Parties Borrower Principal in any such action or proceeding proceeding, under or by reason of or under or in connection with the Note, this Agreement, the Security Instrument Note, the Mortgage or the other Loan Documents. The provisions of this Section 15.1 shall not, however, (1i) 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; (2ii) 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 Security InstrumentMortgage; (3iii) affect the validity or enforceability of any indemnity, guaranty or similar instrument indemnity (including, without limitation, indemnities set forth in Article 12 hereof, Section 11.2 hereof, in the Guaranty and the Environmental Indemnity) , Section 13.5 and Article 14 of this Agreement), 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 thereunder (including, without limitation, Lender’s right to enforce said rights and remedies against Borrower and/or Guarantor (as applicable) personally and without the effect of the exculpatory provisions of this Article 13)Documents; (4iv) impair the rights right of Lender to (A) obtain the appointment of a receiver and/or (B) enforce its rights and remedies provided in Articles 8 and 9 hereofreceiver; (5v) impair the enforcement of the assignment of leases and rents provisions contained in the Security Instrument and in any other Loan DocumentsMortgage; or (6vi) impair the right of Lender to enforce Section 4.12(e) of obtain a deficiency judgment or other 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; (7) constitute a prohibition against provided however, Lender to seek a deficiency shall only enforce such judgment against Borrower in order to fully realize the security granted by the Security Instrument or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against the Property; or (8) constitute a waiver of the right of Lender to enforce the liability and obligation of Borrower, by money judgment or otherwise, to the extent of any Loss incurred by the Insurance Proceeds and/or Awards.
(b) Notwithstanding the provisions of this Section 15.1 to the contrary, 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, Borrower Principal or any other Affiliate of Borrower Party 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 in connection with the Loan either at the time of the closing of the Loan or during the term of the Loan;
(ii) Borrower’s misapplication or misappropriation of Rents received by Borrower after the gross negligence or willful misconduct occurrence of any Borrower Party;
(iii) any litigation or other legal proceeding related to the Debt filed by any Borrower Party 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 other Loan Documents;
(iv) waste to the Property caused by the intentional acts or intentional omissions of any Borrower Party and/or the removal or disposal of any portion of the Property after an Event of Default;
(viii) the misapplication, Borrower’s misapplication or misappropriation or conversion by any Borrower Party 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 Rents following an Event of Default or (D) any Tenant tenant security deposits or Rents collected in advance;
(iv) the misapplication or the misappropriation of Insurance Proceeds or Awards;
(v) Borrower’s failure to pay Taxes and Other Charges, in each case to the extent that the net operating cash flow of the Property is sufficient therefor (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), and in each case beyond any applicable notice and cure periods specified herein;
(vi) any act Borrower’s failure to return or to reimburse Lender for all Personal Property taken from the Property by or on behalf of arson by any Borrower Party and not replaced with Personal Property of the same utility and of the same or of which any Borrower Party has knowledgegreater value;
(vii) failure to pay Taxesany act of intentional waste or arson by Borrower, charges for labor any principal, Affiliate, member or materials general partner thereof or other charges that can create liens on by Borrower Principal, any portion of the Property in accordance with the terms and provisions hereofprincipal, Affiliate, member or general partner thereof;
(viii) Borrower’s failure following any Event of Default to pay Insurance Premiums, deliver to maintain Lender upon demand all Rents and books and records relating to the Policies in full force and effect and/or to provide Lender evidence of the same, in each case, as expressly provided herein;Property; or
(ix) any security deposits, advance deposits or any other deposits collected with respect change made to the Property which are Policies without Lender’s prior written consent.
(c) Notwithstanding the foregoing, the agreement of Lender not to pursue recourse liability against Borrower and Borrower Principal as set forth in subsection (a) above SHALL BECOME NULL AND VOID and shall be of no further force and effect and the Debt shall be fully recourse to Borrower and Borrower Principal jointly and severally in the event of (i) a default by Borrower or Borrower Principal of any of the covenants set forth in Article 6, provided, however, that (x) a breach by Borrower of the covenants set forth in Article 6 shall not result in recourse liability hereunder unless such breach was material and, within fifteen (15) days of notice from Lender, Borrower fails to cure such breach and fails to deliver to Lender a new or revised substantive non-consolidation opinion, in form and substance and from counsel reasonably satisfactory to Lender in accordance with the Rating Agency standards for the same, to the effect that such failure does not negate/impair the opinion previously delivered to Lender upon Lender, and (y) the Debt shall be recourse to Borrower Principal in connection with a foreclosure default under such Article 6 covenants only if Borrower Principal itself breaches, or causes or permits Borrower to breach, such covenants, (ii) a default by Borrower or Borrower Principal under any of the prohibitions on transfers of the Property or action direct or indirect interest of Borrower set forth in lieu thereof, Article 7 hereof (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;
(x) any tax on the making and/or recording of the Security Instrument, the Note or any of the other Loan Documents or any transfer or similar taxes (whether due upon the making of the same or upon Lender’s exercise of its remedies as may be expressly permitted under the Loan Documents), but excluding any income, franchise or other similar taxes;
(xi) provided that the seizure or forfeiture Debt shall be recourse to Borrower Principal in connection with a default of the Propertysuch Article 7 prohibitions only if Borrower Principal itself breaches, or any portion thereofcauses or permits Borrower to breach, such prohibitions, or (iii) if (A) a voluntary bankruptcy or insolvency proceeding is commenced by Borrower’s interest therein, resulting from criminal wrongdoing (provided that the Debt shall be recourse to Borrower Principal in connection with a voluntary bankruptcy or insolvency proceeding of Borrower only if Borrower Principal commences or causes or permits Borrower to commence such a voluntary proceeding) or (B) an involuntary bankruptcy or insolvency proceeding is commenced against Borrower which is not dismissed within ninety (90) days of filing (provided, however, that Borrower and Borrower Principal shall not have recourse liability hereunder in connection with any involuntary bankruptcy or insolvency proceeding unless such involuntary proceeding is solicited, procured, consented to or acquiesced in by Borrower, any Affiliate of Borrower Party;
(xii) or Borrower Principal in bad faith collusion with an intent to circumvent the failure to make any Condemnation Payment and/or any Balancing Payment, to permit on-site inspections of prohibition on recourse liability against the Property and/or to provide the Required Financial Items, in each case, as and when required Borrower or Borrower Principal set forth herein;
(xiii) Intentionally Omitted;
(xiv) the failure to make repairs, renewals or replacements (including, without limitation, structural and nonstructural, exterior and interior, ordinary and extraordinary, foreseen and unforeseen) to the Property or any portion thereof (including, without limitation, the Improvements now or at any time hereafter erected on the Property) as and when required pursuant to the terms of the Loan Documents or as and when necessary to maintain the Property in good and safe condition, in a rentable and tenantable state of repair and/or in the condition required pursuant to the terms of the Loan Documents; and/or
(xv) any indemnity obligations of Lender to Bank under the Restricted Account Agreement (other than those arising as a direct result of Lender’s gross negligence or willful misconduct).
(bd) Notwithstanding anything to the contrary in this Agreement, the Note or any of the Loan Documents, (A) Lender Nothing herein shall not be deemed to have waived be a waiver of 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 Debt indebtedness secured by the Mortgage or to require that all collateral shall continue to secure all of the Debt indebtedness owing to Lender in accordance with the Loan Documents, and (B) the Debt shall be fully recourse to Borrower in the event that: (i) the first full monthly payment of principal and interest under the Note is not paid when due; (ii) Borrower fails to comply with any provisions hereof relating to cash management or fails to appoint a new property manager upon the request of Lender, fails to cooperate with any New Manager or fails to comply with any limitations on instructing the property manager, each as required by and in accordance with, as applicable, the terms and provisions of, this Agreement, the Assignment Note, the Mortgage or the other Loan Documents.
(e) Notwithstanding any provisions of Management Agreement and this Article 15 to the Security Instrument; (iii) any representationcontrary, warranty or covenant contained in Article 5 or Article 6 hereof no event shall Borrower’s failure to pay Operating Expenses in the event cash flow is violated or breached; (iv) a Bankruptcy Event occurs; or (v) Sections 11.1 or 11.6 hereof are violated or breached in any material respectinsufficient to pay such expenses be considered an act of waste.
Appears in 3 contracts
Samples: Loan Agreement (Maguire Properties Inc), Loan Agreement (Maguire Properties Inc), Loan Agreement (Maguire Properties Inc)
Exculpation. (a) Subject to Except as otherwise provided herein, in the qualifications belowSecurity Instruments or in the other Loan Documents, Lender shall not enforce the liability and obligation of Borrower or Guarantor (with respect to the Loan Documents to which Guarantor is a party) to perform and observe the obligations contained in the Note, this Agreement, the Security Instrument Note or the other Loan Documents Security Instruments by any action or proceeding wherein a money judgment or any deficiency judgment or other judgment establishing personal liability shall be sought against Borrower or any principaland/or Guarantor, director, officer, employee, beneficiary, shareholder, partner, member, trustee, agent, or Affiliate of Borrower or any legal representatives, successors or assigns of any of the foregoing (collectively, the “Exculpated Parties”)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 to enforce and realize upon its interest under the Note, this Agreement, the Note, the Security Instrument and Instruments, the other Loan Documents, or and the interest in the PropertyProperties, the Rents, or Rents and any other collateral given to Lender pursuant to created by this Agreement, the Note, the Security Instruments and the other Loan Documents; provided, however, that, except as specifically provided herein, that any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower’s interest in the PropertyProperties, in the Rents and in any other collateral given to Lender, and . Lender, by accepting the Note, this Agreement, the Security Instrument Note and the other Loan DocumentsSecurity Instruments, agrees that it shall not not, except as otherwise provided herein, xxx for, seek or demand any deficiency judgment against Borrower or any of the Exculpated Parties in any such action or proceeding proceeding, under or by reason of or under or in connection with the Note, this Agreement, the Note, the Security Instrument Instruments or the other Loan Documents. The provisions of this Section 9.4 shall not, however, (1i) constitute a waiver, release or impairment of any obligation evidenced or secured by any of this Agreement, the Note, the Security Instruments or the other Loan Documents; (2ii) impair the right of Lender to name Borrower as a party defendant in any action or suit for judicial foreclosure and sale under the Security InstrumentInstruments; (3iii) affect the validity or enforceability of any indemnityindemnity (including the Environmental Indemnity), guaranty (including the Guaranty), master lease or similar instrument (including, without limitation, indemnities set forth in Article 12 hereof, Section 11.2 hereof, in the Guaranty and the Environmental Indemnity) made in connection with this Agreement, the Note, the Security Instruments, or the other Loan or any of the rights and remedies of Lender thereunder (including, without limitation, Lender’s right to enforce said rights and remedies against Borrower and/or Guarantor (as applicable) personally and without the effect of the exculpatory provisions of this Article 13)Documents; (4iv) impair the rights right of Lender to (A) obtain the appointment of a receiver and/or (B) enforce its rights and remedies provided in Articles 8 and 9 hereofreceiver; (5v) impair the enforcement of the assignment Assignments of leases and rents contained in the Security Instrument and in any other Loan DocumentsLeases; (6vi) impair the right of Lender to enforce the provisions of Section 4.12(e) 10.2 of this Agreement; (7) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted by the Security Instrument Instruments or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against the PropertySections 4.1.10, 4.1.30, 5.1.9 and 5.2.8 hereof; or (8) constitute a waiver of vii) 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 (A) preserve or enforce its rights and remedies against any Individual Property or (B) obtain any Insurance Proceeds or Awards to which Lender would otherwise be entitled under the terms of this Agreement or the Security Instruments; provided however, Lender shall only enforce such judgment to the extent of any Loss incurred by the Insurance Proceeds and/or Awards.
(b) Notwithstanding the provisions of Section 9.4(a) above to the contrary, Borrower shall be personally liable to Lender (including attorneys’ fees and costs reasonably incurred) for the Losses it incurs arising out of or in connection with the following:
(i) fraud or a Loan Party’s fraud, willful misconduct, intentional misrepresentation by any Borrower Party or failure to disclose a material fact in connection with the execution and the delivery of this Agreement, the Note, the Security Instruments, or the other Loan Documents or otherwise in connection with the Loan;
(ii) a Loan Party’s misapplication or misappropriation of Security Deposits, Rents (including failure to deposit Rents into the gross negligence Lockbox Account), or willful misconduct of any Borrower Partyother amounts due to Lender pursuant to the Loan Documents;
(iii) a Loan Party’s misapplication or the misappropriation of Insurance Proceeds or Awards in violation of the Loan Documents;
(iv) a Loan Party’s failure to pay any litigation Other Charges (including charges for labor or other legal proceeding related materials) (to the extent such Other Charges are not being contested in accordance with the terms of this Agreement) that can create a Lien on the Property beyond any applicable notice and cure periods specified herein, provided that such failure is not due to insolvency or insufficient funds from the operation of such Property;
(v) failure to maintain insurance as required pursuant to the Loan Documents or pay Insurance Premiums or Taxes that can create Liens on the Property beyond any applicable notice and cure periods specified herein (to the extent not contested by Borrower in accordance with the terms of this Agreement), except to the extent that (A) there is insufficient net cash flow from the Properties, or (B) there is sufficient net cash flow from the Properties and Lender applies such amounts to the Debt filed or for other uses, or (C) sums sufficient to pay such amounts have been deposited in escrow with Lender pursuant to the terms of Section 7.2 hereof;
(vi) a Loan Party’s removal of and failure to return or to reimburse Lender for all Personal Property taken by such Loan Party from any Individual Property in violation of the Loan Documents by or on behalf of Borrower Party that delaysand not replaced with Personal Property of the same utility and of the same or greater value;
(vii) any act of intentional physical waste or arson of an Individual Property by a Loan Party;
(viii) any fees or commissions paid by Borrower to Principal, opposesif any, impedesGuarantor or any Affiliate of Borrower in violation of the terms of this Agreement, obstructsthe Note, hinders, enjoins the Security Instruments 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 other Loan Documents;
(ivix) waste Borrower’s failure to comply with the provisions of Sections 5.1.8 (after five (5) Business Days after Borrower’s receipt of written notice of such failure) or 5.1.19 hereof;
(x) criminal acts of a Loan Party resulting in the seizure or forfeiture of any Individual Property;
(xi) the wrongful destruction of or damage to any portion of any Individual Property caused by the intentional acts willful misconduct or intentional omissions gross negligence of a Loan Party;
(xii) without the prior written consent of Lender as required pursuant to the Loan Documents, Borrower entering into any amendment, modification or termination of any Borrower Party and/or Lease;
(xiii) the removal or disposal breach of any portion representation, warranty, covenant or indemnification provision in the Environmental Indemnity or in the Loan Documents concerning Environmental Laws and Hazardous Substances and any indemnification of Lender with respect thereto in any Loan Document;
(xiv) Borrower’s failure to pay all transfer and recording taxes due to any Governmental Authority in the event of a foreclosure of any Individual Property, deed in lieu or other transfer of any Individual Property to Lender or Lender’s designee, solely to the extent there is sufficient revenue from the Properties made available to the Borrower to pay the same;
(xv) [intentionally omitted];
(xvi) Borrower’s failure to comply with the provisions of Section 9.2 hereof, after receiving written notice of such failure, which specifically provides reasonable details of such failure, and such failure continues for ten (10) Business Days thereafter;
(xvii) Borrower’s failure to reimburse Lender for any costs and expenses, including reasonable attorneys fees, in each case arising from or related to Lender’s enforcement of its rights and remedies under the Loan Documents after the occurrence of an Event of Default;
(v) the misapplication, misappropriation or conversion by any Borrower Party of (Axviii) 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 Rents following an Event of Default or (D) any Tenant security deposits or Rents collected in advancePre-Existing Liability;
(vixix) any act of arson by any Borrower Party or of which any Borrower Party has knowledge;
(vii) failure to pay Taxes, charges for labor or materials or other charges that can create liens on any portion of the Property in accordance with the terms and provisions hereof;
(viii) failure to pay Insurance Premiums, to maintain the Policies in full force and effect and/or to provide Lender evidence of the same, in each case, as expressly provided herein;
(ix) any security deposits, advance deposits or any other deposits collected with respect to the Property which are not delivered to Lender upon a foreclosure of the 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;
(x) any tax on the making and/or recording of the Security Instrument, the Note or any of the other Loan Documents or any transfer or similar taxes (whether due upon the making of the same or upon Lender’s exercise of its remedies under the Loan Documents), but excluding any income, franchise or other similar taxes;
(xi) the seizure or forfeiture of the Property, or any portion thereof, or Borrower’s interest therein, resulting from criminal wrongdoing by any Borrower Party;
(xii) the failure to make any Condemnation Payment and/or any Balancing Payment, to permit on-site inspections of the Property and/or to provide the Required Financial Items, in each case, as and when required herein;
(xiii) Intentionally Omitted;
(xiv) the failure to make repairs, renewals or replacements (including, without limitation, structural and nonstructural, exterior and interior, ordinary and extraordinary, foreseen and unforeseen) to the Property or any portion thereof (including, without limitation, the Improvements now or at any time hereafter erected on the Property) as and when required pursuant to the terms of the Loan Documents or as and when necessary to maintain the Property in good and safe condition, in a rentable and tenantable state of repair and/or in the condition required pursuant to the terms of the Loan Documents; and/or
(xv) any indemnity obligations of Lender to Bank under the Restricted Account Agreement (other than those arising as a direct result of Lender’s gross negligence or willful misconduct); or
(xx) any Losses due to a breach of Section 4.1.36 hereof, to the extent not covered by Section 9.4(c)(i) below.
(bc) 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 and the Debt shall be fully recourse to Borrower immediately in the event that:
(i) Borrower defaults under any of Sections 4.1.36, 5.2.10 or 5.2.11 hereof or Article 7 of the Security Instruments, or in the event of Principal’s default under Section 4.1.36 hereof, provided that any default by Borrower or Principal, if any, under Section 4.1.36 shall have resulted in a substantive consolidation of Borrower with another Person;
(ii) a Bankruptcy Event occurs;
(iii) Borrower fails to obtain Lender’s prior written consent to any subordinate financing for borrowed money and such prior written consent is required pursuant to the Loan Documents;
(iv) a Loan Party’s interference with Lender’s exercise of remedies provided under the Loan Documents after Lender has delivered written notice of acceleration of the Loan, unless any such action was in pursuit of a good faith claim upon which such Loan Party ultimately prevailed; or
(v) Borrower or any of its Affiliates contests or opposes any motion made by Lender to obtain relief from the automatic stay or seek to reinstate the automatic stay following the occurrence of a Bankruptcy Event.
(d) Notwithstanding anything herein to the contrary contrary, Borrower acknowledges that, pursuant to the Guaranty, to the extent Borrower fails to pay any wind/named storm and earthquake insurance deductible in this Agreement, an amount equal to the Note or any of the Loan Documents, positive difference between (A) Lender 5% of the total insured value of any Property for which such insurance claim is made and (B) $250,000, Guarantor shall not have the obligation to pay such amount.
(e) Nothing herein shall be deemed to have waived be a waiver of 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 Debt indebtedness secured by the Security Instruments or to require that all collateral shall continue to secure all of the Debt indebtedness owing to Lender in accordance with the Loan Documents, and (B) the Debt shall be fully recourse to Borrower in the event that: (i) the first full monthly payment of principal and interest under the Note is not paid when due; (ii) Borrower fails to comply with any provisions hereof relating to cash management or fails to appoint a new property manager upon the request of Lender, fails to cooperate with any New Manager or fails to comply with any limitations on instructing the property manager, each as required by and in accordance with, as applicable, the terms and provisions of, this Agreement, the Assignment of Management Agreement Note, the Security Instruments and the Security Instrument; (iii) any representation, warranty or covenant contained in Article 5 or Article 6 hereof is violated or breached; (iv) a Bankruptcy Event occurs; or (v) Sections 11.1 or 11.6 hereof are violated or breached in any material respectother Loan Documents.
Appears in 2 contracts
Samples: Loan Agreement (Cole Credit Property Trust II Inc), Loan Agreement (Spirit Realty Capital, Inc.)
Exculpation. (a) Subject to the qualifications below, (i) Lender shall not enforce the liability and obligation of Borrower to perform and observe the obligations contained in the Note, this Agreement, the Security Instrument Mortgage or the other Loan Documents by any action or proceeding wherein a money judgment or any deficiency judgment or other judgment establishing personal liability shall be sought against Borrower or any principal, director, officer, employee, beneficiary, shareholder, partner, member, trustee, agent, or Affiliate of the members of Borrower or any legal representativesdirect or indirect partner, successors shareholder, member, manager, owner, officer, director, trustee or assigns employee in or of any of the foregoing Borrower (collectively, the “"Exculpated Parties”)") or Borrower, except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender to enforce and realize upon its interest under the Note, this Agreement, the Security Instrument Mortgage and the other Loan Documents, or in the Property, the Rents, or any other collateral given to Lender pursuant to the Loan Documents; provided, however, that, (ii) except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower’s 's interest in the Property, in the Rents and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Security Instrument Mortgage and the other Loan Documents, agrees that it shall not xxx sue for, seek or demand any deficiency judgment against Borrower or any of the Exculpated Parties in any such action or proceeding under or by reason of or under or in connection with the Note, this Agreement, the Security Instrument Mortgage or the other Loan Documents and (iii) none of the Exculpated Parties shall have any personal liability in any respect for the Loan or the obligations of Borrower contained in the Loan Documents. The provisions of this Section shall not, however, (1a) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (2b) impair the right of Lender to name Borrower as a party defendant in any action or suit for foreclosure and sale under the Security InstrumentMortgage; (3c) affect the validity or enforceability of or any indemnity, guaranty or similar instrument made in connection with the Loan (including, without limitation, indemnities set forth in Article 12 hereof, Section 11.2 hereof, in the Guaranty and the Environmental IndemnityGuaranty) made in connection with the Loan or any of the rights and remedies of Lender thereunder thereunder, or be taken to prevent recourse against any guarantor (including, without limitation, Lender’s right to enforce said rights and remedies against Borrower and/or Guarantor Metropolitan) under any guaranty made in connection with the Loan (as applicable) personally and including, without limitation, the effect of the exculpatory provisions of this Article 13Guaranty); (4) impair the rights of Lender to (A) obtain the appointment of a receiver and/or (B) enforce its rights and remedies provided in Articles 8 and 9 hereof; (5) impair the enforcement of the assignment of leases and rents contained in the Security Instrument and in any other Loan Documents; (6d) impair the right of Lender to enforce Section 4.12(e) obtain the appointment of this Agreementa receiver; (7e) impair 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 Security Instrument Mortgage or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against the Property; or (8) 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 Loss 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 or any Borrower Party guarantor in connection with the Loan;
(ii) the gross negligence or willful misconduct of any Borrower PartyBorrower;
(iii) the breach of any litigation representation, warranty, covenant or other legal proceeding related to indemnification provision in the Debt filed by Environmental Indemnity or in the Mortgage concerning environmental laws, hazardous substances and asbestos and any Borrower Party that delays, opposes, impedes, obstructs, hinders, enjoins or otherwise interferes with or frustrates the efforts indemnification of Lender to exercise any rights and remedies available to Lender as provided herein and with respect thereto in the other Loan Documentseither document;
(iv) waste to the Property caused by the intentional acts or intentional omissions of any Borrower Party and/or the removal or disposal of any portion of the Property after an Event of DefaultDefault without replacing the same with an item or items of comparable value;
(v) the misapplication, misappropriation misapplication or conversion by any Borrower Party 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 (D) any Tenant security deposits or Rents collected in advanceDefault;
(vi) any act of arson by any Borrower Party or of which any Borrower Party has knowledge;
(vii) failure to pay Taxes, charges for labor or materials or other charges that can create liens on any portion of the Property in accordance with the terms and provisions hereofProperty;
(viii) failure to pay Insurance Premiums, to maintain the Policies in full force and effect and/or to provide Lender evidence of the same, in each case, as expressly provided herein;
(ixvii) any security deposits, advance deposits or any other deposits collected with respect to the Property which are not delivered to Lender upon a foreclosure of the 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;
(xviii) any tax on the making and/or recording Borrower's indemnification of the Security Instrument, the Note or any of the other Loan Documents or any transfer or similar taxes (whether due upon the making of the same or upon Lender’s exercise of its remedies under the Loan Documents), but excluding any income, franchise or other similar taxesLender set forth in Section 9.2 hereof;
(xiix) the seizure or forfeiture of the Property, or any portion thereof, or failure to maintain Borrower’s interest therein, resulting from criminal wrongdoing by any Borrower Party;'s status as a single purpose entity; and
(xiix) the failure to make any Condemnation Payment and/or any Balancing Payment, to permit on-site inspections of the Property and/or Property, failure to provide the Required Financial Items, in each case, as and when required herein;
(xiii) Intentionally Omitted;
(xiv) the financial information or failure to make repairs, renewals or replacements (including, without limitation, structural and nonstructural, exterior and interior, ordinary and extraordinary, foreseen and unforeseen) to the Property or any portion thereof (including, without limitation, the Improvements now or at any time hereafter erected on the Property) as and when required pursuant to the terms of the Loan Documents or as and when necessary to maintain the Property in good and safe condition, in appoint a rentable and tenantable state of repair and/or in the condition required pursuant to the terms of the Loan Documents; and/or
(xv) any indemnity obligations of Lender to Bank under the Restricted Account Agreement (other than those arising as a direct result of Lender’s gross negligence or willful misconduct).
(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 Debt or to require that all collateral shall continue to secure all of the Debt owing to Lender new Manager 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 terms of principal and interest under the Note is not paid when due; (ii) Borrower fails to comply with any provisions hereof relating to cash management or fails to appoint a new property manager this Agreement upon the request of Lender, fails to cooperate with any New Manager or fails to comply with any limitations on instructing the property managerLender after an Event of Default, each as required by by, and in accordance with, as applicable, the terms and provisions of, this Agreement, the Assignment of Management Agreement and the Security InstrumentMortgage, if such condition shall continue for five (5) Business Days after notice thereof.
(i) Borrower fails to obtain Lender's prior written consent to any subordinate financing or other voluntary lien encumbering the Property; or
(iiiii) Borrower fails to obtain Lender's prior written consent to any representationassignment, warranty transfer, or covenant contained in Article 5 conveyance of the Property or Article 6 hereof is violated any interest therein as required by the Mortgage or breached; (iv) a Bankruptcy Event occurs; or (v) Sections 11.1 or 11.6 hereof are violated or breached in any material respectthis Agreement.
Appears in 2 contracts
Samples: Loan Agreement (Reckson Associates Realty Corp), Loan Agreement (Reckson Operating Partnership Lp)
Exculpation. (a) Subject From and after the Effective Date, the Exculpated Fiduciaries and, solely to the qualifications below, Lender shall not enforce extent provided by section 1125(e) of the liability and obligation of Borrower to perform and observe the obligations contained in the Note, this AgreementBankruptcy Code, the Security Instrument or the other Loan Documents by Section 1125(e) Parties, shall neither have nor incur any action or proceeding wherein a money judgment or any deficiency judgment or other judgment establishing personal liability shall be sought against Borrower or any principal, director, officer, employee, beneficiary, shareholder, partner, member, trustee, agentto, or Affiliate be subject to any right of Borrower action by, any Holder of a Claim or any legal representatives, successors or assigns of any of the foregoing (collectively, the “Exculpated Parties”), except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender to enforce and realize upon its interest under the Note, this Agreement, the Security Instrument and the other Loan Documents, or in the Property, the RentsInterest, or any other collateral given party in interest, or any of their respective employees, representatives, financial advisors, attorneys, or agents acting in such capacity, or Affiliates, or any of their successors or assigns, for any act or omission in connection with, relating to, or arising out of, the Chapter 11 Case, formulating, negotiating or implementing this Plan and/or previous iterations hereof, the Plan Supplement, the Disclosure Statement and/or previous iterations thereof, the Alternative Plan Sponsor Agreement, the Original Plan Sponsor Agreement, the Restructuring Support Agreement, the Alternative Master Lease or the Original Master Lease (as applicable), the solicitation of acceptances of this Plan and/or previous iterations hereof, the pursuit of Confirmation of this Plan, the Confirmation of this Plan, the consummation of this Plan, the administration of this Plan, the property to Lender pursuant be distributed under this Plan, the consummation of the transactions contemplated by the Alternative Plan Sponsor Agreement, the Original Plan Sponsor Agreement, or any other act taken or omitted to be taken in connection with or in contemplation of the Loan DocumentsChapter 11 Case or implementation of this Plan; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding that this Section 9.5 shall be enforceable against Borrower only not apply to the extent of Borrower’s interest in the Property, in the Rents and in any other collateral given to Lenderrelease (x) obligations under this Plan, and Lender, by accepting obligations under the Note, this Alternative Plan Sponsor Agreement, the Security Instrument and the other Loan Documents, shall not xxx for, seek or demand any deficiency judgment against Borrower or any of the Exculpated Parties in any such action or proceeding under or by reason of or under or in connection with the Note, this Original Plan Sponsor Agreement, the Security Instrument Restructuring Support Agreement, the Alternative Master Lease or the other Loan Documents. The provisions of this Section shall not, however, (1) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (2) impair the right of Lender to name Borrower as a party defendant in any action or suit for foreclosure and sale under the Security Instrument; (3) affect the validity or enforceability of any indemnity, guaranty or similar instrument (including, without limitation, indemnities set forth in Article 12 hereof, Section 11.2 hereof, in the Guaranty and the Environmental Indemnity) made in connection with the Loan or any of the rights and remedies of Lender thereunder (including, without limitation, Lender’s right to enforce said rights and remedies against Borrower and/or Guarantor Original Master Lease (as applicable) personally and without the effect of the exculpatory provisions of this Article 13); (4) impair the rights of Lender to (A) obtain the appointment of a receiver and/or (B) enforce its rights and remedies provided in Articles 8 and 9 hereof; (5) impair the enforcement of the assignment of leases and rents contained in the Security Instrument and in any other Loan Documents; (6) impair the right of Lender to enforce Section 4.12(e) of this Agreement; (7) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted by the Security Instrument or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against the Property; or (8) constitute a waiver of the right of Lender to enforce the liability and obligation of Borrower, by money judgment or otherwise, to the extent of any Loss incurred by Lender (including attorneys’ fees and costs reasonably incurred) arising out of or in connection with the following:
(i) fraud or intentional misrepresentation by any Borrower Party in connection with the Loan;
(ii) the gross negligence or willful misconduct of any Borrower Party;
(iii) any litigation or other legal proceeding related to the Debt filed by any Borrower Party 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 other Loan Documents;
(iv) waste to the Property caused by the intentional acts or intentional omissions of any Borrower Party and/or the removal or disposal of any portion of the Property after an Event of Default;
(v) the misapplication, misappropriation or conversion by any Borrower Party 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 Rents following an Event of Default or (D) any Tenant security deposits or Rents collected in advance;
(vi) any act of arson by any Borrower Party or of which any Borrower Party has knowledge;
(vii) failure to pay Taxes, charges for labor or materials or other charges that can create liens on any portion of the Property in accordance with the terms and provisions hereof;
(viii) failure to pay Insurance Premiums, to maintain the Policies in full force and effect and/or to provide Lender evidence of the same, in each case, as expressly provided herein;
(ix) any security deposits, advance deposits or any other deposits collected with respect to the Property which are not delivered to Lender upon a foreclosure of the 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;
(x) any tax on the making and/or recording of the Security Instrument, the Note Merger Agreement and the contracts, instruments, releases, agreements, and documents delivered, Reinstated or any of the other Loan Documents or any transfer or similar taxes (whether due upon the making of the same or upon Lender’s exercise of its remedies assumed under the Loan Documents), but excluding any income, franchise or other similar taxes;
(xi) the seizure or forfeiture of the Property, or any portion thereof, or Borrower’s interest therein, resulting from criminal wrongdoing by any Borrower Party;
(xii) the failure to make any Condemnation Payment and/or any Balancing Payment, to permit on-site inspections of the Property and/or to provide the Required Financial Items, in each case, as and when required herein;
(xiii) Intentionally Omitted;
(xiv) the failure to make repairs, renewals or replacements (including, without limitation, structural and nonstructural, exterior and interior, ordinary and extraordinary, foreseen and unforeseen) to the Property or any portion thereof this Plan (including, without limitation, the Improvements now or at any time hereafter erected on Credit Facility (if the Property) as and when required pursuant to the terms Closing of the Loan Documents or Alternative Transaction does not occur) and the Intercompany Note, as and when necessary to maintain the Property in good and safe condition, in a rentable and tenantable state of repair and/or in the condition required pursuant to the terms of the Loan Documents; and/or
(xv) any indemnity obligations of Lender to Bank under the Restricted Account Agreement (other than those arising as a direct result of Lender’s gross negligence or willful misconductapplicable).
(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 Debt or to require that all collateral shall continue to secure all of the Debt owing to Lender in accordance with the Loan Documents, and (B) the Debt shall be fully recourse to Borrower in the event that: (i) the first full monthly payment of principal and interest under the Note is not paid when due; (ii) Borrower fails to comply with any provisions hereof relating to cash management or fails to appoint a new property manager upon the request of Lender, fails to cooperate with any New Manager or fails to comply with any limitations on instructing the property manager, each as required by and in accordance with, as applicable, the terms and provisions of, this Agreement, the Assignment of Management Agreement and the Security Instrument; (iiiy) any representationClaims or Causes of Action arising out of fraud, warranty willful misconduct or covenant contained in Article 5 or Article 6 hereof is violated or breached; (iv) gross negligence as determined by a Bankruptcy Event occurs; or (v) Sections 11.1 or 11.6 hereof are violated or breached in any material respectFinal Order.
Appears in 2 contracts
Samples: Alternative Plan Sponsor Agreement (Quality Care Properties, Inc.), Restructuring Support Agreement (Quality Care 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 Security Instrument or the other Loan Documents by any action or proceeding wherein a money judgment or any deficiency judgment or other judgment establishing personal liability shall be sought against Borrower or any principal, director, officer, employee, beneficiary, shareholder, partner, member, trustee, agent, or Affiliate of Borrower or any legal representatives, successors or assigns of any of the foregoing (collectively, the “Exculpated Parties”), except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender to enforce and realize upon its interest under the Note, this Agreement, the Security Instrument and the other Loan Documents, or in the 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 Property, in the Rents and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Security Instrument and the other Loan Documents, agrees that it shall not xxx sxx for, seek or demand any deficiency judgment against Borrower or any of the Exculpated Parties in any such action or proceeding under or by reason of or under or in connection with the Note, this Agreement, the Security Instrument or the other Loan Documents. The provisions of this Section shall not, however, (1) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (2) impair the right of Lender to name Borrower as a party defendant in any action or suit for foreclosure and sale under the Security Instrument; (3) affect the validity or enforceability of any indemnity, guaranty or similar instrument indemnity made in connection with the Loan (including, without limitation, indemnities set forth in Article 12 11 hereof, Section 11.2 9.2 hereof, in the Guaranty and in the Environmental Indemnity) made in connection with the Loan or any of the rights and remedies of Lender thereunder (including, without limitation, Lender’s right to enforce said rights and remedies against Borrower and/or Guarantor (as applicable) personally and without in accordance with the effect of the exculpatory provisions of this Article 13)terms thereof; (4) impair the rights right of Lender to (A) obtain the appointment of a receiver and/or (B) or to enforce its rights and remedies provided in Articles 7 and 8 and 9 hereof; (5) impair the enforcement of the any assignment of leases and rents contained in the Security Instrument and in any other Loan DocumentsInstrument; (6) impair the right of Lender to enforce Section 4.12(e) of this Agreement; (7) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted by the Security Instrument or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against the Property; or (8) 7) 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 Loss incurred by Lender (including attorneys’ fees and costs expenses reasonably incurred) arising out of or in connection with the following:
(i) fraud or intentional misrepresentation by any Borrower Party in connection with the Loan;
(ii) the gross negligence or willful misconduct of any Borrower Party;
(iii) any litigation or other legal proceeding related to the Debt filed by any Borrower Party or any other action of any Borrower Party 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 other Loan DocumentsDocuments that is found by a court of competent jurisdiction to be frivolous, brought in bad faith, wholly without merit or wholly without basis in fact or law;
(iv) material physical waste to the Property caused by the intentional acts or intentional omissions of any Borrower Party and/or the removal or disposal of any portion of the Property after an Event of Default;
(v) the misapplication, misappropriation or conversion by any Borrower Party of (A) any insurance proceeds paid by reason of any loss, damage or destruction to the PropertyProperty (or any portion thereof), (B) any Awards or other amounts received in connection with the Condemnation of all or a portion of the Property, (C) any Rents following an Event of Default or Rents, (D) any Tenant security deposits or other Rents collected in advanceadvance or (E) any other monetary collateral for the Loan (including, without limitation, any Reserve Funds and/or any portion thereof disbursed to (or at the direction of) Borrower);
(vi) any act of arson by any Borrower Party or of which any Borrower Party has knowledge;
(vii) failure to pay Taxes, charges for labor or materials or other charges that can create liens on any portion of the Property (except, in accordance the case of Taxes, to the extent that (x) the revenue from the Property is insufficient to pay such amounts or (y) amounts sufficient to pay such Taxes have been deposited with Lender hereunder in the Tax Account and Lender does not apply the same in payment thereof in violation of the terms and provisions hereofconditions of the Loan Documents);
(viiivii) failure to pay Insurance PremiumsPremiums (except to the extent that (x) the revenue from the Property is insufficient to pay such amounts or (y) amounts sufficient to pay such Insurance Premiums have been deposited with Lender hereunder in the Insurance Account and Lender does not apply the same in payment thereof in violation of the terms and conditions of the Loan Documents), to maintain the Policies in full force and effect and/or to provide Lender evidence of the same, in each case, as expressly provided herein;
(ixviii) any security deposits, advance deposits or any other deposits collected with respect to the Property which are not delivered to Lender upon a foreclosure of the 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;
(xix) any tax on the making and/or recording of the Security Instrument, the Note or any of the other Loan Documents or any transfer or similar taxes (whether due upon the making of the same or upon Lender’s exercise of its remedies under the Loan Documents), but excluding any income, franchise or other similar taxes;
(xix) the any forfeiture or seizure or forfeiture of the Property, Property (or any portion thereof, or Borrower’s thereof and/or interest therein, ) resulting from criminal wrongdoing by a violation or breach of any Borrower Partyapplicable law;
(xi) any violation or breach of any representation, warranty or covenant contained in Sections 3.24 or 4.23 hereof or Exhibit C attached hereto;
(xii) any violation or breach by or on behalf of any Borrower Party of any exclusivity (or similar) provision in any Major Lease that permits or could permit the Tenant thereunder the right to terminate such Major Lease or axxxx rent thereunder;
(xiii) the failure to make purchase or replace (as applicable) any Condemnation Payment and/or any Balancing Payment, to permit on-site inspections of the Property and/or to provide the Required Financial ItemsInterest Rate Cap Agreement or Replacement Interest Rate Cap Agreement (as applicable), in each case, as and when required herein;
(xiii) Intentionally Omitted;by the terms hereof; and/or
(xiv) the failure to make repairs, renewals any violation or replacements (including, without limitation, structural and nonstructural, exterior and interior, ordinary and extraordinary, foreseen and unforeseen) to breach of the Property or Document Provisions and/or any portion thereof (including, without limitation, the Improvements now or at any time hereafter erected on the Property) as and when required pursuant to the terms of the Loan Documents or as and when necessary to maintain the Property in good and safe condition, in a rentable and tenantable state of repair and/or in the condition required pursuant to the terms of the Loan Documents; and/or
(xv) any indemnity obligations of Lender to Bank under the Restricted Account Agreement (other than those arising as a direct result of Lender’s gross negligence or willful misconduct).
(b) Document Event. 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 Debt or to require that all collateral shall continue to secure all of the Debt owing to Lender in accordance with the Loan Documents, and (B) the Debt shall be fully recourse to Borrower in the event that: (i) the first full monthly payment of principal and interest under the Note Monthly Debt Service Payment is not paid when due; (ii) any representation, warranty or covenant contained in Sections 3.24 or 4.23 hereof or Exhibit C attached hereto is violated or breached, and (A) a court of competent jurisdiction orders a substantive consolidation of Borrower fails or TRS Lessee based, in whole or in part, on such violation or breach or (B) the Property or any portion thereof or interest therein becomes an asset in a bankruptcy or insolvency proceeding as a result of (in whole or in part) or due to comply with any provisions hereof relating to cash management (in whole or fails to appoint a new property manager upon the request of Lender, fails to cooperate with any New Manager in part) such violation or fails to comply with any limitations on instructing the property manager, each as required by and in accordance with, as applicable, the terms and provisions of, this Agreement, the Assignment of Management Agreement and the Security Instrumentbreach; (iii) any representation, warranty or covenant contained in Article 5 or Article 6 hereof is violated or breached; (iv) a Bankruptcy Event occurs; or (v) Sections 11.1 any of the provisions of the TIC Agreement or 11.6 hereof the TRS Lease are violated amended, modified, cancelled, terminated, surrendered, withdrawn or breached in waived without Lender’s prior written consent; (vi) any material respectBorrower or any of their members, partners, principals or agents files or commences any action or proceeding to partition the Property or any portion thereof or any action to compel the sale thereof; or (vii)(A) the Franchise Agreement (or any replacement thereto) is modified, terminated or cancelled without the prior written consent of Lender, or the Franchise Agreement otherwise expires for any reason during the term of the Loan (including, without limitation, upon its scheduled expiration date) or (B) Borrower accepts a surrender or modification of the Franchise Agreement (or any replacement thereto) without the prior written consent of Lender.
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 pay, perform and and/or observe the obligations contained herein, in the Note, this Agreement, the Security Instrument or in the other Loan Documents by any action or proceeding against Borrower wherein a money judgment or any deficiency judgment or other judgment establishing personal liability shall be sought against Borrower or any principalBorrower, director, officer, employee, beneficiary, shareholder, partner, member, trustee, agent, or Affiliate the members/partners of Borrower or any legal representatives, successors Borrower Principal or assigns of any of the foregoing (collectively, the “Exculpated Parties”)its respective members or partners, except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding against Borrower to enable Lender to enforce and realize upon its interest under the Note, this Agreement, the Security Instrument Note, the Mortgage and the other Loan Documents, or and the interest in the Property, the Rents, or 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 Property, in the Rents and in any other collateral given to Lender, and . Lender, by accepting the Note, this Agreement, the Security Instrument Note, the Mortgage and the other Loan Documents, agrees that it shall not not, except as otherwise provided in Section 15.1(b) and (c), xxx for, seek or demand any deficiency judgment against Borrower or any of the Exculpated Parties Borrower Principal in any such action or proceeding proceeding, under or by reason of or under or in connection with the Note, this Agreement, the Security Instrument Note, the Mortgage or the other Loan Documents. The provisions of this Section 15.1 shall not, however, (1i) 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; (2ii) 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 Security InstrumentMortgage; (3iii) affect the validity or enforceability of any indemnity, guaranty or similar instrument indemnity (including, without limitation, indemnities set forth those contained in Article 12 hereofSection 12.6, Section 11.2 hereof13.5 and Article 14 of this Agreement), in the Guaranty and the Environmental Indemnity) made in connection with this Agreement, the Note, the Mortgage and the other Loan or any of the rights and remedies of Lender thereunder (including, without limitation, Lender’s right to enforce said rights and remedies against Borrower and/or Guarantor (as applicable) personally and without the effect of the exculpatory provisions of this Article 13)Documents; (4iv) impair the rights right of Lender to (A) obtain the appointment of a receiver and/or (B) enforce its rights and remedies provided in Articles 8 and 9 hereofreceiver; (5v) impair the enforcement of the assignment of leases and rents provisions contained in the Security Instrument and in any other Loan DocumentsMortgage; or (6vi) impair the right of Lender to enforce Section 4.12(e) of this Agreement; (7) constitute a prohibition against Lender to seek obtain a deficiency judgment against Borrower in order or other judgment on the Note against Borrower if necessary to fully realize the security granted by the Security Instrument obtain any Insurance Proceeds or Awards to commence any other appropriate action or proceeding in order for which Lender to exercise its remedies against the Propertywould otherwise be entitled under this Agreement; or (8) constitute a waiver of the right of provided however, Lender to shall only enforce the liability and obligation of Borrower, by money such judgment or otherwise, to the extent of any Loss incurred by Lender (including attorneys’ fees and costs reasonably incurred) arising out of or in connection with the following:
(i) fraud or intentional misrepresentation by any Borrower Party in connection with the Loan;
(ii) the gross negligence or willful misconduct of any Borrower Party;
(iii) any litigation or other legal proceeding related to the Debt filed by any Borrower Party 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 other Loan Documents;
(iv) waste to the Property caused by the intentional acts or intentional omissions of any Borrower Party Insurance Proceeds and/or the removal or disposal of any portion of the Property after an Event of Default;
(v) the misapplication, misappropriation or conversion by any Borrower Party 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 Rents following an Event of Default or (D) any Tenant security deposits or Rents collected in advance;
(vi) any act of arson by any Borrower Party or of which any Borrower Party has knowledge;
(vii) failure to pay Taxes, charges for labor or materials or other charges that can create liens on any portion of the Property in accordance with the terms and provisions hereof;
(viii) failure to pay Insurance Premiums, to maintain the Policies in full force and effect and/or to provide Lender evidence of the same, in each case, as expressly provided herein;
(ix) any security deposits, advance deposits or any other deposits collected with respect to the Property which are not delivered to Lender upon a foreclosure of the 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;
(x) any tax on the making and/or recording of the Security Instrument, the Note or any of the other Loan Documents or any transfer or similar taxes (whether due upon the making of the same or upon Lender’s exercise of its remedies under the Loan Documents), but excluding any income, franchise or other similar taxes;
(xi) the seizure or forfeiture of the Property, or any portion thereof, or Borrower’s interest therein, resulting from criminal wrongdoing by any Borrower Party;
(xii) the failure to make any Condemnation Payment and/or any Balancing Payment, to permit on-site inspections of the Property and/or to provide the Required Financial Items, in each case, as and when required herein;
(xiii) Intentionally Omitted;
(xiv) the failure to make repairs, renewals or replacements (including, without limitation, structural and nonstructural, exterior and interior, ordinary and extraordinary, foreseen and unforeseen) to the Property or any portion thereof (including, without limitation, the Improvements now or at any time hereafter erected on the Property) as and when required pursuant to the terms of the Loan Documents or as and when necessary to maintain the Property in good and safe condition, in a rentable and tenantable state of repair and/or in the condition required pursuant to the terms of the Loan Documents; and/or
(xv) any indemnity obligations of Lender to Bank under the Restricted Account Agreement (other than those arising as a direct result of Lender’s gross negligence or willful misconduct)Awards.
(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 Debt or to require that all collateral shall continue to secure all of the Debt owing to Lender in accordance with the Loan Documents, and (B) the Debt shall be fully recourse to Borrower in the event that: (i) the first full monthly payment of principal and interest under the Note is not paid when due; (ii) Borrower fails to comply with any provisions hereof relating to cash management or fails to appoint a new property manager upon the request of Lender, fails to cooperate with any New Manager or fails to comply with any limitations on instructing the property manager, each as required by and in accordance with, as applicable, the terms and provisions of, this Agreement, the Assignment of Management Agreement and the Security Instrument; (iii) any representation, warranty or covenant contained in Article 5 or Article 6 hereof is violated or breached; (iv) a Bankruptcy Event occurs; or (v) Sections 11.1 or 11.6 hereof are violated or breached in any material respect.
Appears in 2 contracts
Samples: Loan Agreement (Sun Communities Inc), Loan Agreement (Sun Communities Inc)
Exculpation. (a) Subject to Except as otherwise provided herein, in the qualifications belowSecurity Instrument 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 Security Instrument or the other Loan Documents by any action or proceeding wherein a money judgment or any deficiency judgment or other judgment establishing personal liability shall be sought against Borrower or any principal, director, officer, employee, beneficiary, shareholder, partner, member, trustee, agent, or Affiliate of Borrower or any legal representatives, successors or assigns of any of the foregoing (collectively, the “Exculpated Parties”)Borrower, except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender to enforce and realize upon its interest under this Agreement, the Note, the Security Instrument, the other Loan Documents, and the interest in the Property, the Rents and any other collateral given to Lender created by this Agreement, the Note, the Security Instrument and the other Loan Documents, or in the Property, the Rents, 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 Property, in the Rents and in any other collateral given to Lender, and . Lender, by accepting the Note, this Agreement, the Security Instrument Note and the other Loan DocumentsSecurity Instrument, agrees that it shall not not, except as otherwise provided herein or in the Security Instrument, xxx for, seek or demand any deficiency judgment against Borrower or any of the Exculpated Parties in any such action or proceeding proceeding, under or by reason of or under or in connection with this Agreement, the Note, this Agreement, the Security Instrument or the other Loan Documents. The provisions of this Section shall not, however, (1i) constitute a waiver, release or impairment of any obligation evidenced or secured by any of this Agreement, the Note, the Security Instrument or the other Loan Documents; (2ii) impair the right of Lender to name Borrower as a party defendant in any action or suit for judicial foreclosure and sale under the Security Instrument; (3iii) affect the validity or enforceability of any indemnity, guaranty or similar instrument indemnity (including, without limitation, indemnities set forth in Article 12 hereof, Section 11.2 hereof, in the Guaranty and the Environmental Indemnity) made in connection with the Loan or any of the rights and remedies of Lender thereunder ), guaranty (including, without limitation, Lender’s right to enforce said rights and remedies against Borrower and/or Guarantor (as applicable) personally and without the effect of Guaranty), master lease or similar instrument made in connection with this Agreement, the exculpatory provisions of this Article 13)Note, the Security Instrument, or the other Loan Documents; (4iv) impair the rights right of Lender to (A) obtain the appointment of a receiver and/or (B) enforce its rights and remedies provided in Articles 8 and 9 hereofreceiver; (5v) impair the enforcement of the assignment Assignment of leases and rents contained in the Security Instrument and in any other Loan DocumentsLeases; (6vi) impair the right of Lender to enforce the provisions of Section 4.12(e) 10.2 of this Agreement; (7) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted by the Security Instrument or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against the PropertySections 4.1.8, 4.1.28, 5.1.9 and 5.2.8 hereof; or (8) constitute a waiver of vii) 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 (A) preserve or enforce its rights and remedies against the Property or (B) obtain any Insurance Proceeds or Awards to which Lender would otherwise be entitled under the terms of this Agreement or the Security Instrument; provided however, Lender shall only enforce such judgment to the extent of any Loss incurred by the Insurance Proceeds and/or Awards.
(b) Notwithstanding the provisions of this Section 9.4 to the contrary, 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 by any Borrower Party in connection with the Loan;
(ii) execution and the gross negligence delivery of this Agreement, the Note, the Security Instrument, or willful misconduct of any Borrower Party;
(iii) any litigation or other legal proceeding related to the Debt filed by any Borrower Party 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 other Loan Documents;
(iv) waste to the Property caused by the intentional acts or intentional omissions of any Borrower Party and/or the removal or disposal of any portion of the Property after an Event of Default;
(v) the misapplication, misappropriation or conversion by any Borrower Party 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 Rents following an Event of Default or (D) any Tenant security deposits or Rents collected in advance;
(vi) any act of arson by any Borrower Party or of which any Borrower Party has knowledge;
(vii) failure to pay Taxes, charges for labor or materials or other charges that can create liens on any portion of the Property in accordance with the terms and provisions hereof;
(viii) failure to pay Insurance Premiums, to maintain the Policies in full force and effect and/or to provide Lender evidence of the same, in each case, as expressly provided herein;
(ix) any security deposits, advance deposits or any other deposits collected with respect to the Property which are not delivered to Lender upon a foreclosure of the 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;
(x) any tax on the making and/or recording of the Security Instrument, the Note or any of the other Loan Documents or any transfer or similar taxes (whether due upon the making of the same or upon Lender’s exercise of its remedies under the Loan Documents), but excluding any income, franchise or other similar taxes;
(xi) the seizure or forfeiture of the Property, or any portion thereof, or Borrower’s interest therein, resulting from criminal wrongdoing by any Borrower Party;
(xii) the failure to make any Condemnation Payment and/or any Balancing Payment, to permit on-site inspections of the Property and/or to provide the Required Financial Items, in each case, as and when required herein;
(xiii) Intentionally Omitted;
(xiv) the failure to make repairs, renewals or replacements (including, without limitation, structural and nonstructural, exterior and interior, ordinary and extraordinary, foreseen and unforeseen) to the Property or any portion thereof (including, without limitation, the Improvements now or at any time hereafter erected on the Property) as and when required pursuant to the terms of the Loan Documents or as and when necessary to maintain the Property in good and safe condition, in a rentable and tenantable state of repair and/or in the condition required pursuant to the terms of the Loan Documents; and/or
(xv) any indemnity obligations of Lender to Bank under the Restricted Account Agreement (other than those arising as a direct result of Lender’s gross negligence or willful misconduct).
(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 Debt or to require that all collateral shall continue to secure all of the Debt owing to Lender in accordance with the Loan Documents, and (B) the Debt shall be fully recourse to Borrower in the event that: (i) the first full monthly payment of principal and interest under the Note is not paid when due; (ii) Borrower fails to comply with any provisions hereof relating to cash management or fails to appoint a new property manager upon the request of Lender, fails to cooperate with any New Manager or fails to comply with any limitations on instructing the property manager, each as required by and in accordance with, as applicable, the terms and provisions of, this Agreement, the Assignment of Management Agreement and the Security Instrument; (iii) any representation, warranty or covenant contained in Article 5 or Article 6 hereof is violated or breached; (iv) a Bankruptcy Event occurs; or (v) Sections 11.1 or 11.6 hereof are violated or breached in any material respect.
Appears in 2 contracts
Samples: Loan Agreement (Meristar Hospitality Operating Partnership Lp), Loan Agreement (Meristar Hospitality Corp)
Exculpation. (a) Subject None of the Agents, the Collateral Agent or the Arranger nor any of their respective directors, officers, employees or Agents shall be liable to any Term Loan Lender for any action taken or omitted to be taken by it under this Agreement or any other Term Loan Document, or in connection herewith or therewith, except for its own wilful misconduct or gross negligence, nor responsible for any recitals or warranties herein or therein, nor for the qualifications beloweffectiveness, Lender enforceability, sufficiency, validity or due execution of this Agreement or any other Term Loan Document, nor for the creation, perfection or priority of any Liens purported to be created by any of the Term Loan Documents, or the validity, genuineness, enforceability, existence, value or sufficiency of any collateral security, nor to make any inquiry respecting the performance by the Borrower of its obligations hereunder or under any other Term Loan Document. Any such inquiry which may be made by any Agent or Collateral Agent shall not enforce obligate it to make any further inquiry or to take any action. No Agent or the liability Collateral Agent shall have any duties or responsibilities except those specifically set forth in this Agreement and obligation of Borrower to perform and observe the obligations contained in the Note, this Agreement, the Security Instrument or the other Loan Documents and shall not by reason of the relationship established herein be a trustee or fiduciary of any action or proceeding wherein a money judgment other Agent, the Collateral Agent or any deficiency judgment Lender. Unless it specifically agrees to do so in writing, no Agent or the Collateral Agent shall be obligated to initiate, conduct or supervise any litigation or collection proceedings, whether in bankruptcy or otherwise, any work-out or post-default negotiations or take any other similar actions; provided, that, at the written request of the Required Term Loan Lenders, the Administrative Agent shall be obligated to foreclose upon or set off against the cash collateral deposited with it under clause (b) of Section 3.1.2 in accordance with Section 4.9. Each Agent and the Collateral Agent shall be entitled to rely:
(a) upon any certification, notice or other judgment establishing personal liability shall communication (including any thereof by telephone, telex, telegram or cable) believed by it to be sought against Borrower genuine and correct and to have been signed or sent by or on behalf of the proper Person or Persons; and (b) upon advice and statements of legal counsel, independent accountants and other experts selected by it in good faith. As to the matters not expressly provided for by this Agreement or any principalTerm Loan Document, director, officer, employee, beneficiary, shareholder, partner, member, trustee, agent, or Affiliate of Borrower or any legal representatives, successors or assigns of any of the foregoing (collectively, the “Exculpated Parties”), except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender to enforce each Agent and realize upon its interest under the Note, this Agreement, the Security Instrument and the other Loan DocumentsCollateral Agent shall in all cases be fully protected in acting, or in the Propertyrefraining from acting, 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 Property, in the Rents and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Security Instrument and the other Loan Documents, shall not xxx for, seek or demand any deficiency judgment against Borrower or any of the Exculpated Parties in any such action or proceeding under or by reason of or under or in connection with the Note, this Agreement, the Security Instrument or the other Loan Documents. The provisions of this Section shall not, however, (1) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (2) impair the right of Lender to name Borrower as a party defendant in any action or suit for foreclosure and sale under the Security Instrument; (3) affect the validity or enforceability of any indemnity, guaranty or similar instrument (including, without limitation, indemnities set forth in Article 12 hereof, Section 11.2 hereof, in the Guaranty and the Environmental Indemnity) made in connection with the Loan or any of the rights and remedies of Lender thereunder (including, without limitation, Lender’s right to enforce said rights and remedies against Borrower and/or Guarantor (as applicable) personally and without the effect of the exculpatory provisions of this Article 13); (4) impair the rights of Lender to (A) obtain the appointment of a receiver and/or (B) enforce its rights and remedies provided in Articles 8 and 9 hereof; (5) impair the enforcement of the assignment of leases and rents contained in the Security Instrument and in any other Loan Documents; (6) impair the right of Lender to enforce Section 4.12(e) of this Agreement; (7) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted by the Security Instrument or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against the Property; or (8) constitute a waiver of the right of Lender to enforce the liability and obligation of Borrower, by money judgment or otherwise, to the extent of any Loss incurred by Lender (including attorneys’ fees and costs reasonably incurred) arising out of or in connection with the following:
(i) fraud or intentional misrepresentation by any Borrower Party in connection with the Loan;
(ii) the gross negligence or willful misconduct of any Borrower Party;
(iii) any litigation or other legal proceeding related to the Debt filed by any Borrower Party 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 other Loan Documents;
(iv) waste to the Property caused by the intentional acts or intentional omissions of any Borrower Party and/or the removal or disposal of any portion of the Property after an Event of Default;
(v) the misapplication, misappropriation or conversion by any Borrower Party 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 Rents following an Event of Default or (D) any Tenant security deposits or Rents collected in advance;
(vi) any act of arson by any Borrower Party or of which any Borrower Party has knowledge;
(vii) failure to pay Taxes, charges for labor or materials or other charges that can create liens on any portion of the Property hereunder in accordance with instructions signed by the terms Required Term Loan Lenders; and provisions hereof;
(viii) such instructions of the Required Term Loan Lenders and any action taken or failure to pay Insurance Premiums, to maintain the Policies in full force and effect and/or to provide Lender evidence of the same, in each case, as expressly provided herein;
(ix) any security deposits, advance deposits or any other deposits collected with respect to the Property which are not delivered to Lender upon a foreclosure of the 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;
(x) any tax act pursuant thereto shall be binding on the making and/or recording of the Security Instrument, the Note or any of the other Loan Documents or any transfer or similar taxes (whether due upon the making of the same or upon Lender’s exercise of its remedies under the Loan Documents), but excluding any income, franchise or other similar taxes;
(xi) the seizure or forfeiture of the Property, or any portion thereof, or Borrower’s interest therein, resulting from criminal wrongdoing by any Borrower Party;
(xii) the failure to make any Condemnation Payment and/or any Balancing Payment, to permit on-site inspections of the Property and/or to provide the Required Financial Items, in each case, as and when required herein;
(xiii) Intentionally Omitted;
(xiv) the failure to make repairs, renewals or replacements (including, without limitation, structural and nonstructural, exterior and interior, ordinary and extraordinary, foreseen and unforeseen) to the Property or any portion thereof (including, without limitation, the Improvements now or at any time hereafter erected on the Property) as and when required pursuant to the terms of the Loan Documents or as and when necessary to maintain the Property in good and safe condition, in a rentable and tenantable state of repair and/or in the condition required pursuant to the terms of the Loan Documents; and/or
(xv) any indemnity obligations of Lender to Bank under the Restricted Account Agreement (other than those arising as a direct result of Lender’s gross negligence or willful misconduct).
(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 Debt or to require that all collateral shall continue to secure all of the Debt owing to Lender in accordance with the Term Loan Documents, and (B) the Debt shall be fully recourse to Borrower in the event that: (i) the first full monthly payment of principal and interest under the Note is not paid when due; (ii) Borrower fails to comply with any provisions hereof relating to cash management or fails to appoint a new property manager upon the request of Lender, fails to cooperate with any New Manager or fails to comply with any limitations on instructing the property manager, each as required by and in accordance with, as applicable, the terms and provisions of, this Agreement, the Assignment of Management Agreement and the Security Instrument; (iii) any representation, warranty or covenant contained in Article 5 or Article 6 hereof is violated or breached; (iv) a Bankruptcy Event occurs; or (v) Sections 11.1 or 11.6 hereof are violated or breached in any material respectLenders.
Appears in 2 contracts
Samples: Term Loan Agreement (Specialty Foods Corp), Term Loan Agreement (Specialty Foods Acquisition Corp)
Exculpation. (a) Subject to the qualifications below, Lender shall not enforce the liability and obligation of Borrower to perform and observe the obligations contained in the Note, this Agreement, the Security Instrument Pledge Agreement or the other Loan Documents by any action or proceeding wherein a money judgment or any deficiency judgment or other judgment establishing personal liability shall be sought against Borrower or any principal, director, officer, employee, beneficiary, shareholder, partner, member, trustee, agent, or Affiliate of Borrower or any legal representatives, successors or assigns of any of the foregoing (collectively, the “Exculpated Parties”), except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender to enforce and realize upon its interest under the Note, this Agreement, the Security Instrument Pledge Agreement and the other Loan Documents, or in the Property, the Rents, Collateral (or any portion thereof) or any other collateral given to Lender pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower’s interest in the Property, in the Rents Collateral and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Security Instrument Pledge Agreement and the other Loan Documents, shall not xxx forsue xxx, seek or demand any deficiency judgment against Borrower or any of the Exculpated Parties in any such action or proceeding under or by reason of or under or in connection with the Note, this Agreement, the Security Instrument Pledge Agreement or the other Loan Documents. The provisions of this Section shall not, however, (1) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (2) impair the right of Lender to name Borrower as a party defendant in any action or suit for foreclosure and sale under the Security InstrumentPledge Agreement; (3) affect the validity or enforceability of any indemnity, guaranty or similar instrument (including, without limitation, indemnities set forth in Article 12 hereof, Section 11.2 hereof, in the Guaranty and the Environmental Indemnity) made in connection with the Loan or any of the rights and remedies of Lender thereunder (including, without limitation, Lender’s right to enforce said rights and remedies against Borrower and/or Guarantor (as applicable) personally and without the effect of the exculpatory provisions of this Article 13); (4) impair the rights of Lender to (A) obtain the appointment of a receiver and/or (B) enforce its rights and remedies security interest in the Accounts as provided in Articles 8 and 9 hereof; (5) impair the enforcement of the assignment of leases and rents contained in the Security Instrument and in any other Loan DocumentsPledge Agreement; (6) impair the right of Lender to enforce Section 4.12(e) of this Agreement; (7) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted by the Security Instrument Pledge Agreement or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against the PropertyCollateral (or any portion thereof); or (8) 7) 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 reasonable out-of-pocket Loss incurred by Lender (including out-of-pocket attorneys’ fees and costs reasonably incurredincurred but in all events excluding consequential, punitive and special damages (except to the extent Lender is actually liable for such damages)) arising out of or in connection with the following:
(i) fraud or intentional misrepresentation by any Borrower Party in connection with the Loan;
(ii) the gross negligence or willful misconduct of any Borrower Party;
(iii) material physical waste to any litigation Individual Property arising from the intentional acts or other legal proceeding related to the Debt filed by omissions of any Borrower Party (it being acknowledged that delays, opposes, impedes, obstructs, hinders, enjoins or otherwise interferes with or frustrates omissions to perform acts for which sufficient cash flow is not available from the efforts Properties shall not be deemed an intentional omission for purposes of Lender to exercise any rights and remedies available to Lender as provided herein and in the other Loan Documentsthis clause (iii));
(iv) waste to the Property caused by the intentional acts or intentional omissions of any Borrower Party and/or the removal or disposal by any Borrower Party or any of its respective Affiliates of any portion of the any Individual Property after an Event of DefaultDefault unless such portion of any Individual Property so removed or so disposed of is replaced with property of equal utility and value or such removal or disposal was otherwise permitted pursuant to the terms and conditions hereof;
(v) the misapplication, misappropriation misapplication or conversion by any Borrower Party of (A) any insurance proceeds paid by reason of any loss, damage or destruction to the Propertyany Individual Property (or any portion thereof), (B) any Awards or other amounts received in connection with the Condemnation of all or a portion of the any Individual Property, (C) any Rents following an Event of Default or Default, (D) any Tenant security deposits or Rents collected paid more than one month in advanceadvance and/or (E) any Net Liquidation Proceeds After Debt Service;
(vi) any act of arson by any Borrower Party or of which any Borrower Party has knowledge;
(vii) failure to pay Taxes, charges for labor or materials or other charges that can create liens on any portion of the any Individual Property in accordance with the terms and provisions hereof; provided, however, Borrower shall have no liability under this subsection (vi) if (A) such Taxes, charges for labor or materials or other charges that can create liens are being contested in accordance with the terms and conditions hereof or (B) sufficient cash flow is not available from the Properties to pay such amounts; provided, that, in no instance shall Borrower be released from any liability pursuant to this clause (vi) to the extent (1) such insufficiency of cash flow arises from the intentional misappropriation or conversion of Rent by any Borrower Party or (2) Borrower or Mortgage Borrower incurred such charges after the occurrence and during the continuance of an Event of Default, except to the extent such charges were (I) necessary to protect against imminent danger to the health or safety of any Tenant or any Person at or in the immediate vicinity of any Individual Property or to prevent any imminent defect, damage or harm to any Individual Property, (II) contracted for prior to such Event of Default or (III) consented to in writing by Lender;
(viii) failure to pay Insurance Premiums, to maintain the Policies in full force and effect and/or to provide Lender evidence of the same, in each case, as expressly provided herein;
(ixvii) any security deposits, advance deposits or any other deposits collected with respect to the any Individual Property which are not delivered to Lender upon a foreclosure of the Property any Collateral or action in lieu thereof, except to the extent any such security deposits were applied in accordance with the terms and conditions of any of the Leases prior to the occurrence of the Event of Default that gave rise to such foreclosure or action in lieu thereof;
(xviii) the breach or violation by Borrower, Mezzanine A Borrower, Mezzanine B Borrower, Mortgage Borrower and/or any tax on Applicable SPE Component Entity of any representation, warranty or covenant contained in Article 5 hereof;
(ix) the making failure by Borrower to (A) permit (or cause Mortgage Borrower, Mezzanine A Borrower or Mezzanine B Borrower to permit) on-site inspections of any Individual Property, (B) provide any financial information regarding hereunder and/or recording of the Security Instrument, the Note or any of pursuant to the other Loan Documents and/or (C) appoint (or any transfer or similar taxes (whether due cause Mortgage Borrower to appoint) a Qualified Manager pursuant to a Qualified Management Agreement upon the making request of the same or upon Lender which failure constitutes an Event of Default;
(x) a breach of Section 11.1 and/or Section 11.2 hereof, which breach continues for three (3) Business Days after notice from Lender’s exercise of its remedies under the Loan Documents), but excluding any income, franchise or other similar taxes;
(xi) the seizure any material amendment, material modification or forfeiture voluntary termination of the Propertyany Ground Lease by any Borrower, Mezzanine A Borrower, Mezzanine B Borrower or any portion thereof, or BorrowerMortgage Borrower without Lender’s interest therein, resulting from criminal wrongdoing by any Borrower Partyconsent other than as expressly permitted pursuant to the terms hereof;
(xii) the failure to make termination or suspension of any Condemnation Payment and/or Health Care License arising in connection with any Balancing Paymentgrossly negligent or willful material violation of any Health Care Requirement or otherwise by Borrower, to permit on-site inspections Mezzanine A Borrower, Mezzanine B Borrower or Mortgage Borrower or any voluntary termination or rejection of the Property and/or to provide the Required Financial Itemsany such Health Care License by Borrower, Mezzanine A Borrower, Mezzanine B Borrower or Mortgage Borrower, in each caseinstance, as and when required hereinwhich termination, suspension or rejection constitutes an Event of Default;
(xiii) Intentionally Omitted;any violation of Article 6 hereof not otherwise covered pursuant to clauses (b)(iv) and (b)(v) immediately below, provided, however, for the avoidance of doubt, a Sale or Pledge resulting from the consummation of an enforcement action by Lender, Mortgage Lender or the holder of any Mezzanine Loan shall not be a Sale or Pledge in violation of Article 6 hereof; or
(xiv) the failure to make repairs, renewals incurrence by Mortgage Borrower of any voluntary indebtedness prohibited by the Mortgage Loan Agreement or replacements (including, without limitation, structural and nonstructural, exterior and interior, ordinary and extraordinary, foreseen and unforeseen) to by Mezzanine A Borrower of any voluntary indebtedness prohibited by the Property Mezzanine A Loan Agreement or by Mezzanine B Borrower of any portion thereof (including, without limitation, voluntary indebtedness prohibited by the Improvements now or at any time hereafter erected on the Property) as and when required pursuant to the terms of the Mezzanine B Loan Documents or as and when necessary to maintain the Property in good and safe condition, in a rentable and tenantable state of repair and/or in the condition required pursuant to the terms of the Loan Documents; and/or
(xv) any indemnity obligations of Lender to Bank under the Restricted Account Agreement (other than those arising as a direct result of Lender’s gross negligence or willful misconduct)Agreement.
(b) Notwithstanding anything to the contrary in this Agreement, the Note or any of the Loan Documents, (A) Lender shall not be deemed to have waived any right which Lender may have under Section 506(a), 506(b), 1111(b) or any other provisions of the Bankruptcy Code to file a claim for the full amount of the Debt or to require that all collateral shall continue to secure all of the Debt owing to Lender in accordance with the Loan Documents, and (B) the Debt shall be fully recourse to Borrower in the event that: (i) a Bankruptcy Event occurs, (ii) the first full monthly payment of principal (if any) and interest under the Note is not paid when due; (ii) Borrower fails to comply with any provisions hereof relating to cash management or fails to appoint a new property manager upon the request of Lender, fails to cooperate with any New Manager or fails to comply with any limitations on instructing the property manager, each as required by and in accordance with, as applicable, the terms and provisions of, this Agreement, the Assignment of Management Agreement and the Security Instrument; (iii) any representation, warranty or covenant contained in Article 5 or Article 6 hereof is violated or breachedbreached and such breach or violation results in, or is a substantial factor in, a substantive consolidation of Borrower, Mezzanine A Borrower, Mezzanine B Borrower, Mortgage Borrower and/or any Applicable SPE Component Entity with any other Person in a bankruptcy or similar proceedings; (iv) a Bankruptcy Event occursif Borrower, Mortgage Borrower, Mezzanine A Borrower, Mezzanine B Borrower and/or any Applicable SPE Component Entity fails to obtain Lender’s prior written consent to (A) any voluntary indebtedness or (B) voluntary monetary lien encumbering any Individual Property or any Applicable Collateral to the extent such lien required Lender’s consent under this Agreement or the other Loan Documents; or (v) Sections 11.1 if Borrower, Mezzanine A Borrower, Mezzanine B Borrower, Mortgage Borrower and/or any Applicable SPE Component Entity fails to obtain Lender’s prior written consent to any voluntary transfer of any material portion of any Individual Property or 11.6 hereof are violated any Applicable Collateral or breached to any voluntary act that causes a change in the ownership of Borrower, Mezzanine A Borrower, Mezzanine B Borrower, Mortgage Borrower and/or any Applicable SPE Component Entity to the extent such ownership change required Lender’s consent under this Agreement; provided, however, for the avoidance of doubt, a Sale or Pledge resulting from the consummation of an enforcement action by Lender, Mortgage Lender or the holder of any Mezzanine Loan shall not be a Sale or Pledge in violation of Article 6 hereof. Notwithstanding any provision contained herein or in any material respectother Loan Document, no direct or indirect shareholder, partner, member, principal, affiliate, employee, officer, director, agent or representative of Borrower (each, a “Related Party”) (other than (a) Guarantor in accordance with the Guaranty and the Environmental Indemnity and (b) any Manager that is an Affiliate of Borrower in accordance with any Loan Document to which such Manager may be a party) shall have any personal liability for, nor be joined as a party to any action with respect to (i) the payment of any sum of money which is or may be payable hereunder or under any other Loan Documents, including, but not limited to, the repayment of the Loan or (ii) the performance or discharge of any covenants, obligations or undertakings of Guarantor or any Related Party with respect thereto. In addition to the foregoing, anything contained herein or in the other Loan Documents notwithstanding, in no event will the assets of any Related Party (other than Guarantor in accordance with the Guaranty and the Environmental Indemnity) be available to satisfy any obligation of Borrower hereunder.
Appears in 2 contracts
Samples: Mezzanine Loan Agreement (Northstar Realty Finance Corp.), Mezzanine Loan Agreement (NorthStar Healthcare Income, Inc.)
Exculpation. (a) Subject to the qualifications below, Lender shall not enforce the liability and obligation of Borrower to perform and observe the obligations contained in the Note, Note or this Agreement, the Security Instrument or the other Loan Documents by any action or proceeding wherein a money judgment or any deficiency judgment or other judgment establishing personal liability shall be sought against Borrower or any principal, director, officer, employee, beneficiary, shareholder, partner, member, trustee, agent, general or Affiliate limited partner or member of Borrower or any legal representatives, successors or assigns of any of (hereafter collectively referred to as the foregoing (collectively, the “"Exculpated Parties”"), except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender to enforce and realize upon its interest under the Note, this AgreementSecurity Instrument, the Other Security Instrument Documents, and the other Loan Documents, or interest in the Property, the Rents, or Rents and any other collateral given to Lender pursuant to created by this Security Instrument and the Loan Other Security Documents; provided, however, that, except as specifically provided herein, that any judgment in any such action or proceeding shall be enforceable against Borrower the Exculpated Parties only to the extent of Borrower’s 's interest in the Property, in the Rents and in any other collateral given to Lender, and Lender. Xxxxxx, by accepting the NoteNote and this Security Instrument, this Agreement, the Security Instrument and the other Loan Documents, agrees that it shall not xxx sue for, seek or demand any deficiency judgment against Borrower or any of the Exculpated Parties in any such action or proceeding proceeding, under or by reason of or under or in connection with the Note, the Other Security Documents or this Agreement, the Security Instrument or the other Loan DocumentsInstrument. The provisions of this Section paragraph shall not, however, (1i) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan DocumentsNote, the Other Security Documents or this Security Instrument; (2ii) impair the right of Lender to name Borrower as a party defendant in any action or suit for judicial foreclosure and sale under the this Security Instrument; (3iii) affect the validity or enforceability of any indemnity, guaranty or similar instrument (including, without limitation, indemnities set forth in Article 12 hereof, Section 11.2 hereof, in the Guaranty and the Environmental Indemnity) made in connection with the Loan Note, this Security Instrument, or any of the rights and remedies of Lender thereunder (including, without limitation, Lender’s right to enforce said rights and remedies against Borrower and/or Guarantor (as applicable) personally and without the effect of the exculpatory provisions of this Article 13)Other Security Documents; (4iv) impair the rights right of Lender to (A) obtain the appointment of a receiver and/or (B) enforce its rights and remedies provided in Articles 8 and 9 hereofreceiver; (5v) impair the enforcement of the assignment Assignment of leases Leases and rents contained Rents executed in connection herewith; (vi) impair the right of Lender to bring suit with respect to fraud or intentional misrepresentation by the Exculpated Parties or any other person or entity in connection with the Note, this Security Instrument and in any other Loan or the Other Security Documents; (6vii) impair the right of Lender to obtain the Rents received, and not applied to the operating expenses of the Property, by any of the Exculpated Parties after the occurrence of an Event of Default; (viii) impair the right of Lender to bring suit with respect to the Exculpated Parties' misappropriation of tenant security deposits or Rents collected in advance; (ix) impair the right of Lender to obtain insurance proceeds or condemnation awards due to Lender under this Security Instrument; (x) impair the right of Lender to enforce Section 4.12(ethe provisions of sub-paragraphs 36(g) through 36 (k), inclusive and paragraphs 34 and 35 of this Agreement; (7) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted by the Security Instrument or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against the PropertyBorrower (excluding any general or limited partner or member thereof); or (8) constitute a waiver of xi) impair the right of Lender to enforce the liability and obligation of Borrower, by money judgment or otherwise, to the extent of recover any Loss incurred by Lender (including attorneys’ fees and costs reasonably incurred) arising out of or in connection with the following:
(i) fraud or intentional misrepresentation by any Borrower Party in connection with the Loan;
(ii) the gross negligence or willful misconduct of any Borrower Party;
(iii) any litigation or other legal proceeding related to the Debt filed by any Borrower Party 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 other Loan Documents;
(iv) waste to the Property caused by the intentional acts or intentional omissions of any Borrower Party and/or the removal or disposal of any portion of the Property after an Event of Default;
(v) the misapplication, misappropriation or conversion by any Borrower Party 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 Rents following an Event of Default or (D) any Tenant security deposits or Rents collected in advance;
(vi) any act of arson by any Borrower Party or of which any Borrower Party has knowledge;
(vii) failure to pay Taxes, charges for labor or materials or other charges that can create liens on any portion of the Property in accordance with the terms and provisions hereof;
(viii) failure to pay Insurance Premiums, to maintain the Policies in full force and effect and/or to provide Lender evidence of the same, in each case, as expressly provided herein;
(ix) any security deposits, advance deposits or any other deposits collected with respect to the Property which are not delivered to Lender upon a foreclosure of the 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;
(x) any tax on the making and/or recording of the Security Instrument, the Note or any of the other Loan Documents or any transfer or similar taxes (whether due upon the making of the same or upon Lender’s exercise of its remedies under the Loan Documents), but excluding any income, franchise or other similar taxes;
(xi) the seizure or forfeiture of the Property, or any portion thereof, or Borrower’s interest therein, resulting from criminal wrongdoing by any Borrower Party;
(xii) the failure to make any Condemnation Payment and/or any Balancing Payment, to permit on-site inspections of the Property and/or to provide the Required Financial Items, in each case, as and when required herein;
(xiii) Intentionally Omitted;
(xiv) the failure to make repairs, renewals or replacements (including, without limitation, structural and nonstructural, exterior and interior, ordinary and extraordinary, foreseen and unforeseen) to the Property or any portion thereof (including, without limitation, the Improvements now or at any time hereafter erected on the Property) as and when required pursuant to the terms of the Loan Documents or as and when necessary to maintain the Property in good and safe condition, in a rentable and tenantable state of repair and/or in the condition required pursuant to the terms of the Loan Documents; and/or
(xv) any indemnity obligations of Lender to Bank under the Restricted Account Agreement (other than those arising as a direct result of Lender’s gross negligence or willful misconduct).
(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 part of the Debt or to require that all collateral shall continue to secure all from the Borrower (excluding the general and limited partners and members of Borrower), following the 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 breach of principal and interest under the Note is not paid when due; (ii) Borrower fails to comply with any provisions hereof relating to cash management or fails to appoint a new property manager upon the request of Lender, fails to cooperate with any New Manager or fails to comply with any limitations on instructing the property manager, each as required by and in accordance with, as applicable, the terms and provisions of, this Agreement, the Assignment of Management Agreement and the Security Instrument; (iii) any representation, warranty or covenant contained in Article 5 paragraph 9 or Article 6 hereof is violated or breached; (iv) a Bankruptcy Event occurs; or (v) Sections 11.1 or 11.6 hereof are violated or breached in any material respect55 hereof.
Appears in 2 contracts
Samples: Deed of Trust, Security Agreement, Fixture Filing and Assignment of Leases and Rents (Investors First Staged Equity L P), Deed of Trust, Security Agreement, Fixture Filing and Assignment of Leases and Rents (Investors First Staged Equity L P)
Exculpation. (a) Subject to Except as otherwise provided herein or in the qualifications belowother Loan Documents, Lender shall not enforce the liability and obligation of Borrower or Borrower Principal, as applicable, to pay, perform and and/or observe the obligations contained herein, in the Note, this Agreement, the Security Instrument or in the other Loan Documents by any action or proceeding against Borrower wherein a money judgment or any deficiency judgment or other judgment establishing personal liability shall be sought against Borrower or any principalBorrower, director, officer, employee, beneficiary, shareholder, partner, member, trustee, agent, or Affiliate the members/parties of Borrower or any legal representativesBorrower Principal or its respective members, successors partners, shareholders, officers, or assigns of any of the foregoing directors (collectively, the “Exculpated Parties”), except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding against Borrower to enable Lender to enforce and realize upon its interest under the Note, this Agreement, the Security Instrument Note, the Mortgage and the other Loan Documents, or and the interest in the Property, the Rents, or Rents and any other collateral given to Lender pursuant to created by this Agreement, the Note, the Mortgage and the other Loan Documents; provided, however, that, except as specifically provided herein, that any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower’s interest in the Property, in the Rents and in any other collateral given to Lender, and . Lender, by accepting the Note, this Agreement, the Security Instrument Note, the Mortgage and the other Loan Documents, agrees that it shall not not, except as otherwise provided in Sections 15.1(b) and (c) xxx for, seek or demand any deficiency judgment against Borrower or any of the Exculpated Parties in any such action or proceeding proceeding, under or by reason of or under or in connection with the Note, this Agreement, the Security Instrument Note, the Mortgage or the other Loan Documents. The provisions of this Section 15.1 shall not, however, (1i) 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; (2ii) 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 Security InstrumentMortgage; (3iii) affect the validity or enforceability of any indemnity, guaranty or similar instrument indemnity (including, without limitation, indemnities set forth those contained in Section 12.6 and Article 12 hereof, Section 11.2 hereof, in the Guaranty and the Environmental Indemnity14 of this Agreement) made in connection with this Agreement, the Note, the Mortgage and the other Loan or any of the rights and remedies of Lender thereunder (including, without limitation, Lender’s right to enforce said rights and remedies against Borrower and/or Guarantor (as applicable) personally and without the effect of the exculpatory provisions of this Article 13)Documents; (4iv) impair the rights right of Lender to (A) obtain the appointment of a receiver and/or (B) enforce its rights and remedies provided in Articles 8 and 9 hereofreceiver; (5v) impair the enforcement of the assignment of leases and rents provisions contained in the Security Instrument and in any other Loan DocumentsMortgage; or (6vi) impair the right of Lender to enforce Section 4.12(e) of this Agreement; (7) constitute a prohibition against Lender to seek obtain a deficiency judgment against Borrower in order or other judgment on the Note against Borrower if necessary to fully realize the security granted by the Security Instrument obtain any Insurance Proceeds or Awards to commence any other appropriate action or proceeding in order for which Lender to exercise its remedies against the Propertywould otherwise be entitled under this Agreement; or (8) constitute a waiver of the right of provided, however, Lender to shall only enforce the liability and obligation of Borrower, by money such judgment or otherwise, to the extent of any Loss incurred by Lender (including attorneys’ fees and costs reasonably incurred) arising out of or in connection with the following:
(i) fraud or intentional misrepresentation by any Borrower Party in connection with the Loan;
(ii) the gross negligence or willful misconduct of any Borrower Party;
(iii) any litigation or other legal proceeding related to the Debt filed by any Borrower Party 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 other Loan Documents;
(iv) waste to the Property caused by the intentional acts or intentional omissions of any Borrower Party Insurance Proceeds and/or the removal or disposal of any portion of the Property after an Event of Default;
(v) the misapplication, misappropriation or conversion by any Borrower Party 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 Rents following an Event of Default or (D) any Tenant security deposits or Rents collected in advance;
(vi) any act of arson by any Borrower Party or of which any Borrower Party has knowledge;
(vii) failure to pay Taxes, charges for labor or materials or other charges that can create liens on any portion of the Property in accordance with the terms and provisions hereof;
(viii) failure to pay Insurance Premiums, to maintain the Policies in full force and effect and/or to provide Lender evidence of the same, in each case, as expressly provided herein;
(ix) any security deposits, advance deposits or any other deposits collected with respect to the Property which are not delivered to Lender upon a foreclosure of the 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;
(x) any tax on the making and/or recording of the Security Instrument, the Note or any of the other Loan Documents or any transfer or similar taxes (whether due upon the making of the same or upon Lender’s exercise of its remedies under the Loan Documents), but excluding any income, franchise or other similar taxes;
(xi) the seizure or forfeiture of the Property, or any portion thereof, or Borrower’s interest therein, resulting from criminal wrongdoing by any Borrower Party;
(xii) the failure to make any Condemnation Payment and/or any Balancing Payment, to permit on-site inspections of the Property and/or to provide the Required Financial Items, in each case, as and when required herein;
(xiii) Intentionally Omitted;
(xiv) the failure to make repairs, renewals or replacements (including, without limitation, structural and nonstructural, exterior and interior, ordinary and extraordinary, foreseen and unforeseen) to the Property or any portion thereof (including, without limitation, the Improvements now or at any time hereafter erected on the Property) as and when required pursuant to the terms of the Loan Documents or as and when necessary to maintain the Property in good and safe condition, in a rentable and tenantable state of repair and/or in the condition required pursuant to the terms of the Loan Documents; and/or
(xv) any indemnity obligations of Lender to Bank under the Restricted Account Agreement (other than those arising as a direct result of Lender’s gross negligence or willful misconduct)Awards.
(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 Debt or to require that all collateral shall continue to secure all of the Debt owing to Lender in accordance with the Loan Documents, and (B) the Debt shall be fully recourse to Borrower in the event that: (i) the first full monthly payment of principal and interest under the Note is not paid when due; (ii) Borrower fails to comply with any provisions hereof relating to cash management or fails to appoint a new property manager upon the request of Lender, fails to cooperate with any New Manager or fails to comply with any limitations on instructing the property manager, each as required by and in accordance with, as applicable, the terms and provisions of, this Agreement, the Assignment of Management Agreement and the Security Instrument; (iii) any representation, warranty or covenant contained in Article 5 or Article 6 hereof is violated or breached; (iv) a Bankruptcy Event occurs; or (v) Sections 11.1 or 11.6 hereof are violated or breached in any material respect.
Appears in 2 contracts
Samples: Loan Agreement (Sun Communities Inc), Loan Agreement (Sun Communities Inc)
Exculpation. (a) Subject to the qualifications below, Lender shall not enforce the liability and obligation of Borrower to perform and observe the obligations contained in the Note, this Agreement, the Security Instrument Instruments or the other Loan Documents by any action or proceeding wherein a money judgment or any deficiency judgment or other judgment establishing personal liability shall be sought against Borrower or any principal, director, officer, employee, beneficiary, shareholder, partner, member, trustee, agent, or Affiliate of Borrower or any legal representatives, successors or assigns of any of the foregoing (collectively, the “Exculpated Parties”), except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender to enforce and realize upon its interest under the Note, this Agreement, the Security Instrument Instruments and the other Loan Documents, or in the PropertyProperties (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 PropertyProperties, in the Rents and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Security Instrument Instruments and the other Loan Documents, shall not xxx for, seek or demand any deficiency judgment against Borrower or any of the Exculpated Parties in any such action or proceeding under or by reason of or under or in connection with the Note, this Agreement, the Security Instrument Instruments or the other Loan Documents. The provisions of this Section shall not, however, (1) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (2) impair the right of Lender to name Borrower as a party defendant in any action or suit for foreclosure and sale under the Security InstrumentInstruments; (3) affect the validity or enforceability of any indemnity, guaranty or similar instrument (including, without limitation, indemnities set forth in Article 12 hereof, Section 11.2 hereof, in the Guaranty and the Environmental Indemnity) made in connection with the Loan or any of the rights and remedies of Lender thereunder (including, without limitation, Lender’s right to enforce said rights and remedies against Borrower and/or Guarantor (as applicable) personally and without the effect of the exculpatory provisions of this Article 13); (4) impair the rights of Lender to (A) obtain the appointment of a receiver and/or (B) enforce its rights and remedies security interest in the Accounts as provided in Articles 8 and 9 hereof; (5) impair the enforcement of the assignment of leases and rents contained in the Security Instrument Instruments and in any other Loan Documents; (6) impair the right of Lender to enforce Section 4.12(e) of this Agreement; (7) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted by the Security Instrument Instruments or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against the PropertyProperties (or any portion thereof); or (8) 7) 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 reasonable out-of-pocket Loss incurred by Lender (including out-of-pocket attorneys’ fees and costs reasonably incurredincurred but in all events excluding consequential, punitive and special damages (except to the extent Lender is actually liable for such damages)) arising out of or in connection with the following:
(i) fraud or intentional misrepresentation by any Borrower Party in connection with the Loan;
(ii) the gross negligence or willful misconduct of any Borrower Party;
(iii) material physical waste to any litigation Individual Property arising from the intentional acts or other legal proceeding related to the Debt filed by omissions of any Borrower Party (it being acknowledged that delays, opposes, impedes, obstructs, hinders, enjoins or otherwise interferes with or frustrates omissions to perform acts for which sufficient cash flow is not available from the efforts Properties shall not be deemed an intentional omission for purposes of Lender to exercise any rights and remedies available to Lender as provided herein and in the other Loan Documentsthis clause (iii));
(iv) waste to the Property caused by the intentional acts or intentional omissions of any Borrower Party and/or the removal or disposal by any Borrower Party or any of its respective Affiliates of any portion of the any Individual Property after an Event of DefaultDefault unless such portion of any Individual Property so removed or so disposed of is replaced with property of equal utility and value or such removal or disposal was otherwise permitted pursuant to the terms and conditions hereof;
(v) the misapplication, misappropriation misapplication or conversion by any Borrower Party of (A) any insurance proceeds paid by reason of any loss, damage or destruction to the Propertyany Individual Property (or any portion thereof), (B) any Awards or other amounts received in connection with the Condemnation of all or a portion of the any Individual Property, (C) any Rents following an Event of Default or and/or (D) any Tenant security deposits or Rents collected paid more than one month in advance;
(vi) any act of arson by any Borrower Party or of which any Borrower Party has knowledge;
(vii) failure to pay Taxes, charges for labor or materials or other charges that can create liens on any portion of the any Individual Property in accordance with the terms and provisions hereof; provided, however, Borrower shall have no liability under this subsection (vi) if (A) such Taxes, charges for labor or materials or other charges that can create liens are being contested in accordance with the terms and conditions hereof or (B) sufficient cash flow is not available from the Properties to pay such amounts; provided, that, in no instance shall Borrower be released from any liability pursuant to this clause (vi) to the extent (1) such insufficiency of cash flow arises from the intentional misappropriation or conversion of Rent by any Borrower Party or (2) Borrower incurred such charges after the occurrence and during the continuance of an Event of Default, except to the extent such charges were (I) necessary to protect against imminent danger to the health or safety of any Tenant or any Person at or in the immediate vicinity of any Individual Property or to prevent any imminent defect, damage or harm to any Individual Property, (II) contracted for prior to such Event of Default or (III) consented to in writing by Lender;
(viii) failure to pay Insurance Premiums, to maintain the Policies in full force and effect and/or to provide Lender evidence of the same, in each case, as expressly provided herein;
(ixvii) any security deposits, advance deposits or any other deposits collected with respect to the any Individual Property which are not delivered to Lender upon a foreclosure of the 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 of the Event of Default that gave rise to such foreclosure or action in lieu thereof;
(xviii) the breach or violation by Borrower and/or any tax on SPE Component Entity of any representation, warranty or covenant contained in Article 5 hereof;
(ix) the making failure by Borrower to (A) permit on-site inspections of any Individual Property, (B) provide any financial information regarding hereunder and/or recording of the Security Instrument, the Note or any of pursuant to the other Loan Documents or any transfer or similar taxes and/or (whether due C) appoint a Qualified Manager pursuant to a Qualified Management Agreement upon the making request of the same or upon Lender which failure constitutes an Event of Default;
(x) a breach of Section 11.1 and/or Section 11.2 hereof, which breach continues for three (3) Business Days after notice from Lender’s exercise of its remedies under the Loan Documents), but excluding any income, franchise or other similar taxes;
(xi) the seizure any material amendment, material modification or forfeiture voluntary termination of the Property, or any portion thereof, or Borrower’s interest therein, resulting from criminal wrongdoing Ground Lease by any Borrower Partywithout Lender’s consent other than as expressly permitted pursuant to the terms hereof;
(xii) the failure to make termination or suspension of any Condemnation Payment and/or Health Care License arising in connection with any Balancing Payment, to permit on-site inspections grossly negligent or willful material violation of the Property and/or to provide the Required Financial Itemsany Health Care Requirement or otherwise by Borrower or any voluntary termination or rejection of any such Health Care License by Borrower, in each caseinstance, as and when required herein;which termination, suspension or rejection constitutes an Event of Default; or
(xiii) Intentionally Omitted;
(xiv) the failure to make repairs, renewals or replacements (including, without limitation, structural and nonstructural, exterior and interior, ordinary and extraordinary, foreseen and unforeseen) to the Property or any portion thereof (including, without limitation, the Improvements now or at any time hereafter erected on the Property) as and when required violation of Article 6 hereof not otherwise covered pursuant to clauses (b)(iv) and (b)(v) immediately below, provided, however, for the terms avoidance of doubt, a Sale or Pledge resulting from the consummation of an enforcement action by Lender or the holder of any Mezzanine Loan Documents shall not be a Sale or as and when necessary to maintain the Property Pledge in good and safe condition, in a rentable and tenantable state violation of repair and/or in the condition required pursuant to the terms of the Loan Documents; and/or
(xv) any indemnity obligations of Lender to Bank under the Restricted Account Agreement (other than those arising as a direct result of Lender’s gross negligence or willful misconduct)Article 6 hereof.
(b) Notwithstanding anything to the contrary in this Agreement, the Note or any of the Loan Documents, (A) Lender shall not be deemed to have waived any right which Lender may have under Section 506(a), 506(b), 1111(b) or any other provisions of the Bankruptcy Code to file a claim for the full amount of the Debt or to require that all collateral shall continue to secure all of the Debt owing to Lender in accordance with the Loan Documents, and (B) the Debt shall be fully recourse to Borrower in the event that: (i) a Bankruptcy Event occurs, (ii) the first full monthly payment of principal (if any) and interest under the Note is not paid when due; (ii) Borrower fails to comply with any provisions hereof relating to cash management or fails to appoint a new property manager upon the request of Lender, fails to cooperate with any New Manager or fails to comply with any limitations on instructing the property manager, each as required by and in accordance with, as applicable, the terms and provisions of, this Agreement, the Assignment of Management Agreement and the Security Instrument; (iii) any representation, warranty or covenant contained in Article 5 or Article 6 hereof is violated or breachedbreached and such breach or violation results in, or is a substantial factor in, a substantive consolidation of Borrower and/or any SPE Component Entity with any other Person in a bankruptcy or similar proceedings; (iv) a Bankruptcy Event occursif Borrower and/or any SPE Component Entity fails to obtain Lender’s prior written consent to (A) any voluntary indebtedness or (B) voluntary monetary lien encumbering any Individual Property to the extent such lien required Lender’s consent under this Agreement or the other Loan Documents; or (v) Sections 11.1 if Borrower and/or any SPE Component Entity fails to obtain Lender’s prior written consent to any voluntary transfer of any material portion of any Individual Property or 11.6 hereof are violated to any voluntary act that causes a change in the ownership of Borrower and/or any SPE Component Entity to the extent such ownership change required Lender’s consent under this Agreement; provided, however, for the avoidance of doubt, a Sale or breached Pledge resulting from the consummation of an enforcement action by Lender or the holder of any Mezzanine Loan shall not be a Sale or Pledge in violation of Article 6 hereof. Notwithstanding any provision contained herein or in any material respectother Loan Document, no direct or indirect shareholder, partner, member, principal, affiliate, employee, officer, director, agent or representative of Borrower (each, a “Related Party”) (other than (a) Guarantor in accordance with the Guaranty and the Environmental Indemnity and (b) any Manager that is an Affiliate of Borrower in accordance with any Loan Document to which such Manager may be a party) shall have any personal liability for, nor be joined as a party to any action with respect to (i) the payment of any sum of money which is or may be payable hereunder or under any other Loan Documents, including, but not limited to, the repayment of the Loan or (ii) the performance or discharge of any covenants, obligations or undertakings of Guarantor or any Related Party with respect thereto. In addition to the foregoing, anything contained herein or in the other Loan Documents notwithstanding, in no event will the assets of any Related Party (other than Guarantor in accordance with the Guaranty and the Environmental Indemnity) be available to satisfy any obligation of Borrower hereunder.
Appears in 2 contracts
Samples: Loan Agreement (NorthStar Healthcare Income, Inc.), Loan Agreement (Northstar Realty Finance Corp.)
Exculpation. (a) Subject to Except as otherwise provided herein, in the qualifications belowSecurity Instruments 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 Security Instrument Note or the other Loan Documents Security Instruments by any action or proceeding wherein a money judgment or any deficiency judgment or other judgment establishing personal liability shall be sought against Borrower or any principal, director, officer, employee, beneficiary, shareholder, partner, member, trustee, agent, or Affiliate of Borrower or any legal representatives, successors or assigns of any of the foregoing (collectively, the “Exculpated Parties”)Borrower, except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender to enforce and realize upon its interest under the Note, this Agreement, the Note, the Security Instrument and Instruments, the other Loan Documents, or and the interest in the PropertyProperties, the Rents, or Rents and any other collateral given to Lender pursuant to created by this Agreement, the Note, the Security Instruments and the other Loan Documents; provided, however, that, except as specifically provided herein, that any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower’s interest in the PropertyProperties, in the Rents and in any other collateral given to Lender, and . Lender, by accepting the Note, this Agreement, the Security Instrument Note and the other Loan DocumentsSecurity Instruments, agrees that it shall not not, except as otherwise provided herein or in the Security Instruments, xxx for, seek or demand any deficiency judgment against Borrower or any of the Exculpated Parties in any such action or proceeding proceeding, under or by reason of or under or in connection with the Note, this Agreement, the Note, the Security Instrument Instruments or the other Loan Documents. The provisions of this Section shall not, however, (1i) constitute a waiver, release or impairment of any obligation evidenced or secured by any of this Agreement, the Note, the Security Instruments or the other Loan Documents; (2ii) impair the right of Lender to name Borrower as a party defendant in any action or suit for judicial foreclosure and sale under the Security InstrumentInstruments; (3iii) affect the validity or enforceability of any indemnity, guaranty or similar instrument indemnity (including, without limitation, indemnities set forth in Article 12 hereof, Section 11.2 hereof, in the Guaranty and the Environmental Indemnity) made in connection with the Loan or any of the rights and remedies of Lender thereunder ), guaranty (including, without limitation, Lender’s right to enforce said rights and remedies against Borrower and/or Guarantor (as applicable) personally and without the effect of Guaranty), master lease or similar instrument made in connection with this Agreement, the exculpatory provisions of this Article 13)Note, the Security Instruments, or the other Loan Documents; (4iv) impair the rights right of Lender to (A) obtain the appointment of a receiver and/or (B) enforce its rights and remedies provided in Articles 8 and 9 hereofreceiver; (5v) impair the enforcement of the assignment Assignment of leases and rents contained in the Security Instrument and in any other Loan DocumentsLeases; (6vi) impair the right of Lender to enforce the provisions of Section 4.12(e) 10.2 of this Agreement; (7) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted by the Security Instrument Instruments or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against the PropertySections 4.1.8, 4.1.28, 5.1.9 and 5.2.8 hereof; or (8) constitute a waiver of vii) 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 (A) preserve or enforce its rights and remedies against any Individual Property or (B) obtain any Insurance Proceeds or Awards to which Lender would otherwise be entitled under the terms of this Agreement or the Security Instruments; provided however, Lender shall only enforce such judgment to the extent of any Loss incurred by the Insurance Proceeds and/or Awards.
(b) Notwithstanding the provisions of this Section 9.4 to the contrary, 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 by any Borrower Party in connection with the Loan;
(ii) execution and the gross negligence delivery of this Agreement, the Note, the Security Instrument, or willful misconduct of any Borrower Party;
(iii) any litigation or other legal proceeding related to the Debt filed by any Borrower Party 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 other Loan Documents;
; (ivii) waste to the Property caused by the intentional acts Borrower’s misappropriation or intentional omissions misapplication of any Rents received by Borrower Party and/or after the removal or disposal occurrence and during the continuance of any portion of the Property after an Event of Default;
; (viii) the misapplication, Borrower’s misappropriation or conversion by any Borrower Party intentional misapplication 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 Rents following an Event of Default or (D) any Tenant security deposits or Rents collected more than thirty (30) days in advance;
; (viiv) any act Borrower’s misappropriation or intentional misapplication of arson by any Borrower Party Insurance Proceeds or of which any Borrower Party has knowledge;
Awards; (viiv) Borrower’s failure to pay Taxes, Other Charges (except to the extent that sums sufficient to pay such amounts have been deposited in escrow with Lender pursuant to the terms of Section 7.2 hereof), and charges for labor or materials or other charges that can create liens Liens on any portion of the Property in accordance with the terms and provisions hereof;
Properties (viii) failure to pay Insurance Premiums, to maintain the Policies in full force and effect and/or to provide Lender evidence of the same, in each case, as expressly provided herein;
(ix) any security deposits, advance deposits or any other deposits collected with respect to the Property which are not delivered to Lender upon a foreclosure of the Property or action in lieu thereof, except to the extent any such security deposits were applied in accordance with that there is insufficient cash flow from the terms and conditions of any operation of the Leases prior Property); (vi) Borrower’s failure to return or to reimburse Lender for all Personal Property taken from any Properties by or on behalf of Borrower (other than Personal Property that is obsolete or removed or disposed in the occurrence ordinary course of business of owning and operating the Property) and not replaced with Personal Property of the Event of Default that gave rise to such foreclosure or action in lieu thereof;
(x) any tax on the making and/or recording of the Security Instrument, the Note or any of the other Loan Documents or any transfer or similar taxes (whether due upon the making same utility and of the same or upon Lendergreater value; (vii) any act of intentional waste or arson by Borrower, Principal, or any Affiliate thereof or Guarantor; (viii) [intentionally deleted]; (ix) Borrower’s exercise failure to comply with the provisions of its remedies under Section 5.1.10 hereof (provided Borrower shall have an additional ten (10) days after written notice of such failure to deliver the Loan Documentsrequired financial statements or reports pursuant to Section 5.1.10 hereof before recourse is sought), but excluding any income, franchise ; (x) Borrower’s failure to comply with the provisions of Sections 4.1.39 or other similar taxes;
5.1.19 of this Agreement; (xi) the seizure or forfeiture of the Property, or any portion thereof, or Borrower’s interest therein, resulting from criminal wrongdoing by any Borrower Party;
or Principal’s default under Section 4.1.35 hereof; or (xii) Operating Tenant’s or Principal’s (as defined in the failure to make any Condemnation Payment and/or any Balancing Payment, to permit on-site inspections Subordination and Attornment Agreement) default under Section 11 of the Property and/or to provide the Required Financial Items, in each case, as Subordination and when required herein;Attornment Agreement.
(xiiic) Intentionally Omitted;
Notwithstanding the foregoing, the agreement of Lender not to pursue recourse liability as set forth in Subsection (xiva) above SHALL BECOME NULL AND VOID and shall be of no further force and effect (i) in the failure to make repairsevent of Borrower’s default under Section 5.2.10 hereof or Article 7 of the Security Instruments, renewals or replacements (including, without limitation, structural and nonstructural, exterior and interior, ordinary and extraordinary, foreseen and unforeseenii) to the if any Individual Property or any portion part thereof shall become an asset in (including, without limitation, the Improvements now A) a voluntary bankruptcy or at insolvency proceeding or (B) an involuntary bankruptcy or insolvency proceeding commenced by any time hereafter erected on the Property) as and when required pursuant to the terms of the Loan Documents or as and when necessary to maintain the Property in good and safe condition, in a rentable and tenantable state of repair and/or in the condition required pursuant to the terms of the Loan Documents; and/or
(xv) any indemnity obligations of Lender to Bank under the Restricted Account Agreement Person (other than those arising as Lender) and Borrower fails to use its commercially reasonable efforts to obtain a direct result dismissal of Lender’s gross negligence or willful misconduct)such proceedings.
(bd) Notwithstanding anything to the contrary in this Agreement, the Note or any of the Loan Documents, (A) Lender Nothing herein shall not be deemed to have waived be a waiver of 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 Debt indebtedness secured by the Security Instruments or to require that all collateral shall continue to secure all of the Debt indebtedness owing to Lender in accordance with the Loan Documents, and (B) the Debt shall be fully recourse to Borrower in the event that: (i) the first full monthly payment of principal and interest under the Note is not paid when due; (ii) Borrower fails to comply with any provisions hereof relating to cash management or fails to appoint a new property manager upon the request of Lender, fails to cooperate with any New Manager or fails to comply with any limitations on instructing the property manager, each as required by and in accordance with, as applicable, the terms and provisions of, this Agreement, the Assignment of Management Agreement Note, the Security Instruments and the Security Instrument; (iii) any representation, warranty or covenant contained in Article 5 or Article 6 hereof is violated or breached; (iv) a Bankruptcy Event occurs; or (v) Sections 11.1 or 11.6 hereof are violated or breached in any material respectother Loan Documents.
Appears in 2 contracts
Samples: Loan Agreement (Meristar Hospitality Operating Partnership Lp), Loan Agreement (Meristar Hospitality Corp)
Exculpation. (a) Subject to Except as otherwise provided herein, in the qualifications belowSecurity Instruments 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 Security Instrument Note or the other Loan Documents Security Instruments by any action or proceeding wherein a money judgment or any deficiency judgment or other judgment establishing personal liability shall be sought against Borrower or any principal, director, officer, employee, beneficiary, shareholder, partner, member, trustee, agent, or Affiliate of Borrower or any legal representatives, successors or assigns of any of the foregoing (collectively, the “Exculpated Parties”)Borrower, except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender to enforce and realize upon its interest under the Note, this Agreement, the Note, the Security Instrument and Instruments, the other Loan Documents, or and the interest in the PropertyProperties, the Rents, or Rents and any other collateral given to Lender pursuant to created by this Agreement, the Note, the Security Instruments and the other Loan Documents; provided, however, that, except as specifically provided herein, that any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower’s interest in the PropertyProperties, in the Rents and in any other collateral given to Lender, and . Lender, by accepting the Note, this Agreement, the Security Instrument Note and the other Loan DocumentsSecurity Instruments, agrees that it shall not not, except as otherwise provided herein or in the Security Instruments, xxx for, seek or demand any deficiency judgment against Borrower or any of the Exculpated Parties in any such action or proceeding proceeding, under or by reason of or under or in connection with the Note, this Agreement, the Note, the Security Instrument Instruments or the other Loan Documents. The provisions of this Section shall not, however, (1i) constitute a waiver, release or impairment of any obligation evidenced or secured by any of this Agreement, the Note, the Security Instruments or the other Loan Documents; (2ii) impair the right of Lender to name Borrower as a party defendant in any action or suit for judicial foreclosure and sale under the Security InstrumentInstruments; (3iii) affect the validity or enforceability of any indemnity, guaranty or similar instrument indemnity (including, without limitation, indemnities set forth in Article 12 hereof, Section 11.2 hereof, in the Guaranty and the Environmental Indemnity) made in connection with the Loan or any of the rights and remedies of Lender thereunder ), guaranty (including, without limitation, Lender’s right to enforce said rights and remedies against Borrower and/or Guarantor (as applicable) personally and without the effect of Guaranty), master lease or similar instrument made in connection with this Agreement, the exculpatory provisions of this Article 13)Note, the Security Instruments, or the other Loan Documents; (4iv) impair the rights right of Lender to (A) obtain the appointment of a receiver and/or (B) enforce its rights and remedies provided in Articles 8 and 9 hereofreceiver; (5v) impair the enforcement of the assignment of leases and rents provisions contained in the Security Instrument and in any other Loan DocumentsInstruments; (6vi) impair the right of Lender to enforce the provisions of Section 4.12(e) 10.2 of this Agreement; (7) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted by the Security Instrument Instruments or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against the PropertySections 4.1.8, 4.1.28, 5.1.9 and 5.2.8 hereof; or (8) constitute a waiver of vii) 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 (A) preserve or enforce its rights and remedies against any Individual Property or (B) obtain any Insurance Proceeds or Awards to which Lender would otherwise be entitled under the terms of this Agreement or the Security Instruments; provided however, Lender shall only enforce such judgment to the extent of any Loss incurred by the Insurance Proceeds and/or Awards.
(b) Notwithstanding the provisions of this Section 9.4 to the contrary, 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 by any Borrower Party in connection with the Loan;
(ii) execution and the gross negligence delivery of this Agreement, the Note, the Security Instrument, or willful misconduct of any Borrower Party;
(iii) any litigation or other legal proceeding related to the Debt filed by any Borrower Party 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 other Loan Documents;
; (ii) Borrower’s misapplication or misappropriation of Rents received by Borrower after the occurrence of a Default or Event of Default; (iii) Borrower’s misapplication or misappropriation of Security Deposits or Rents collected more than thirty (30) days in advance; (iv) waste to Borrower’s misapplication or the Property caused by the intentional acts misappropriation of Insurance Proceeds or intentional omissions of any Borrower Party and/or the removal or disposal of any portion of the Property after an Event of Default;
Awards; (v) the misapplication, misappropriation or conversion by any Borrower Party 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 Rents following an Event of Default or (D) any Tenant security deposits or Rents collected in advance;
(vi) any act of arson by any Borrower Party or of which any Borrower Party has knowledge;
(vii) Borrower’s failure to pay Taxes, Other Charges (except to the extent that sums sufficient to pay such amounts have been deposited in escrow with Lender pursuant to the terms of hereof), charges for labor or materials or other charges that can create liens Liens on the Properties; (vi) Borrower’s failure to return or to reimburse Lender for all Personal Property taken from any portion Properties by or on behalf of Borrower and not replaced with Personal Property of the Property in accordance with same utility and of the terms and provisions hereof;
same or greater value; (vii) any act of intentional waste or arson by Borrower, Principal, or any Affiliate thereof or by Indemnitor or Guarantor; (viii) any fees or commissions paid by Borrower to Principal or any Affiliate of Borrower or Principal, Indemnitor, or Guarantor in violation of the terms of this Agreement, the Note, the Security Instruments or the other Loan Documents; (ix) Borrower’s failure to pay Insurance Premiumscomply with the provisions of Sections 4.1.39 and 5.1.19 of this Agreement; (x) a material misrepresentation contained in any Required Out-Parcel Officer’s Certificate; or (xi) any unpaid Madison Property Option Shortfall Amount due pursuant to Section 2.5.5 hereof; provided, however, that in no event shall Guarantor be obligated for any Madison Property Option Shortfall Amount in excess of ten percent (10%) of the original principal amount of the Loan.
(c) Notwithstanding the foregoing, the agreement of Lender not to maintain the Policies pursue recourse liability as set forth in full Subsection (a) above SHALL BECOME NULL AND VOID and shall be of no further force and effect and/or to provide Lender evidence (i) in the event of a default under Section 4.1.35 of this Agreement such that such failure was considered by a court as a factor in the court’s finding for a consolidation of the sameassets of Borrower with the assets of another Person; provided, however, that in each casethe absence of an actual consolidation, as expressly provided herein;
(ix) any security deposits, advance deposits or any other deposits collected with respect to the Property which are not delivered to Lender upon a foreclosure of the Property or action in lieu thereof, except recourse may be had against Borrower only to the extent any such security deposits were applied in accordance of Losses actually incurred by Lender for Borrower’s failure to comply with the terms provisions of Section 4.1.35; (ii) in the event of any Borrower’s willful failure to provide a report or information required under Section 5.1.10, but a failure to provide such reports or information shall not be deemed willful if such failure is the result of good faith error and conditions is cured within ten (10) Business Days after notice is delivered to Borrower, provided, however, that if (x) Borrower is prevented by an unaffiliated third party (including but not limited to the Operating Tenants) from delivering such information, and (y) Borrower uses reasonable efforts to obtain such information, then such failure shall not be deemed willful so long as Borrower continuously endeavors in good faith to obtain the required financial reports and information and delivers same to Lender as soon as it becomes available to Borrower; (iii) in the event of a Transfer other than as expressly permitted pursuant to Section 5.2.10(c) hereof; (iv) in the event of a default under Section 5.2.10(d) hereof; (v) if any Individual Property or any part thereof shall become an asset in (A) a voluntary bankruptcy or insolvency proceeding or (B) an involuntary bankruptcy or insolvency proceeding commenced by Guarantor, Indemnitor or any Affiliate of any of the Leases prior foregoing and Borrower fails to use its commercially reasonable efforts to obtain a dismissal of such proceedings; or (vi) in the occurrence of event that Borrower (A) solicits or causes to be solicited petitioning creditors for any involuntary petition against Borrower from any Person or (B) files an answer consenting to or otherwise acquiescing in or joining in any involuntary petition filed against it by any other Person under the Event of Default that gave rise to such foreclosure or action in lieu thereof;
(x) any tax on the making and/or recording of the Security Instrument, the Note Bankruptcy Code or any of the other Loan Documents Federal or any transfer state bankruptcy or similar taxes (whether due upon the making of the same or upon Lender’s exercise of its remedies under the Loan Documents), but excluding any income, franchise or other similar taxes;
(xi) the seizure or forfeiture of the Property, or any portion thereof, or Borrower’s interest therein, resulting from criminal wrongdoing by any Borrower Party;
(xii) the failure to make any Condemnation Payment and/or any Balancing Payment, to permit on-site inspections of the Property and/or to provide the Required Financial Items, in each case, as and when required herein;
(xiii) Intentionally Omitted;
(xiv) the failure to make repairs, renewals or replacements (including, without limitation, structural and nonstructural, exterior and interior, ordinary and extraordinary, foreseen and unforeseen) to the Property or any portion thereof (including, without limitation, the Improvements now or at any time hereafter erected on the Property) as and when required pursuant to the terms of the Loan Documents or as and when necessary to maintain the Property in good and safe condition, in a rentable and tenantable state of repair and/or in the condition required pursuant to the terms of the Loan Documents; and/or
(xv) any indemnity obligations of Lender to Bank under the Restricted Account Agreement (other than those arising as a direct result of Lender’s gross negligence or willful misconduct)insolvency law.
(bd) Notwithstanding anything to the contrary in this Agreement, the Note or any of the Loan Documents, (A) Lender Nothing herein shall not be deemed to have waived be a waiver of 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 Debt indebtedness secured by the Security Instruments or to require that all collateral shall continue to secure all of the Debt indebtedness owing to Lender in accordance with the Loan Documents, and (B) the Debt shall be fully recourse to Borrower in the event that: (i) the first full monthly payment of principal and interest under the Note is not paid when due; (ii) Borrower fails to comply with any provisions hereof relating to cash management or fails to appoint a new property manager upon the request of Lender, fails to cooperate with any New Manager or fails to comply with any limitations on instructing the property manager, each as required by and in accordance with, as applicable, the terms and provisions of, this Agreement, the Assignment of Management Agreement Note, the Security Instruments and the Security Instrument; (iii) any representation, warranty or covenant contained in Article 5 or Article 6 hereof is violated or breached; (iv) a Bankruptcy Event occurs; or (v) Sections 11.1 or 11.6 hereof are violated or breached in any material respectother Loan Documents.
Appears in 2 contracts
Samples: Loan Agreement (Spirit Finance Corp), Loan Agreement (Spirit Finance Corp)
Exculpation. (a) Subject to the qualifications below, Lender shall not enforce the liability and obligation of Borrower (or any of Borrower’s members, managers, partners, shareholders, officers, directors or Affiliates, whether director or indirect, collectively, the “Borrower Parties”) to perform and observe the obligations contained in the Note, this Agreement, the Security Instrument Pledge Agreement or the other Loan Documents by any action or proceeding wherein a money judgment or any deficiency judgment or other judgment establishing personal liability shall be sought against Borrower or any principal, director, officer, employee, beneficiary, shareholder, partner, member, trustee, agent, or Affiliate of Borrower or any legal representatives, successors or assigns of any of the foregoing (collectively, the “Exculpated Parties”)Borrower, except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender to enforce and realize upon its interest under the Note, this Agreement, the Security Instrument Pledge Agreement and the other Loan Documents, or in the Property, the Rents, Collateral or any other collateral given to Lender pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower’s interest in the Property, in the Rents Collateral and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Security Instrument Pledge Agreement and the other Loan Documents, agrees for itself and its successors and assigns that it and its successors and assigns shall not xxx for, seek or demand any deficiency judgment against Borrower or any of the Exculpated Parties in any such action or proceeding under under, or by reason of or under of, or in connection with with, the Note, this Agreement, the Security Instrument Pledge Agreement or the other Loan Documents. The provisions of this Section shall not, however, (1a) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (2b) impair the right of Lender to name Borrower as a party defendant in any action or suit for foreclosure and sale under the Security InstrumentPledge Agreement; (3c) affect the validity or enforceability of any indemnity, guaranty or similar instrument (including, without limitation, indemnities set forth in Article 12 hereof, Section 11.2 hereof, in the Guaranty and the Environmental Indemnity) made in connection with the Loan or any of the rights and remedies of Lender thereunder (including, without limitation, Lender’s right to enforce said rights and remedies against Borrower and/or Guarantor (as applicable) personally and without the effect of the exculpatory provisions of this Article 13)thereunder; (4) impair the rights of Lender to (A) obtain the appointment of a receiver and/or (B) enforce its rights and remedies provided in Articles 8 and 9 hereof; (5) impair the enforcement of the assignment of leases and rents contained in the Security Instrument and in any other Loan Documents; (6d) impair the right of Lender to enforce Section 4.12(eobtain the appointment of a receiver; (e) impair the enforcement of this the Pledge Agreement; (7f) constitute a prohibition against Lender to seek seeking a deficiency judgment against Borrower in order to fully realize the security granted by the Security Instrument Pledge Agreement or to commence commencing any other appropriate action or proceeding in order for Lender to exercise its remedies against the PropertyCollateral; or (8) g) constitute a waiver of the right of Lender to enforce the liability and obligation of BorrowerBorrower under the terms of this Agreement, by money judgment or otherwise, to the extent of any Loss actual out of pocket loss, damage, cost, expense, liability, claim or other obligation suffered or incurred by Lender (including attorneys’ fees and costs reasonably incurred) arising out of or in connection with the following:
(i1) fraud or intentional material misrepresentation or failure to disclose a material fact by Borrower or any of the Borrower Party Parties in connection with the Loan;
(ii2) the gross negligence or willful misconduct of Borrower or any of the Borrower PartyParties;
(iii3) the breach of any litigation representation, warranty, covenant or other legal proceeding related to indemnification provision in this Agreement or the Debt filed by Environmental Indemnity concerning environmental laws, hazardous substances and asbestos and any Borrower Party that delays, opposes, impedes, obstructs, hinders, enjoins or otherwise interferes with or frustrates the efforts indemnification of Lender to exercise with respect thereto in any rights and remedies available to Lender as provided herein and in the other Loan Documentsof such documents;
(iv4) willful physical waste of the Property to the extent that sufficient cash flow of the Property caused by the intentional acts or intentional omissions of any Borrower Party and/or is available to prevent such waste;
(5) the removal or disposal of any portion of the Property after an Event of Default;
(v6) the misapplication, misappropriation or conversion by any or on behalf of Borrower Party of (A) any insurance proceeds paid by reason of any loss, damage loss or destruction to the Propertydamage, (B) any Awards or other amounts Award received in connection with the Condemnation of all a condemnation or a portion of the Propertysimilar proceeding, (C) any Rents or other revenues derived from the Property following an Event of Default or (D) any Tenant security deposits or Rents collected paid more than one (1) month in advanceadvance following an Event of Default;
(vi7) if Borrower or any act other entity that is required to be a Single-Purpose Entity fails to comply with the SPE Covenants or maintain its status as a Single-Purpose Entity; or
(8) if any Transfer occurs other than as permitted by this Agreement.
(a) Borrower filing a voluntary petition under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (b) the filing of arson 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 Party or any of which the Borrower Parties colludes with or otherwise assists such Person, or soliciting or causing to be solicited petitioning creditors for any involuntary petition against Borrower Party has knowledge;
from any Person; (viic) failure Borrower or any of the Borrower Parties filing an answer consenting to pay Taxesor otherwise acquiescing in or joining in any involuntary petition filed against it, charges by any other Person under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (d) Borrower or any of the Borrower Parties consenting to or acquiescing in or joining in an application for labor the appointment of a custodian, receiver, trustee, or materials examiner for Borrower or other charges that can create liens on all or any portion of the Property in accordance with the terms and provisions hereof;
Property; (viiie) failure to pay Insurance Premiums, to maintain the Policies in full force and effect and/or to provide Lender evidence of the same, in each case, as expressly provided herein;
(ix) any security deposits, advance deposits or any other deposits collected with respect to the Property which are not delivered to Lender upon a foreclosure of the 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;
(x) any tax on the making and/or recording of the Security Instrument, the Note Borrower or any of the other Loan Documents Borrower Parties 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; or (ii) if Borrower or any transfer or similar taxes (whether due upon the making of the same or upon Lender’s exercise of its remedies under the Loan Documents), but excluding any income, franchise or other similar taxes;
(xi) the seizure or forfeiture of the PropertyBorrower Party, or any portion thereof, Affiliate of Borrower or Borrower’s interest therein, resulting from criminal wrongdoing by Affiliate of any Borrower Party;
(xii) the failure to make any Condemnation Payment and/or any Balancing Payment, to permit on-site inspections of the Property and/or to provide the Required Financial Items, in each any judicial or quasi-judicial case, as and when required herein;
(xiii) Intentionally Omitted;
(xiv) action or proceeding directly or indirectly contests the failure to make repairs, renewals validity or replacements (including, without limitation, structural and nonstructural, exterior and interior, ordinary and extraordinary, foreseen and unforeseen) to the Property or any portion thereof (including, without limitation, the Improvements now or at any time hereafter erected on the Property) as and when required pursuant to the terms enforceability of the Loan Documents or as and when necessary to maintain directly or indirectly contests or intentionally hinders, delays or obstructs the Property in good and safe condition, in pursuit of any rights or remedies by Lender (including the commencement and/or prosecution of a rentable and tenantable state foreclosure action after an Event of repair and/or in the condition required pursuant to the terms of the Loan Documents; and/or
(xv) any indemnity obligations of Lender to Bank under the Restricted Account Agreement (other than those arising as a direct result of Lender’s gross negligence or willful misconduct).
(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 Default. The provisions of this Article 10 shall survive the Bankruptcy Code to file a claim for the full amount expiration and termination of the Debt or to require that all collateral shall continue to secure all of the Debt owing to Lender in accordance with the Loan Documents, and (B) the Debt shall be fully recourse to Borrower in the event that: (i) the first full monthly payment of principal and interest under the Note is not paid when due; (ii) Borrower fails to comply with any provisions hereof relating to cash management or fails to appoint a new property manager upon the request of Lender, fails to cooperate with any New Manager or fails to comply with any limitations on instructing the property manager, each as required by and in accordance with, as applicable, the terms and provisions of, this Agreement, the Assignment of Management Agreement and the Security Instrument; (iii) any representation, warranty or covenant contained in Article 5 or Article 6 hereof is violated or breached; (iv) a Bankruptcy Event occurs; or (v) Sections 11.1 or 11.6 hereof are violated or breached in any material respectrepayment of the Indebtedness.
Appears in 2 contracts
Samples: Mezzanine Loan Documents (Strategic Storage Trust VI, Inc.), Mezzanine Loan Agreement (Strategic Storage Trust VI, Inc.)
Exculpation. (a) Subject to the qualifications below, Lender shall not enforce the liability and obligation of Borrowers (or any of Borrowers’ members, managers partners shareholders, officers, directors or Affiliates, whether direct or indirect, collectively, the “Borrower Parties”) to perform and observe the obligations contained in the Note, this Agreement, the Security Instrument Pledge Agreements or the other Loan Documents by any action or proceeding wherein a money judgment or any deficiency judgment or other judgment establishing personal liability shall be sought against Borrower or any principal, director, officer, employee, beneficiary, shareholder, partner, member, trustee, agent, or Affiliate of Borrower or any legal representatives, successors or assigns of any of the foregoing (collectively, the “Exculpated Parties”)either Borrower, except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender to enforce and realize upon its interest under the Note, this Agreement, the Security Instrument Pledge Agreements and the other Loan Documents, or in any or all of the Property, the Rents, Collateral or any other collateral given to Lender pursuant to the Pledge Agreements and the other Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrowers or the Borrower Parties only to the extent of Borrower’s Borrowers’ or the Borrower Parties’ interest in the Property, in the Rents Collateral and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Security Instrument Pledge Agreements, and the other Loan Documents, agrees that it shall not xxx for, seek or demand any deficiency judgment against either Borrower or any of the Exculpated Borrower Parties in any such action or proceeding under under, or by reason of or under of, or in connection with with, the Note, this Agreement, the Security Instrument Pledge Agreements, or the other Loan Documents. The provisions of this Section shall not, however, (1a) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (2b) impair the right of Lender to name Borrower Borrowers as a party defendant defendants in any action or suit for foreclosure and sale under the Security InstrumentPledge Agreements; (3c) affect the validity or enforceability of any indemnity, guaranty or similar instrument (including, without limitation, indemnities set forth in Article 12 hereof, Section 11.2 hereof, in the Guaranty and the Environmental Indemnity) made in connection with the Loan or any of the rights and remedies of Lender thereunder (including, without limitation, Lender’s right to enforce said rights and remedies against Borrower and/or Guarantor (as applicable) personally and without the effect of the exculpatory provisions of this Article 13)thereunder; (4) impair the rights of Lender to (A) obtain the appointment of a receiver and/or (B) enforce its rights and remedies provided in Articles 8 and 9 hereof; (5) impair the enforcement of the assignment of leases and rents contained in the Security Instrument and in any other Loan Documents; (6d) impair the right of Lender to enforce Section 4.12(e) obtain the appointment of this Agreementa receiver; (7e) constitute a prohibition against Lender to seek seeking a deficiency judgment against Borrower Borrowers in order to fully realize the security granted by the Security Instrument Pledge Agreements or to commence commencing any other appropriate action or proceeding in order for Lender to exercise its remedies against the PropertyProperties; or (8) e) 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 Loss 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 Party in connection with the Loan;
(ii) the gross negligence or willful misconduct of any Borrower Party;
(iii) any litigation or other legal proceeding related to the Debt filed by any Borrower Party 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 other Loan Documents;
(iv) waste to the Property caused by the intentional acts or intentional omissions of any Borrower Party and/or the removal or disposal of any portion of the Property after an Event of Default;
(v) the misapplication, misappropriation or conversion by any Borrower Party 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 Rents following an Event of Default or (D) any Tenant security deposits or Rents collected in advance;
(vi) any act of arson by any Borrower Party or of which any Borrower Party has knowledge;
(vii) failure to pay Taxes, charges for labor or materials or other charges that can create liens on any portion of the Property in accordance with the terms and provisions hereof;
(viii) failure to pay Insurance Premiums, to maintain the Policies in full force and effect and/or to provide Lender evidence of the same, in each case, as expressly provided herein;
(ix) any security deposits, advance deposits or any other deposits collected with respect to the Property which are not delivered to Lender upon a foreclosure of the 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;
(x) any tax on the making and/or recording of the Security Instrument, the Note or any of the other Loan Documents or any transfer or similar taxes (whether due upon the making of the same or upon Lender’s exercise of its remedies under the Loan Documents), but excluding any income, franchise or other similar taxes;
(xi) the seizure or forfeiture of the Property, or any portion thereof, or Borrower’s interest therein, resulting from criminal wrongdoing by any Borrower Party;
(xii) the failure to make any Condemnation Payment and/or any Balancing Payment, to permit on-site inspections of the Property and/or to provide the Required Financial Items, in each case, as and when required herein;
(xiii) Intentionally Omitted;
(xiv) the failure to make repairs, renewals or replacements (including, without limitation, structural and nonstructural, exterior and interior, ordinary and extraordinary, foreseen and unforeseen) to the Property or any portion thereof (including, without limitation, the Improvements now or at any time hereafter erected on the Property) as and when required pursuant to the terms of the Loan Documents or as and when necessary to maintain the Property in good and safe condition, in a rentable and tenantable state of repair and/or in the condition required pursuant to the terms of the Loan Documents; and/or
(xv) any indemnity obligations of Lender to Bank under the Restricted Account Agreement (other than those arising as a direct result of Lender’s gross negligence or willful misconduct).
(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 Debt or to require that all collateral shall continue to secure all of the Debt owing to Lender in accordance with the Loan Documents, and (B) the Debt shall be fully recourse to Borrower in the event that: (i) the first full monthly payment of principal and interest under the Note is not paid when due; (ii) Borrower fails to comply with any provisions hereof relating to cash management or fails to appoint a new property manager upon the request of Lender, fails to cooperate with any New Manager or fails to comply with any limitations on instructing the property manager, each as required by and in accordance with, as applicable, the terms and provisions of, this Agreement, the Assignment of Management Agreement and the Security Instrument; (iii) any representation, warranty or covenant contained in Article 5 or Article 6 hereof is violated or breached; (iv) a Bankruptcy Event occurs; or (v) Sections 11.1 or 11.6 hereof are violated or breached in any material respect.97
Appears in 2 contracts
Samples: Loan Agreement (MPG Office Trust, Inc.), Loan Agreement (MPG Office Trust, Inc.)
Exculpation. (a) Subject to the qualifications below, Lender shall not enforce the liability and obligation of Borrower Borrowers to perform and observe the obligations contained in the Note, this Agreement, the Security Instrument Mortgage or the other Loan Documents by any action or proceeding wherein a money judgment or any deficiency judgment or other judgment establishing personal liability shall be sought against Borrower or any principal, director, officer, employee, beneficiary, shareholder, partner, member, trustee, agent, or Affiliate of Borrower or any legal representatives, successors or assigns of any of the foregoing (collectively, the “Exculpated Parties”)Borrower, except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender to enforce and realize upon its interest under the Note, this Agreement, the Security Instrument Mortgage and the other Loan Documents, or in the Property, the 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 any Borrower only to the extent of such Borrower’s interest in the Property, in the Rents and in any other collateral given to LenderCollateral, and Lender, by accepting the Note, this Agreement, the Security Instrument Mortgage and the other Loan Documents, agrees that it shall not xxx for, seek or demand any deficiency judgment against any Borrower or any of the Exculpated Parties in any such action or proceeding under under, or by reason of or under of, or in connection with with, the Note, this Agreement, the Security Instrument Mortgage or the other Loan Documents. The provisions of this Section 8.1 shall not, however, (1a) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (2b) impair the right of Lender to name any Borrower as a party defendant in any action or suit for foreclosure and sale under the Security InstrumentMortgage; (3) affect the validity or enforceability of any indemnity, guaranty or similar instrument (including, without limitation, indemnities set forth in Article 12 hereof, Section 11.2 hereof, in the Guaranty and the Environmental Indemnity) made in connection with the Loan or any of the rights and remedies of Lender thereunder (including, without limitation, Lender’s right to enforce said rights and remedies against Borrower and/or Guarantor (as applicable) personally and without the effect of the exculpatory provisions of this Article 13); (4) impair the rights of Lender to (A) obtain the appointment of a receiver and/or (B) enforce its rights and remedies provided in Articles 8 and 9 hereof; (5) impair the enforcement of the assignment of leases and rents contained in the Security Instrument and in any other Loan Documents; (6c) impair the right of Lender to enforce Section 4.12(e) obtain the appointment of this Agreementa receiver; or (7d) constitute a prohibition against Lender to seek seeking a deficiency judgment against any Borrower in order to fully realize the security granted by the Security Instrument Mortgage or to commence commencing any other appropriate action or proceeding in order for Lender to exercise its remedies against the Property; or (8) constitute a waiver of the right of Lender to enforce the liability and obligation of Borrower, by money judgment or otherwise, to the extent of any Loss incurred by Lender (including attorneys’ fees and costs reasonably incurred) arising out of or in connection with the following:
(i) fraud or intentional misrepresentation by any Borrower Party in connection with the Loan;
(ii) the gross negligence or willful misconduct of any Borrower Party;
(iii) any litigation or other legal proceeding related to the Debt filed by any Borrower Party 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 other Loan Documents;
(iv) waste to the Property caused by the intentional acts or intentional omissions of any Borrower Party and/or the removal or disposal of any portion of the Property after an Event of Default;
(v) the misapplication, misappropriation or conversion by any Borrower Party 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 Rents following an Event of Default or (D) any Tenant security deposits or Rents collected in advance;
(vi) any act of arson by any Borrower Party or of which any Borrower Party has knowledge;
(vii) failure to pay Taxes, charges for labor or materials or other charges that can create liens on any portion of the Property in accordance with the terms and provisions hereof;
(viii) failure to pay Insurance Premiums, to maintain the Policies in full force and effect and/or to provide Lender evidence of the same, in each case, as expressly provided herein;
(ix) any security deposits, advance deposits or any other deposits collected with respect to the Property which are not delivered to Lender upon a foreclosure of the 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;
(x) any tax on the making and/or recording of the Security Instrument, the Note or any of the other Loan Documents or any transfer or similar taxes (whether due upon the making of the same or upon Lender’s exercise of its remedies under the Loan Documents), but excluding any income, franchise or other similar taxes;
(xi) the seizure or forfeiture of the Property, or any portion thereof, or Borrower’s interest therein, resulting from criminal wrongdoing by any Borrower Party;
(xii) the failure to make any Condemnation Payment and/or any Balancing Payment, to permit on-site inspections of the Property and/or to provide the Required Financial Items, in each case, as and when required herein;
(xiii) Intentionally Omitted;
(xiv) the failure to make repairs, renewals or replacements (including, without limitation, structural and nonstructural, exterior and interior, ordinary and extraordinary, foreseen and unforeseen) to the Property or any portion thereof (including, without limitation, the Improvements now or at any time hereafter erected on the Property) as and when required pursuant to the terms of the Loan Documents or as and when necessary to maintain the Property in good and safe condition, in a rentable and tenantable state of repair and/or in the condition required pursuant to the terms of the Loan Documents; and/or
(xv) any indemnity obligations of Lender to Bank under the Restricted Account Agreement (other than those arising as a direct result of Lender’s gross negligence or willful misconduct).
(b) Collateral. Notwithstanding anything to the contrary in this AgreementAgreement or any other Loan Document, the Note no present or future Constituent Member in any Borrower, nor any present or future shareholder, officer, director, employee, trustee, beneficiary, advisor, member, partner, principal, participant or agent of or in any Borrower or of or in any Person that is or becomes a Constituent Member in any Borrower, shall have any personal liability, directly or indirectly, under or in connection with this Agreement or any of the Loan Documents, (A) or any amendment or amendments to any of the foregoing made at any time or times, heretofore or hereafter, and Lender on behalf of itself and its successors and assigns, hereby waives any and all such personal liability. In addition, Lender, for itself and its successors and assigns, acknowledges and agrees that neither Borrowers, nor any Constituent Member, nor any other party, is assuming any personal liability, directly or indirectly, under or in connection with any agreement, lease, instrument, claim or right constituting a part of the Collateral or to which the Collateral is now or hereafter subject, except as may be expressly set forth therein. For purposes of this Agreement and each of the other Loan Documents, neither the negative capital account of any Constituent Member in any Borrower nor any obligation of any Constituent Member in any Borrower to restore a negative capital account or to contribute or loan capital to any Borrower or to any other Constituent Member in any Borrower shall not at any time be deemed to be the property or an asset of such Borrower (or any such other Constituent Member) and neither Lender nor any of its successors or assigns shall have waived any right which Lender may have under Section 506(a)to collect, 506(b)enforce or proceed against any Constituent Member with respect to any such negative capital account or obligation to restore, 1111(b) contribute or any other provisions of the Bankruptcy Code to file a claim for the full amount of the Debt or to require that all collateral shall continue to secure all of the Debt owing to Lender in accordance with the Loan Documents, and (B) the Debt shall be fully recourse to Borrower in the event that: (i) the first full monthly payment of principal and interest under the Note is not paid when due; (ii) Borrower fails to comply with any provisions hereof relating to cash management or fails to appoint a new property manager upon the request of Lender, fails to cooperate with any New Manager or fails to comply with any limitations on instructing the property manager, each as required by and in accordance with, as applicable, the terms and provisions of, this Agreement, the Assignment of Management Agreement and the Security Instrument; (iii) any representation, warranty or covenant contained in Article 5 or Article 6 hereof is violated or breached; (iv) a Bankruptcy Event occurs; or (v) Sections 11.1 or 11.6 hereof are violated or breached in any material respectloan.
Appears in 2 contracts
Samples: Second Mortgage Loan Agreement, Second Mortgage Loan Agreement (Bref Hr, LLC)
Exculpation. (a) Subject to the qualifications below, Lender Administrative Agent shall not enforce the liability and obligation of Borrower to perform and observe the obligations contained in the Note, this Agreement, the Security Instrument Mortgages or the other Loan Documents by any action or proceeding wherein a money judgment or any deficiency judgment or other judgment establishing personal liability shall be sought against Borrower or any principal, director, officer, employee, beneficiary, shareholder, partner, member, trustee, agent, or Affiliate of Borrower or any legal representatives, successors or assigns of any of the foregoing (collectively, the “Exculpated Parties”)Borrower, except that Lender Administrative Agent may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender Administrative Agent to enforce and realize upon its interest under the Note, this Agreement, the Security Instrument Mortgages and the other Loan Documents, or in the PropertyProperties, the Rents, or any other collateral given to Lender Administrative Agent pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower’s interest in the PropertyProperties, in the Rents and in any other collateral given to LenderAdministrative Agent, and LenderAdministrative Agent, by accepting the Note, this Agreement, the Security Instrument Mortgages and the other Loan Documents, agrees that it shall not xxx for, seek or demand any deficiency judgment against Borrower or any of the Exculpated Parties in any such action or proceeding under under, or by reason of or under of, or in connection with with, the Note, this Agreement, the Security Instrument Mortgages or the other Loan Documents. The provisions of this Section shall not, however, (1a) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (2b) impair the right of Lender Administrative Agent to name Borrower as a party defendant in any action or suit for foreclosure and sale under any of the Security InstrumentMortgages; (3c) affect the validity or enforceability of any indemnity, guaranty or similar instrument (including, without limitation, indemnities set forth in Article 12 hereof, Section 11.2 hereof, in the Guaranty and or the Environmental Indemnity) made in connection with the Loan Indemnity or any of the rights and remedies of Lender thereunder (including, without limitation, Lender’s right to enforce said rights and remedies against Borrower and/or Guarantor (as applicable) personally and without the effect of the exculpatory provisions of this Article 13)Administrative Agent thereunder; (4d) impair the rights right of Lender Administrative Agent to (A) obtain the appointment of a receiver and/or (B) enforce its rights and remedies provided in Articles 8 and 9 hereofreceiver; (5e) impair the enforcement of the collateral assignment of leases and rents contained in the Security Instrument and in any other Loan DocumentsMortgage; (6) impair the right of Lender to enforce Section 4.12(e) of this Agreement; (7f) constitute a prohibition against Lender Administrative Agent to seek a deficiency judgment against Borrower in order to fully realize the security granted by each of the Security Instrument Mortgages or to commence any other appropriate action or proceeding in order for Lender Administrative Agent to exercise its remedies against all of the PropertyProperties; or (8) g) constitute a waiver of the right of Lender Administrative Agent to enforce the liability and obligation of Borrower, by money judgment or otherwise, to the extent of any Loss actual loss, damage, cost, expense, liability, claim or other obligation to the extent actually incurred by Lender Administrative Agent and Lenders (including attorneys’ fees fees, costs and costs expenses reasonably incurred) arising out of or in connection with the following:
(i) fraud or intentional materially and willful misrepresentation by Borrower or any Borrower Party SPE Constituent Entity or any of their respective Affiliates in connection with the Loan;
(ii) the gross negligence or willful misconduct of Borrower or any Borrower PartySPE Constituent Entity or any of their respective Affiliates which results in physical damage or waste to the Property;
(iii) any litigation or other legal proceeding related to the Debt filed by any Borrower Party 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 other Loan Documents;
(iv) waste to the Property caused by the intentional acts or intentional omissions of any Borrower Party and/or the removal or disposal of any portion of any Individual Property during the Property after continuance of an Event of Default;
(viv) the misapplication, misappropriation or conversion by Borrower, any Borrower Party SPE Constituent Entity, Guarantor or any of their respective Affiliates of (A) any insurance proceeds paid by reason of any loss, damage Casualty or destruction to proceeds of the PropertyPLL Policy, (B) any Awards or other amounts received in connection with the Condemnation of all or a portion of the PropertyCondemnation, (C) any Rents following during the continuance of an Event of Default Default, or (D) any Tenant security deposits or Rents collected paid more than one (1) month in advance;
(v) (intentionally omitted);
(vi) a material breach by Borrower or any act of arson SPE Constituent Entity or material failure by Borrower or any Borrower Party SPE Constituent Entity to comply with the covenants set forth in Section 5.1.29(a) or of which any Borrower Party has knowledge(b) hereof;
(vii) failure to pay Taxes, charges if Borrower voluntarily encumbers any Individual Property by any Lien securing indebtedness for labor or materials or borrowed money (other charges that can create liens on any portion of the Property in accordance with the terms and provisions hereof;than a Permitted Encumbrance) without Unanimous Lender’s prior written consent; or
(viii) failure to pay Insurance Premiumsif Borrower, to maintain the Policies in full force and effect and/or to provide Lender evidence of the sameany SPE Constituent Entity, in each case, as expressly provided herein;
(ix) any security deposits, advance deposits Guarantor or any other deposits collected with respect respective Affiliate fails to the Property which are not delivered to Lender upon a foreclosure of the 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;
(x) any tax on the making and/or recording of the Security Instrument, the Note or any of the other Loan Documents or any transfer or similar taxes (whether due upon the making of the same or upon obtain Unanimous Lender’s exercise prior written consent to any Transfer of its remedies under the Loan Documents), but excluding any income, franchise or other similar taxes;
(xi) the seizure or forfeiture of the Property, or any portion thereof, or Borrower’s interest therein, resulting from criminal wrongdoing by any Borrower Party;
(xii) the failure to make any Condemnation Payment and/or any Balancing Payment, to permit on-site inspections of the Property and/or to provide the Required Financial Items, in each case, as and when required herein;
(xiii) Intentionally Omitted;
(xiv) the failure to make repairs, renewals or replacements (including, without limitation, structural and nonstructural, exterior and interior, ordinary and extraordinary, foreseen and unforeseen) to the an Individual Property or any portion thereof (including, without limitation, the Improvements now direct or at indirect interest therein in any time hereafter erected on the Property) as and when case in which such consent is required to be obtained pursuant to the terms Section 5.2.10 hereof (provided, however, that a Transfer by reason of a foreclosure (or deed-in-lieu or assignment deed-in-lieu thereof) by Administrative Agent or any Lender (or its designee) of the Loan Documents or as and when necessary to maintain the Property in good and safe condition, in a rentable and tenantable state of repair and/or in the condition required pursuant to the terms of collateral for the Loan Documents; and/or
(xv) any indemnity obligations shall not be deemed a Transfer in violation of Lender to Bank under the Restricted Account Agreement (other than those arising as a direct result of Lender’s gross negligence or willful misconductSection 5.2.10 hereof).
(b) Notwithstanding anything to the contrary in this Agreement, the Note or any of the Loan Documents, (A) Lender Administrative Agent shall not be deemed to have waived any right which Lender Administrative Agent may have under Section 506(a), 506(b), 1111(b) or any other provisions of the Bankruptcy Code to file a claim for the full amount of the Debt secured by the Mortgages or to require that all collateral shall continue to secure all of the Debt owing to Lender Lenders and all amounts due to Administrative Agent in accordance with the Loan Documents, and (B) the Debt shall be fully recourse to Borrower in the event that: of:
(i) the first full monthly payment of principal and interest Borrower or any SPE Constituent Entity filing a voluntary petition under the Note is not paid when dueBankruptcy Code; (ii) the filing of an involuntary petition against Borrower fails to comply or any SPE Constituent Entity under the Bankruptcy Code in which Borrower, any SPE Constituent Entity, Guarantor or any Affiliate of Guarantor colludes with any provisions hereof relating to cash management involuntary petition against Borrower or fails to appoint a new property manager upon the request of Lender, fails to cooperate with any New Manager or fails to comply with SPE Constituent Entity from any limitations on instructing the property manager, each as required by and in accordance with, as applicable, the terms and provisions of, this Agreement, the Assignment of Management Agreement and the Security InstrumentPerson; (iii) Borrower, any representationSPE Constituent Entity, warranty Guarantor or covenant contained any Affiliate of Guarantor filing an answer consenting to or otherwise joining in Article 5 any involuntary petition filed against it, by any other Person under the Bankruptcy Code; or Article 6 hereof is violated or breached; (iv) Borrower, any SPE Constituent Entity or Guarantor consenting to or joining in an application for the appointment of a Bankruptcy Event occurs; custodian, receiver, trustee, or examiner for Borrower or any SPE Constituent Entity or any Individual Property (v) Sections 11.1 or 11.6 hereof are violated or breached in any material respectportion thereof).
Appears in 2 contracts
Samples: Loan Agreement (Excel Trust, L.P.), Loan Agreement (Excel Trust, L.P.)
Exculpation. (a) Subject to Except as otherwise provided herein, in the qualifications belowSecurity Instruments 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 Security Instrument Note or the other Loan Documents Security Instruments by any action or proceeding wherein a money judgment or any deficiency judgment or other judgment establishing personal liability shall be sought against Borrower or any principal, director, officer, employee, beneficiary, shareholder, partner, member, trustee, agent, or Affiliate of Borrower or any legal representatives, successors or assigns of any of the foregoing (collectively, the “Exculpated Parties”)Borrower, except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender to enforce and realize upon its interest under the Note, this Agreement, the Note, the Security Instrument and Instruments, the other Loan Documents, or and the interest in the PropertyProperties, the Rents, or Rents and any other collateral given to Lender pursuant to created by this Agreement, the Note, the Security Instruments and the other Loan Documents; provided, however, that, except as specifically provided herein, that any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower’s interest in the PropertyProperties, in the Rents and in any other collateral given to Lender, and . Lender, by accepting the Note, this Agreement, the Security Instrument Note and the other Loan DocumentsSecurity Instruments, agrees that it shall not not, except as otherwise provided herein or in the Security Instruments, xxx for, seek or demand any deficiency judgment against Borrower or any of the Exculpated Parties in any such action or proceeding proceeding, under or by reason of or under or in connection with the Note, this Agreement, the Note, the Security Instrument Instruments or the other Loan Documents. The provisions of this Section shall not, however, (1i) constitute a waiver, release or impairment of any obligation evidenced or secured by any of this Agreement, the Note, the Security Instruments or the other Loan Documents; (2ii) impair the right of Lender to name Borrower as a party defendant in any action or suit for judicial foreclosure and sale under the Security InstrumentInstruments; (3iii) affect the validity or enforceability of any indemnity, guaranty or similar instrument indemnity (including, without limitation, indemnities set forth in Article 12 hereof, Section 11.2 hereof, in the Guaranty and the Environmental Indemnity) made in connection with the Loan or any of the rights and remedies of Lender thereunder ), guaranty (including, without limitation, Lender’s right to enforce said rights and remedies against Borrower and/or Guarantor (as applicable) personally and without the effect of Guaranty), master lease or similar instrument made in connection with this Agreement, the exculpatory provisions of this Article 13)Note, the Security Instruments, or the other Loan Documents; (4iv) impair the rights right of Lender to (A) obtain the appointment of a receiver and/or (B) enforce its rights and remedies provided in Articles 8 and 9 hereofreceiver; (5v) impair the enforcement of the assignment Assignment of leases and rents contained in the Security Instrument and in any other Loan DocumentsLeases; (6vi) impair the right of Lender to enforce the provisions of Section 4.12(e) 10.2 of this Agreement; (7) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted by the Security Instrument Instruments or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against the PropertySections 4.1.8, 4.1.28, 5.1.9 and 5.2.8 hereof; or (8) constitute a waiver of vii) 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 (A) preserve or enforce its rights and remedies against any Individual Property or (B) obtain any Insurance Proceeds or Awards to which Lender would otherwise be entitled under the terms of this Agreement or the Security Instruments; provided however, Lender shall only enforce such judgment to the extent of any Loss incurred by the Insurance Proceeds and/or Awards.
(b) Notwithstanding the provisions of this Section 9.4 to the contrary, 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 by any Borrower Party in connection with the Loan;
(ii) execution and the gross negligence delivery of this Agreement, the Note, the Security Instrument, or willful misconduct of any Borrower Party;
(iii) any litigation or other legal proceeding related to the Debt filed by any Borrower Party 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 other Loan Documents;
; (ii) Borrower’s misapplication or misappropriation of Rents received by Borrower after the occurrence of a Default or Event of Default; (iii) Borrower’s misapplication or misappropriation of Security Deposits or Rents collected more than thirty (30) days in advance; (iv) waste to Borrower’s misapplication or the Property caused by the intentional acts misappropriation of Insurance Proceeds or intentional omissions of any Borrower Party and/or the removal or disposal of any portion of the Property after an Event of Default;
Awards; (v) the misapplication, misappropriation or conversion by any Borrower Party 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 Rents following an Event of Default or (D) any Tenant security deposits or Rents collected in advance;
(vi) any act of arson by any Borrower Party or of which any Borrower Party has knowledge;
(vii) Borrower’s failure to pay Taxes, Other Charges (except to the extent that sums sufficient to pay such amounts have been deposited in escrow with Lender pursuant to the terms of Section 7.2 hereof), charges for labor or materials or other charges that can create liens Liens on the Properties; (vi) Borrower’s failure to return or to reimburse Lender for all Personal Property taken from any portion Properties by or on behalf of Borrower and not replaced with Personal Property of the Property in accordance with the terms same utility and provisions hereof;
(viii) failure to pay Insurance Premiums, to maintain the Policies in full force and effect and/or to provide Lender evidence of the same, in each case, as expressly provided herein;
(ix) any security deposits, advance deposits or any other deposits collected with respect to the Property which are not delivered to Lender upon a foreclosure of the 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;
(x) any tax on the making and/or recording of the Security Instrument, the Note or any of the other Loan Documents or any transfer or similar taxes (whether due upon the making of the same or upon greater value; (vii) any act of intentional waste or arson by Borrower, Principal, or any Affiliate thereof or by Guarantor; (viii) any fees or commissions paid by Borrower to Principal or any Affiliate of Borrower or Principal or Guarantor in violation of the terms of this Agreement, the Note, the Security Instruments or the other Loan Documents; (ix) Borrower impeding Lender’s exercise of its remedies under after an Event of Default; (x) Borrower’s failure to comply with the Loan Documents), but excluding any income, franchise or other similar taxes;
provisions of Sections 4.1.39 and 5.1.19 of this Agreement; (xi) Borrower’s or Principal’s default under Section 4.1.35 hereof (excluding a default under clauses (h) or (q) to the seizure or forfeiture of extent that such default arises solely from insufficient cash flows from the Property, ); or any portion thereof, or Borrower’s interest therein, resulting from criminal wrongdoing by any Borrower Party;
(xii) the failure to make any Condemnation Payment and/or any Balancing Payment, to permit on-site inspections termination or cancellation of the Property and/or to provide the Required Financial Items, in each case, as and when required herein;Xxxxxxx Ground Lease for any reason or under any circumstances whatsoever.
(xiiic) Intentionally Omitted;
Notwithstanding the foregoing, the agreement of Lender not to pursue recourse liability as set forth in Subsection (xiva) above SHALL BECOME NULL AND VOID and shall be of no further force and effect (i) in the failure to make repairsevent of Borrower’s default under Section 5.2.10 hereof or Article 7 of the Security Instruments, renewals or replacements (including, without limitation, structural and nonstructural, exterior and interior, ordinary and extraordinary, foreseen and unforeseenii) to the if any Individual Property or any portion part thereof shall become an asset in (including, without limitation, the Improvements now A) a voluntary bankruptcy or at insolvency proceeding or (B) an involuntary bankruptcy or insolvency proceeding commenced by any time hereafter erected on the Property) as and when required pursuant to the terms of the Loan Documents or as and when necessary to maintain the Property in good and safe condition, in a rentable and tenantable state of repair and/or in the condition required pursuant to the terms of the Loan Documents; and/or
(xv) any indemnity obligations of Lender to Bank under the Restricted Account Agreement Person (other than those arising as a direct result of Lender’s gross negligence ) in which Borrower colludes with, or willful misconduct)otherwise assists such Person, or solicits or causes to be solicited petitioning creditors for any involuntary petition against Borrower from any Person, or (iii) if the first Monthly Debt Service Payment Amount is not paid when due.
(bd) Notwithstanding anything to the contrary in this Agreement, the Note or any of the Loan Documents, (A) Lender Nothing herein shall not be deemed to have waived be a waiver of 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 Debt indebtedness secured by the Security Instruments or to require that all collateral shall continue to secure all of the Debt indebtedness owing to Lender in accordance with the Loan Documents, and (B) the Debt shall be fully recourse to Borrower in the event that: (i) the first full monthly payment of principal and interest under the Note is not paid when due; (ii) Borrower fails to comply with any provisions hereof relating to cash management or fails to appoint a new property manager upon the request of Lender, fails to cooperate with any New Manager or fails to comply with any limitations on instructing the property manager, each as required by and in accordance with, as applicable, the terms and provisions of, this Agreement, the Assignment of Management Agreement Note, the Security Instruments and the Security Instrument; (iii) any representation, warranty or covenant contained in Article 5 or Article 6 hereof is violated or breached; (iv) a Bankruptcy Event occurs; or (v) Sections 11.1 or 11.6 hereof are violated or breached in any material respectother Loan Documents.
Appears in 2 contracts
Samples: Loan Agreement (KBS Real Estate Investment Trust, Inc.), Loan Agreement (KBS Real Estate Investment Trust, Inc.)
Exculpation. (a) Subject to the qualifications below, Lender shall not enforce the liability and obligation of Borrower to perform and observe the obligations contained in the Note, this Agreement, the Security Instrument or the other Loan Documents by any action or proceeding wherein a money judgment or any deficiency judgment or other judgment establishing personal liability shall be sought against Borrower or any principal, director, officer, employee, beneficiary, shareholder, partner, member, trustee, agent, or Affiliate of Borrower or any legal representatives, successors or assigns of any of the foregoing (collectively, the “Exculpated Parties”), except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender to enforce and realize upon its interest under the Note, this Agreement, the Security Instrument and the other Loan Documents, or in the Property, the RentsRents and Profits, 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 BorrowerXxxxxxxx’s interest in the Property, in the Rents and Profits and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Security Instrument and the other Loan Documents, agrees that it shall not xxx sue for, seek or demand any deficiency judgment against Borrower or any of the Exculpated Parties in any such action or proceeding under or by reason of or under or in connection with the Note, this Agreement, the Security Instrument or the other Loan Documents. The provisions of this Section shall not, however, (1i) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (2ii) impair the right of Lender to name Borrower as a party defendant in any action or suit for foreclosure and sale under the Security Instrument; (3iii) affect the validity or enforceability of or any indemnity, guaranty or similar instrument (including, without limitation, indemnities set forth in Article 12 hereof, Section 11.2 hereof, in the Guaranty and the Environmental Indemnity) made in connection with the Loan or any of the rights and remedies of Lender thereunder (including, without limitation, Lender’s right to enforce said rights and remedies against Borrower and/or Guarantor (as applicable) personally and without the effect of the exculpatory provisions of this Article 13)thereunder; (4iv) impair the rights right of Lender Xxxxxx to (A) obtain the appointment of a receiver and/or (B) enforce its rights and remedies provided in Articles 8 and 9 hereofreceiver; (5v) impair the enforcement of the any assignment of leases and rents contained in the Security Instrument and in any other Loan Documents156506983 Instrument; or (6) impair the right of Lender to enforce Section 4.12(e) of this Agreement; (7vi) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted by the Security Instrument or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against the Property; .
(b) Nothing contained herein shall in any manner or (8) constitute a waiver of way release, affect or impair the right of Lender to enforce the liability recover, and obligation of BorrowerXxxxxxxx shall be fully and personally liable and subject to legal action, by money judgment for any Losses incurred or otherwise, to the extent of any Loss incurred suffered by Lender (including attorneys’ fees and costs reasonably incurred) arising out of or in connection with the following:
(i) fraud or intentional misrepresentation by Borrower, any Borrower Party SPE Component Entity, Principal or Guarantor in connection with the Loan;
(ii) the gross negligence or willful misconduct of Borrower, any Borrower PartySPE Component Entity, Principal or Guarantor in connection with the Loan or the Property;
(iii) material physical waste of the Property of Borrower, any litigation SPE Component Entity, Principal, Guarantor or other legal proceeding related Affiliated Manager but only to the Debt filed by any Borrower Party that delays, opposes, impedes, obstructs, hinders, enjoins or otherwise interferes with or frustrates extent there exists sufficient cash flow from the efforts of Lender Property to exercise any rights and remedies available to Lender as provided herein and in the other Loan Documentsavoid such waste;
(iv) waste to the Property caused by the intentional acts or intentional omissions of any Borrower Party and/or the removal or disposal of any portion of the Property after an Event of Default, unless any personal property that is removed or disposed of is replaced with personal property of the same utility and the same or greater value; but only to the extent that net cash flow available to Borrower from the operations of the Property is sufficient to prevent removal or disposal;
(v) the misapplicationmisappropriation, misappropriation misapplication or conversion by Borrower, any Borrower Party SPE Component Entity, Principal or Guarantor of (A) any insurance proceeds 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 a Condemnation of all or a portion of the Property, (C) any Rents and Profits following an Event of Default Default, or (D) any Tenant security deposits or Rents collected rents paid more than one month in advance;
(vi) any act of arson by any Borrower Party or of which any Borrower Party has knowledge;
(vii) failure to pay TaxesImpositions, charges for labor or materials or other charges that can create liens on any portion of the Property in accordance with the terms and provisions hereofhereof (but only to the extent there exists sufficient cash flow from the Property to do so, provided Borrower shall have provided Lender written notice of such insufficiency of cash flow in advance of the due date for such expenses), and except in the case of Impositions to the extent that amounts sufficient to pay such Impositions have been deposited with Xxxxxx hereunder in the Tax and Insurance Reserve Account and Xxxxxx does not apply the same in payment thereof in violation of the terms and conditions of the Loan Documents);
(viiivii) failure to pay Insurance Premiums, to maintain the Policies in full force and effect and/or to provide Lender evidence of the same, in each case, as expressly provided herein;herein (but only to the extent there exists sufficient cash flow from the Property to do so, provided Borrower shall have provided Lender written notice of such insufficiency of cash flow in advance of the due date for such expenses), and except in the case of Insurance Premiums which have been deposited with Lender hereunder in the Tax and Insurance Reserve Account and Lender does not apply the same in payment thereof in violation of the terms and conditions of the Loan Documents); 156506983
(ixviii) any security deposits, advance deposits or any other deposits collected with respect to the Property which are not delivered to Lender upon a foreclosure of the 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;
(xix) any tax on the making and/or recording of the Security Instrument, the Note or any of the other Loan Documents or any transfer or similar taxes (whether due upon the making of the same or upon LenderXxxxxx’s exercise of its remedies under the Loan Documents), but excluding any income, franchise or other similar taxes;
(x) Borrower fails to comply with any Cash Management Provisions or fails to appoint a new property manager upon the request of Xxxxxx or fails to comply with any limitations on instructing the property manager, each as required by and in accordance with, as applicable, the terms and provisions of, this Agreement and the other Loan Documents;
(xi) the seizure WHLR-Nashville Commons, LLC, WHLR-Xxxxxxxx Center, LLC, or forfeiture WHLR-Riverbridge Shopping Center, LLC’s prior ownership of the Prior Owned Property, or including, but not limited to, any portion thereof, or Borrower’s interest therein, resulting from criminal wrongdoing by any Borrower Partyenvironmental liabilities;
(xii) the failure to make if any Condemnation Payment and/or any Balancing Paymentrepresentation, to permit on-site inspections of the Property and/or to provide the Required Financial Itemswarranty, covenant or other provision contained in each caseSection 3.19, as and when required hereinSection 3.6, Section 4.13 or Section 4.21 is violated or breached;
(xiii) Intentionally Omitted;if Borrower, Guarantor or any Affiliate of Borrower or Guarantor contests, impedes, delays or opposes the exercise by Lender of any enforcement actions, remedies or other rights it has under or in connection with this Agreement or the other Loan Documents; provided that neither Borrower nor Guarantor shall be liable to the 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 good faith; or
(xiv) the Xxxxxxxx’s failure to make repairs, renewals or replacements (including, without limitation, structural and nonstructural, exterior and interior, ordinary and extraordinary, foreseen and unforeseensatisfy the obligations set forth in Section 4.12(e) to the Property or any portion thereof (including, without limitation, the Improvements now or at any time hereafter erected on the Property) as and when required pursuant to the terms of the Loan Documents or as and when necessary to maintain the Property in good and safe condition, in a rentable and tenantable state of repair and/or in the condition required pursuant to the terms of the Loan Documents; and/or
(xv) any indemnity obligations of Lender to Bank under the Restricted Account Agreement (other than those arising as a direct result of Lender’s gross negligence or willful misconduct)hereof.
(bc) Notwithstanding anything to the contrary in this Agreement, the Note or any of the Loan Documents, ,
(Ai) 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 Debt secured by the Security Instrument or to require that all collateral shall continue to secure all of the Debt owing to Lender in accordance with the Loan Documents, and and
(Bii) the Debt shall be fully recourse to Borrower Borrower:
(A) in the event thatof: (i1) Borrower, any SPE Component Entity, or any Person that Controls Borrower (“Principal”) filing a voluntary petition under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (2) the first full monthly payment filing of principal and interest an involuntary petition against Borrower, any SPE Component Entity, or Principal under the Note is not paid when due156506983 Bankruptcy Code or any other Federal or state bankruptcy or insolvency law in which Borrower, any SPE Component Entity, 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, any SPE Component Entity, or Principal from any Person; (ii3) Borrower fails Borrower, any SPE Component Entity, or Principal filing an answer consenting to comply with or otherwise acquiescing in or joining in any provisions hereof relating to cash management involuntary petition filed against it, by any other Person under the Bankruptcy Code or fails to appoint a new property manager upon the request of Lender, fails to cooperate with any New Manager other Federal or fails to comply with any limitations on instructing the property manager, each as required by and in accordance with, as applicable, the terms and provisions of, this Agreement, the Assignment of Management Agreement and the Security Instrumentstate bankruptcy or insolvency law; (iii4) Borrower, any SPE Component Entity, or Principal consenting to or acquiescing in or joining in an application for the appointment of a custodian, receiver, trustee, or examiner for Borrower, any SPE Component Entity, or Principal or any portion of the Property; or (5) Borrower, any SPE Component Entity, or Principal making an assignment for the benefit of creditors, or admitting, in writing or in any legal proceeding, its insolvency or inability to pay its debts as they become due;
(B) if any representation, warranty warranty, covenant or covenant other provision contained in Article 5 Section 3.19 or Article 6 Section 4.21 is violated or breached and such violation or breach is cited by a court as a material factor in the substantive consolidation of Borrower with any Person; or
(C) if any representation, warranty, covenant or other provision contained in Section 7.1 hereof is violated or breached; (iv) a Bankruptcy Event occurs; or (v) Sections 11.1 or 11.6 hereof are violated or breached in any material respect.
Appears in 2 contracts
Samples: Loan Agreement (Wheeler Real Estate Investment Trust, Inc.), Loan Agreement (Wheeler Real Estate Investment Trust, Inc.)
Exculpation. (a) Subject to the qualifications below, Lender shall not enforce the liability and obligation of Borrower to perform and observe the obligations contained in the Note, this Agreement, the Security Instrument or the other Loan Documents by any action or proceeding wherein a money judgment or any deficiency judgment or other judgment establishing personal liability shall be sought against Borrower or any principal, director, officer, employee, beneficiary, shareholder, partner, member, trustee, agent, or Affiliate of Borrower or any legal representatives, successors or assigns of any of the foregoing (collectively, the “Exculpated Parties”), except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender to enforce and realize upon its interest under the Note, this Agreement, the Security Instrument and the other Loan Documents, or in the 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 Property, in the Rents and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Security Instrument and the other Loan Documents, shall not xxx sxx for, seek or demand any deficiency judgment against Borrower or any of the Exculpated Parties in any such action or proceeding under or by reason of or under or in connection with the Note, this Agreement, the Security Instrument or the other Loan Documents. The provisions of this Section shall not, however, (1) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (2) impair the right of Lender to name Borrower as a party defendant in any action or suit for foreclosure and sale under the Security Instrument; (3) affect the validity or enforceability of any indemnity, guaranty or similar instrument (including, without limitation, indemnities set forth in Article 12 hereof, Section 11.2 hereof, in the Guaranty and the Environmental Indemnity) made in connection with the Loan or any of the rights and remedies of Lender thereunder (including, without limitation, Lender’s right to enforce said rights and remedies against Borrower and/or Guarantor (as applicable) personally and without the effect of the exculpatory provisions of this Article 13); (4) impair the rights of Lender to (A) obtain the appointment of a receiver and/or (B) enforce its rights and remedies provided in Articles 8 and 9 hereof; (5) impair the enforcement of the assignment of leases and rents contained in the Security Instrument and in any other Loan Documents; (6) impair the right of Lender to enforce Section 4.12(e) of this Agreement; (7) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted by the Security Instrument or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against the Property; or (8) constitute a waiver of the right of Lender to enforce the liability and obligation of Borrower, by money judgment or otherwise, to the extent of any Loss incurred by Lender (including attorneys’ fees and costs reasonably incurred) arising out of or in connection with the following:
(i) fraud or intentional misrepresentation by any Borrower Party in connection with the Loan;
(ii) the gross negligence or willful misconduct of any Borrower Party;
(iii) any litigation or other legal proceeding related to the Debt filed by any Borrower Party 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 other Loan Documents;
(iv) waste to the Property caused by the intentional acts or intentional omissions of any Borrower Party and/or the removal or disposal of any portion of the Property after an Event of Default;
(v) the misapplication, misappropriation or conversion by any Borrower Party 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 Rents following an Event of Default or (D) any Tenant security deposits or Rents collected in advance;
(vi) any act of arson by any Borrower Party or of which any Borrower Party has knowledge;
(vii) failure to pay Taxes, charges for labor or materials or other charges that can create liens on any portion of the Property in accordance with the terms and provisions hereofhereof (other than, in each case, due solely to the insufficiency of cash flow generated by the Property and made available to Borrower);
(viiivii) failure to pay Insurance Premiums, to maintain the Policies in full force and effect and/or to provide Lender evidence of the same, in each case, as expressly provided hereinherein (other than, in each case, due solely to the insufficiency of cash flow generated by the Property and made available to Borrower);
(ixviii) any security deposits, advance deposits or any other deposits collected with respect to the Property which are not delivered to Lender upon a foreclosure of the 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;
(xix) any tax on the making and/or recording of the Security Instrument, the Note or any of the other Loan Documents or any transfer or similar taxes (whether due upon the making of the same or upon Lender’s exercise of its remedies under the Loan Documents), but excluding any income, franchise or other similar taxes[intentionally omitted];
(xix) the seizure or forfeiture of the Property, or any portion thereof, or Borrower’s interest therein, resulting from criminal wrongdoing by any Borrower Party;
(xiixi) the failure to make any Condemnation Payment and/or any Balancing Payment, or to permit on-site inspections of the Property and/or to provide the Required Financial ItemsProperty, in each case, as and when required herein;
(xii) [intentionally omitted];
(xiii) Intentionally Omittedthe failure to comply with any provisions hereof relating to cash management as required by and in accordance with, as applicable, the terms and provisions of, this Agreement, the Assignment of Management Agreement and the Security Instrument;
(xiv) [intentionally omitted];
(xv) the failure of Borrower to make repairsappoint a new property manager upon the request of Lender or failure of Borrower to comply with any limitations on instructing the property manager, renewals or replacements (includingeach as required by and in accordance with, without limitation, structural and nonstructural, exterior and interior, ordinary and extraordinary, foreseen and unforeseen) to the Property or any portion thereof (including, without limitationas applicable, the Improvements now or at any time hereafter erected on terms and provisions of, this Agreement, the Property) as Assignment of Management Agreement, if any, and when required pursuant to the terms of the Loan Documents or as and when necessary to maintain the Property in good and safe condition, in a rentable and tenantable state of repair and/or in the condition required pursuant to the terms of the Loan DocumentsSecurity Instrument; and/or
(xvxvi) any indemnity obligations the failure of Lender Borrower to Bank under establish the Restricted Account Agreement (other than those arising or to pay, or make deposits, to the Restricted Account, in each case as a direct result are required under Article 9 of Lenderthis Agreement, provided, however, in connection therewith Borrower shall not be required to perform any action beyond Borrower’s gross negligence or willful misconduct)reasonable control.
(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 Debt or to require that all collateral shall continue to secure all of the Debt owing to Lender in accordance with the Loan Documents, and (B) the Debt shall be fully recourse to Borrower in the event that: (i) the first full monthly payment of principal and interest under the Note is not paid when due; (ii) Borrower fails to comply with any provisions hereof relating to cash management or fails to appoint a new property manager upon the request of Lender, fails to cooperate with any New Manager or fails to comply with any limitations on instructing the property manager, each as required by and in accordance with, as applicable, the terms and provisions of, this Agreement, the Assignment of Management Agreement and the Security Instrument[intentionally omitted]; (iii) any representation, warranty or covenant contained in Article 5 or Article 6 hereof is violated or breached; provided, however: with respect to any breach or violation of Article 5, the Debt shall not be fully recourse to Borrower if: (A) such breach or violation was immaterial and non- recurring, (B) Borrower corrects (or causes to be corrected) such breach or violation within ten (10) Business Days following written notice from Lender, and (C) if requested by Lender upon its reasonable determination that such breach or violation might be considered by a court as a factor in the court’s finding for a consolidation of the assets of Borrower with the assets of another Person, Borrower delivers to Lender within seven (7) days of notice from Lender opinions of counsel, which counsel and opinions shall be satisfactory in form and substance to Lender and the Rating Agencies, to the effect that such breach or violation shall not negate/impair the opinions contained in the Non-Consolidation Opinion (or alternatively, deliver to Lender a new Non-Consolidation Opinion from counsel, satisfactory to Lender and the Rating Agencies, opining that the effect of such failure would not result in such consolidation); or (iv) a Bankruptcy Event occurs; or (v) Sections 11.1 or 11.6 hereof are violated or breached in any material respect.
Appears in 2 contracts
Samples: Loan Agreement (Clipper Realty Inc.), Loan Agreement (Clipper Realty Inc.)
Exculpation. (a) Subject to the qualifications belowSeller agrees that it does not have and will not have any claims, Lender shall not enforce the liability and obligation causes of Borrower to perform and observe the obligations contained in the Noteaction, this Agreementor recourse against any disclosed or undisclosed, the Security Instrument past, present or the other Loan Documents by any action future, direct or proceeding wherein a money judgment or any deficiency judgment or other judgment establishing personal liability shall be sought against Borrower or any principalindirect officer, director, officeragent, incorporator, representative, employee, beneficiarytrustee, shareholder, partner, member, trusteemanager, agentprincipal, parent, subsidiary or Affiliate other affiliate of Borrower or any legal representativesPurchaser, successors or assigns of any of the foregoing (collectively, the “Exculpated Parties”), except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender to enforce and realize upon its interest under the Note, this Agreement, the Security Instrument and the other Loan Documents, or in the 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 Property, in the Rents and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Security Instrument and the other Loan Documents, shall not xxx for, seek or demand any deficiency judgment against Borrower or any of the Exculpated Parties in any such action or proceeding under or by reason of or under or in connection with the Note, this Agreement, the Security Instrument or the other Loan Documents. The provisions of this Section shall not, however, (1) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (2) impair the right of Lender to name Borrower as a party defendant in any action or suit for foreclosure and sale under the Security Instrument; (3) affect the validity or enforceability of any indemnity, guaranty or similar instrument (including, without limitation, indemnities set forth in Article 12 hereofTishman Speyer Properties, Section 11.2 hereofL.P. or BlackRock Realty Advisors, in the Guaranty and the Environmental Indemnity) made in connection with the Loan Inc. or any of the rights and remedies of Lender thereunder (includingofficer, without limitationdirector, Lender’s right to enforce said rights and remedies against Borrower and/or Guarantor (as applicable) personally and without the effect of the exculpatory provisions of this Article 13); (4) impair the rights of Lender to (A) obtain the appointment of a receiver and/or (B) enforce its rights and remedies provided in Articles 8 and 9 hereof; (5) impair the enforcement of the assignment of leases and rents contained in the Security Instrument and in any other Loan Documents; (6) impair the right of Lender to enforce Section 4.12(e) of this Agreement; (7) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted by the Security Instrument or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against the Property; or (8) constitute a waiver of the right of Lender to enforce the liability and obligation of Borroweragent, by money judgment or otherwiseincorporator, to the extent representative, employee, trustee, shareholder, partner, member, manager, principal of any Loss incurred by Lender such parent, subsidiary or other affiliate (including attorneys’ fees and costs reasonably incurred) collectively, "Purchaser's Parties"), arising out of or in connection with this Agreement or the following:
(i) fraud or intentional misrepresentation by any Borrower Party in connection with transactions contemplated hereby. Seller agrees to look solely to Purchaser and its assets for the Loan;
(ii) the gross negligence or willful misconduct satisfaction of any Borrower Party;
(iii) any litigation liability or other legal proceeding related to obligation arising under this Agreement or the Debt filed by any Borrower Party that delaystransactions contemplated hereby, opposes, impedes, obstructs, hinders, enjoins or otherwise interferes with or frustrates for the efforts of Lender to exercise any rights and remedies available to Lender as provided herein and in the other Loan Documents;
(iv) waste to the Property caused by the intentional acts or intentional omissions of any Borrower Party and/or the removal or disposal of any portion of the Property after an Event of Default;
(v) the misapplication, misappropriation or conversion by any Borrower Party 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 Rents following an Event of Default or (D) any Tenant security deposits or Rents collected in advance;
(vi) any act of arson by any Borrower Party or of which any Borrower Party has knowledge;
(vii) failure to pay Taxes, charges for labor or materials or other charges that can create liens on any portion of the Property in accordance with the terms and provisions hereof;
(viii) failure to pay Insurance Premiums, to maintain the Policies in full force and effect and/or to provide Lender evidence of the same, in each case, as expressly provided herein;
(ix) any security deposits, advance deposits or any other deposits collected with respect to the Property which are not delivered to Lender upon a foreclosure of the Property or action in lieu thereof, except to the extent any such security deposits were applied in accordance with the terms and conditions performance of any of the Leases prior to covenants, warranties or other agreements contained herein, or for the occurrence payment or collection of the Event of Default that gave rise to such foreclosure any amount, judgment, judicial process, arbitral award, fee or action in lieu thereof;
(x) any tax on the making and/or recording of the Security Instrument, the Note cost or any other obligation or claim arising out of the other Loan Documents or any transfer or similar taxes (whether due based upon the making of the same or upon Lender’s exercise of its remedies under the Loan Documents), but excluding any income, franchise or other similar taxes;
(xi) the seizure or forfeiture of the Property, or any portion thereof, or Borrower’s interest therein, resulting from criminal wrongdoing by any Borrower Party;
(xii) the failure to make any Condemnation Payment and/or any Balancing Payment, to permit on-site inspections of the Property and/or to provide the Required Financial Items, in each case, as and when required herein;
(xiii) Intentionally Omitted;
(xiv) the failure to make repairs, renewals or replacements (including, without limitation, structural and nonstructural, exterior and interior, ordinary and extraordinary, foreseen and unforeseen) to the Property or any portion thereof (including, without limitation, the Improvements now or at any time hereafter erected on the Property) as and when required pursuant to the terms of the Loan Documents or as and when necessary to maintain the Property in good and safe condition, in a rentable and tenantable state of repair and/or in the condition required pursuant to the terms of the Loan Documents; and/or
(xv) any indemnity obligations of Lender to Bank under the Restricted Account Agreement (other than those arising as a direct result of Lender’s gross negligence or willful misconduct).
(b) Notwithstanding anything to the contrary in this Agreement, and further agrees not to sue or otherwise seek to enforce any personal obligation against any xx Purchaser's Parties with respect to any matters arising out of or in connection with this Agreement or the Note or any transactions contemplated hereby. Without limiting the generality 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 foregoing provisions of the Bankruptcy Code to file a claim for the full amount this Section 10.23, Seller hereby unconditionally and irrevocably waives any and all claims and causes of the Debt action of any nature whatsoever it may now or to require that all collateral shall continue to secure all of the Debt owing to Lender in accordance with the Loan Documentshereafter have against Purchaser's Parties, and (B) hereby unconditionally and irrevocably releases and discharges Purchaser's Parties from any and all liability whatsoever which may now or hereafter accrue in favor of Seller against Purchaser's Parties, in connection with or arising out of this Agreement or the Debt transactions contemplated hereby. The provisions of this Section 10.23 shall be fully recourse to Borrower in survive the event that: (i) the first full monthly payment termination of principal and interest under the Note is not paid when due; (ii) Borrower fails to comply with any provisions hereof relating to cash management or fails to appoint a new property manager upon the request of Lender, fails to cooperate with any New Manager or fails to comply with any limitations on instructing the property manager, each as required by and in accordance with, as applicable, the terms and provisions of, this Agreement, the Assignment of Management Agreement and the Security Instrument; (iii) any representation, warranty or covenant contained in Article 5 or Article 6 hereof is violated or breached; (iv) a Bankruptcy Event occurs; or (v) Sections 11.1 or 11.6 hereof are violated or breached in any material respectClosing.
Appears in 2 contracts
Samples: Purchase and Sale Agreement (Metlife Inc), Purchase and Sale Agreement (Metlife 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 Security Instrument or the other Loan Documents by any action or proceeding wherein a money judgment or any deficiency judgment or other judgment establishing personal liability shall be sought against Borrower or any principal, director, officer, employee, beneficiary, shareholder, partner, member, trustee, agent, or Affiliate of Borrower or any legal representatives, successors or assigns of any of the foregoing (collectively, the “Exculpated Parties”)Principal, except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender to enforce and realize upon its interest under the Note, this Agreement, the Security Instrument Note, the Mortgages and the other Loan Documents, or and the interest in the PropertyProperties, the Rents, or Rents and any other collateral given to Lender pursuant to created by this Agreement, the Note, the Mortgages and the other Loan Documents; provided, however, that, except as specifically provided herein, that any judgment in any such action or proceeding shall be enforceable against Borrower or Borrower Principal, as applicable, only to the extent of Borrower’s 's or Borrower Principal's interest in the PropertyProperties, in the Rents and in any other collateral given to Lender, and . Lender, by accepting the Note, this Agreement, the Security Instrument Note, the Mortgages and the other Loan Documents, agrees that it shall not not, except as otherwise provided in this Section 15.1, xxx for, seek or demand any deficiency judgment against Borrower or any of the Exculpated Parties Borrower Principal in any such action or proceeding proceeding, under or by reason of or under or in connection with the Note, this Agreement, the Security Instrument Note, the Mortgages or the other Loan Documents. The provisions of this Section 15.1 shall not, however, (1i) constitute a waiver, release or impairment of any obligation evidenced or secured by any of this Agreement, the Note, the Mortgages or the other Loan Documents; (2ii) 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 Security InstrumentMortgages; (3iii) affect the validity or enforceability of any indemnity, guaranty or similar instrument indemnity (including, without limitation, indemnities set forth those contained in Article 12 hereofSection 12.6, Section 11.2 hereof13.5 and Article 14 of this Agreement), in the Guaranty and the Environmental Indemnity) guaranty, master lease or similar instrument made in connection with this Agreement, the Note, the Mortgages and the other Loan or any of the rights and remedies of Lender thereunder (including, without limitation, Lender’s right to enforce said rights and remedies against Borrower and/or Guarantor (as applicable) personally and without the effect of the exculpatory provisions of this Article 13)Documents; (4iv) impair the rights right of Lender to (A) obtain the appointment of a receiver and/or (B) enforce its rights and remedies provided in Articles 8 and 9 hereofreceiver; (5v) impair the enforcement of the assignment of leases and rents provisions contained in the Security Instrument and in any other Loan DocumentsMortgages; or (6vi) impair the right of Lender to enforce Section 4.12(e) of obtain a deficiency judgment or other 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; (7) constitute a prohibition against provided however, Lender to seek a deficiency shall only enforce such judgment against Borrower in order to fully realize the security granted by the Security Instrument or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against the Property; or (8) constitute a waiver of the right of Lender to enforce the liability and obligation of Borrower, by money judgment or otherwise, to the extent of any Loss incurred by the Insurance Proceeds and/or Awards.
(b) Notwithstanding the provisions of this Section 15.1 to the contrary, 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 actually sustained as a result of:
(i) fraud or intentional misrepresentation by Borrower, Borrower Principal or any other Affiliate of Borrower Party or Borrower Principal in connection with the execution and the delivery of this Agreement, the Note, the Mortgages, any of the other Loan Documents, or any certificate, report, financial statement or other instrument or document prepared by or on behalf of Borrower, Operating Lessee or any Affiliate of either of them and furnished to Lender at the time of the 103 closing of the Loan or during the term of the Loan; provided, however, neither Borrower nor Borrower Principal shall have any liability pursuant to this Section 15.1(b)(i) to the extent any such certificate, report, financial statement or other instrument or document was prepared by or on behalf of Operating Lessee or Manager or was prepared by or on behalf of Borrower in good faith reliance on such information provided by Operating Lessee or Manager;
(ii) Borrower's misapplication or misappropriation of Rents received by Borrower after the gross negligence or willful misconduct occurrence of any Borrower Party;
(iii) any litigation or other legal proceeding related to the Debt filed by any Borrower Party 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 other Loan Documents;
(iv) waste to the Property caused by the intentional acts or intentional omissions of any Borrower Party and/or the removal or disposal of any portion of the Property after an Event of Default;
(viii) the misapplication, Borrower's misapplication or misappropriation or conversion by any Borrower Party 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 Rents following an Event of Default or (D) any Tenant tenant security deposits or Rents collected in advance;
(viiv) any act the misapplication or the misappropriation of arson by any Borrower Party Insurance Proceeds or of which any Borrower Party has knowledgeAwards;
(viiv) 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), charges for labor or materials or other charges incurred in connection with work performed at any Individual Property that can create liens Liens on any portion of the Individual Property in accordance with the terms beyond any applicable notice and provisions hereof;
(viii) failure to pay Insurance Premiumscure periods specified herein, to maintain the Policies in full force and effect and/or to provide Lender evidence of the samebut, in each case, as expressly provided hereinonly to the extent the Properties generated sufficient Net Operating Income to pay the same when due;
(ix) any security deposits, advance deposits or any other deposits collected with respect to the Property which are not delivered to Lender upon a foreclosure of the 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;
(x) any tax on the making and/or recording of the Security Instrument, the Note or any of the other Loan Documents or any transfer or similar taxes (whether due upon the making of the same or upon Lender’s exercise of its remedies under the Loan Documents), but excluding any income, franchise or other similar taxes;
(xi) the seizure or forfeiture of the Property, or any portion thereof, or Borrower’s interest therein, resulting from criminal wrongdoing by any Borrower Party;
(xii) the failure to make any Condemnation Payment and/or any Balancing Payment, to permit on-site inspections of the Property and/or to provide the Required Financial Items, in each case, as and when required herein;
(xiiivi) Intentionally Omitted;
(xivvii) any act of actual waste or arson by Borrower, any principal, Affiliate, member or general partner thereof or by Borrower Principal, any principal, Affiliate, member or general partner thereof;
(viii) a default by Borrower, Borrower Principal or any SPE Component Entity (if any) of any of the material covenants set forth in Article 6;
(ix) Borrower's failure during the existence of any Event of Default and upon the written request of Lender, to deliver (a) all Rents and (b) all books and records relating to the Properties to the extent the same are in Borrower's possession and control; or
(x) the failure filing by any Person within ten (10) days (or on the next Business Day if the 10th day falls on a day the appropriate Court is closed) of the entry of an order by the United States Bankruptcy Court authorizing and approving the sale of the Properties to make repairsBorrower of any notice of appeal from or motion for reconsideration of such order.
(c) Notwithstanding the foregoing, renewals 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 and the Debt shall be fully recourse to Borrower and Borrower Principal in the event of (i) a default by Borrower, Borrower Principal or replacements any SPE Component Entity (includingif any) of any of the covenants set forth in Article 7 hereof, without limitation, structural and nonstructural, exterior and interior, ordinary and extraordinary, foreseen and unforeseenor (ii) to if the any Individual Property or any portion part thereof shall become an asset in (includingA) a voluntary bankruptcy or insolvency proceeding of Borrower, without limitationor (B) an involuntary bankruptcy or insolvency proceeding of Borrower (and Borrower or Borrower Principal has joined with, the Improvements now colluded in or at failed to object to any time hereafter erected on the Propertysuch involuntary bankruptcy proceeding or insolvency proceeding) as and when required pursuant to the terms which is not dismissed within ninety (90) days of the Loan Documents or as and when necessary to maintain the Property in good and safe condition, in a rentable and tenantable state of repair and/or in the condition required pursuant to the terms of the Loan Documents; and/or
(xv) any indemnity obligations of Lender to Bank under the Restricted Account Agreement (other than those arising as a direct result of Lender’s gross negligence or willful misconduct)filing.
(bd) Notwithstanding anything to the contrary in this Agreement, the Note or any of the Loan Documents, (A) Lender Nothing herein shall not be deemed to have waived be a waiver of 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 Debt indebtedness secured by the Mortgages or to require that all collateral shall continue to secure all of the Debt indebtedness owing to Lender in accordance with the Loan Documents, and (B) the Debt shall be fully recourse to Borrower in the event that: (i) the first full monthly payment of principal and interest under the Note is not paid when due; (ii) Borrower fails to comply with any provisions hereof relating to cash management or fails to appoint a new property manager upon the request of Lender, fails to cooperate with any New Manager or fails to comply with any limitations on instructing the property manager, each as required by and in accordance with, as applicable, the terms and provisions of, this Agreement, the Assignment of Management Agreement and Note, the Security Instrument; (iii) any representation, warranty Mortgages or covenant contained in Article 5 or Article 6 hereof is violated or breached; (iv) a Bankruptcy Event occurs; or (v) Sections 11.1 or 11.6 hereof are violated or breached in any material respectthe other Loan Documents.
Appears in 2 contracts
Samples: Loan Agreement (Corporate Property Associates 15 Inc), Loan Agreement (Corporate Property Associates 16 Global Inc)
Exculpation. (a) Subject to the qualifications below, the Debt and the Other Obligations shall be non-recourse to Borrower, Guarantor and their respective Affiliates and Lender shall not enforce the liability and obligation of Borrower to perform and observe the obligations contained in the Note, this Agreement, the Security Instrument Mortgage or the other Loan Documents by any action or proceeding wherein a money judgment or any deficiency judgment or other judgment establishing personal liability shall be sought against Borrower or any principalBorrower, director, officer, employee, beneficiary, shareholder, partner, member, trustee, agent, or Affiliate of Borrower or any legal representatives, successors or assigns of any of the foregoing (collectively, the “Exculpated Parties”), Guarantor and their respective Affiliates except that Lender may bring a foreclosure action, an action for specific performance of non-monetary obligations or any other appropriate action or proceeding to enable Lender to enforce and realize upon its interest under the Note, this Agreement, the Security Instrument Mortgage and the other Loan Documents, or in the 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 Property, in the Rents and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Security Instrument Mortgage and the other Loan Documents, agrees that it shall not xxx for, seek or demand any deficiency judgment against Borrower or any of the Exculpated Parties its Affiliates in any such action or proceeding under or by reason of or under or in connection with the Note, this Agreement, the Security Instrument Mortgage or the other Loan Documents. The provisions of this Section 9.3 shall not, however, (1a) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (2b) 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 Security InstrumentMortgage; (3c) affect the validity or enforceability of any indemnity, guaranty or similar instrument (including, without limitation, indemnities set forth in Article 12 hereof, Section 11.2 hereof, in the Guaranty and the Environmental Indemnity) or any other guaranty made in connection with the Loan or any of the rights and remedies of Lender thereunder (including, without limitation, Lender’s right to enforce said rights and remedies against Borrower and/or Guarantor (as applicable) personally and without the effect of the exculpatory provisions of this Article 13)thereunder; (4) impair the rights of Lender to (A) obtain the appointment of a receiver and/or (B) enforce its rights and remedies provided in Articles 8 and 9 hereof; (5) impair the enforcement of the assignment of leases and rents contained in the Security Instrument and in any other Loan Documents; (6d) impair the right of Lender to enforce Section 4.12(e) obtain the appointment of this Agreementa receiver with respect to the Property; (7e) impair the enforcement of any of the Assignment of Leases; (f) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted by the Security Instrument or Mortgage to the extent necessary to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against all of the Property; or (8) 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 Loss actual loss, damage, cost, expense, liability, claim or other obligation actually incurred by Lender but excluding consequential, special or punitive damages (including attorneys’ fees and costs reasonably incurred) arising out of or in connection with the following:
(ia) fraud or intentional misrepresentation by any Borrower Party Borrower, Operating Lessee or Guarantor in connection with the Loan;
(iib) willful misconduct of Borrower or Operating Lessee;
(c) damage to the Property as a result of the gross negligence or willful misconduct of any Borrower PartyBorrower, Operating Lessee or Guarantor;
(iiid) the breach of any litigation representation, warranty, covenant or other legal proceeding related to indemnification provision in the Debt filed by Environmental Indemnity Agreement concerning environmental laws, hazardous substances and asbestos and any Borrower Party that delays, opposes, impedes, obstructs, hinders, enjoins or otherwise interferes with or frustrates the efforts indemnification of Lender to exercise any rights and remedies available to Lender as provided herein and in the other Loan Documentswith respect thereto;
(ive) waste to the Property caused by the intentional acts or intentional omissions of any Borrower Party and/or the removal or disposal of any material portion of the Property after by Borrower or Operating Lessee upon and during the continuance of an Event of DefaultDefault in violation of the Loan Agreement;
(vf) the misapplication, misappropriation or conversion by any Borrower Party or Operating Lessee of (A) any insurance proceeds Insurance Proceeds paid by reason of any loss, damage or destruction Casualty 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 Rents following an Event of Default Default, or (D) any Tenant security deposits Rents or Rents collected other amounts which should have been deposited in advancethe Lockbox Account but were diverted therefrom by Borrower, Operating Lessee or Guarantor;
(vi) any act of arson by any Borrower Party or of which any Borrower Party has knowledge;
(viig) failure of Borrower, Operating Lessee to pay Taxes, charges for labor or materials Taxes or other charges that can create liens which give rise to Liens on any portion of the Property in accordance with the terms and provisions hereof;
(viii) failure to pay Insurance Premiums, to maintain the Policies in full force and effect and/or to provide Lender evidence of the same, in each case, as expressly provided herein;
(ix) any security deposits, advance deposits or any other deposits collected with respect to the Property which are not delivered to Lender upon a foreclosure of the Property or action in lieu thereof, except to the extent that Gross Income from Operations after payment of Debt Service was insufficient to pay such Taxes or other charges; and
(h) the failure of Borrower or Operating Lessee to obtain Lender’s prior written consent to any such security deposits were applied in accordance with Indebtedness voluntarily incurred by Borrower or the terms and conditions voluntary grant or creating 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;
Lien (xother than Permitted Encumbrances) any tax on the making and/or recording of the Security Instrument, the Note or any of the other Loan Documents or any transfer or similar taxes (whether due upon the making of the same or upon Lender’s exercise of its remedies under the Loan Documents), but excluding any income, franchise or other similar taxes;
(xi) the seizure or forfeiture of encumbering the Property, or the failure of Borrower to obtain Lender’s prior written consent to any portion thereof, or Borrower’s interest therein, resulting from criminal wrongdoing voluntary Transfer in each case as may be required by any Borrower Party;the Loan Agreement; and
(xiii) the failure to make any Condemnation Payment and/or any Balancing Payment, to permit on-site inspections of the Property and/or to provide the Required Financial Items, in each case, as and when required herein;
(xiii) Intentionally Omitted;
(xiv) the failure to make repairs, renewals material interference or replacements material resistance (including, without limitation, structural and nonstructuralany action reasonably likely to cause a material delay to Lender) by Borrower, exterior and interiorOperating Lessee, ordinary and extraordinary, foreseen and unforeseen) to the Property or any portion thereof (including, without limitation, the Improvements now or at any time hereafter erected on the Property) as and when required pursuant to the terms of the Loan Documents or as and when necessary to maintain the Property in good and safe condition, in a rentable and tenantable state of repair and/or in the condition required pursuant to the terms of the Loan Documents; and/or
(xv) any indemnity obligations of Lender to Bank under the Restricted Account Agreement (other than those arising as a direct result of Lender’s gross negligence or willful misconduct).
(b) Notwithstanding anything to the contrary in this Agreement, the Note Guarantor or any of their respective Affiliates, agents, employees, members, partners, directors or officers, with Lender’s exercise of any and all of its rights and remedies under the Loan Documents, at law or in equity (A) Lender provided that defending any demand for payment solely on the grounds that the demanded amount had already been paid and not returned or otherwise disgorged, shall not trigger liability under this clause (i)). Borrower shall 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 liable for the full entire amount of the Debt or to require that all collateral shall continue to secure all of the Debt owing to Lender in accordance with the Loan Documents, and (B) the Debt shall be fully recourse to Borrower in the event that: of:
(i) the first full monthly payment of principal and interest Borrower filing a voluntary petition under the Note is not paid when due; Bankruptcy Code or any other Federal or state bankruptcy or insolvency law;
(ii) the filing by any Person other than Lender of an involuntary petition against Borrower fails under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law in which Borrower colludes with such Person, or solicits or causes to comply with be solicited petitioning creditors for any provisions hereof relating to cash management or fails to appoint a new property manager upon the request of Lender, fails to cooperate with involuntary petition against Borrower from any New Manager or fails to comply with any limitations on instructing the property manager, each as required by and in accordance with, as applicable, the terms and provisions of, this Agreement, the Assignment of Management Agreement and the Security Instrument; Person;
(iii) Borrower filing an answer consenting to or joining in any representationinvoluntary petition filed against it, warranty by any Person other than Lender under the Bankruptcy Code or covenant contained in Article 5 any other Federal or Article 6 hereof is violated state bankruptcy or breached; insolvency law unless the opposition of Borrower to such involuntary petition would violate any Rule 11 of the Federal Rules of Civil Procedure, Rule 9011 of the Federal Rules of Bankruptcy Procedure or any other similar state law;
(iv) Borrower consenting to or joining in an application for the appointment of a Bankruptcy Event occurs; custodian, receiver, trustee, or examiner for Borrower or any portion of the Property;
(v) Sections 11.1 Borrower making an assignment for the benefit of creditors, or 11.6 hereof are violated admitting, in writing or breached in any material respectlegal proceeding, its insolvency or inability to pay its debts as they become due unless the opposition of Borrower to such involuntary petition would violate any Rule 11 of the Federal Rules of Civil Procedure, Rule 9011 of the Federal Rules of Bankruptcy Procedure or any other similar state law; and
(vi) Borrower violating the Single Purpose Entity provisions of its organizational documents.
Appears in 2 contracts
Samples: Loan Agreement (Innkeepers Usa Trust/Fl), Loan Agreement (Innkeepers Usa Trust/Fl)
Exculpation. (a) Subject to None of the qualifications below, Lender shall not enforce the liability and obligation of Borrower to perform and observe the obligations contained in the Note, this AgreementAgents, the Security Instrument Collateral Agent or the other Loan Documents by Arranger nor any of their respective directors, officers, employees or Agents shall be liable to any Revolving Credit Lender for any action taken or proceeding wherein a money judgment or any deficiency judgment or other judgment establishing personal liability shall omitted to be sought against Borrower or any principal, director, officer, employee, beneficiary, shareholder, partner, member, trustee, agent, or Affiliate of Borrower or any legal representatives, successors or assigns of any of the foregoing (collectively, the “Exculpated Parties”), except that Lender may bring a foreclosure action, an action for specific performance taken by it under this Agreement or any other appropriate action or proceeding to enable Lender to enforce and realize upon its interest under the Note, this Agreement, the Security Instrument and the other Loan DocumentsRevolving Credit Document, or in connection herewith or therewith, except for its own willful misconduct or gross negligence, nor responsible for any recitals or warranties herein or therein, nor for the Propertyeffectiveness, the Rentsenforceability, sufficiency, validity or due execution of this Agreement or any other collateral given to Lender pursuant to Revolving Credit Document, nor for the Loan Documents; providedcreation, howeverattachment, that, except as specifically provided herein, any judgment in any such action perfection or proceeding shall be enforceable against Borrower only to the extent of Borrower’s interest in the Property, in the Rents and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Security Instrument and the other Loan Documents, shall not xxx for, seek or demand any deficiency judgment against Borrower or any of the Exculpated Parties in any such action or proceeding under or by reason of or under or in connection with the Note, this Agreement, the Security Instrument or the other Loan Documents. The provisions of this Section shall not, however, (1) constitute a waiver, release or impairment priority of any obligation evidenced or secured Liens purported to be created by any of the Loan Revolving Credit Documents; (2) impair , or the right of Lender to name Borrower as a party defendant in any action validity, genuineness, enforceability, existence, value or suit for foreclosure and sale under the Security Instrument; (3) affect the validity or enforceability sufficiency of any indemnitycollateral security, guaranty nor to make any inquiry respecting the performance by the Revolving Credit Borrowers of their obligations hereunder or similar instrument (including, without limitation, indemnities under any other Revolving Credit Document. Any such inquiry which may be made by any Agent or the Collateral Agent shall not obligate it to make any further inquiry or to take any action. No Agent or the Collateral Agent shall have any duties or responsibilities except those specifically set forth in Article 12 hereof, Section 11.2 hereof, in the Guaranty this Agreement and the Environmental Indemnity) made in connection with other Revolving Credit Documents and shall not by reason of the Loan relationship established herein be a trustee of fiduciary of any other Agent, the Collateral Agent or any of the rights and remedies of Lender thereunder (includingLender. Unless it specifically agrees to do so in writing, without limitationno Agent shall be obligated to initiate, Lender’s right to enforce said rights and remedies against Borrower and/or Guarantor (as applicable) personally and without the effect of the exculpatory provisions of this Article 13); (4) impair the rights of Lender to (A) obtain the appointment of a receiver and/or (B) enforce its rights and remedies provided conduct or supervise any litigation or collection proceedings, whether in Articles 8 and 9 hereof; (5) impair the enforcement of the assignment of leases and rents contained in the Security Instrument and in any other Loan Documents; (6) impair the right of Lender to enforce Section 4.12(e) of this Agreement; (7) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted by the Security Instrument or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against the Property; or (8) constitute a waiver of the right of Lender to enforce the liability and obligation of Borrower, by money judgment bankruptcy or otherwise, to any work-out or post-default negotiations or take any other similar actions; provided, that, at the extent of any Loss incurred by Lender (including attorneys’ fees and costs reasonably incurred) arising out of or in connection with the following:
(i) fraud or intentional misrepresentation by any Borrower Party in connection with the Loan;
(ii) the gross negligence or willful misconduct of any Borrower Party;
(iii) any litigation or other legal proceeding related to the Debt filed by any Borrower Party 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 other Loan Documents;
(iv) waste to the Property caused by the intentional acts or intentional omissions of any Borrower Party and/or the removal or disposal of any portion written request of the Property after an Event Required Revolving Credit Lenders, the Administrative Agent shall be obligated to foreclose upon or set off against the cash collateral deposited with it under clause (c) of Default;
(v) the misapplication, misappropriation or conversion by any Borrower Party 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 Rents following an Event of Default or (D) any Tenant security deposits or Rents collected in advance;
(vi) any act of arson by any Borrower Party or of which any Borrower Party has knowledge;
(vii) failure to pay Taxes, charges for labor or materials or other charges that can create liens on any portion of the Property Section 3.1 in accordance with Section 5.9. Each Agent and the terms and provisions hereof;
(viii) failure to pay Insurance Premiums, to maintain the Policies in full force and effect and/or to provide Lender evidence of the same, in each case, as expressly provided herein;
(ix) any security deposits, advance deposits or any other deposits collected with respect to the Property which are not delivered to Lender upon a foreclosure of the 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;
(x) any tax on the making and/or recording of the Security Instrument, the Note or any of the other Loan Documents or any transfer or similar taxes (whether due upon the making of the same or upon Lender’s exercise of its remedies under the Loan Documents), but excluding any income, franchise or other similar taxes;
(xi) the seizure or forfeiture of the Property, or any portion thereof, or Borrower’s interest therein, resulting from criminal wrongdoing by any Borrower Party;
(xii) the failure to make any Condemnation Payment and/or any Balancing Payment, to permit on-site inspections of the Property and/or to provide the Required Financial Items, in each case, as and when required herein;
(xiii) Intentionally Omitted;
(xiv) the failure to make repairs, renewals or replacements (including, without limitation, structural and nonstructural, exterior and interior, ordinary and extraordinary, foreseen and unforeseen) to the Property or any portion thereof (including, without limitation, the Improvements now or at any time hereafter erected on the Property) as and when required pursuant to the terms of the Loan Documents or as and when necessary to maintain the Property in good and safe condition, in a rentable and tenantable state of repair and/or in the condition required pursuant to the terms of the Loan Documents; and/or
(xv) any indemnity obligations of Lender to Bank under the Restricted Account Agreement (other than those arising as a direct result of Lender’s gross negligence or willful misconduct).
(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 Debt or to require that all collateral shall continue to secure all of the Debt owing to Lender in accordance with the Loan Documents, and (B) the Debt Collateral Agent shall be fully recourse entitled to Borrower in the event that: (i) the first full monthly payment of principal and interest under the Note is not paid when due; (ii) Borrower fails to comply with any provisions hereof relating to cash management or fails to appoint a new property manager upon the request of Lender, fails to cooperate with any New Manager or fails to comply with any limitations on instructing the property manager, each as required by and in accordance with, as applicable, the terms and provisions of, this Agreement, the Assignment of Management Agreement and the Security Instrument; (iii) any representation, warranty or covenant contained in Article 5 or Article 6 hereof is violated or breached; (iv) a Bankruptcy Event occurs; or (v) Sections 11.1 or 11.6 hereof are violated or breached in any material respect.rely:
Appears in 2 contracts
Samples: Revolving Credit Agreement (Specialty Foods Acquisition Corp), Revolving Credit Agreement (Specialty Foods Corp)
Exculpation. (a) Subject to the qualifications below, Lender shall not enforce the liability and obligation of Borrower to perform and observe the obligations contained in the Note, this Agreement, the Security Instrument Pledge Agreement or the other Loan Documents by any action or proceeding wherein a money judgment or any deficiency judgment or other judgment establishing personal liability shall be sought against Borrower or any principal, director, officer, employee, beneficiary, shareholder, partner, member, trustee, agent, or Affiliate of Borrower or any legal representatives, successors or assigns of any of the foregoing (collectively, the “Exculpated Parties”), except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender to enforce and realize upon its interest under the Note, this Agreement, the Security Instrument Pledge Agreement and the other Loan Documents, or in the Property, the Rents, Collateral (or any portion thereof) or any other collateral given to Lender pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower’s interest in the Property, in the Rents Collateral and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Security Instrument Pledge Agreement and the other Loan Documents, shall not xxx sue for, seek xxek or demand any deficiency judgment against Borrower or any of the Exculpated Parties in any such action or proceeding under or by reason of or under or in connection with the Note, this Agreement, the Security Instrument Pledge Agreement or the other Loan Documents. The provisions of this Section shall not, however, (1) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (2) impair the right of Lender to name Borrower as a party defendant in any action or suit for foreclosure and sale under the Security InstrumentPledge Agreement; (3) affect the validity or enforceability of any indemnity, guaranty or similar instrument (including, without limitation, indemnities set forth in Article 12 hereof, Section 11.2 hereof, in the Guaranty and the Environmental Indemnity) made in connection with the Loan or any of the rights and remedies of Lender thereunder (including, without limitation, Lender’s right to enforce said rights and remedies against Borrower and/or Guarantor (as applicable) personally and without the effect of the exculpatory provisions of this Article 13); (4) impair the rights of Lender to (A) obtain the appointment of a receiver and/or (B) enforce its rights and remedies security interest in the Accounts as provided in Articles 8 and 9 hereof; (5) impair the enforcement of the assignment of leases and rents contained in the Security Instrument and in any other Loan DocumentsPledge Agreement; (6) impair the right of Lender to enforce Section 4.12(e) of this Agreement; (7) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted by the Security Instrument Pledge Agreement or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against the PropertyCollateral (or any portion thereof); or (8) 7) 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 reasonable out-of-pocket Loss incurred by Lender (including out-of-pocket attorneys’ fees and costs reasonably incurredincurred but in all events excluding consequential, punitive and special damages (except to the extent Lender is actually liable for such damages)) arising out of or in connection with the following:
(i) fraud or intentional misrepresentation by any Borrower Party in connection with the Loan;
(ii) the gross negligence or willful misconduct of any Borrower Party;
(iii) material physical waste to any litigation Individual Property arising from the intentional acts or other legal proceeding related to the Debt filed by omissions of any Borrower Party (it being acknowledged that delays, opposes, impedes, obstructs, hinders, enjoins or otherwise interferes with or frustrates omissions to perform acts for which sufficient cash flow is not available from the efforts Properties shall not be deemed an intentional omission for purposes of Lender to exercise any rights and remedies available to Lender as provided herein and in the other Loan Documentsthis clause (iii));
(iv) waste to the Property caused by the intentional acts or intentional omissions of any Borrower Party and/or the removal or disposal by any Borrower Party or any of its respective Affiliates of any portion of the any Individual Property after an Event of DefaultDefault unless such portion of any Individual Property so removed or so disposed of is replaced with property of equal utility and value or such removal or disposal was otherwise permitted pursuant to the terms and conditions hereof;
(v) the misapplication, misappropriation misapplication or conversion by any Borrower Party of (A) any insurance proceeds paid by reason of any loss, damage or destruction to the Propertyany Individual Property (or any portion thereof), (B) any Awards or other amounts received in connection with the Condemnation of all or a portion of the any Individual Property, (C) any Rents following an Event of Default or Default, (D) any Tenant security deposits or Rents collected paid more than one month in advanceadvance and/or (E) any Net Liquidation Proceeds After Debt Service;
(vi) any act of arson by any Borrower Party or of which any Borrower Party has knowledge;
(vii) failure to pay Taxes, charges for labor or materials or other charges that can create liens on any portion of the any Individual Property in accordance with the terms and provisions hereof; provided, however, Borrower shall have no liability under this subsection (vi) if (A) such Taxes, charges for labor or materials or other charges that can create liens are being contested in accordance with the terms and conditions hereof or (B) sufficient cash flow is not available from the Properties to pay such amounts; provided, that, in no instance shall Borrower be released from any liability pursuant to this clause (vi) to the extent (1) such insufficiency of cash flow arises from the intentional misappropriation or conversion of Rent by any Borrower Party or (2) Borrower or Mortgage Borrower incurred such charges after the occurrence and during the continuance of an Event of Default, except to the extent such charges were (I) necessary to protect against imminent danger to the health or safety of any Tenant or any Person at or in the immediate vicinity of any Individual Property or to prevent any imminent defect, damage or harm to any Individual Property, (II) contracted for prior to such Event of Default or (III) consented to in writing by Lender;
(viii) failure to pay Insurance Premiums, to maintain the Policies in full force and effect and/or to provide Lender evidence of the same, in each case, as expressly provided herein;
(ixvii) any security deposits, advance deposits or any other deposits collected with respect to the any Individual Property which are not delivered to Lender upon a foreclosure of the Property any Collateral or action in lieu thereof, except to the extent any such security deposits were applied in accordance with the terms and conditions of any of the Leases prior to the occurrence of the Event of Default that gave rise to such foreclosure or action in lieu thereof;
(xviii) the breach or violation by Borrower, Mezzanine A Borrower, Mortgage Borrower and/or any tax on Applicable SPE Component Entity of any representation, warranty or covenant contained in Article 5 hereof;
(ix) the making failure by Borrower to (A) permit (or cause Mortgage Borrower or Mezzanine A Borrower to permit) on-site inspections of any Individual Property, (B) provide any financial information regarding hereunder and/or recording of the Security Instrument, the Note or any of pursuant to the other Loan Documents and/or (C) appoint (or any transfer or similar taxes (whether due cause Mortgage Borrower to appoint) a Qualified Manager pursuant to a Qualified Management Agreement upon the making request of the same or upon Lender which failure constitutes an Event of Default;
(x) a breach of Section 11.1 and/or Section 11.2 hereof, which breach continues for three (3) Business Days after notice from Lender’s exercise of its remedies under the Loan Documents), but excluding any income, franchise or other similar taxes;
(xi) the seizure any material amendment, material modification or forfeiture voluntary termination of the Propertyany Ground Lease by any Borrower, Mezzanine A Borrower or any portion thereof, or BorrowerMortgage Borrower without Lender’s interest therein, resulting from criminal wrongdoing by any Borrower Partyconsent other than as expressly permitted pursuant to the terms hereof;
(xii) the failure to make termination or suspension of any Condemnation Payment and/or Health Care License arising in connection with any Balancing Paymentgrossly negligent or willful material violation of any Health Care Requirement or otherwise by Borrower, to permit on-site inspections Mezzanine A Borrower or Mortgage Borrower or any voluntary termination or rejection of the Property and/or to provide the Required Financial Itemsany such Health Care License by Borrower, Mezzanine A Borrower or Mortgage Borrower, in each caseinstance, as and when required hereinwhich termination, suspension or rejection constitutes an Event of Default;
(xiii) Intentionally Omitted;any violation of Article 6 hereof not otherwise covered pursuant to clauses (b)(iv) and (b)(v) immediately below, provided, however, for the avoidance of doubt, a Sale or Pledge resulting from the consummation of an enforcement action by Lender, Mortgage Lender or the holder of any Mezzanine Loan shall not be a Sale or Pledge in violation of Article 6 hereof; or
(xiv) the failure to make repairs, renewals incurrence by Mortgage Borrower of any voluntary indebtedness prohibited by the Mortgage Loan Agreement or replacements (including, without limitation, structural and nonstructural, exterior and interior, ordinary and extraordinary, foreseen and unforeseen) to by Mezzanine A Borrower of any voluntary indebtedness prohibited by the Property or any portion thereof (including, without limitation, the Improvements now or at any time hereafter erected on the Property) as and when required pursuant to the terms of the Mezzanine A Loan Documents or as and when necessary to maintain the Property in good and safe condition, in a rentable and tenantable state of repair and/or in the condition required pursuant to the terms of the Loan Documents; and/or
(xv) any indemnity obligations of Lender to Bank under the Restricted Account Agreement (other than those arising as a direct result of Lender’s gross negligence or willful misconduct)Agreement.
(b) Notwithstanding anything to the contrary in this Agreement, the Note or any of the Loan Documents, (A) Lender shall not be deemed to have waived any right which Lender may have under Section 506(a), 506(b), 1111(b) or any other provisions of the Bankruptcy Code to file a claim for the full amount of the Debt or to require that all collateral shall continue to secure all of the Debt owing to Lender in accordance with the Loan Documents, and (B) the Debt shall be fully recourse to Borrower in the event that: (i) a Bankruptcy Event occurs, (ii) the first full monthly payment of principal (if any) and interest under the Note is not paid when due; (ii) Borrower fails to comply with any provisions hereof relating to cash management or fails to appoint a new property manager upon the request of Lender, fails to cooperate with any New Manager or fails to comply with any limitations on instructing the property manager, each as required by and in accordance with, as applicable, the terms and provisions of, this Agreement, the Assignment of Management Agreement and the Security Instrument; (iii) any representation, warranty or covenant contained in Article 5 or Article 6 hereof is violated or breachedbreached and such breach or violation results in, or is a substantial factor in, a substantive consolidation of Borrower, Mezzanine A Borrower, Mortgage Borrower and/or any Applicable SPE Component Entity with any other Person in a bankruptcy or similar proceedings; (iv) a Bankruptcy Event occursif Borrower, Mortgage Borrower, Mezzanine A Borrower and/or any Applicable SPE Component Entity fails to obtain Lender’s prior written consent to (A) any voluntary indebtedness or (B) voluntary monetary lien encumbering any Individual Property or any Applicable Collateral to the extent such lien required Lender’s consent under this Agreement or the other Loan Documents; or (v) Sections 11.1 if Borrower, Mezzanine A Borrower, Mortgage Borrower and/or any Applicable SPE Component Entity fails to obtain Lender’s prior written consent to any voluntary transfer of any material portion of any Individual Property or 11.6 hereof are violated any Applicable Collateral or breached to any voluntary act that causes a change in the ownership of Borrower, Mezzanine A Borrower, Mortgage Borrower and/or any Applicable SPE Component Entity to the extent such ownership change required Lender’s consent under this Agreement; provided, however, for the avoidance of doubt, a Sale or Pledge resulting from the consummation of an enforcement action by Lender, Mortgage Lender or the holder of any Mezzanine Loan shall not be a Sale or Pledge in violation of Article 6 hereof. Notwithstanding any provision contained herein or in any material respectother Loan Document, no direct or indirect shareholder, partner, member, principal, affiliate, employee, officer, director, agent or representative of Borrower (each, a “Related Party”) (other than (a) Guarantor in accordance with the Guaranty and the Environmental Indemnity and (b) any Manager that is an Affiliate of Borrower in accordance with any Loan Document to which such Manager may be a party) shall have any personal liability for, nor be joined as a party to any action with respect to (i) the payment of any sum of money which is or may be payable hereunder or under any other Loan Documents, including, but not limited to, the repayment of the Loan or (ii) the performance or discharge of any covenants, obligations or undertakings of Guarantor or any Related Party with respect thereto. In addition to the foregoing, anything contained herein or in the other Loan Documents notwithstanding, in no event will the assets of any Related Party (other than Guarantor in accordance with the Guaranty and the Environmental Indemnity) be available to satisfy any obligation of Borrower hereunder.
Appears in 2 contracts
Samples: Mezzanine Loan Agreement (NorthStar Healthcare Income, Inc.), Mezzanine Loan Agreement (Northstar Realty Finance Corp.)
Exculpation. (a) Subject to the qualifications below, Lender shall not enforce the liability and obligation of Borrower to perform and observe the obligations Obligations contained in the Note, this Agreement, the Security Instrument Mortgage or the other Loan Documents by any action or proceeding wherein a money judgment or any deficiency judgment or other judgment establishing personal liability shall be sought against Borrower or any principal, director, officer, employee, beneficiary, shareholder, partner, member, trustee, agentBorrower, or Affiliate of Borrower or against any legal representativesSPC Party, successors or assigns of any Mezzanine Borrower, any Guarantor, any Affiliates of the foregoing or any of their respective direct or indirect principals, directors, officers, employees, beneficiaries, shareholders, partners, members, trustees or agents (collectivelyeach, exclusive of the Borrower, an “Other Exculpated PartiesParty”), except that (1) any Other Exculpated Party that is party to any Loan Document or any other separate written guaranty, indemnity or other agreement given by such Other Exculpated Party in connection with the Loan (including, without limitation, the Assignment of Management Agreement and the Qualified Preferred Equity Recognition Agreement or any other Loan Document to which such Other Exculpated Party is a party) shall remain fully liable therefor and the foregoing provisions shall not operate to limit or impair the liabilities and obligations of such Other Exculpated Party thereunder, and (2) Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender to enforce and realize upon its interest under the Note, this Agreement, the Security Instrument Mortgage and the other Loan Documents, or in the PropertyProperties, the RentsGross Revenue, or any other collateral given to Lender pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower’s interest in the PropertyProperties, in the Rents Gross Revenue and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Security Instrument Mortgage and the other Loan Documents, shall not xxx for, seek or demand any deficiency judgment against Borrower or any of the Exculpated Parties in any such action or proceeding under or by reason of or under or in connection with the Note, this Agreement, the Security Instrument Mortgage or the other Loan Documents. The provisions of this Section 10.1 shall not, however, (1a) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (2b) impair the right of Lender to name Borrower as a party defendant in any action or suit for foreclosure and sale under the Security InstrumentMortgage; (3c) affect the validity or enforceability of any indemnity, of the Loan Documents or any guaranty or similar instrument (including, without limitation, indemnities set forth in Article 12 hereof, Section 11.2 hereof, in the Guaranty and the Environmental Indemnity) made in connection with the Loan or any of the rights and remedies of Lender thereunder (including, without limitation, Lender’s right to enforce said rights and remedies against Borrower and/or Guarantor (as applicable) personally and without the effect of the exculpatory provisions of this Article 13)thereunder; (4) impair the rights of Lender to (A) obtain the appointment of a receiver and/or (B) enforce its rights and remedies provided in Articles 8 and 9 hereof; (5) impair the enforcement of the assignment of leases and rents contained in the Security Instrument and in any other Loan Documents; (6d) impair the right of Lender to enforce Section 4.12(e) obtain the appointment of this Agreementa receiver; (7e) impair 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 Security Instrument Mortgage or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against the PropertyProperties; (i) waive or impair the liability of any Other Exculpated Party under any Loan Document or any other separate written guaranty, indemnity or other agreement to which such Other Exculpated Party is a party (including, without limitation, the Assignment of Management Agreement and the Qualified Preferred Equity Recognition Agreement or any other Loan Document to which such Other Exculpated Party is a party); or (8) i) 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 Loss actual loss, damage, out-of-pocket cost or expense, liability, claim or other obligation incurred by Lender (including reasonable outside attorneys’ fees and costs reasonably incurred) arising out of or in connection with the following:following (all such liability and obligation of Borrower for any or all of the following being referred to herein as “Borrower’s Recourse Liabilities”):
(i) fraud or intentional misrepresentation committed by Borrower, any Guarantor or any Affiliate of Borrower Party or any Guarantor in connection with the Loan;
(ii) intentional failure to disclose a material fact known to Borrower, any Guarantor, or any Affiliate of Borrower or any Guarantor in connection with the gross negligence or willful misconduct origination of any Borrower Partythe Loan that if disclosed would be reasonably expected to have had a material adverse effect on the Lender’s determination to provide the Loan in the amount and on the terms set forth in the Loan Documents;
(iii) any litigation or other legal proceeding related to the Debt filed by any Borrower Party 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 other Loan Documents[reserved];
(iv) waste to wrongful removal of personal property from the Property caused by the intentional acts or intentional omissions of any Borrower Party and/or the removal or disposal of any portion of the Property after Properties during an Event of DefaultDefault by Borrower or on behalf of Borrower by any Guarantor or any Affiliate of Borrower or any Guarantor, unless replaced with personal property of substantially the same or greater utility and of the same or greater value;
(v) the misapplication, misappropriation any intentional physical Waste at any Individual Property committed by Borrower or conversion on behalf of Borrower by any Guarantor or any Affiliate of Borrower Party or any Guarantor;
(vi) the misappropriation by Borrower or on behalf of Borrower by any Guarantor or any Affiliate of Borrower or any Guarantor of (A) any insurance proceeds Insurance Proceeds paid by reason of any loss, damage or destruction Casualty to the any Individual Property, (B) any Awards or other amounts received in connection with the Condemnation of all or a portion of the Property, any Individual Property and (C) any Rents following Gross Revenues after (or that results in) an Event of Default or (D) any Tenant security deposits or Rents collected Default, in advance;
(vi) any act each case, in violation of arson by any Borrower Party or of which any Borrower Party has knowledgethe Loan Documents;
(vii) failure to pay Taxes, charges obtain and maintain the fully paid for labor or materials or other charges that can create liens on any portion of the Property Policies in accordance with Section 5.1.1 to the terms and provisions hereofextent that adequate funds were available to Borrower from the income of the Properties for the payment of the premiums thereof;
(viii) failure any breach of any provision of Section 4.4 or Schedule V of this Agreement (other than with respect to pay Insurance Premiumsclause (d) of Schedule V (with respect to trade payables only), clause (f) of Schedule V, clause (j) of Schedule V, clause (o) of Schedule V (with respect to maintain trade payables only), clause (v) of Schedule V and clause (w) of Schedule V) that does not result in the Policies in full force and effect and/or to provide Lender evidence substantive consolidation of the sameassets and liabilities of Borrower with any other Person (other than another Individual Borrower or the Liquor Subsidiary) as a result of such breach;
(ix) any and all Divested Property Liabilities; and/or
(x) the modification of any Ground Lease if such modification is prohibited under this Agreement or under any Mortgage and such modification has a material adverse effect on the related Individual Property or the leasehold interest therein (including the value or operation thereof) or Lender’s ability to exercise its rights and remedies under the Loan Documents.
(i) Borrower fails to obtain Lender’s prior consent to any financing for borrowed money secured by any Individual Property, or any voluntary conveyance of a mortgage, deed of trust, security deed, security agreement or similar grant by Borrower of a voluntary Lien upon any Individual Property, or any voluntary granting of a security interest in, voluntary pledge of or other voluntary Lien upon any direct or indirect equity interest in any Individual Borrower, any SPC Party or any Mezzanine Borrower, in each case, as expressly provided herein;
(ix) security for any security deposits, advance deposits obligations or any other deposits collected with respect to the Property which are liabilities that is not delivered to Lender upon a foreclosure of the 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;
(x) any tax on the making and/or recording of the Security Instrument, the Note or any of the other Loan Documents or any transfer or similar taxes (whether due upon the making of the same or upon Lender’s exercise of its remedies permitted under the Loan Documents)Documents (excluding, but excluding any income, franchise or other similar taxes;
(xi) for the seizure or forfeiture avoidance of the Property, or any portion thereof, or Borrower’s interest therein, resulting from criminal wrongdoing by any Borrower Party;
(xii) the failure to make any Condemnation Payment and/or any Balancing Payment, to permit on-site inspections of the Property and/or to provide the Required Financial Items, in each case, as and when required herein;
(xiii) Intentionally Omitted;
(xiv) the failure to make repairs, renewals or replacements (including, without limitation, structural and nonstructural, exterior and interior, ordinary and extraordinary, foreseen and unforeseen) to the Property or any portion thereof (including, without limitationdoubt, the Improvements now security interests, pledges or at any time hereafter erected on the Property) as and when required pursuant to the terms of Liens granted under the Loan Documents or as and when necessary to maintain the Property in good and safe condition, in a rentable and tenantable state of repair and/or in the condition required pursuant to the terms of Mezzanine Loan Documents securing the Loan Documents; and/or
(xv) any indemnity obligations of Lender to Bank under the Restricted Account Agreement (other than those arising as a direct result of Lender’s gross negligence or willful misconduct).
(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(aMezzanine Loan), 506(b), 1111(b) or any other provisions of the Bankruptcy Code to file a claim for the full amount of the Debt or to require that all collateral shall continue to secure all of the Debt owing to Lender in accordance with the Loan Documents, and (B) the Debt shall be fully recourse to Borrower in the event that: (i) the first full monthly payment of principal and interest under the Note is not paid when due; (ii) Borrower fails to comply obtain Lender’s prior consent to (a) any voluntary transfer of any Individual Property that is not permitted under the Loan Documents or (b) any voluntary transfer of a direct or indirect interest in Borrower that results in a change of control of Borrower that is not permitted under the Loan Documents (specifically excluding from this clause (ii), (x) any transfer of the direct ownership interests in any Individual Borrower, any SPC Party, or any Mezzanine Borrower to any Mezzanine Lender or its designee as result of any foreclosure upon such ownership interests (or transfer-in-lieu of foreclosure of the ownership interests that are the collateral for the applicable Mezzanine Loan), consummated in accordance with the applicable Mezzanine Loan Documents and (y) any provisions hereof relating Qualified Preferred Equity Vehicle Change of Control consummated in accordance with Section 7.2(k) hereof); (iii) Borrower, any SPC Party, and/or any Mezzanine Borrower, files a voluntary petition under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law, subject to cash management a maximum aggregate liability equal to the BK Cap; (iv) the filing of an involuntary petition against Borrower, any SPC Party, and/or any Mezzanine Borrower under the Bankruptcy Code or fails any other Federal or state bankruptcy or insolvency law by any other Person in which Borrower, any SPC Party, and/or any Mezzanine Borrower colludes with or otherwise assists such Person, and/or Borrower, any SPC Party, and/or any Mezzanine Borrower solicits or causes to appoint be solicited petitioning creditors for any involuntary petition against Borrower, any SPC Party and/or any Mezzanine Borrower by any Person, subject to a new property manager upon maximum aggregate liability equal to the request BK Cap; (v) Borrower, any SPC Party and/or any Mezzanine Borrower files an answer consenting to, or joining in, any involuntary petition filed against it by any other Person under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law, subject to a maximum aggregate liability equal to the BK Cap; (vi) Borrower or any Mezzanine Borrower or any Affiliate, officer, director or representative which controls Borrower or such Mezzanine Borrower, as the case may be, consents to, or joins in, an application for the appointment of Lendera custodian, fails receiver, trustee or examiner for Borrower and/or any portion of any Individual Property, or such Mezzanine Borrower, as the case may be, subject to cooperate with a maximum aggregate liability equal to the BK Cap; (vii) Borrower, any New Manager SPC Party and/or any Mezzanine Borrower makes an assignment for the benefit of creditors or admits, in any legal proceeding, its insolvency or inability to pay its debts as they become due, subject to a maximum aggregate liability equal to the BK Cap; or (viii) Borrower fails to comply with the provisions of Section 4.4 or Schedule V of this Agreement (other than those relating to solvency or adequacy of capital or adequacy of cash flow), and such failure results in an order of substantive consolidation of one (1) or more of the Individual Borrowers with any limitations on instructing other Person (other than another Individual Borrower or the property managerLiquor Subsidiary) in a bankruptcy or similar proceeding under the Bankruptcy Code or any other federal or state bankruptcy or insolvency law, each as required by and in accordance with, as applicable, subject to a maximum liability equal to the terms and provisions of, this Agreement, the Assignment of Management Agreement and the Security Instrument; (iii) any representation, warranty or covenant contained in Article 5 or Article 6 hereof is violated or breached; (iv) a Bankruptcy Event occurs; or (v) Sections 11.1 or 11.6 hereof are violated or breached in any material respectBK Cap.
Appears in 2 contracts
Samples: Loan Agreement (W2007 Grace Acquisition I Inc), Loan Agreement (American Realty Capital Hospitality Trust, Inc.)
Exculpation. (a) Subject to Except as otherwise provided herein or in the qualifications belowother Loan Documents, Lender shall not enforce the liability and obligation of Borrower or Borrower Principal or any SPE Component Entity, as applicable, to perform and observe the obligations contained herein or in the Note, this Agreement, the Security Instrument or the other Loan Documents by any action or proceeding wherein a money judgment or any deficiency judgment or other judgment establishing personal liability shall be sought against Borrower or any principal, director, officer, employee, beneficiary, shareholder, partner, member, trustee, agent, or Affiliate of Borrower Principal or any legal representatives, successors or assigns of any of the foregoing (collectively, the “Exculpated Parties”)SPE Component Entity, except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender to enforce and realize upon its interest under the Note, this Agreement, the Security Instrument Note, the Mortgage and the other Loan Documents, or and the interest in the Property, the Rents, or Rents and any other collateral given to Lender pursuant to created by this Agreement, the Note, the Mortgage and the other Loan Documents; provided, however, that, except as specifically provided herein, that any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower’s or Borrower Principal’s collective interest in the Property, the Operating Leases, in the Rents and in any other collateral given to Lender, and . Lender, by accepting the Note, this Agreement, the Security Instrument Note, the Mortgage and the other Loan Documents, agrees that it shall not xxx not, except as otherwise provided in this Section 15.01, sxx for, seek or demand any deficiency judgment against Borrower or Borrower Principal or any of the Exculpated Parties SPE Component Entity in any such action or proceeding proceeding, under or by reason of or under or in connection with the Note, this Agreement, the Security Instrument Note, the Mortgage or the other Loan Documents. The provisions of this Section 15.01 shall not, however, (1i) 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; (2ii) 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 Security InstrumentMortgage; (3iii) affect the validity or enforceability of any indemnity, guaranty or similar instrument indemnity contained in Articles XIII and XIV; (including, without limitation, indemnities set forth in Article 12 hereof, Section 11.2 hereof, in the Guaranty and the Environmental Indemnityiv) made in connection with the Loan or any of the rights and remedies of Lender thereunder (including, without limitation, impair Lender’s right to enforce said rights its remedies under the Environmental Indemnity and remedies against Borrower and/or Guarantor (as applicable) personally and without the effect of the exculpatory provisions of this Article 13)Exceptions to Non-Recourse Guaranty; (4v) impair the rights right of Lender to (A) obtain the appointment of a receiver and/or (B) enforce its rights and remedies provided in Articles 8 and 9 hereofreceiver; (5vi) impair the enforcement of the assignment of leases and rents provisions contained in the Security Instrument and in any other Loan DocumentsMortgage; or (6vii) impair the right of Lender to enforce Section 4.12(e) of obtain a deficiency judgment or other judgment on the Note against Borrower, Operating Lessee or Borrower Principal if necessary to obtain any Insurance Proceeds or Awards to which Lender would otherwise be entitled under this Agreement; (7) constitute a prohibition against provided, however, Lender to seek a deficiency shall only enforce such judgment against Borrower in order to fully realize the security granted by the Security Instrument or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against the Property; or (8) constitute a waiver of the right of Lender to enforce the liability and obligation of Borrower, by money judgment or otherwise, to the extent of any Loss incurred the Insurance Proceeds and/or Awards actually collected or received by Borrower.
(b) Notwithstanding the provisions of this Section 15.01 to the contrary, Borrower shall be personally liable to Lender for Losses due to (including attorneys’ fees and costs reasonably incurred) arising out of or in connection with but only to the following:extent such Losses were caused by):
(i) fraud or intentional or willful material misrepresentation by Borrower, Borrower Principal or any other Affiliate or agent of Borrower, any New Mezzanine Borrower Party 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 or during the term of the Loan;
(ii) Borrower’s or any Affiliate’s misapplication or misappropriation of Rents received by Borrower and not applied or paid in accordance with the gross negligence or willful misconduct requirements of any Borrower Partythe Loan Documents;
(iii) Borrower’s or any litigation Affiliate’s misapplication or other legal proceeding related to misappropriation of tenant security deposits or Rents collected in advance and not applied in accordance with the Debt filed by any Borrower Party that delays, opposes, impedes, obstructs, hinders, enjoins or otherwise interferes with or frustrates terms of the efforts of Lender to exercise any rights and remedies available to Lender as provided herein and in the other Loan Documents;
(iv) waste to the Property caused misapplication or the misappropriation of Insurance Proceeds or Awards by the intentional acts Borrower or intentional omissions of any Borrower Party and/or the removal or disposal of any portion of the Property after an Event of DefaultNew Mezzanine Borrower;
(v) the misapplication, misappropriation or conversion by any Borrower Party 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 Rents following an Event of Default or (D) any Tenant security deposits or Rents collected in advance;
(vi) any act of arson by any Borrower Party or of which any Borrower Party has knowledge;
(vii) failure Borrower’s willful refusal 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), charges for labor or materials or other charges that can create liens on any portion Individual Property beyond any applicable notice and cure periods specified herein;
(vi) any act of the Property in accordance with the terms and provisions hereofintentional waste or arson by Borrower, any New Mezzanine Borrower, any principal, Affiliate, agent, member or general partner thereof or by Borrower Principal, any principal, Affiliate, agent, member or general partner thereof;
(vii) Borrower’s willful misconduct; or
(viii) Borrower’s, any New Mezzanine Borrower’s or any Affiliate’s, failure following any Event of Default to pay Insurance Premiumsdeliver to Lender upon demand all Rents received and books and records relating to any Individual Property.
(c) Notwithstanding the foregoing, the agreement of Lender not to maintain the Policies pursue recourse liability as set forth in full subsection (a) above SHALL BECOME NULL AND VOID and shall be of no further force and effect and/or and the Debt immediately shall become fully recourse to provide Lender evidence Borrower and Borrower Principal, on a joint and several basis in the event (i) of the same, in each case, as expressly provided herein;
(ix) any security deposits, advance deposits a breach by Borrower or any other deposits collected with respect to the Property which are not delivered to Lender upon a foreclosure of the Property or action in lieu thereof, except to the extent any such security deposits were applied in accordance with the terms and conditions SPE Component Entity of any of the Leases prior covenants set forth in Article VI hereof (other than Sections 6.01(a)(xv) and (xviii)), to the occurrence extent that such breach is (A) material and (B) is not cured within fifteen (15) days of the Event earlier to occur of Default that gave rise to notice from Lender or Borrower’s knowledge of such foreclosure or action in lieu thereof;
breach, (xii) any tax on the making and/or recording of the Security Instrument, the Note or a breach of any of the other Loan Documents covenants set forth in Article VII hereof, (iii) any Individual Property or any transfer part thereof shall become an asset in a voluntary bankruptcy or similar taxes insolvency proceeding of Borrower, (whether due upon iv) Borrower, Borrower Principal or any Affiliate, officer, director, or representative which controls, directly or indirectly, Borrower or Borrower Principal files, or joins in the making filing of, an involuntary petition against Borrower under any Creditors Rights Laws, or solicits or causes to be solicited petitioning creditors for any involuntary petition against Borrower from any Person; (v) Borrower files an answer consenting to or otherwise acquiescing in or joining in any involuntary petition filed against it, by any other Person under any Creditors Rights Laws, 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 consents to or acquiesces in or joins in an application for the appointment of the same a custodian, receiver, trustee, or upon Lender’s exercise of its remedies under the Loan Documents), but excluding any income, franchise or other similar taxes;
(xi) the seizure or forfeiture of the Property, examiner for Borrower or any portion thereof, or Borrower’s interest therein, resulting from criminal wrongdoing by of any Borrower Party;
(xii) the failure to make any Condemnation Payment and/or any Balancing Payment, to permit on-site inspections of the Property and/or to provide the Required Financial Items, in each case, as and when required herein;
(xiii) Intentionally Omitted;
(xiv) the failure to make repairs, renewals or replacements (including, without limitation, structural and nonstructural, exterior and interior, ordinary and extraordinary, foreseen and unforeseen) to the Individual Property or (vii) Borrower or Borrower Principal or any portion agent or Affiliate thereof (including, without limitation, the Improvements now or at interferes in any time hereafter erected on the Property) as and when required pursuant to the terms of the Loan Documents or as and when necessary to maintain the Property in good and safe condition, in a rentable and tenantable state of repair and/or in the condition required pursuant to the terms of the Loan Documents; and/or
(xv) any indemnity obligations of Lender to Bank under the Restricted Account Agreement (other than those arising as a direct result of way with Lender’s gross negligence or willful misconduct)pursuit of any remedies, including any actions taken consistent with the commencement of foreclosure proceedings, following an Event of Default.
(bd) Notwithstanding anything to the contrary in this Agreement, the Note or any of the Loan Documents, (A) Lender Nothing herein shall not be deemed to have waived be a waiver of 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 Debt indebtedness secured by the Mortgage or to require that all collateral shall continue to secure all of the Debt indebtedness owing to Lender in accordance with the Loan Documents, and (B) the Debt shall be fully recourse to Borrower in the event that: (i) the first full monthly payment of principal and interest under the Note is not paid when due; (ii) Borrower fails to comply with any provisions hereof relating to cash management or fails to appoint a new property manager upon the request of Lender, fails to cooperate with any New Manager or fails to comply with any limitations on instructing the property manager, each as required by and in accordance with, as applicable, the terms and provisions of, this Agreement, the Assignment of Management Agreement and Note, the Security Instrument; (iii) any representation, warranty Mortgage or covenant contained in Article 5 or Article 6 hereof is violated or breached; (iv) a Bankruptcy Event occurs; or (v) Sections 11.1 or 11.6 hereof are violated or breached in any material respectthe other Loan Documents.
Appears in 2 contracts
Samples: Loan Agreement (Bon Ton Stores Inc), Loan Agreement (Bon Ton Stores Inc)
Exculpation. (a) Subject to the qualifications belowExcept as otherwise provided in this Section 15.1, 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 Security Instrument or the other Loan Documents by any action or proceeding wherein a money judgment or any deficiency judgment or other judgment establishing personal liability shall be sought against (1) Borrower (except as set forth in this Section 15.1 and the Environmental Indemnity), (2) Guarantor (except as set forth in the Guaranty and the Environmental Indemnity), (3) any Affiliate of Borrower or Guarantor, (4) any principalPerson owning, directordirectly or indirectly, officerany legal or beneficial interest in Borrower, employee, beneficiary, shareholder, Guarantor or any Affiliate of Borrower or Guarantor or (5) any direct or indirect limited partner, member, principal, officer, beneficiary, trustee, advisor, shareholder, employee, agent, Affiliate or Affiliate of Borrower or any legal representatives, successors or assigns director of any of the foregoing Persons described in clauses (1) through (5) above (collectively, subject to the “exceptions in clauses (1) and (2) above, the "Exculpated Parties”"), except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender to enforce and realize upon its interest under the Note, this Agreement, the Security Instrument Note, the Mortgage and the other Loan Documents, or and the interest in the Property, the Rents, or 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 Borrower, only to the extent of Borrower’s 's interest in the Property, in the Rents and in any other collateral given to Lender, and . Lender, by accepting the Note, this Agreement, the Security Instrument 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 any of the Exculpated Parties Party in any such action or proceeding proceeding, under or by reason of or under or in connection with the Note, this Agreement, the Security Instrument Note, the Mortgage or the other Loan Documents. The provisions of this Section 15.1 shall not, however, (1i) 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; (2ii) 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 Security InstrumentMortgage; (3iii) affect the validity or enforceability of any indemnity, guaranty or similar instrument indemnity (including, without limitation, indemnities set forth those contained in Article 12 hereof, Section 11.2 hereof, in the Guaranty 14 of this Agreement and the Environmental Indemnity) ), 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 thereunder (including, without limitation, Lender’s right to enforce said rights and remedies against Borrower and/or Guarantor (as applicable) personally and without the effect of the exculpatory provisions of this Article 13)Documents; (4iv) impair the rights right of Lender to (A) obtain the appointment of a receiver and/or (B) enforce its rights and remedies provided in Articles 8 and 9 hereofreceiver; (5v) impair the enforcement of the assignment of leases and rents provisions contained in the Security Instrument and in any other Loan DocumentsMortgage; or (6vi) impair the right of Lender to enforce Section 4.12(e) obtain a judgment on the Note against Borrower if and to the extent necessary for the sole purpose of permitting Lender to obtain any Insurance Proceeds or Awards to which Lender would otherwise be entitled under this Agreement; (7) constitute a prohibition against provided, however, Lender to seek a deficiency shall only enforce such judgment against Borrower in order to fully realize the security granted by the Security Instrument or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against the Property; or (8) constitute a waiver of the right of Lender to enforce the liability and obligation of Borrower, by money judgment or otherwise, to the extent of any Loss the Insurance Proceeds and/or Awards.
(b) Notwithstanding the provisions of this Section 15.1 to the contrary, Borrower shall be personally liable to Lender for Losses to the extent actually incurred by Lender (including attorneys’ fees and costs reasonably incurred) arising out of or in connection with the followingdue to:
(i) fraud or material intentional misrepresentation by any Borrower an Exculpated Party 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 or during the term of the Loan;
(ii) the gross negligence or willful misconduct of any Borrower an Exculpated Party;
(iii) any litigation Exculpated Party's misapplication or other legal proceeding related to misappropriation of Rents received by Borrower during the Debt filed by any Borrower Party that delays, opposes, impedes, obstructs, hinders, enjoins or otherwise interferes with or frustrates the efforts continuance of Lender to exercise any rights and remedies available to Lender as provided herein and in the other Loan Documents;
(iv) waste to the Property caused by the intentional acts or intentional omissions of any Borrower Party and/or the removal or disposal of any portion of the Property after an Event of Default;
(v) the misapplication, misappropriation or conversion by any Borrower Party of (Aiv) any insurance proceeds paid by reason Exculpated Party's misapplication or misappropriation of any losstenant security deposits (including the failure to deliver to Lender tenant security deposits upon foreclosure or deed in lieu thereof, damage or destruction except to the Property, (B) any Awards or other amounts received extent applied in connection accordance with the Condemnation applicable Leases prior to the occurrence of all or a portion of the Property, (C) any Rents following an Event of Default or (DDefault) any Tenant security deposits or Rents collected in advance;
(viv) any act the misapplication or the misappropriation of arson Insurance Proceeds or Awards by any Borrower Party or of which any Borrower Party has knowledgeExculpated Party;
(viivi) Borrower's failure to pay Property Taxes, Insurance Premiums, Other Charges or charges for labor or materials or other charges that can create liens on the Property beyond any portion applicable notice and cure periods specified herein (provided that there shall be no liability hereunder to the extent that (A) sums sufficient to pay such amounts have been deposited in escrow with Lender pursuant to the terms hereof and Borrower has not made a claim against such escrowed amounts or otherwise taken action to restrict Lender from applying such sums for the purpose of paying such items or (B) there is insufficient cash flow from the operation of the Property in accordance to pay such items);
(vii) Borrower's failure to return or to reimburse Lender for all Personal Property taken from the Property by or on behalf of Borrower and not replaced with Personal Property of the terms same utility and provisions hereofof the same or greater value;
(viii) failure material physical waste to pay Insurance Premiums, to maintain the Policies in full force and effect and/or to provide Lender evidence Property caused by the intentional acts or omissions of any Exculpated Party when there is sufficient cash flow from the operation of the same, in each case, as expressly provided hereinProperty to avoid such waste from occurring;
(ix) Borrower's failure during the continuance of any security deposits, advance deposits Event of Default to (A) deliver to Lender upon demand all Rents received by Borrower or any other deposits collected with respect Manager and books and records relating to the Property which are not or (B) comply with all written notices and instructions of Lender delivered pursuant to Lender upon a foreclosure the terms of the Property any assignment and subordination of management agreement and consent of manager 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 thereofsimilar agreement;
(x) Borrower's assertion or raising of any tax defense to a proceeding instituted by Lender (whether judicial or otherwise) for the foreclosure of the Mortgage following an Event of Default caused by Borrower's failure to timely pay the Monthly Payment Amount or the Debt due on the making and/or recording Maturity Date, which defense is determined by a court of the Security Instrument, the Note competent jurisdiction to be without merit or any of the other Loan Documents or any transfer or similar taxes (whether due upon the making of the same or upon Lender’s exercise of its remedies under the Loan Documents), but excluding any income, franchise or other similar taxesbrought in bad faith;
(xi) the seizure Breach by Borrower of any representation, warranty or forfeiture of the Propertycovenant set forth in Section 4.41, Section 5.24, Section 10.1(a) or any portion thereof, or Borrower’s interest therein, resulting from criminal wrongdoing by any Borrower PartySection 10.2(a) hereof;
(xii) the failure to make any Condemnation Payment and/or any Balancing Payment, to permit on-site inspections breach of the Property and/or to provide the Required Financial Items, in each case, as and when required herein;
(xiii) Intentionally Omitted;
(xiv) the failure to make repairs, renewals or replacements (including, without limitation, structural and nonstructural, exterior and interior, ordinary and extraordinary, foreseen and unforeseen) to the Property or any portion thereof (including, without limitation, the Improvements now or at any time hereafter erected on the Property) as and when required pursuant to the terms of the Loan Documents or as and when necessary to maintain the Property in good and safe condition, in a rentable and tenantable state of repair and/or in the condition required pursuant to the terms of the Loan Documents; and/or
(xv) any indemnity obligations of Lender to Bank under the Restricted Account Agreement (other than those arising as a direct result of Lender’s gross negligence or willful misconduct).
(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 Debt or to require that all collateral shall continue to secure all of the Debt owing to Lender in accordance with the Loan Documents, and (B) the Debt shall be fully recourse to Borrower in the event that: (i) the first full monthly payment of principal and interest under the Note is not paid when due; (ii) Borrower fails to comply with any provisions hereof relating to cash management or fails to appoint a new property manager upon the request of Lender, fails to cooperate with any New Manager or fails to comply with any limitations on instructing the property manager, each as required by and in accordance with, as applicable, the terms and provisions of, this Agreement, the Assignment of Management Agreement and the Security Instrument; (iii) any representation, warranty or covenant contained of Borrower with respect to itself or any SPE Component Entity set forth in Article 5 6 hereof; or
(xiii) The existence or Article 6 hereof is violated or breached; (iv) a Bankruptcy Event occurs; or (v) Sections 11.1 or 11.6 hereof are violated or breached exercise of the rights of others to that portion of the Property used as the tube of the Detroit-Windsor Tunnel, expressly including those rights to maintain the tube of the Detroit-Windsor Tunnel as set forth in any material respectthat certain Warranty Deed dated October 28, 1977 and recorded in Liber 19923 at Page 406 of the Xxxxx County, Michigan Registry of Deeds.
Appears in 2 contracts
Samples: Loan Agreement (MVP REIT, Inc.), Loan Agreement (MVP REIT II, Inc.)
Exculpation. (a) Subject to Neither the qualifications below, Lender shall not enforce the liability and obligation of Borrower to perform and observe the obligations contained in the Note, this AgreementAgent, the Security Instrument or Banks nor the other Loan Documents by any action or proceeding wherein a money judgment or any deficiency judgment or other judgment establishing personal liability shall be sought against Borrower or any principalapplicable Issuing Bank, director, officer, employee, beneficiary, shareholder, partner, member, trustee, agent, or Affiliate of Borrower or any legal representatives, successors or assigns of nor any of the foregoing (collectivelytheir respective officers, the “Exculpated Parties”)directors, except that Lender may bring a foreclosure actionemployees, an action for specific performance attorneys and agents shall have any liability or any other appropriate action or proceeding to enable Lender to enforce and realize upon its interest under the Note, this Agreement, the Security Instrument and the other Loan Documents, or in the 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 Property, in the Rents and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Security Instrument and the other Loan Documents, shall not xxx for, seek or demand any deficiency judgment against Borrower or any of the Exculpated Parties in any such action or proceeding under or responsibility by reason of or under or in connection with the Note, this Agreement, the Security Instrument or the other Loan Documents. The provisions of this Section shall not, however, (1) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (2) impair the right of Lender to name Borrower as a party defendant in any action or suit for foreclosure and sale under the Security Instrument; (3) affect the validity or enforceability of any indemnity, guaranty or similar instrument (including, without limitation, indemnities set forth in Article 12 hereof, Section 11.2 hereof, in the Guaranty and the Environmental Indemnity) made in connection with the Loan or any of the rights and remedies of Lender thereunder (including, without limitation, Lender’s right to enforce said rights and remedies against Borrower and/or Guarantor (as applicable) personally and without the effect of the exculpatory provisions of this Article 13); (4) impair the rights of Lender to (A) obtain the appointment of a receiver and/or (B) enforce its rights and remedies provided in Articles 8 and 9 hereof; (5) impair the enforcement of the assignment of leases and rents contained in the Security Instrument and in any other Loan Documents; (6) impair the right of Lender to enforce Section 4.12(e) of this Agreement; (7) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted by the Security Instrument or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against the Property; or (8) constitute a waiver of the right of Lender to enforce the liability and obligation of Borrower, by money judgment or otherwise, to the extent of any Loss incurred by Lender (including attorneys’ fees and costs reasonably incurred) arising out of or in connection with the followingissuance or transfer of any Letter of Credit by the applicable Issuing Bank or any payment or failure to make any payment thereunder (irrespective of any of the circumstances referred to in the preceding clause (m)), or any error, omission, interruption, loss or delay in transmission or delivery of any draft, notice or other communication under or relating to any Letter of Credit (including any document required to make a drawing thereunder), any error in interpretation of technical terms or any consequence arising from causes beyond the control of the applicable Issuing Bank; provided that the foregoing shall not be construed to excuse the applicable Issuing Bank from liability to the Company to the extent of any direct damages (as opposed to consequential damages, claims in respect of which are hereby waived by the Company to the extent permitted by applicable Law) suffered by the Company that are caused solely by the applicable Issuing Bank’s gross negligence or willful misconduct when determining whether drafts and other documents presented under a Letter of Credit comply with the terms thereof. The parties hereto expressly agree that:
(i) fraud or intentional misrepresentation by any Borrower Party The Issuing Banks may accept documents that appear on their face to be in connection substantial compliance with the Loanterms of a Letter of Credit without responsibility for further investigation, regardless of any notice or information to the contrary, and may make payment upon presentation of documents that appear on their face to be in substantial compliance with the terms of such Letter of Credit;
(ii) The Issuing Banks shall have the gross negligence or willful misconduct right, in their sole discretion, to decline to accept such documents and to make such payment if such documents are not in strict compliance with the terms of any Borrower Party;such Letter of Credit; and
(iii) any litigation or other legal proceeding related This sentence shall establish the standard of care to the Debt filed by any Borrower Party 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 other Loan Documents;
(iv) waste to the Property caused be exercised by the intentional acts or intentional omissions Issuing Banks when determining whether drafts and other documents presented under a Letter of any Borrower Party and/or the removal or disposal of any portion of the Property after an Event of Default;
(v) the misapplication, misappropriation or conversion by any Borrower Party 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 Rents following an Event of Default or (D) any Tenant security deposits or Rents collected in advance;
(vi) any act of arson by any Borrower Party or of which any Borrower Party has knowledge;
(vii) failure to pay Taxes, charges for labor or materials or other charges that can create liens on any portion of the Property in accordance Credit comply with the terms thereof (and provisions hereof;
(viii) failure to pay Insurance Premiumsthe parties hereto hereby waive, to maintain the Policies in full force and effect and/or to provide Lender evidence of the same, in each case, as expressly provided herein;
(ix) any security deposits, advance deposits or any other deposits collected with respect to the Property which are not delivered to Lender upon a foreclosure of the Property or action in lieu thereof, except to the extent permitted by applicable Law, any such security deposits were applied in accordance standard of care inconsistent 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;
(x) any tax on the making and/or recording of the Security Instrument, the Note or any of the other Loan Documents or any transfer or similar taxes (whether due upon the making of the same or upon Lender’s exercise of its remedies under the Loan Documents), but excluding any income, franchise or other similar taxes;
(xi) the seizure or forfeiture of the Property, or any portion thereof, or Borrower’s interest therein, resulting from criminal wrongdoing by any Borrower Party;
(xii) the failure to make any Condemnation Payment and/or any Balancing Payment, to permit on-site inspections of the Property and/or to provide the Required Financial Items, in each case, as and when required herein;
(xiii) Intentionally Omitted;
(xiv) the failure to make repairs, renewals or replacements (including, without limitation, structural and nonstructural, exterior and interior, ordinary and extraordinary, foreseen and unforeseen) to the Property or any portion thereof (including, without limitation, the Improvements now or at any time hereafter erected on the Property) as and when required pursuant to the terms of the Loan Documents or as and when necessary to maintain the Property in good and safe condition, in a rentable and tenantable state of repair and/or in the condition required pursuant to the terms of the Loan Documents; and/or
(xv) any indemnity obligations of Lender to Bank under the Restricted Account Agreement (other than those arising as a direct result of Lender’s gross negligence or willful misconductforegoing).
(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 Debt or to require that all collateral shall continue to secure all of the Debt owing to Lender in accordance with the Loan Documents, and (B) the Debt shall be fully recourse to Borrower in the event that: (i) the first full monthly payment of principal and interest under the Note is not paid when due; (ii) Borrower fails to comply with any provisions hereof relating to cash management or fails to appoint a new property manager upon the request of Lender, fails to cooperate with any New Manager or fails to comply with any limitations on instructing the property manager, each as required by and in accordance with, as applicable, the terms and provisions of, this Agreement, the Assignment of Management Agreement and the Security Instrument; (iii) any representation, warranty or covenant contained in Article 5 or Article 6 hereof is violated or breached; (iv) a Bankruptcy Event occurs; or (v) Sections 11.1 or 11.6 hereof are violated or breached in any material respect.
Appears in 2 contracts
Samples: Credit Agreement (Empire Resources Inc /New/), Credit Agreement (Empire Resources Inc /New/)
Exculpation. (a) Subject Notwithstanding anything in the Loan Documents to the contrary, but subject to the qualifications below, Xxxxxx and Borrower agree that:
(i) Borrower shall be liable upon the Debt and for the other obligations arising under the Loan Documents to the full extent (but only to the extent) of Borrower’s interest in the Property; provided, however, that in the event (A) of fraud, willful misconduct or material misrepresentation by Borrower, its general partners, if any, its members, if any, its principals, if any, or by any Guarantor in connection with the loan evidenced by this Note, (B) of a breach or default under Section 4.3 or Article 8 of the Security Instrument, or (C) the Property or any part thereof becomes an asset in a voluntary bankruptcy or insolvency proceeding, the limitation on recourse set forth in this Subsection 10(a) will be null and void and completely inapplicable, and this Note shall be with full recourse to Borrower.
(ii) If an Event of Default occurs and is continuing, Lender shall not enforce the liability and obligation of Borrower to perform and observe the obligations contained in the Note, this Agreement, Note or the Security Instrument or the other Loan Documents by any action or proceeding wherein a money judgment or any deficiency judgment or other judgment establishing personal liability shall be sought against Borrower or any principal, director, officer, employee, beneficiary, shareholder, partner, member, trustee, agent, or Affiliate of Borrower or any legal representatives, successors or assigns of any of the foregoing (collectively, the “Exculpated Parties”)Borrower, except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender to enforce and realize upon its the Security Instrument or any of the Other Loan Documents and the interest in the Property, the Rents and any other collateral for which a lien or security interest has been granted in favor of Lender under the Note, this Agreement, the Security Instrument and the other Loan Documents, or in the Property, the Rents, or any other collateral given to Lender pursuant to 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 BorrowerXxxxxxxx’s interest in the Property, in the Rents and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, for which a lien or security interest has been granted in favor of Lender under the Security Instrument and the other Loan Documents. Xxxxxx, by accepting this Note and the Security Instrument, agrees that it shall not xxx not, except as otherwise herein provided (and only to the extent herein provided), sue for, seek or demand any deficiency judgment against Borrower or any of the Exculpated Parties in any such action or proceeding proceeding, under or by reason of or under or in connection with the this Note, this Agreement, the Other Loan Documents or the Security Instrument or the other Loan Documents. Instrument.
(iii) The provisions of this Section Subsection 10(a) shall not, however, not (1A) constitute a waiver, release or impairment of any obligation evidenced or secured by any of this Note, the Other Loan DocumentsDocuments or the Security Instrument; (2B) impair the right of Lender to name Borrower as a party defendant in any action or suit for judicial foreclosure and sale under the Security Instrument; (3C) affect the validity or enforceability of any indemnity, guaranty guaranty, master lease or similar instrument (including, without limitation, indemnities set forth in Article 12 hereof, Section 11.2 hereof, in the Guaranty and the Environmental Indemnity) made in connection with this Note, the Security Instrument, or the Other Loan or any of the rights and remedies of Lender thereunder (including, without limitation, Lender’s right to enforce said rights and remedies against Borrower and/or Guarantor (as applicable) personally and without the effect of the exculpatory provisions of this Article 13)Documents; (4D) impair the rights right of Lender to (A) obtain the appointment of a receiver and/or (B) enforce its rights and remedies provided in Articles 8 and 9 hereofreceiver; (5E) impair the enforcement of the assignment of leases and rents contained Assignment executed in the Security Instrument and in any other Loan Documentsconnection herewith; (6F) impair the right of Lender to enforce Section 4.12(e) the provisions of this Agreement; (7) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted by Article 11 of the Security Instrument or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against the PropertyInstrument; or (8) constitute a waiver of G) impair the right of Lender to enforce the liability and obligation of Borrower, by money obtain a deficiency judgment or otherwisejudgment on this Note against Borrower if necessary to obtain any insurance proceeds or condemnation awards to which Xxxxxx would otherwise be entitled under the Security Instrument; provided, to however, Lender shall only enforce such judgment against the extent of any Loss incurred by Lender (including attorneys’ fees and costs reasonably incurred) arising out of or in connection with the following:
(i) fraud or intentional misrepresentation by any Borrower Party in connection with the Loan;
(ii) the gross negligence or willful misconduct of any Borrower Party;
(iii) any litigation or other legal proceeding related to the Debt filed by any Borrower Party 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 other Loan Documents;insurance proceeds and/or condemnation awards.
(iv) waste Notwithstanding the provisions of this Article to the Property caused by contrary, Borrower shall be personally liable to Lender for the intentional acts or intentional omissions of any Borrower Party and/or Losses (as defined under the removal or disposal of any portion of the Property after an Event of Default;
(vGuaranty) the misapplication, misappropriation or conversion by any Borrower Party of Lender incurs due to: (A) any insurance proceeds paid the misapplication or misappropriation of Rents by reason of any loss, damage Borrower or destruction to the Property, Guarantor; (B) any Awards the misapplication or other amounts received in connection with the Condemnation misappropriation of all insurance proceeds or a portion of the Property, condemnation awards by Borrower or Guarantor; (C) any Rents following an Event Borrower’s failure to return or to reimburse Lender for all Personal Property taken from the Property by or on behalf of Default Borrower and not replaced with Personal Property of substantially the same utility and of substantially the same or greater value; (D) any Tenant security deposits act of intentional waste or Rents collected in advance;
arson by Xxxxxxxx, any principal, general partner or member thereof or by any Guarantor; (viE) any act fees or commissions paid by Borrower to any principal, affiliate, general partner or member of arson by Borrower or any Borrower Party Guarantor in violation of the terms of this Note, the Security Instrument or of which any Borrower Party has knowledge;
the Other Loan Documents; (viiF) Borrower’s failure to pay Taxes, charges for labor or materials or other charges that can create liens on any portion of the Property in accordance comply with the terms and environmental indemnification provisions hereof;
(viii) failure to pay Insurance Premiums, to maintain the Policies in full force and effect and/or to provide Lender evidence of the same, in each case, as expressly provided herein;
(ix) any security deposits, advance deposits or any other deposits collected with respect to the Property which are not delivered to Lender upon a foreclosure of the 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;
(x) any tax on the making and/or recording Article 11 of the Security Instrument, the Note ; or (G) any breach of the other Loan Documents or any transfer or similar taxes (whether due upon the making of the same or upon Lender’s exercise of its remedies under the Loan Documents), but excluding any income, franchise or other similar taxes;
(xi) the seizure or forfeiture of the Property, or any portion thereof, or Borrower’s interest therein, resulting from criminal wrongdoing by any Borrower Party;
(xii) the failure to make any Condemnation Payment and/or any Balancing Payment, to permit on-site inspections of the Property and/or to provide the Required Financial Items, in each case, as and when required herein;
(xiii) Intentionally Omitted;
(xiv) the failure to make repairs, renewals or replacements (including, without limitation, structural and nonstructural, exterior and interior, ordinary and extraordinary, foreseen and unforeseen) to the Property or any portion thereof (including, without limitation, the Improvements now or at any time hereafter erected on the Property) as and when required pursuant to the terms of the Loan Documents or as and when necessary to maintain the Property in good and safe condition, in a rentable and tenantable state of repair and/or in the condition required pursuant to the terms of the Loan Documents; and/or
(xv) any indemnity obligations of Lender to Bank under the Restricted Account Agreement (other than those arising as a direct result of Lender’s gross negligence or willful misconduct)Environmental Indemnity.
(b) Notwithstanding anything to the contrary in this Agreement, the Note or any of the Loan Documents, (A) Lender Nothing herein shall not be deemed to have waived be a waiver of any right which Lender may have under Section Sections 506(a), 506(b), 1111(b) or any other provisions of the Bankruptcy Code to file a claim for the full amount of the Debt or to require that all collateral shall continue to secure all of the Debt Debt, owing to Lender in accordance with this Note, the Security Instrument and the Other Loan Documents, and (B) the Debt shall be fully recourse to Borrower in the event that: (i) the first full monthly payment of principal and interest under the Note is not paid when due; (ii) Borrower fails to comply with any provisions hereof relating to cash management or fails to appoint a new property manager upon the request of Lender, fails to cooperate with any New Manager or fails to comply with any limitations on instructing the property manager, each as required by and in accordance with, as applicable, the terms and provisions of, this Agreement, the Assignment of Management Agreement and the Security Instrument; (iii) any representation, warranty or covenant contained in Article 5 or Article 6 hereof is violated or breached; (iv) a Bankruptcy Event occurs; or (v) Sections 11.1 or 11.6 hereof are violated or breached in any material respect.
Appears in 2 contracts
Samples: Loan Agreement (Inland American Real Estate Trust, Inc.), Loan Agreement (Inland American Real Estate Trust, Inc.)
Exculpation. (a) Subject to the qualifications below, Lender shall not enforce the liability and obligation of Borrowers (or any of Borrowers’ members, managers partners shareholders, officers, directors or Affiliates, whether direct or indirect, collectively, the “Borrower Parties”) to perform and observe the obligations contained in the Note, this Agreement, the Security Instrument Pledge Agreements or the other Loan Documents by any action or proceeding wherein a money judgment or any deficiency judgment or other judgment establishing personal liability shall be sought against Borrower or any principal, director, officer, employee, beneficiary, shareholder, partner, member, trustee, agent, or Affiliate of Borrower or any legal representatives, successors or assigns of any of the foregoing (collectively, the “Exculpated Parties”)either Borrower, except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender to enforce and realize upon its interest under the Note, this Agreement, the Security Instrument Pledge Agreements and the other Loan Documents, or in any or all of the Property, the Rents, Collateral or any other collateral given to Lender pursuant to the Pledge Agreements and the other Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrowers or the Borrower Parties only to the extent of Borrower’s Borrowers’ or the Borrower Parties’ interest in the Property, in the Rents Collateral and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Security Instrument Pledge Agreements, and the other Loan Documents, agrees that it shall not xxx for, seek or demand any deficiency judgment against either Borrower or any of the Exculpated Borrower Parties in any such action or proceeding under under, or by reason of or under of, or in connection with with, the Note, this Agreement, the Security Instrument Pledge Agreements, or the other Loan Documents. The provisions of this Section shall not, however, (1a) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (2b) impair the right of Lender to name Borrower Borrowers as a party defendant defendants in any action or suit for foreclosure and sale under the Security InstrumentPledge Agreements; (3c) affect the validity or enforceability of any indemnity, guaranty or similar instrument (including, without limitation, indemnities set forth in Article 12 hereof, Section 11.2 hereof, in the Guaranty and the Environmental Indemnity) made in connection with the Loan or any of the rights and remedies of Lender thereunder (including, without limitation, Lender’s right to enforce said rights and remedies against Borrower and/or Guarantor (as applicable) personally and without the effect of the exculpatory provisions of this Article 13)thereunder; (4) impair the rights of Lender to (A) obtain the appointment of a receiver and/or (B) enforce its rights and remedies provided in Articles 8 and 9 hereof; (5) impair the enforcement of the assignment of leases and rents contained in the Security Instrument and in any other Loan Documents; (6d) impair the right of Lender to enforce Section 4.12(e) obtain the appointment of this Agreementa receiver; (7e) constitute a prohibition against Lender to seek seeking a deficiency judgment against Borrower Borrowers in order to fully realize the security granted by the Security Instrument Pledge Agreements or to commence commencing any other appropriate action or proceeding in order for Lender to exercise its remedies against the PropertyProperties; or (8) e) 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 Loss 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 either of the Borrowers or either Mortgage Borrowers or any Borrower Party Guarantor in connection with the Loan, including by reason of any claim under RICO;
(ii) the gross negligence or willful misconduct of either of the Mortgage Borrowers, either of the Borrowers, any Borrower Guarantor, Principal or any other Restricted Party;
(iii) the breach of any litigation representation, warranty, covenant or other legal proceeding related to indemnification provision in the Debt filed by Environmental Indemnity concerning environmental laws, hazardous substances or asbestos and any Borrower Party that delays, opposes, impedes, obstructs, hinders, enjoins or otherwise interferes with or frustrates the efforts indemnification of Lender to exercise with respect thereto in any rights and remedies available to Lender as provided herein and in the other Loan DocumentsDocument;
(iv) waste to the Property caused by the intentional acts or intentional omissions of any Borrower Party and/or the wrongful removal or disposal destruction by either of the Mortgage Borrowers, either of the Borrowers or any Affiliate of either of the Mortgage Borrowers or Borrowers of any portion of the Property Properties after the occurrence of an Event of DefaultDefault or any intentional physical waste of the Properties or any portion thereof by either Borrower, either Mortgage Borrower or any Affiliate of any of them, provided, however, that such physical waste shall exclude wear and tear to the Properties or any portion thereof that occurs in the ordinary course of business of the Properties;
(v) any Legal Requirement (including RICO) mandating the misapplicationforfeiture by either Borrower or either Mortgage Borrower of any Property or the Collateral, or any portion thereof, because of the conduct or purported conduct of criminal activity by any Borrower, any Mortgage Borrower, or any Restricted Party in connection therewith;
(vi) any misrepresentation, miscertification or breach of warranty by either Borrower or any Guarantor 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 the Collateral;
(vii) the misappropriation or conversion by or on behalf of either Borrower, either Mortgage Borrower, or any Borrower Party of their respective Affiliates of (A) any insurance proceeds paid by reason of any loss, damage or destruction to the PropertyInsurance Proceeds, (B) any Awards or other amounts received in connection with the Condemnation of all or a portion of the PropertyProceeds, (C) any Rents and/or Vacant Space Rent following an Event of Default or Default, (D) any Tenant security deposits or Rents collected and/or Vacant Space Rent paid more than one (1) month in advance, (E) Net Liquidation Proceeds After Debt Service or (F) any distribution or other payments made in connection with all or any part of the Collateral; provided such amounts are not applied to the payment of the Loan or the Operating Expenses of either Property;
(vi) any act of arson by any Borrower Party or of which any Borrower Party has knowledge;
(viiviii) failure to pay Taxes, charges for labor or materials or other charges that can create liens Liens on any portion of the Property Properties that are superior to the Lien of the Mortgage, unless such charges are being contested in accordance with the terms and provisions hereof;
(viii) failure to pay Insurance Premiums, to maintain the Policies in full force and effect and/or to provide Lender evidence of the same, in each case, as expressly provided hereinherewith;
(ix) any security deposits, advance deposits or any other deposits collected by either Borrower, either Mortgage Borrower, or any Affiliate thereof with respect to the either Property or any part thereof which are not delivered to Mortgage Lender upon a foreclosure of the Property Properties or any part thereof or action in lieu thereof, except to the extent any such security deposits were applied in accordance with the terms and conditions of any of the Leases prior to the occurrence of the Event of Default that gave rise to such foreclosure or action in lieu thereof;
(x) any tax on the making and/or recording breach of any representation, warranty or covenant contained in Section 3 of the Security Instrument, the Note or any of the other Loan Documents or any transfer or similar taxes (whether due upon the making of the same or upon Lender’s exercise of its remedies under the Loan Documents), but excluding any income, franchise or other similar taxesPledge Agreements;
(xi) the seizure if either Borrower or forfeiture of the Property, or any portion thereof, or Borrower’s interest therein, resulting from criminal wrongdoing by any Mortgage Borrower Party;
(xii) the failure to make any Condemnation Payment and/or any Balancing Payment, fails to permit on-site inspections of the Property and/or Properties or any part thereof, fails to provide financial information specifically required by this Agreement or fails to appoint a new Manager upon the Required Financial Itemsrequest of Lender, each as required by, and in each caseaccordance with, the terms and provisions of this Agreement or the other Loan Documents;
(A) if the Operating Partnership shall default under either of the Master Leases beyond any applicable notice and/or cure period contained therein, or (B) if either Master Lease shall have been amended or modified (except as and when required herein;specified in Section 3.1.21 hereof) without Lender’s prior written consent, or (C) if either Master Lease shall have been terminated, cancelled or surrendered without Lender’s prior written consent in violation of Section 5.2.12 or Section 5.2.13 hereof (except as specified in Section 3.1.21 hereof), or (D) if the Operating Partnership is the subject of a Bankruptcy Action, other than an involuntary Bankruptcy Action which is dismissed within ninety (90) days; or
(xiii) Intentionally Omitted;
(xivA) if there shall exist an event of default by Tower Mortgage Borrower under the failure to make repairsParking Easement beyond any applicable notice and/or cure period contained therein, renewals or replacements (includingB) if the Parking Easement shall have been amended or modified in violation of Section 5.2.11 hereof) without Lender’s prior written consent, without limitationor (C) if the Parking Easement shall have been terminated, structural and nonstructural, exterior and interior, ordinary and extraordinary, foreseen and unforeseen) to the Property cancelled or any portion thereof surrendered (including, without limitation, the Improvements now or at any time hereafter erected on the Property) as and when required pursuant to other than by the terms of the Loan Documents or as and when necessary to maintain the Property in good and safe condition, in a rentable and tenantable state of repair and/or in the condition required pursuant to the terms of the Loan Documents; and/or
(xvParking Easement) any indemnity obligations of Lender to Bank under the Restricted Account Agreement (other than those arising as a direct result of without Lender’s gross negligence or willful misconduct)prior written consent in violation of Section 5.2.11 hereof.
(ba) Notwithstanding anything to either Borrower or either Mortgage Borrower filing a voluntary petition under 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) Bankruptcy Code or any other provisions Federal or state bankruptcy or insolvency law; (b) the filing of an involuntary petition against either Borrower or either Mortgage Borrower under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law by any other Person in which either Borrower or either Mortgage Borrower colludes with or otherwise assists such Person, or solicits or causes to file a claim be solicited petitioning creditors for any involuntary petition against either Borrower or either Mortgage Borrower from any Person; (c) either Borrower or Mortgage 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) either Borrower or Mortgage Borrower consenting to or acquiescing in or joining in an application for the full amount appointment of a custodian, receiver, trustee, or examiner for either Borrower, either Mortgage Borrower, or any portion of the Debt Properties. or the Collateral; or (e) either Borrower or Mortgage Borrower making an assignment for the benefit of creditors, or admitting, in writing or in any legal proceeding, its insolvency or inability to require that all collateral shall continue to secure all of the Debt owing to Lender in accordance with the Loan Documents, and pay its debts as they become due; (B2) the Debt shall be fully recourse to Borrower in the event that: (i) if the first full monthly payment of principal and interest under the Note Monthly Interest Payment is not paid when due; (ii3) if either Borrower or either Mortgage Borrower fails to comply with any provisions hereof relating to cash management or fails to appoint maintain its status as a new property manager upon the request of Lender, fails to cooperate with any New Manager or fails to comply with any limitations on instructing the property manager, each Special Purpose Entity as required by and in accordance with, as applicable, with the terms and provisions of, of this Agreement, the Assignment of Management Agreement and the Security Instrumentthere is a substantive consolidation of either Borrower or either Mortgage Borrower with any other Person; (iii4) if either Borrower fails to obtain Lender’s prior consent to any representation, warranty Indebtedness or covenant contained in Article 5 voluntary Lien encumbering the Properties or Article 6 hereof is violated the Collateral or breached; (iv) a Bankruptcy Event occursany part thereof as required by this Agreement or the other Loan Documents; or (v5) Sections 11.1 if either Borrower fails to obtain Lender’s prior consent to any Transfer as required by this Agreement or 11.6 hereof are violated or breached in any material respectthe other Loan Documents.
Appears in 2 contracts
Samples: Loan Agreement (MPG Office Trust, Inc.), Loan Agreement (MPG Office Trust, Inc.)
Exculpation. (a) Subject to the qualifications below, Lender shall not enforce the liability and obligation of Borrower to perform and observe the obligations contained in the Note, this Agreement, the Security Instrument Pledge Agreement or the other Loan Documents by any action or proceeding wherein a money judgment or any deficiency judgment or other judgment establishing personal liability shall be sought against Borrower or any principal, director, officer, employee, beneficiary, shareholder, partner, member, trustee, agent, or Affiliate of Borrower or any legal representatives, successors or assigns of any of the foregoing (collectively, the “Exculpated Parties”), except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender to enforce and realize upon its interest under the Note, this Agreement, the Security Instrument Pledge Agreement and the other Loan Documents, or in the Property, the Rents, Collateral (or any portion thereof) or any other collateral given to Lender pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower’s interest in the Property, in the Rents Collateral and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Security Instrument Pledge Agreement and the other Loan Documents, shall not xxx forsue xxx, seek or demand any deficiency judgment against Borrower or any of the Exculpated Parties in any such action or proceeding under or by reason of or under or in connection with the Note, this Agreement, the Security Instrument Pledge Agreement or the other Loan Documents. The provisions of this Section shall not, however, (1) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (2) impair the right of Lender to name Borrower as a party defendant in any action or suit for foreclosure and sale under the Security InstrumentPledge Agreement; (3) affect the validity or enforceability of any indemnity, guaranty or similar instrument (including, without limitation, indemnities set forth in Article 12 hereof, Section 11.2 hereof, in the Guaranty and the Environmental Indemnity) made in connection with the Loan or any of the rights and remedies of Lender thereunder (including, without limitation, Lender’s right to enforce said rights and remedies against Borrower and/or Guarantor (as applicable) personally and without the effect of the exculpatory provisions of this Article 13); (4) impair the rights of Lender to (A) obtain the appointment of a receiver and/or (B) enforce its rights and remedies security interest in the Accounts as provided in Articles 8 and 9 hereof; (5) impair the enforcement of the assignment of leases and rents contained in the Security Instrument and in any other Loan DocumentsPledge Agreement; (6) impair the right of Lender to enforce Section 4.12(e) of this Agreement; (7) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted by the Security Instrument Pledge Agreement or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against the PropertyCollateral (or any portion thereof); or (8) 7) 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 reasonable out-of-pocket Loss incurred by Lender (including out-of-pocket attorneys’ fees and costs reasonably incurredincurred but in all events excluding consequential, punitive and special damages (except to the extent Lender is actually liable for such damages)) arising out of or in connection with the following:
(i) fraud or intentional misrepresentation by any Borrower Party in connection with the Loan;
(ii) the gross negligence or willful misconduct of any Borrower Party;
(iii) material physical waste to any litigation Individual Property arising from the intentional acts or other legal proceeding related to the Debt filed by omissions of any Borrower Party (it being acknowledged that delays, opposes, impedes, obstructs, hinders, enjoins or otherwise interferes with or frustrates omissions to perform acts for which sufficient cash flow is not available from the efforts Properties shall not be deemed an intentional omission for purposes of Lender to exercise any rights and remedies available to Lender as provided herein and in the other Loan Documentsthis clause (iii));
(iv) waste to the Property caused by the intentional acts or intentional omissions of any Borrower Party and/or the removal or disposal by any Borrower Party or any of its respective Affiliates of any portion of the any Individual Property after an Event of DefaultDefault unless such portion of any Individual Property so removed or so disposed of is replaced with property of equal utility and value or such removal or disposal was otherwise permitted pursuant to the terms and conditions hereof;
(v) the misapplication, misappropriation misapplication or conversion by any Borrower Party of (A) any insurance proceeds paid by reason of any loss, damage or destruction to the Propertyany Individual Property (or any portion thereof), (B) any Awards or other amounts received in connection with the Condemnation of all or a portion of the any Individual Property, (C) any Rents following an Event of Default or Default, (D) any Tenant security deposits or Rents collected paid more than one month in advanceadvance and/or (E) any Net Liquidation Proceeds After Debt Service);
(vi) any act of arson by any Borrower Party or of which any Borrower Party has knowledge;
(vii) failure to pay Taxes, charges for labor or materials or other charges that can create liens on any portion of the any Individual Property in accordance with the terms and provisions hereof; provided, however, Borrower shall have no liability under this subsection (vi) if (A) such Taxes, charges for labor or materials or other charges that can create liens are being contested in accordance with the terms and conditions hereof or (B) sufficient cash flow is not available from the Properties to pay such amounts; provided, that, in no instance shall Borrower be released from any liability pursuant to this clause (vi) to the extent (1) such insufficiency of cash flow arises from the intentional misappropriation or conversion of Rent by any Borrower Party or (2) Borrower or Mortgage Borrower incurred such charges after the occurrence and during the continuance of an Event of Default, except to the extent such charges were (I) necessary to protect against imminent danger to the health or safety of any Tenant or any Person at or in the immediate vicinity of any Individual Property or to prevent any imminent defect, damage or harm to any Individual Property, (II) contracted for prior to such Event of Default or (III) consented to in writing by Lender;
(viii) failure to pay Insurance Premiums, to maintain the Policies in full force and effect and/or to provide Lender evidence of the same, in each case, as expressly provided herein;
(ixvii) any security deposits, advance deposits or any other deposits collected with respect to the any Individual Property which are not delivered to Lender upon a foreclosure of the Property any Collateral or action in lieu thereof, except to the extent any such security deposits were applied in accordance with the terms and conditions of any of the Leases prior to the occurrence of the Event of Default that gave rise to such foreclosure or action in lieu thereof;
(xviii) the breach or violation by Borrower, Mortgage Borrower and/or any tax on SPE Component Entity (as defined herein and in the making Mortgage Loan Agreement) of any representation, warranty or covenant contained in Article 5 hereof;
(ix) the failure by Borrower to (A) permit (or cause Mortgage Borrower to permit) on-site inspections of any Individual Property, (B) provide any financial information regarding hereunder and/or recording of the Security Instrument, the Note or any of pursuant to the other Loan Documents and/or (C) appoint (or any transfer or similar taxes (whether due cause Mortgage Borrower to appoint) a Qualified Manager pursuant to a Qualified Management Agreement upon the making request of the same or upon Lender which failure constitutes an Event of Default;
(x) a breach of Section 11.1 and/or Section 11.2 hereof, which breach continues for three (3) Business Days after notice from Lender’s exercise of its remedies under the Loan Documents), but excluding any income, franchise or other similar taxes;
(xi) the seizure any material amendment, material modification or forfeiture voluntary termination of the Property, or any portion thereof, or Borrower’s interest therein, resulting from criminal wrongdoing Ground Lease by any Borrower Partyor any Mortgage Borrower without Lender’s consent other than as expressly permitted pursuant to the terms hereof;
(xii) the failure to make termination or suspension of any Condemnation Payment and/or Health Care License arising in connection with any Balancing Payment, to permit on-site inspections grossly negligent or willful material violation of the Property and/or to provide the Required Financial Itemsany Health Care Requirement or otherwise by Borrower or Mortgage Borrower or any voluntary termination or rejection of any such Health Care License by Borrower or Mortgage Borrower, in each caseinstance, as and when required hereinwhich termination, suspension or rejection constitutes an Event of Default;
(xiii) Intentionally Omitted;any violation of Article 6 hereof not otherwise covered pursuant to clauses (b)(iv) and (b)(v) immediately below, provided, however, for the avoidance of doubt, a Sale or Pledge resulting from the consummation of an enforcement action by Lender, Mortgage Lender or the holder of any Mezzanine Loan shall not be a Sale or Pledge in violation of Article 6 hereof; or
(xiv) the failure to make repairs, renewals or replacements (including, without limitation, structural and nonstructural, exterior and interior, ordinary and extraordinary, foreseen and unforeseen) to incurrence by Mortgage Borrower of any voluntary indebtedness prohibited by the Property or any portion thereof (including, without limitation, the Improvements now or at any time hereafter erected on the Property) as and when required pursuant to the terms of the Mortgage Loan Documents or as and when necessary to maintain the Property in good and safe condition, in a rentable and tenantable state of repair and/or in the condition required pursuant to the terms of the Loan Documents; and/or
(xv) any indemnity obligations of Lender to Bank under the Restricted Account Agreement (other than those arising as a direct result of Lender’s gross negligence or willful misconduct)Agreement.
(b) Notwithstanding anything to the contrary in this Agreement, the Note or any of the Loan Documents, (A) Lender shall not be deemed to have waived any right which Lender may have under Section 506(a), 506(b), 1111(b) or any other provisions of the Bankruptcy Code to file a claim for the full amount of the Debt or to require that all collateral shall continue to secure all of the Debt owing to Lender in accordance with the Loan Documents, and (B) the Debt shall be fully recourse to Borrower in the event that: (i) a Bankruptcy Event occurs, (ii) the first full monthly payment of principal (if any) and interest under the Note is not paid when due; (ii) Borrower fails to comply with any provisions hereof relating to cash management or fails to appoint a new property manager upon the request of Lender, fails to cooperate with any New Manager or fails to comply with any limitations on instructing the property manager, each as required by and in accordance with, as applicable, the terms and provisions of, this Agreement, the Assignment of Management Agreement and the Security Instrument; (iii) any representation, warranty or covenant contained in Article 5 or Article 6 hereof is violated or breachedbreached and such breach or violation results in, or is a substantial factor in, a substantive consolidation of Borrower, Mortgage Borrower and/or any SPE Component Entity (as defined herein and in the Mortgage Loan Agreement) with any other Person in a bankruptcy or similar proceedings; (iv) a Bankruptcy Event occursif Borrower, Mortgage Borrower and/or any SPE Component Entity (as defined herein and in the Mortgage Loan Agreement) fails to obtain Lender’s prior written consent to (A) any voluntary indebtedness or (B) voluntary monetary lien encumbering any Individual Property or any Collateral to the extent such lien required Lender’s consent under this Agreement or the other Loan Documents; or (v) Sections 11.1 if Borrower, Mortgage Borrower and/or any SPE Component Entity (as defined herein and in the Mortgage Loan Agreement) fails to obtain Lender’s prior written consent to any voluntary transfer of any material portion of any Individual Property or 11.6 hereof are violated any Collateral or breached to any voluntary act that causes a change in the ownership of Borrower, Mortgage Borrower and/or any SPE Component Entity (as defined herein and in the Mortgage Loan Agreement) to the extent such ownership change required Lender’s consent under this Agreement; provided, however, for the avoidance of doubt, a Sale or Pledge resulting from the consummation of an enforcement action by Lender, Mortgage Lender or the holder of any Mezzanine Loan shall not be a Sale or Pledge in violation of Article 6 hereof. Notwithstanding any provision contained herein or in any material respectother Loan Document, no direct or indirect shareholder, partner, member, principal, affiliate, employee, officer, director, agent or representative of Borrower (each, a “Related Party”) (other than (a) Guarantor in accordance with the Guaranty and the Environmental Indemnity and (b) any Manager that is an Affiliate of Borrower in accordance with any Loan Document to which such Manager may be a party) shall have any personal liability for, nor be joined as a party to any action with respect to (i) the payment of any sum of money which is or may be payable hereunder or under any other Loan Documents, including, but not limited to, the repayment of the Loan or (ii) the performance or discharge of any covenants, obligations or undertakings of Guarantor or any Related Party with respect thereto. In addition to the foregoing, anything contained herein or in the other Loan Documents notwithstanding, in no event will the assets of any Related Party (other than Guarantor in accordance with the Guaranty and the Environmental Indemnity) be available to satisfy any obligation of Borrower hereunder.
Appears in 2 contracts
Samples: Mezzanine Loan Agreement (Northstar Realty Finance Corp.), Mezzanine Loan Agreement (NorthStar Healthcare Income, Inc.)
Exculpation. (a) Subject Notwithstanding anything in the Loan Documents to the contrary, but subject to the qualifications below, Lendxx xxx Borrower agree that:
(i) Borrower shall be liable upon the Debt and for the other obligations arising under the Loan Documents to the full extent (but only to the extent) of the security therefor; provided, however, that in the event (A) of fraud, willful misconduct or material misrepresentation by Borrower, its general partners, if any, its members, if any, its principals, its affiliates, its agents or its employees or by any Guarantor or any Indemnitor in connection with the loan evidenced by this Note, (B) of Borrower's breach or default under Sections 4.3 or 8.2 of the Security Instrument, or (C) the Property or any part thereof becomes an asset in a voluntary bankruptcy or insolvency proceeding, the limitation on recourse set forth in this Subsection 10(a) will be null and void and completely inapplicable, and this Note shall be with full recourse to Borrower.
(ii) If a default occurs in the timely and proper payment of all or any part of the Debt, Lender shall not enforce the liability and obligation of Borrower to perform and observe the obligations contained in the Note, this Agreement, Note or the Security Instrument or the other Loan Documents by any action or proceeding wherein a money judgment or any deficiency judgment or other judgment establishing personal liability shall be sought against Borrower or any principal, director, officer, employee, beneficiary, shareholder, partner, member, trustee, agent, or Affiliate of Borrower or any legal representatives, successors or assigns of any of the foregoing (collectively, the “Exculpated Parties”)Borrower, except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender to enforce and realize upon its interest under the Note, this AgreementSecurity Instrument, the Security Instrument Other Loan Documents and the other Loan Documents, or interest in the Property, the Rents, or Rents and any other collateral given to Lender pursuant to created by the Security Instrument and the Other Loan Documents; provided, however, that, except as specifically provided herein, that any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower’s interest Borrxxxx'x xnterest in the Property, in the Rents and in any other collateral given to Lender. Lendxx, xx accepting this Note and Lender, by accepting the Note, this Agreement, the Security Instrument and the other Loan DocumentsInstrument, agrees that it shall not xxx not, except as otherwise herein provided, sue for, seek or demand any deficiency judgment against Borrower or any of the Exculpated Parties in any such action or proceeding proceeding, under or by reason of or under or in connection with the this Note, this Agreement, the Other Loan Documents or the Security Instrument or the other Loan Documents. Instrument.
(iii) The provisions of this Section Subsection 10(a) shall not, however, not (1A) constitute a waiver, release or impairment of any obligation evidenced or secured by any of this Note, the Other Loan DocumentsDocuments or the Security Instrument; (2B) impair the right of Lender to name Borrower as a party defendant in any action or suit for judicial foreclosure and sale under the Security Instrument; (3C) affect the validity or enforceability of any indemnity, guaranty guaranty, master lease or similar instrument (including, without limitation, indemnities set forth in Article 12 hereof, Section 11.2 hereof, in the Guaranty and the Environmental Indemnity) made in connection with this Note, the Security Instrument, or the Other Loan or any of the rights and remedies of Lender thereunder (including, without limitation, Lender’s right to enforce said rights and remedies against Borrower and/or Guarantor (as applicable) personally and without the effect of the exculpatory provisions of this Article 13)Documents; (4D) impair the rights right of Lender to (A) obtain the appointment of a receiver and/or (B) enforce its rights and remedies provided in Articles 8 and 9 hereofreceiver; (5E) impair the enforcement of the assignment of leases and rents contained Assignment executed in the Security Instrument and in any other Loan Documentsconnection herewith; (6F) impair the right of Lender to enforce Section 4.12(e) the provisions of this Agreement; (7) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted by Article 11 of the Security Instrument or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against the PropertyInstrument; or (8) constitute a waiver of G) impair the right of Lender to enforce the liability and obligation of Borrower, by money obtain a deficiency judgment or otherwisejudgment on this Note against Borrower if necessary to obtain any insurance proceeds or condemnation awards to which Lendxx xxxld otherwise be entitled under the Security Instrument; provided, to however, Lender shall only enforce such judgment against the extent of any Loss incurred by Lender (including attorneys’ fees and costs reasonably incurred) arising out of or in connection with the following:
(i) fraud or intentional misrepresentation by any Borrower Party in connection with the Loan;
(ii) the gross negligence or willful misconduct of any Borrower Party;
(iii) any litigation or other legal proceeding related to the Debt filed by any Borrower Party 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 other Loan Documents;insurance proceeds and/or condemnation awards.
(iv) waste Notwithstanding the provisions of this Article to the Property caused by contrary, Borrower shall be personally liable to Lender for the intentional acts or intentional omissions of any Borrower Party and/or the removal or disposal of any portion of the Property after an Event of Default;
(v) the misapplication, misappropriation or conversion by any Borrower Party of Losses it incurs due to: (A) any insurance proceeds paid by reason the misapplication or misappropriation of any loss, damage or destruction to the Property, Rents; (B) any Awards the misapplication or other amounts received in connection with the Condemnation misappropriation of all insurance proceeds or a portion of the Property, condemnation awards; (C) any Rents following an Event Borrower's failure to return or to reimburse Lender for all Personal Property taken from the Property by or on behalf of Default Borrower and not replaced with Personal Property of the same utility and of the same or greater value; (D) any Tenant security deposits act of actual waste or Rents collected in advance;
arson by Borrower, any principal, affiliate, general partner or member thereof or by any Indemnitor or any Guarantor; (viE) any act fees or commissions paid by Borrower to any principal, affiliate, general partner or member of arson by Borrower, any Borrower Party Indemnitor or any Guarantor in violation of which any Borrower Party has knowledge;
the terms of this Note, the Security Instrument or the Other Loan Documents; (viiF) Borrower's failure to pay Taxes, charges for labor or materials or other charges that can create liens on any portion of the Property in accordance comply with the terms and provisions hereof;
(viii) failure to pay Insurance Premiums, to maintain the Policies in full force and effect and/or to provide Lender evidence of the same, in each case, as expressly provided herein;
(ix) any security deposits, advance deposits or any other deposits collected with respect to the Property which are not delivered to Lender upon a foreclosure of the 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;
(x) any tax on the making and/or recording Section 11.2 of the Security Instrument, the Note ; or (G) any breach of the other Loan Documents or any transfer or similar taxes (whether due upon the making of the same or upon Lender’s exercise of its remedies under the Loan Documents), but excluding any income, franchise or other similar taxes;
(xi) the seizure or forfeiture of the Property, or any portion thereof, or Borrower’s interest therein, resulting from criminal wrongdoing by any Borrower Party;
(xii) the failure to make any Condemnation Payment and/or any Balancing Payment, to permit on-site inspections of the Property and/or to provide the Required Financial Items, in each case, as and when required herein;
(xiii) Intentionally Omitted;
(xiv) the failure to make repairs, renewals or replacements (including, without limitation, structural and nonstructural, exterior and interior, ordinary and extraordinary, foreseen and unforeseen) to the Property or any portion thereof (including, without limitation, the Improvements now or at any time hereafter erected on the Property) as and when required pursuant to the terms of the Loan Documents or as and when necessary to maintain the Property in good and safe condition, in a rentable and tenantable state of repair and/or in the condition required pursuant to the terms of the Loan Documents; and/or
(xv) any indemnity obligations of Lender to Bank under the Restricted Account Agreement (other than those arising as a direct result of Lender’s gross negligence or willful misconduct)Environmental Indemnity.
(b) Notwithstanding anything to the contrary in this Agreement, the Note or any of the Loan Documents, (A) Lender Nothing herein shall not be deemed to have waived be a waiver of any right which Lender may have under Section Sections 506(a), 506(b), 1111(b) or any other provisions of the Bankruptcy Code to file a claim for the full amount of the Debt or to require that all collateral shall continue to secure all of the Debt Debt, owing to Lender in accordance with this Note, the Security Instrument and the Other Loan Documents, and (B) the Debt shall be fully recourse to Borrower in the event that: (i) the first full monthly payment of principal and interest under the Note is not paid when due; (ii) Borrower fails to comply with any provisions hereof relating to cash management or fails to appoint a new property manager upon the request of Lender, fails to cooperate with any New Manager or fails to comply with any limitations on instructing the property manager, each as required by and in accordance with, as applicable, the terms and provisions of, this Agreement, the Assignment of Management Agreement and the Security Instrument; (iii) any representation, warranty or covenant contained in Article 5 or Article 6 hereof is violated or breached; (iv) a Bankruptcy Event occurs; or (v) Sections 11.1 or 11.6 hereof are violated or breached in any material respect.
Appears in 2 contracts
Samples: Promissory Note (First Union Real Estate Equity & Mortgage Investments), Promissory Note (First Union Real Estate Equity & Mortgage Investments)
Exculpation. (a) Subject to None of the qualifications below, Lender shall not enforce the liability and obligation of Borrower to perform and observe the obligations contained in the Note, this AgreementDebtors, the Security Instrument Reorganized Debtors, the Creditors' Committee, the Claims Resolution Committee, the Indenture Trustees, or the other Loan Documents by Prepetition Secured Lenders, nor any action of their respective present or proceeding wherein a money judgment or any deficiency judgment or other judgment establishing personal liability shall be sought against Borrower or any principalformer members, directorofficers, officerdirectors, employeeemployees, beneficiary, shareholder, partner, member, trustee, agentadvisors, or Affiliate attorneys shall have or incur any liability to any holder of Borrower a Claim or any legal representatives, successors or assigns of any of the foregoing (collectively, the “Exculpated Parties”), except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender to enforce and realize upon its interest under the Note, this Agreement, the Security Instrument and the other Loan Documents, or in the Property, the RentsInterest, or any other collateral given to Lender pursuant to the Loan Documents; providedparty in interest, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower’s interest in the Property, in the Rents and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Security Instrument and the other Loan Documents, shall not xxx for, seek or demand any deficiency judgment against Borrower or any of the Exculpated Parties in their respective agents, employees, representatives, financial advisors, attorneys, or affiliates, or any such action of their successors or proceeding under assigns, for any act or by reason of or under or omission in connection with the Notewith, this Agreementrelating to, or arising out of, the Security Instrument Chapter 11 Case, formulating, negotiating or implementing the Modified Plan, the solicitation of acceptances of the Modified Plan, the pursuit of confirmation of the Modified Plan, the confirmation of the Modified Plan, the consummation of the Modified Plan, or the other Loan Documentsadministration of the Modified Plan or the property to be distributed under the Modified Plan, except for their gross negligence or willful misconduct, and in all respects shall be entitled to reasonably rely upon the advice of counsel with respect to their duties and responsibilities under the Modified Plan. The provisions Section 12.11(b) of this the Modified Plan is hereby stricken. Reorganized ICG shall indemnify each Person exculpated pursuant to Section 12.11 of the Modified Plan against, hold each such Person harmless from, and reimburse each such Person for, any and all losses, costs, expenses (including attorneys' fees and expenses), liabilities and damages sustained by such Person arising from any liability described in Section 12.11 of the Modified Plan. Such exculpation and limitation on liability shall not, however, (1) constitute a waiverlimit, release abridge, or impairment of any obligation evidenced or secured by any otherwise affect the rights, if any, of the Loan Documents; (2) impair Reorganized Debtors to enforce, sue on, settle, or compromise the right of Lender Litigation Claims retained purxxxnt to name Borrower as a party defendant in any action or suit for foreclosure Sections 5.8 and sale under the Security Instrument; (3) affect the validity or enforceability of any indemnity, guaranty or similar instrument (including, without limitation, indemnities set forth in Article 12 hereof, Section 11.2 hereof, in the Guaranty and the Environmental Indemnity) made in connection with the Loan or any 5.9 of the rights and remedies of Lender thereunder (including, without limitation, Lender’s right to enforce said rights and remedies against Borrower and/or Guarantor (as applicable) personally and without the effect of the exculpatory provisions of this Article 13); (4) impair the rights of Lender to (A) obtain the appointment of a receiver and/or (B) enforce its rights and remedies provided in Articles 8 and 9 hereof; (5) impair the enforcement of the assignment of leases and rents contained in the Security Instrument and in any other Loan Documents; (6) impair the right of Lender to enforce Section 4.12(e) of this Agreement; (7) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted by the Security Instrument or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against the Property; or (8) constitute a waiver of the right of Lender to enforce the liability and obligation of Borrower, by money judgment or otherwise, to the extent of any Loss incurred by Lender (including attorneys’ fees and costs reasonably incurred) arising out of or in connection with the following:
(i) fraud or intentional misrepresentation by any Borrower Party in connection with the Loan;
(ii) the gross negligence or willful misconduct of any Borrower Party;
(iii) any litigation or other legal proceeding related to the Debt filed by any Borrower Party 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 other Loan Documents;
(iv) waste to the Property caused by the intentional acts or intentional omissions of any Borrower Party and/or the removal or disposal of any portion of the Property after an Event of Default;
(v) the misapplication, misappropriation or conversion by any Borrower Party 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 Rents following an Event of Default or (D) any Tenant security deposits or Rents collected in advance;
(vi) any act of arson by any Borrower Party or of which any Borrower Party has knowledge;
(vii) failure to pay Taxes, charges for labor or materials or other charges that can create liens on any portion of the Property in accordance with the terms and provisions hereof;
(viii) failure to pay Insurance Premiums, to maintain the Policies in full force and effect and/or to provide Lender evidence of the same, in each case, as expressly provided herein;
(ix) any security deposits, advance deposits or any other deposits collected with respect to the Property which are not delivered to Lender upon a foreclosure of the 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;
(x) any tax on the making and/or recording of the Security Instrument, the Note or any of the other Loan Documents or any transfer or similar taxes (whether due upon the making of the same or upon Lender’s exercise of its remedies under the Loan Documents), but excluding any income, franchise or other similar taxes;
(xi) the seizure or forfeiture of the Property, or any portion thereof, or Borrower’s interest therein, resulting from criminal wrongdoing by any Borrower Party;
(xii) the failure to make any Condemnation Payment and/or any Balancing Payment, to permit on-site inspections of the Property and/or to provide the Required Financial Items, in each case, as and when required herein;
(xiii) Intentionally Omitted;
(xiv) the failure to make repairs, renewals or replacements (including, without limitation, structural and nonstructural, exterior and interior, ordinary and extraordinary, foreseen and unforeseen) to the Property or any portion thereof (including, without limitation, the Improvements now or at any time hereafter erected on the Property) as and when required pursuant to the terms of the Loan Documents or as and when necessary to maintain the Property in good and safe condition, in a rentable and tenantable state of repair and/or in the condition required pursuant to the terms of the Loan Documents; and/or
(xv) any indemnity obligations of Lender to Bank under the Restricted Account Agreement (other than those arising as a direct result of Lender’s gross negligence or willful misconduct)Modified Plan.
(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 Debt or to require that all collateral shall continue to secure all of the Debt owing to Lender in accordance with the Loan Documents, and (B) the Debt shall be fully recourse to Borrower in the event that: (i) the first full monthly payment of principal and interest under the Note is not paid when due; (ii) Borrower fails to comply with any provisions hereof relating to cash management or fails to appoint a new property manager upon the request of Lender, fails to cooperate with any New Manager or fails to comply with any limitations on instructing the property manager, each as required by and in accordance with, as applicable, the terms and provisions of, this Agreement, the Assignment of Management Agreement and the Security Instrument; (iii) any representation, warranty or covenant contained in Article 5 or Article 6 hereof is violated or breached; (iv) a Bankruptcy Event occurs; or (v) Sections 11.1 or 11.6 hereof are violated or breached in any material respect.
Appears in 2 contracts
Samples: Credit Agreement (Icg Communications Inc /De/), Note and Warrant Purchase Agreement (Icg Communications Inc /De/)
Exculpation. (a) Subject to the qualifications below, Lender shall not enforce the liability and obligation of Borrower to perform and observe the obligations contained in the Note, this Agreement, the Security Instrument or the other Loan Documents by any action or proceeding wherein a money judgment or any deficiency judgment or other judgment establishing personal liability shall be sought against Borrower or any principal, director, officer, employee, beneficiary, shareholder, partner, member, trustee, agent, or Affiliate of Borrower or any legal representatives, successors or assigns of any of the foregoing (collectively, the “Exculpated Parties”), except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender to enforce and realize upon its interest under the Note, this Agreement, the Security Instrument and the other Loan Documents, or in the 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 Property, in the Rents and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Security Instrument and the other Loan Documents, shall not xxx sxx for, seek or demand any deficiency judgment against Borrower or any of the Exculpated Parties in any such action or proceeding under or by reason of or under or in connection with the Note, this Agreement, the Security Instrument or the other Loan Documents. The provisions of this Section shall not, however, (1) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (2) impair the right of Lender to name Borrower as a party defendant in any action or suit for foreclosure and sale under the Security Instrument; (3) affect the validity or enforceability of any indemnity, guaranty or similar instrument (including, without limitation, indemnities set forth in Article 12 hereof, Section 11.2 hereof, in the Guaranty and the Environmental Indemnity) made in connection with the Loan or any of the rights and remedies of Lender thereunder (including, without limitation, Lender’s right to enforce said rights and remedies against Borrower and/or Guarantor (as applicable) personally and without the effect of the exculpatory provisions of this Article 13); (4) impair the rights of Lender to (A) obtain the appointment of a receiver and/or (B) enforce its rights and remedies provided in Articles 8 and 9 hereof; (5) impair the enforcement of the assignment of leases and rents contained in the Security Instrument and in any other Loan Documents; (6) impair the right of Lender to enforce Section 4.12(e) of this Agreement; (7) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted by the Security Instrument or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against the PropertyProperty (or any portion thereof); or (8) constitute a waiver of the right of Lender to enforce the liability and obligation of Borrower, by money judgment or otherwise, to the extent of any Loss 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 any Borrower Party in connection with the Loan;
(ii) the gross negligence or willful misconduct of any Borrower Party;
(iii) any litigation or other legal proceeding related to the Debt filed by any Borrower Party or any other action of any Borrower Party exercised in bad faith 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 other Loan Documents;
(iv) waste to the Property caused by the intentional acts or intentional omissions of any Borrower Party and/or the removal or disposal of any portion of the Property by (or on behalf of) any Borrower Party after an Event of Default;
(v) the misapplication, misappropriation or conversion by any Borrower Party of (A) any insurance proceeds paid by reason of any loss, damage or destruction to the PropertyProperty (or any portion thereof), (B) any Awards or other amounts received in connection with the Condemnation of all or a portion of the Property, (C) any Rents following an Event of Default or Default, (D) any Tenant security deposits or Rents collected in advanceadvance or (E) any other monetary collateral for the Loan (including, without limitation, any Reserve Funds and/or any portion thereof disbursed to (or at the direction of) Borrower);
(vi) any act of arson by any Borrower Party or of which any Borrower Party has knowledge;
(vii) failure to pay Taxes, charges for labor or materials or other charges that can create liens on any portion of the Property in accordance with the terms and provisions hereofhereof , in each case, to the extent there existed sufficient cash flow from the Property to do so (provided, however, that there shall be no personal liability under this subsection (vi) solely for the failure to pay Taxes if (A) sufficient sums had been reserved hereunder for the express purpose of paying the Taxes in question and Lender failed to pay same, (B) Lender’s access to such sums was not restricted or constrained in any manner and (C) no Event of Default was continuing);
(viiivii) failure to pay Insurance Premiums, to maintain the Policies in full force and effect and/or to provide Lender evidence of the same, in each case, as expressly provided hereinherein (provided, however, that there shall be no personal liability under this subsection (vii) for the aforementioned failures to the extent that, in each case, (A) each applicable failure is itself a failure to pay Insurance Premiums or is solely as a result of a failure to pay Insurance Premiums and (B)(1) there existed insufficient cash flow from the Property to pay Insurance Premiums or (2)(I) sufficient sums had been reserved hereunder for the express purpose of paying the Insurance Premiums in question and Lender failed to pay same, (II) Lender’s access to such sums was not restricted or constrained in any manner and (III) no Event of Default was continuing);
(ixviii) any security deposits, advance deposits or any other deposits collected with respect to the Property which are not delivered to Lender upon a foreclosure of the 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;
(xix) any tax on the making and/or recording of the Security Instrument, the Note or any of the other Loan Documents or any transfer or similar taxes (whether due upon the making of the same or upon Lender’s exercise of its remedies under the Loan Documents), but excluding any income, franchise or other similar taxes;
(xix) the seizure or forfeiture of the Property, or any portion thereof, or Borrower’s interest therein, resulting from criminal wrongdoing by any Borrower Party;
(xiixi) the failure to make any Condemnation REMIC Payment and/or any Balancing True Up Payment, to permit on-site inspections of the Property (or any portion thereof) and/or to provide the Required Financial Items, in each case, as and when required herein;
(xii) any violation or breach of the Property Document Provisions and/or any Property Document Event;
(xiii) Intentionally Omittedthe failure to purchase or replace (as applicable) any Interest Rate Cap Agreement or Replacement Interest Rate Cap Agreement (as applicable), in each case, as and when required by the terms hereof;
(xiv) the failure to make repairs, renewals or replacements (including, without limitation, structural and nonstructural, exterior and interior, ordinary and extraordinary, foreseen and unforeseen) to the Property or any portion thereof (including, without limitation, the Improvements now or at any time hereafter erected on the Property) as and when required pursuant to the terms of the Loan Documents or as and when necessary to maintain the Property in good and safe condition, in a rentable and tenantable state of repair and/or in the condition required pursuant to the terms of the Loan Documents; and/or
(xv) any indemnity obligations of Lender to Bank under the Restricted Account Agreement;
(xv) the failure of Borrower to appoint a New Manager upon the request of Lender and/or the failure of Borrower to comply with any limitations on instructing the Manager, each as required by and in accordance with, as applicable, the terms and provisions of, this Agreement, the Assignment of Management Agreement and the Security Instrument;
(xvi) any violation or breach of any representation, warranty or covenant contained in Article 5 hereof;
(xvii) any exercise of the Restricted Account Change Right;
(xviii) any failure to (a) obtain, maintain, and/or have in place a current certificate of occupancy at the Property that complies with all Legal Requirements, (b) update any certificate of occupancy or obtain any new certificate of occupancy at any time as required by Legal Requirements, and/or (c) to operate the Property in a manner consistent with the certificate of occupancy that is in place at the Property (including, without limitation, any failure to operate the Property in accordance with the specified uses listed on the then current certificate of occupancy).
(xix) any violation or breach of the Cash Management Provisions; and/or (xx) any claims to divest, subordinate or extinguish the lien of the Security Instrument (including, without limitation, any such claims resulting from any breach or other than those arising as a direct result failure to comply with Section 22 of Lender’s gross negligence or willful misconductthe New York Lien Law).
(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 Debt or to require that all collateral shall continue to secure all of the Debt owing to Lender in accordance with the Loan Documents, and (B) the Debt shall be fully recourse to Borrower (I) in the event that: (i) the first full monthly payment of principal and interest under the Note is not paid when due; (ii) Borrower fails to comply with any provisions hereof relating to cash management or fails to appoint a new property manager upon the request of Lender, fails to cooperate with any New Manager or fails to comply with any limitations on instructing the property manager, each as required by and in accordance with, as applicable, the terms and provisions of, this Agreement, the Assignment of Management Agreement and the Security Instrument; (iii) any representation, warranty or covenant contained in Article 5 or Article 6 hereof is violated or breached; breached (ivprovided, that, with respect to any such violation or breach of Article 5 hereof, such violation or breach is evidenced by a court, in a proceeding with respect to Creditors Rights Laws involving any one or more Constituent Owner(s) of Borrower and/or SPE Component Entity (any such Person, a “Bankrupt Person”), ordering the substantive consolidation of the assets and liabilities of Borrower and/or SPE Component Entity with the assets and liabilities of any Bankrupt Person on the basis of, among other things, such violation or breach) or (ii) a Bankruptcy Event occurs; and (II) all events (without limitation of the foregoing) in the Recourse Amount (provided, that, (A) the recourse liability under this subsection (II) shall not exceed an amount equal to the Stipulated Recourse Amount and (B) notwithstanding anything to the contrary contained herein or (v) Sections 11.1 or 11.6 hereof are violated or breached in any material respectother Loan Document, no portion of the sums applied or deemed applied (by the terms hereof, under applicable Legal Requirements or otherwise), from time to time, in reduction of the Debt from any source shall be deemed to have been applied to reduce Borrower’s recourse liability under this subsection (II) until such time as the entire outstanding amount of the Debt shall have been indefeasibly reduced (by cash payment actually received by Lender) to an amount equal to the Recourse Amount). For purposes of clarification and for the avoidance of doubt, the recourse carveouts in Section 13.1(a) above and this Section 13.1(b) shall not be deemed to be mutually exclusive or otherwise limit one another; without limiting the foregoing, if a particular event, condition, circumstance or occurrence would trigger recourse liability both under Section 13.1(a) above and this Section 13.1(b), recourse liability shall apply under all of such Sections (as and to the extent provided in such Sections).
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 or its constituent members, partners, shareholders, directors, employees or agents or the direct or indirect constituent members, partners, shareholders, directors, employees or agents thereof (collectively, the “Borrower Parties”) or any other Person, to perform and observe the obligations contained in the Note, this Agreement, the Security Instrument Note or any of the other Loan Documents by any action or proceeding wherein a money judgment or any deficiency judgment or other judgment establishing personal liability shall be sought against Borrower or any principal, director, officer, employee, beneficiary, shareholder, partner, member, trustee, agent, or Affiliate of Borrower or any legal representatives, successors or assigns of any of the foregoing (collectively, the “Exculpated Parties”)Borrower Parties or any other Person, except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender to enforce and realize upon its interest under the Note, this Agreement, the Security Instrument and the other Loan Documents, or in the Property, the Rents, all or any other collateral given to Lender pursuant to portion of the Loan DocumentsCollateral; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against the Borrower Parties only to the extent of Borrower’s their interest in the Property, in the Rents and in any other collateral given to LenderCollateral, and Lender, by accepting the Note, this Agreement, the Security Instrument Note and the other Loan Documents, agrees that it shall not xxx for, seek or demand any deficiency judgment against Borrower or any of the Exculpated Borrower Parties or any other Person in any such action or proceeding under or by reason of or under or in connection with the Note, this Agreement, the Security Instrument Note or any of the other Loan Documents. The provisions of this Section paragraph shall not, however, (1i) constitute a waiver, release or impairment of any obligation evidenced or secured by this Agreement, the Note or any of the other Loan Documents; (2ii) impair the right of Lender to name any of the Borrower Parties, as a party defendant in any action or suit for foreclosure and sale in connection with exercising its remedies under the Security InstrumentDocuments and the Pledged Securities; (3iii) affect the validity or enforceability of any indemnity, guaranty or similar instrument (including, without limitation, indemnities set forth in Article 12 hereof, Section 11.2 hereof, in the Guaranty and the Environmental Indemnity) made in connection with the Loan or any of the rights and remedies of Lender thereunder (including, without limitation, Lender’s right to enforce said rights and remedies against Borrower and/or Guarantor (as applicable) personally and without the effect of the exculpatory provisions of this Article 13)thereunder; (4) impair the rights of Lender to (A) obtain the appointment of a receiver and/or (B) enforce its rights and remedies provided in Articles 8 and 9 hereof; (5) impair the enforcement of the assignment of leases and rents contained in the Security Instrument and in any other Loan Documents; (6iv) impair the right of Lender to enforce Section 4.12(e) obtain the appointment of this Agreement; (7) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted by the Security Instrument or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against the Propertyreceiver; or (8) v) constitute a waiver of the right of Lender to enforce the liability and obligation of BorrowerBorrower (but not against any members of Borrower (other than Guarantor to the extent provided in the Non-Recourse Guaranty) or their direct or indirect constituent members or partners or any other Person), by money judgment or otherwise, to the extent of any Loss loss, damage, cost, expense, liability, claim or other obligation (but excluding any punitive, consequential or speculative damages) incurred by Lender (including attorneys’ fees and costs reasonably incurred) arising out of or in connection with the following:
(ia) fraud or intentional misrepresentation by any Borrower Party Borrower, Senior Mezzanine Loan Borrower, Owner or Guarantor in connection with the Loan;
(iib) intentional physical waste of the Property (including, but not limited to, waste due to gross negligence negligence) by Borrower, Senior Mezzanine Loan Borrower, Owner or willful misconduct any affiliate thereof; provided, however, such physical waste shall exclude wear and tear to the Property that occurs in the ordinary course of business of the Property by Borrower, Senior Mezzanine Loan Borrower, Owner or any Borrower Partyaffiliate thereof;
(iiic) the material breach of any litigation representation, warranty, covenant or other legal proceeding related to the Debt filed by any Borrower Party 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 indemnification provision in the other Loan DocumentsEnvironmental Indemnity or in this Agreement concerning Environmental Laws, Hazardous Substances or Asbestos;
(ivd) waste to the Property caused by the intentional acts or intentional omissions of any Borrower Party and/or the removal or disposal by Borrower, Senior Mezzanine Loan Borrower, Owner or any affiliate thereof of any portion of the Property after an Event of DefaultDefault has occurred and while it is continuing, unless such portion of the Property is replaced by an item of equal or greater value as determined by Lender in its reasonable discretion;
(ve) the misapplication, misappropriation misapplication or conversion by Borrower, Senior Mezzanine Loan Borrower, Owner or any Borrower Party affiliate thereof of (Ai) any insurance proceeds paid by reason of any loss, damage or destruction to the Property, (Bii) any Awards awards or other amounts received in connection with the Condemnation condemnation of all or a portion of the Property, (Ciii) any Rents following an Event of Default or (Div) any Tenant security deposits or Rents collected paid more than one (1) month in advance;
(vi) any act of arson by any Borrower Party or of which any Borrower Party has knowledge;
(viif) failure to pay Taxes, charges for labor or materials or taxes or other charges that can create liens superior to the lien of the Mortgage on any portion of the Property unless such taxes or other charges are being contested in accordance with the Senior Loan Documents or in accordance with the terms and provisions herewith or such taxes or charges have been delivered to Senior Lender in accordance with the terms of the Senior Loan Documents or Borrower has complied with Section 5.2 hereof;
(viii) failure to pay Insurance Premiums, to maintain the Policies in full force and effect and/or to provide Lender evidence of the same, in each case, as expressly provided herein;
(ixg) any security depositsdeposits collected by Borrower, advance deposits Senior Mezzanine Loan Borrower, Owner or any other deposits collected affiliate thereof with respect to the Property which are not delivered to Lender (subject to the rights of Senior Lender) upon a foreclosure of the 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;
(x) any tax on the making and/or recording of the Security Instrument, the Note or any of the other Loan Documents or any transfer or similar taxes (whether due upon the making of the same or upon Lender’s exercise of its remedies under the Loan Documents), but excluding any income, franchise or other similar taxes;
(xi) the seizure or forfeiture of the Property, or any portion thereof, or Borrower’s interest therein, resulting from criminal wrongdoing by any Borrower Party;
(xiih) the failure by Borrower to make any Condemnation Payment and/or any Balancing Paymentcause Senior Mezzanine Loan Borrower to cause Owner to deposit with Senior Lender all Rents, to permit on-site inspections as required under Article 3 of the Property and/or to provide the Required Financial Items, in each case, as and when required hereinSenior Loan Agreement;
(xiii) Intentionally Omitted;
(xiv) the failure to make repairs, renewals or replacements (including, without limitation, structural and nonstructural, exterior and interior, ordinary and extraordinary, foreseen and unforeseen) to the Property or any portion thereof (including, without limitation, the Improvements now or at any time hereafter erected on the Property) as and when required pursuant to the terms of the Loan Documents or as and when necessary to maintain the Property in good and safe condition, in a rentable and tenantable state of repair and/or in the condition required pursuant to the terms of the Loan Documents; and/or
(xv) any indemnity obligations of Lender to Bank under the Restricted Account Agreement (other than those arising as a direct result of Lender’s gross negligence or willful misconduct).
(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 Debt or to require that all collateral shall continue to secure all of the 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 failure by Borrower to cause Senior Mezzanine Loan Borrower to cause Owner to use any funds released by Senior Lender from any subaccount provided for in the Senior Loan Agreement for the intended use therefor in default of principal the requirements of the Senior Loan Agreement; or
(j) any cost or expense incurred by Lender in connection with the enforcement of its rights and interest under the Note remedies hereunder or any other Loan Document.
(1) if any petition for bankruptcy, reorganization or arrangement pursuant to federal bankruptcy law, or any similar federal or state law, shall be filed by Owner, Senior Mezzanine Loan Borrower, Borrower or Guarantor, or (2) if Owner, Senior Mezzanine Loan Borrower, Borrower or Guarantor files an answer consenting to, or otherwise joining in, any involuntary petition for bankruptcy, reorganization or arrangement pursuant to federal bankruptcy law, or any similar federal or state law filed against it by any other Person, or is not paid when duefound pursuant to a final, unappealable order of a court of competent jurisdiction to have solicited or caused to be solicited creditors to file any involuntary petition for bankruptcy, reorganization or arrangement pursuant to federal bankruptcy law, or any similar federal or state law against Owner, Senior Mezzanine Loan Borrower, Borrower or Guarantor, or (3) if Owner, Senior Mezzanine Loan Borrower, Borrower or Guarantor are found, pursuant to a final unappealable order of a court of competent jurisdiction, to have been in collusion with creditors that initiate a bankruptcy action or proceeding against Owner, Senior Mezzanine Loan Borrower, Borrower or Guarantor; (iiF) an Event of Default described in Section 8.1(s) hereof shall have occurred or (G) if Guarantor, Borrower fails to comply or any Affiliate of any of the foregoing, in connection with any provisions hereof relating to cash management enforcement action or fails to appoint exercise or assertion of any right or remedy by or on behalf of Lender under or in connection with the Note, the Pledge or any other Loan Document, seeks a new property manager upon the request defense, judicial intervention or injunctive or other equitable relief of Lender, fails to cooperate 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 New Manager or fails to comply with any limitations on instructing security for the property manager, each as required by and in accordance with, as applicable, Loan which the terms and provisions of, this Agreement, the Assignment of Management Agreement and the Security Instrument; (iii) any representation, warranty or covenant contained in Article 5 or Article 6 hereof is violated or breached; (iv) a Bankruptcy Event occurs; or (v) Sections 11.1 or 11.6 hereof are violated or breached court in any material respectsuch action or proceeding, determines that Borrower’s defense is without merit, or such request for judicial intervention or injunctive or other equitable relief is unwarranted.
Appears in 1 contract
Samples: Junior Mezzanine Loan Agreement (Maguire Properties Inc)
Exculpation. (a) Subject to Except as otherwise provided herein or in the qualifications belowother Loan Documents, Lender shall not enforce the liability and obligation of Borrower or Borrower Principal, as applicable, to perform and observe the obligations contained herein or in the Note, this Agreement, the Security Instrument or the other Loan Documents by any action or proceeding wherein a money judgment or any deficiency judgment or other judgment establishing personal liability shall be sought against Borrower or any principal, director, officer, employee, beneficiary, shareholder, partner, member, trustee, agent, or Affiliate of Borrower or any legal representatives, successors or assigns of any of the foregoing (collectively, the “Exculpated Parties”)Principal, except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender to enforce and realize upon its interest under the Note, this Agreement, the Security Instrument Note, the Mortgages and the other Loan Documents, or and the interest in the PropertyProperties, the Rents, or Rents and any other collateral given to Lender pursuant to created by this Agreement, the Note, the Mortgages and the other Loan Documents; provided, however, that, except as specifically provided herein, that any judgment in any such action or proceeding shall be enforceable against Borrower or Borrower Principal, as applicable, only to the extent of Borrower’s or Borrower Principal’s interest in the PropertyProperties, in the Rents and in any other collateral given to Lender, and . Lender, by accepting the Note, this Agreement, the Security Instrument Note, the Mortgages and the other Loan Documents, agrees that it shall not not, except as otherwise provided in this Section 15.1, xxx for, seek or demand any deficiency judgment against Borrower or any of the Exculpated Parties Borrower Principal in any such action or proceeding proceeding, under or by reason of or under or in connection with the Note, this Agreement, the Security Instrument Note, the Mortgages or the other Loan Documents. The provisions of this Section 15.1 shall not, however, (1i) constitute a waiver, release or impairment of any obligation evidenced or secured by any of this Agreement, the Note, the Mortgages or the other Loan Documents; (2ii) 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 Security InstrumentMortgages; (3iii) affect the validity or enforceability of any indemnity, guaranty or similar instrument indemnity (including, without limitation, indemnities set forth those contained in Article 12 hereofSection 12.6, Section 11.2 hereof13.5 and Article 14 of this Agreement), in the Guaranty and the Environmental Indemnity) made in connection with the Loan or any of the rights and remedies of Lender thereunder guaranty (including, without limitation, Lender’s right to enforce said rights the Maryland Guaranty), master lease or similar instrument made in connection with this Agreement, the Note, the Mortgages and remedies against Borrower and/or Guarantor (as applicable) personally and without the effect of the exculpatory provisions of this Article 13)other Loan Documents; (4iv) impair the rights right of Lender to (A) obtain the appointment of a receiver and/or (B) enforce its rights and remedies provided in Articles 8 and 9 hereofreceiver; (5v) impair the enforcement of the assignment of leases and rents provisions contained in the Security Instrument and in any other Loan DocumentsMortgages; or (6vi) impair the right of Lender to enforce Section 4.12(e) of obtain a deficiency judgment or other 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; (7) constitute a prohibition against provided however, Lender to seek a deficiency shall only enforce such judgment against Borrower in order to fully realize the security granted by the Security Instrument or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against the Property; or (8) constitute a waiver of the right of Lender to enforce the liability and obligation of Borrower, by money judgment or otherwise, to the extent of any Loss incurred by the Insurance Proceeds and/or Awards.
(b) Notwithstanding the provisions of this Section 15.1 to the contrary, 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, Borrower Principal or any other Affiliate of Borrower Party or Borrower Principal in connection with the execution and the delivery of this Agreement, the Note, the Mortgages, 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 or during the term of the Loan;
(ii) Borrower’s misapplication or misappropriation of Rents received by Borrower after the gross negligence or willful misconduct occurrence of any Borrower Party;
(iii) any litigation or other legal proceeding related to the Debt filed by any Borrower Party 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 other Loan Documents;
(iv) waste to the Property caused by the intentional acts or intentional omissions of any Borrower Party and/or the removal or disposal of any portion of the Property after an Event of Default;
(viii) the misapplication, Borrower’s misapplication or misappropriation or conversion by any Borrower Party 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 Rents following an Event of Default or (D) any Tenant tenant security deposits or Rents collected in advance;
(viiv) any act the misapplication or the misappropriation of arson by any Borrower Party Insurance Proceeds or of which any Borrower Party has knowledgeAwards;
(viiv) Borrower’s failure to pay Taxes, Other Charges (except (a) 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 or (b) to the extent the Net Operating Income of each respective Property encumbered by a Mortgage was insufficient to permit payment of the same by Borrower), charges for labor or materials or other charges that can create liens on the Property beyond any portion applicable notice and cure periods specified herein;
(vi) Borrower’s failure to return or to reimburse Lender for all Personal Property taken from the Properties by or on behalf of Borrower and not replaced with Personal Property of the Property in accordance with same utility and of the terms and provisions hereofsame or greater value;
(vii) any act of actual waste or arson by Borrower, any principal, Affiliate, member or general partner thereof or by Borrower Principal, any principal, Affiliate, member or general partner thereof;
(viii) Borrower’s failure following any Event of Default to pay Insurance Premiums, deliver to maintain Lender upon demand all Rents and books and records relating to the Policies in full force and effect and/or to provide Lender evidence of the same, in each case, as expressly provided hereinProperties;
(ix) any security deposits, advance deposits or any other deposits collected with respect to the Property which are not delivered to Lender upon a foreclosure of the 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;
(x) any tax on the making and/or recording of the Security Instrument, the Note or any of the other Loan Documents or any transfer or similar taxes (whether due upon the making of the same or upon Lender’s exercise of its remedies under the Loan Documents), but excluding any income, franchise or other similar taxes;
(xi) the seizure or forfeiture of the Property, or any portion thereof, or Borrower’s interest therein, resulting from criminal wrongdoing by any Borrower Party;
(xii) the failure to make any Condemnation Payment and/or any Balancing Payment, to permit on-site inspections of the Property and/or to provide the Required Financial Items, in each case, as and when required herein;
(xiii) Intentionally Omitted;
(xiv) the failure to make repairs, renewals or replacements (including, without limitation, structural and nonstructural, exterior and interior, ordinary and extraordinary, foreseen and unforeseen) to the Property or any portion thereof (including, without limitation, the Improvements now or at any time hereafter erected on the Property) as and when required pursuant to the terms of the Loan Documents or as and when necessary to maintain the Property in good and safe condition, in a rentable and tenantable state of repair and/or in the condition required pursuant to the terms of the Loan Documents; and/or
(xv) any indemnity obligations of Lender to Bank under the Restricted Account Agreement (other than those arising as a direct result of Lender’s gross negligence or willful misconduct);
(x) the payment of any recording taxes, mortgage taxes or documentary stamp taxes or other charges required in connection with any Mortgage or the other Loan Documents, whenever due, together with any fines, interest, penalties or similar charges resulting from the non-payment thereof; or
(xi) the Ground Lease being modified, cancelled or terminated by Borrower without the prior written consent of Lender.
(bc) Notwithstanding anything to the contrary in this Agreementforegoing, the Note or 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 and the Debt shall become fully recourse to Borrower and Borrower Principal, jointly and severally, in the event (i) of a breach of any of the Loan Documentsprovisions set forth in Article 6, except the extent that such breach was inadvertent, immaterial and is promptly cured, (ii) of a breach of any of the covenants set forth in Article 7 hereof, (iii) any Individual Property or any part thereof shall become an asset in (A) Lender 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 which Borrower, Borrower Principal, SPE Component Entity or any Affiliate of any of the foregoing has or have colluded in any way with the creditors commencing or filing such proceeding or (iv) if Borrower or any Affiliate of Borrower wrongfully interferes in any way with Lender’s pursuit of the remedies set forth in the Loan Documents following an Event of Default.
(d) Nothing herein shall not be deemed to have waived be a waiver of 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 Debt indebtedness secured by the Mortgages or to require that all collateral shall continue to secure all of the Debt indebtedness owing to Lender in accordance with the Loan Documents, and (B) the Debt shall be fully recourse to Borrower in the event that: (i) the first full monthly payment of principal and interest under the Note is not paid when due; (ii) Borrower fails to comply with any provisions hereof relating to cash management or fails to appoint a new property manager upon the request of Lender, fails to cooperate with any New Manager or fails to comply with any limitations on instructing the property manager, each as required by and in accordance with, as applicable, the terms and provisions of, this Agreement, the Assignment of Management Agreement and Note, the Security Instrument; (iii) any representation, warranty Mortgages or covenant contained in Article 5 or Article 6 hereof is violated or breached; (iv) a Bankruptcy Event occurs; or (v) Sections 11.1 or 11.6 hereof are violated or breached in any material respectthe other Loan Documents.
Appears in 1 contract
Samples: Loan Agreement (Capital Lodging)
Exculpation. (a) Subject to the qualifications below, Lender shall not enforce the liability and obligation of Borrower to perform and observe the obligations contained in the Note, this Agreement, the Security Instrument or the other Loan Documents by any action or proceeding wherein a money judgment or any deficiency judgment or other judgment establishing personal liability shall be sought against Borrower, any other Borrower Party or any principal, director, officer, employee, beneficiary, shareholder, partner, member, trustee, agent, or Affiliate of Borrower, any other Borrower Party or any legal representatives, successors or assigns of any of the foregoing (collectively, the “Exculpated Parties”), except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender to enforce and realize upon its interest under the Note, this Agreement, the Security Instrument and the other Loan Documents, or in the PropertyProperty (or any portion thereof), the Collateral, the Rents, or any other collateral given to Lender pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower and any other Borrower Party only to the extent of Borrower’s and any other Borrower Party’ s interest in the Property, in the Collateral, in the Rents and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Security Instrument and the other Loan Documents, shall not xxx sue for, seek or demand any deficiency judgment against Borrower, any other Borrower Party or any of the Exculpated Parties in any such action or proceeding under or by reason of or under or in connection with the Note, this Agreement, the Security Instrument or the other Loan Documents. The provisions of this Section shall not, however, (1) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (2) impair the right of Lender to name Borrower or any other Borrower Party as a party defendant in any action or suit for foreclosure and sale under the Security Instrument; (3) affect the validity or enforceability of any indemnity, guaranty or similar instrument (includingincluding , without limitationlimitation , indemnities set forth in Article 12 hereof, Section 11.2 hereof, in the Guaranty Environmental Indemnity and in the Environmental IndemnityGuaranty) made in connection with the Loan or any of the rights and remedies of Lender thereunder (includingincluding , without limitation, LenderXxxxxx’s right to enforce said rights and remedies against Borrower and/or Guarantor (as applicable) Xxxxxxxx personally and without the effect of the exculpatory provisions of this Article 13); (4) impair the rights of Lender to (A) obtain the appointment of a receiver and/or (B) enforce its rights and remedies provided in Articles 8 and 9 2. hereof; (5) impair the enforcement of the assignment of leases and rents contained in the Security Instrument and in any other Loan Documents; (6) impair the right of Lender to enforce Section 4.12(e) of this Agreement; (7) constitute a prohibition against Lender to seek a deficiency judgment against Borrower or any other Borrower Party in order to fully realize the security granted by the Security Instrument or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against the PropertyCollateral or the Property (or any portion thereof); or (8) constitute a waiver of the right of Lender to enforce the liability and obligation of Borrower, by money judgment or otherwise, to the extent of any Loss incurred by Lender Xxxxxx (including attorneys’ fees and costs reasonably incurred) arising out of or in connection with the following:
(i) fraud or intentional material misrepresentation by any Borrower Party or any of their respective Affiliates in connection with the Loan;
(ii) the gross negligence or willful misconduct of any Borrower PartyParty or any of their respective Affiliates in connection with the Loan or any Individual Property;
(iii) any litigation or other legal proceeding related to the Debt filed by in which any Borrower Party or their respective Affiliates files or raises a defense that delays, opposes, impedes, obstructs, hinders, enjoins or otherwise intentionally interferes with or frustrates the efforts of Lender to exercise Xxxxxx exercising any rights and remedies available to Lender as provided herein in under this Agreement and in the other Loan DocumentsDocuments only to the extent a court of competent jurisdiction, in a final non-appealable decision, finds the applicable defenses were not raised in good faith by Borrower;
(iv) intentional physical waste to the any Individual Property caused by the intentional acts or intentional omissions by any Borrower Party or any of their respective Affiliates (provided that the foregoing is not the result of the insufficiency of cash flow from the Properties to prevent such intentional omissions, and if there is any insufficiency of cash flow, such insufficiency is not a result of misappropriation of Rents by any Borrower Party and/or the removal or disposal of any portion of the Property property by any Borrower Party or any of their respective Affiliates after an Event event of Defaultdefault other than in the ordinary course of owning and managing the Properties or otherwise in violation of this Agreement and the other Loan Documents);
(v) the misapplication, misappropriation or conversion by any Borrower Party or any of their respective Affiliates of (A) any insurance proceeds paid by reason of any loss, damage or destruction with respect to the PropertyProperties, (B) any Awards or other amounts received in connection with the any Condemnation of all or a any portion of the any Individual Property, or (C) any Rents following an Event (provided that, in each case there shall be no liability under this subsection to the extent that the turnover of Default such funds is prohibited by any applicable law or (D) any Tenant security deposits or Rents collected in advancecourt order);
(vi) any act of arson by any Borrower Party or of which any Borrower Party has knowledge;
(vii) Borrower’s failure to pay Taxes, charges for labor (or materials cause to be paid) real property taxes or other charges due in connection with the Properties that can create results in liens on any portion of the any Individual Property in accordance with the terms and provisions hereofof this Agreement and the other Loan Documents (other than if such failure is caused by the acts of a Tenant) to the extent that (i) any such liens are not bonded over or discharged in accordance with this Agreement and the other Loan Documents and (ii) the Properties generated sufficient revenue in the immediately preceding six (6) month period to pay the same and Borrower failed to apply such revenue to such real property taxes or other charges, unless such charges are the subject of a bona fide dispute in which Borrower is contesting the amount or validity thereof in accordance with the terms of this Agreement and the other Loan Documents (provided, however, that there shall be no personal liability under this subsection solely for the failure to pay real property taxes if sufficient sums had been reserved hereunder for the express purpose of paying the real property taxes or charges in question and Xxxxxx failed to pay same and Xxxxxx’s access to such sums was not restricted as a result of any action, inaction or omission by any Borrower Party or any Affiliate thereof);
(viiivii) Borrower’s failure to pay Insurance PremiumsPremiums or the amount of any deductible following a Casualty, Condemnation or other insurance claim, to maintain the Policies in full force and effect and/or to provide Lender evidence of the sameeffect, in each case, as expressly provided hereinherein (provided, however, that there shall be no personal liability under this subsection for the aforementioned failures to the extent that, in each case, (A) the Properties generated insufficient revenue in the immediately preceding six (6) month period to pay the Insurance Premiums in question or (B) sufficient sums had been reserved hereunder for the express purpose of paying the Insurance Premiums in question and Lender failed to pay same and Xxxxxx’s access to such sums was not restricted as a result of any action, inaction or omission by any Borrower Party or any Affiliate thereof);
(ixviii) any security deposits, advance deposits or any other deposits collected by any Borrower Party or any of their respective Affiliates in connection with respect to the Property Properties which are not delivered to Lender upon request upon a foreclosure of the 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 thereofthereof except to the extent such amounts have been previously applied by Borrower in accordance with this Agreement and the other Loan Documents, the existing leases or in accordance with a court order (provided that, in each case there shall be no liability under this subsection to the extent that the failure to tum over such funds is prohibited by any applicable law or court order);
(x) any tax on the making and/or recording of the Security Instrument, the Note or any of the other Loan Documents or any transfer or similar taxes (whether due upon the making of the same or upon Lender’s exercise of its remedies under the Loan Documents), but excluding any income, franchise or other similar taxes;
(xiix) the seizure or forfeiture of the Property, or any portion thereof, or Borrower’s interest therein, Individual Property resulting from criminal wrongdoing by any Borrower PartyParty or (y) any of their respective Affiliates;
(x) breach or violation by any Borrower Party or any of their respective Affiliates of any of the material terms of Sections 11.2(d) of this Agreement;
(xi) any liability or obligation pursuant to any purchase and sale agreement entered into by a Borrower for the sale by Borrower of a Previously-Owned Property or any other liability or obligation otherwise related to a Previously-Owned Property;
(xii) the failure to make any Condemnation Payment and/or any Balancing Payment, to permit on-site inspections comply with the terms and provisions of the Property and/or to provide the Required Financial Items, in each case, as and when required hereinArticle 15 hereof;
(xiii) Intentionally OmittedBorrower’s failure to pay all Ground Rent prior to the same becoming delinquent (provided that Borrower shall not have liability pursuant to this clause (xiii) to the extent that sufficient amounts have been deposited with Lender to specifically to pay the same, Borrower has complied with all disbursement obligations with respect thereto, and Lender fails to pay the same, unless such failure is due to Xxxxxx’s access to such funds being restricted as a result of any action, inaction or omission by any Borrower Party or any Affiliate thereof);
(xiv) any amendment or modification of the Ground Lease in violation of the terms hereof or any cancellation, expiration or termination (for any reason whatsoever) of the Ground Lease, or the surrender of the leasehold estate thereunder in violation of the terms hereof;
(xv) Borrower’s failure to make repairs, renewals or replacements pay all Condominium Charges prior to the same becoming delinquent (including, without limitation, structural and nonstructural, exterior and interior, ordinary and extraordinary, foreseen and unforeseenprovided that Borrower shall not have liability pursuant to this clause (xv) to the extent that sufficient amounts have been deposited with Lender to specifically to pay the same, Borrower has complied with all disbursement obligations with respect thereto, and Lender fails to pay the same, unless such failure is due to Xxxxxx’s access to such funds being restricted as a result of any action, inaction or omission by any Borrower Party or any Affiliate thereof);
(xvi) any amendment or modification of the Condominium Documents in violation of the terms hereof or any cancellation, expiration or termination (for any reason whatsoever) of the Condominium Documents in violation of the terms hereof;
(xvii) without limiting Section 13.l(b)(B)(ii) below, any voluntary debt, lien or transfer of any Individual Property or any portion thereof (including, without limitation, the Improvements now or at any time hereafter erected on the Property) as and when required pursuant to the terms Collateral in violation of the Loan Documents or as and when necessary to maintain the Property (other than liens being contested in good faith in accordance with the terms and safe conditionprovisions of this Agreement);
(xviii) without limiting Section 13.l(b)(B)(i) below, any breach or violation by Borrower and/or any SPE Component Entity of Article 5 hereof, other than immaterial breaches which are promptly cured by Borrower;
(xix) any breach or violation by Borrower of Section 8.1(d) and/or Section 15.2(c)(ii) hereof;
(xx) any breach or violation by Borrower of Section 4.29 hereof;
(xxi) any breach or violation by Borrower of Section 4.30 hereof; provided, however, Lender shall not be required to prove Losses in connection with this clause (xxi) and the Losses of Lender with respect to this clause (xxi) shall be deemed to be an amount equal to the sum of (1) 125% of the Allocated Loan Amount for the related Individual Property, plus (2) if the Debt Yield with respect to all Properties other than the related Individual Property is less than the Debt Yield with respect to all Properties including the related Individual Property, the amount which, if applied to the prepayment of the Debt, would result in a rentable Debt Yield with respect to all Properties other than the related Individual Property which is at least the greater of (x) 13.0% and tenantable state (y) the Debt Yield with respect to all Properties including the related Individual Property, plus (3) if prior to the Spread Maintenance End Date, the Spread Maintenance Premium which would be applicable to a prepayment of repair and/or the Debt in the condition amount of the sum of the foregoing clauses (1) and (2);
(xxii) any shortfall in insurance proceeds payable to or on behalf of Borrower or Lender with respect to any property-related (including terrorism) insurance policy pertaining to the common elements relating to the Individual Property known as The Blocks;
(xxiii) any shortfall in insurance proceeds payable to or on behalf of Borrower or Lender with respect to any act of terrorism which is not covered by the liability insurance policy pertaining to the common elements relating to the Individual Property known as The Blocks;
(xxiv) any shortfall in insurance proceeds payable to or on behalf of Borrower or Lender with respect to any riot, riot attending a strike, civil commotion and/or vandalism affecting any Individual Property which is not covered by the Policy required to be maintained by Borrower pursuant to the terms Section 7.1(a)(i) hereof;
(xxv) any purchase option of the Loan Documentsany Tenant under any Lease; and/or
(xvxxvi) with respect to the Ground Lease relating to the Individual Property known as Flatacres Marketcenter, Borrower’s acquisition of the fee interest in the premises demised under such Ground Lease and/or the subordination of such Ground Lease to any indemnity obligations of Lender to Bank under the Restricted Account Agreement (mortgage other than those arising as a direct result of Lender’s gross negligence or willful misconduct)the Security Instrument.
(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(b111l(b) or any other provisions of the Bankruptcy Code to file a claim for the full amount of the Debt or to require that all collateral shall continue to secure all of the Debt owing to Lender in accordance with the Loan Documents, and (B) the Debt shall be fully recourse to Borrower in the event thatof: (i) any breach or violation by Borrower or any SPE Component Entity of Article 5 hereof, as a result of which, a court orders the first full monthly payment substantive consolidation of principal Borrower or any SPE Component Entity with one or more constituent owner(s) of Borrower and/or SPE Component Entity (any such person or entity, a “Bankrupt Person”) and interest under which court cites such breach or violation as a material factor in ordering the Note is not paid when duesubstantive consolidation of the assets and liabilities of Borrower and/or SPE Component Entity with the assets and liabilities of the Bankrupt Person; (ii) Borrower fails any violation or breach of Article 6 hereof caused by (1) any voluntary transfer of the Collateral or fee simple title to comply all or any portion of the Property (other than with Lender’s prior written consent or as expressly permitted by this Agreement or the other Loan Documents) or (2) any provisions hereof relating to cash management sale or fails to appoint pledge of the ownership interests in any Restricted Party in violation of the terms of the Loan Documents, which, in the case of any sale or pledge described in this clause (2) remains uncured for a new property manager upon period of ten (10) days following Borrower’s obtaining knowledge of such violation (or Borrower’s receipt of notice from Lender of such violation); (iii) a Bankruptcy Event with occurs, or (iv) the request incurrence of Lenderany voluntary debt secured by all or any portion of any Individual Property or other Collateral or any direct or indirect interests in Borrower, fails to cooperate with any New Manager or fails to comply with any limitations on instructing the property managerexcept Indebtedness and liens (including, each as required by and liens being contested in good faith in accordance with, as applicable, with the terms and provisions of, of this Agreement, the Assignment of Management Agreement and the Security Instrument; (iii) any representation, warranty or covenant contained in Article 5 or Article 6 hereof is violated or breached; (iv) a Bankruptcy Event occurs; or (v) Sections 11.1 or 11.6 hereof are violated or breached in any material respectexpressly permitted pursuant to this Agreement.
Appears in 1 contract
Samples: Loan Agreement (SITE Centers 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 Security Instrument or the other Loan Documents by any action or proceeding wherein a money judgment or any deficiency judgment or other judgment establishing personal liability shall be sought against Borrower or any principal, director, officer, employee, beneficiary, shareholder, partner, member, trustee, agent, or Affiliate of Borrower or any legal representatives, successors or assigns of any of the foregoing (collectively, the “Exculpated Parties”)Principal, except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender to enforce and realize upon its interest under the Note, this Agreement, the Security Instrument Note, the Mortgage and the other Loan Documents, or and the interest in the Property, the Rents, or Rents and any other collateral given to Lender pursuant to created by this Agreement, the Note, the Mortgage and the other Loan Documents; provided, however, that, except as specifically provided herein, that any judgment in any such action or proceeding shall be enforceable against Borrower or Borrower Principal, as applicable, only to the extent of Borrower’s or Borrower Principal’s interest in the Property, in the Rents and in any other collateral given to Lender, and . Lender, by accepting the Note, this Agreement, the Security Instrument 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 any of the Exculpated Parties Borrower Principal in any such action or proceeding proceeding, under or by reason of or under or in connection with the Note, this Agreement, the Security Instrument Note, the Mortgage or the other Loan Documents. The provisions of this Section 15.1 shall not, however, (1i) 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; (2ii) 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 Security InstrumentMortgage; (3iii) affect the validity or enforceability of any indemnity, guaranty or similar instrument indemnity (including, without limitation, indemnities set forth in Article 12 hereof, Section 11.2 hereof, in the Guaranty and the Environmental Indemnity) , Section 13.5 and Article 14 of this Agreement), 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 thereunder (including, without limitation, Lender’s right to enforce said rights and remedies against Borrower and/or Guarantor (as applicable) personally and without the effect of the exculpatory provisions of this Article 13)Documents; (4iv) impair the rights right of Lender to (A) obtain the appointment of a receiver and/or (B) enforce its rights and remedies provided in Articles 8 and 9 hereofreceiver; (5v) impair the enforcement of the assignment of leases and rents provisions contained in the Security Instrument and in any other Loan DocumentsMortgage; or (6vi) impair the right of Lender to enforce Section 4.12(e) of obtain a deficiency judgment or other 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; (7) constitute a prohibition against provided however, Lender to seek a deficiency shall only enforce such judgment against Borrower in order to fully realize the security granted by the Security Instrument or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against the Property; or (8) constitute a waiver of the right of Lender to enforce the liability and obligation of Borrower, by money judgment or otherwise, to the extent of any Loss incurred by the Insurance Proceeds and/or Awards.
(b) Notwithstanding the provisions of this Section 15.1 to the contrary, 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, Borrower Principal or any other Affiliate of Borrower Party or Borrower Principal in connection with the Loan;
(ii) execution and the gross negligence or willful misconduct delivery of any Borrower Party;
(iii) any litigation or other legal proceeding related to the Debt filed by any Borrower Party 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 other Loan Documents;
(iv) waste to the Property caused by the intentional acts or intentional omissions of any Borrower Party and/or the removal or disposal of any portion of the Property after an Event of Default;
(v) the misapplication, misappropriation or conversion by any Borrower Party 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 Rents following an Event of Default or (D) any Tenant security deposits or Rents collected in advance;
(vi) any act of arson by any Borrower Party or of which any Borrower Party has knowledge;
(vii) failure to pay Taxes, charges for labor or materials or other charges that can create liens on any portion of the Property in accordance with the terms and provisions hereof;
(viii) failure to pay Insurance Premiums, to maintain the Policies in full force and effect and/or to provide Lender evidence of the same, in each case, as expressly provided herein;
(ix) any security deposits, advance deposits or any other deposits collected with respect to the Property which are not delivered to Lender upon a foreclosure of the 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;
(x) any tax on the making and/or recording of the Security Instrumentthis Agreement, the Note or Note, the Mortgage, any of the other Loan Documents or any transfer or similar taxes (whether due upon the making of the same or upon Lender’s exercise of its remedies under the Loan Documents), but excluding any income, franchise or other similar taxes;
(xi) the seizure or forfeiture of the Property, or any portion thereofcertificate, report, financial statement or Borrower’s interest therein, resulting from criminal wrongdoing by any Borrower Party;
(xii) other instrument or document furnished to Lender in connection with the failure to make any Condemnation Payment and/or any Balancing Payment, to permit on-site inspections Loan either at the time of the Property and/or to provide the Required Financial Items, in each case, as and when required herein;
(xiii) Intentionally Omitted;
(xiv) the failure to make repairs, renewals or replacements (including, without limitation, structural and nonstructural, exterior and interior, ordinary and extraordinary, foreseen and unforeseen) to the Property or any portion thereof (including, without limitation, the Improvements now or at any time hereafter erected on the Property) as and when required pursuant to the terms closing of the Loan Documents or as and when necessary to maintain during the Property in good and safe condition, in a rentable and tenantable state of repair and/or in the condition required pursuant to the terms term of the Loan Documents; and/or
(xv) any indemnity obligations of Lender to Bank under provided that if the Restricted Account Agreement (other than those arising as a direct result of Lender’s gross negligence applicable fraud or willful misconductintentional misrepresentation is made by Borrower Principal, Borrower Principal, but not Borrower, shall have liability hereunder).
(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 Debt or to require that all collateral shall continue to secure all of the Debt owing to Lender in accordance with the Loan Documents, and (B) the Debt shall be fully recourse to Borrower in the event that: (i) the first full monthly payment of principal and interest under the Note is not paid when due; (ii) Borrower fails to comply with any provisions hereof relating to cash management or fails to appoint a new property manager upon the request of Lender, fails to cooperate with any New Manager or fails to comply with any limitations on instructing the property manager, each as required by and in accordance with, as applicable, the terms and provisions of, this Agreement, the Assignment of Management Agreement and the Security Instrument; (iii) any representation, warranty or covenant contained in Article 5 or Article 6 hereof is violated or breached; (iv) a Bankruptcy Event occurs; or (v) Sections 11.1 or 11.6 hereof are violated or breached in any material respect.;
Appears in 1 contract
Exculpation. (a) Subject to Except as otherwise provided herein or in the qualifications belowother Loan Documents, Lender shall not enforce the liability and obligation of Borrower to perform and observe the obligations contained herein or in the Note, this Agreement, the Security Instrument or the other Loan Documents by any action or proceeding wherein a money judgment or any deficiency judgment or other judgment establishing personal liability shall be sought against (1) Borrower (except as set forth in this Section 15.1 and the Environmental Indemnity), (2) Guarantor (except as set forth in the Guaranty and the Environmental Indemnity), (3) any Affiliate of Borrower, (4) any Person owning, directly or indirectly, any legal or beneficial interest in Borrower or any principal, director, officer, employee, beneficiary, shareholder, Affiliate of Borrower or (5) any direct or indirect limited partner, member, principal, officer, beneficiary, trustee, agentshareholder, Affiliate or Affiliate of Borrower or any legal representatives, successors or assigns director of any of the foregoing Persons described in clauses (1) through (5) above (collectively, subject to the exceptions in clauses (i) and (ii) below, the “Exculpated Parties”), except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender to enforce and realize upon its interest under the Note, this Agreement, the Security Instrument Note, the Mortgages and the other Loan Documents, or and the interest in the PropertyProperties, the Rents, or Rents and any other collateral given to Lender pursuant to created by this Agreement, the Note, the Mortgages and the other Loan Documents; provided, however, that, except as specifically provided herein, that any judgment in any such action or proceeding shall be enforceable against Borrower Borrower, only to the extent of Borrower’s interest in the PropertyProperties, in the Rents and in any other collateral given to Lender, and . Lender, by accepting the Note, this Agreement, the Security Instrument Note, the Mortgages and the other Loan Documents, agrees that it shall not xxx not, except as otherwise provided in this Section 15.1, sue for, seek or demand any deficiency judgment against Borrower or any of the Exculpated Parties Party in any such action or proceeding proceeding, under or by reason of or under or in connection with the Note, this Agreement, the Security Instrument Note, the Mortgages or the other Loan Documents. The provisions of this Section 15.1 shall not, however, (1i) constitute a waiver, release or impairment of any obligation evidenced or secured by any of this Agreement, the Note, the Mortgages or the other Loan Documents; (2ii) impair the right of Lender to name Borrower or Operating Lessee as a party defendant in any action or suit for judicial foreclosure and sale under this Agreement and the Security InstrumentMortgages; (3iii) affect the validity or enforceability of any indemnity, guaranty or similar instrument indemnity (including, without limitation, indemnities set forth those contained in Article 12 hereof, Section 11.2 hereof, in the Guaranty 14 of this Agreement and the Environmental Indemnity) ), guaranty, master lease or similar instrument made in connection with this Agreement, the Note, the Mortgages and the other Loan or any of the rights and remedies of Lender thereunder (including, without limitation, Lender’s right to enforce said rights and remedies against Borrower and/or Guarantor (as applicable) personally and without the effect of the exculpatory provisions of this Article 13)Documents; (4iv) impair the rights right of Lender to (A) obtain the appointment of a receiver and/or (B) enforce its rights and remedies provided in Articles 8 and 9 hereofreceiver; (5v) impair the enforcement of the assignment of leases and rents provisions contained in the Security Instrument and in any other Loan DocumentsMortgages; or (6vi) impair the right of Lender to enforce Section 4.12(e) of obtain a deficiency judgment or other 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; (7) constitute a prohibition against provided, however, Lender to seek a deficiency shall only enforce such judgment against Borrower in order to fully realize the security granted by the Security Instrument or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against the Property; or (8) constitute a waiver of the right of Lender to enforce the liability and obligation of Borrower, by money judgment or otherwise, to the extent of any Loss the Insurance Proceeds and/or Awards.
(b) Notwithstanding the provisions of this Section 15.1 to the contrary, Borrower shall be personally liable to Lender for Losses incurred by Lender (including attorneys’ fees and costs reasonably incurred) arising out of or in connection with the followingLxxxxx due to:
(i) fraud or intentional misrepresentation by Bxxxxxxx, Operating Lessee, Guarantor or any Borrower Party Affiliate of any of the foregoing in connection with the execution and the delivery of this Agreement, the Note, the Mortgages, 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 or during the term of the Loan;
(ii) the gross negligence or willful misconduct of any Borrower an Exculpated Party;
(iii) Remington’s or any litigation Exculpated Party’s misapplication, misappropriation or other legal proceeding related to conversion of Rents received by Borrower during the Debt filed by any Borrower Party that delays, opposes, impedes, obstructs, hinders, enjoins or otherwise interferes with or frustrates the efforts continuance of Lender to exercise any rights and remedies available to Lender as provided herein and in the other Loan Documentsan Event of Default;
(iv) waste Remington’s or Exculpated Party’s misapplication, misappropriation or conversion of tenant security deposits (including the failure to deliver to Lender tenant security deposits upon foreclosure or deed in lieu thereof, to the Property caused by extent not applied in accordance with the intentional acts or intentional omissions applicable Leases prior to the occurrence of any Borrower Party and/or the removal or disposal of any portion of the Property after an Event of Default) or Rents collected in advance;
(v) the misapplication, misappropriation or conversion of Insurance Proceeds or Awards by Remington or any Borrower Party 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 Rents following an Event of Default or (D) any Tenant security deposits or Rents collected in advanceExculpated Party;
(vi) any act of arson by any Borrower Party or of which any Borrower Party has knowledge;
(vii) Borrower’s failure to pay Property Taxes, Insurance Premiums, Other Charges (provided that there shall be no liability hereunder to the extent that (A) sums sufficient to pay such amounts have been deposited in escrow with Lender pursuant to the terms hereof and Borrower has not made a claim against such escrowed amounts or otherwise taken action to restrict Lender from applying such sums for the purpose of paying such items) or (B) there is insufficient cash flow from the operation of the Properties to pay such items (and with no obligation for any equity owner of Borrower to contribute capital)), charges for labor or materials or other charges that can create liens on any portion Individual Property beyond any applicable notice and cure periods specified herein;
(vii) Bxxxxxxx’s failure to return or to reimburse Lender for all Personal Property taken from any Individual Property by or on behalf of Borrower or Operating Lessee and not replaced with Personal Property of the same utility and of the same or greater value (other than worn out or obsolete Personal Property in accordance with the terms and provisions hereofof no material value that is disposed of by Borrower);
(viii) failure material physical waste to pay Insurance Premiums, any Individual Property caused by the intentional acts or omissions of any Exculpated Party when there is sufficient cash flow from the operation of any Individual Property to maintain the Policies in full force and effect and/or to provide Lender evidence of the same, in each case, as expressly provided hereinavoid such waste from occurring;
(ix) any security deposits, advance deposits or any other deposits collected with respect to the Property which are not delivered to Lender upon a foreclosure of the 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 thereofintentionally omitted;
(x) Bxxxxxxx’s assertion or raising of any tax defense to a proceeding instituted by Lxxxxx (whether judicial or otherwise) for the foreclosure of the Mortgages following an Event of Default caused by Bxxxxxxx’s failure to timely pay the Monthly Payment Amount or the Debt due on the making and/or recording Maturity Date, which defense is determined by a court of the Security Instrument, the Note competent jurisdiction to be without merit or any of the other Loan Documents or any transfer or similar taxes (whether due upon the making of the same or upon Lender’s exercise of its remedies under the Loan Documents), but excluding any income, franchise or other similar taxesbrought in bad faith;
(xi) the seizure Borrower’s or forfeiture Operating Lessee’s, as applicable, termination, or acceptance of termination, of the PropertyManagement Agreement, and Bxxxxxxx’s or any portion thereofOperating Lessee’s, or Borrower’s interest thereinas applicable, resulting from criminal wrongdoing by any Borrower Partyfailure to replace Manager with a Qualified Manager pursuant to a Replacement Management Agreement within sixty (60) days of such termination in accordance with Section 5.14(e) hereof;
(xii) the breach of any representation, warranty or covenant of (i) any Borrower with respect to itself or any SPE Component Entity set forth in Article 6 hereof (other than Section 6.1(a)(xv) and (xviii), and other than for which compliance is not achieved due to insufficient cash flow from the operation of the Properties to pay such items (and with no obligation for any equity owner of Borrower, any SPE Component Entity Operating Lessee or any Operating Lessee Principal to contribute capital)) or (ii) any Operating Lessee with respect to itself or any Operating Lessee Principal as set forth in Paragraph 15 of the Operating Lease Subordination Agreement (other than Paragraph 15(h) and (q) thereof) (other than for which compliance is not achieved due to insufficient cash flow from the operation of the Properties to pay such items (and with no obligation for any equity owner of Borrower, any SPE Component Entity, Operating Lessee or any Operating Lessee Principal to contribute capital));
(xiii) Bxxxxxxx’s failure to make pay to Lender each PIP Reserve Deposit in accordance with the terms hereof;
(xiv) Any obligation to repay the outstanding balance of any Condemnation Payment and/or unamortized key money become due following a termination of any Balancing PaymentFranchise Agreement or Management Agreement;
(xv) intentionally omitted; or
(xvi) Borrower’s or Operating Lessee’s failure, in connection with a Securitization, to permit on-site inspections of the Property and/or (a) pay any processing or other fees to provide the Required Financial ItemsFranchisor or (b) properly indemnify Franchisor or its Affiliates, in each case, as and when required herein;pursuant to any Franchise Agreement.
(xiiic) Intentionally Omitted;
Notwithstanding the foregoing, the agreement of Lender not to pursue recourse liability as set forth in subsection (xiva) above SHALL BECOME NULL AND VOID and shall be of no further force and effect and the failure Debt shall be fully recourse to make repairs, renewals or replacements Borrower in the event (including, without limitation, structural and nonstructural, exterior and interior, ordinary and extraordinary, foreseen and unforeseeni) to the Property of a breach by Borrower or any portion thereof (includingSPE Component Entity, without limitation, the Improvements now Operating Lessee or at any time hereafter erected on the Property) as and when required pursuant to the terms Operating Lessee Principal of any of the Loan Documents covenants set forth in Article 6 hereof or Paragraph 15 of the Operating Lease Subordination Agreement, as and when necessary to maintain the Property in good and safe conditionapplicable, that is cited as a factor in a rentable and tenantable state of repair and/or court’s decision that results in the condition required pursuant to the terms of the Loan Documents; and/or
(xv) any indemnity obligations of Lender to Bank under the Restricted Account Agreement a substantive consolidation (other than those arising a substantive consolidation petitioned for or joined in by Lender) of Borrower or Operating Lessee with any other Person (excluding another Borrower or Operating Lessee) in a proceeding under any Creditors’ Rights Laws (other than the breach of any of the covenants set forth in Article 6 hereof or Paragraph 15 of the Operating Lease Subordination Agreement, as a direct result applicable, pertaining to solvency, payment of Lenderdebts or for which compliance is not achieved due to insufficient cash flow from the operation of the Properties to pay such items (and with no obligation for any equity owner of Borrower, any SPE Component Entity, Operating Lessee or Operating Lessee Principal to contribute capital)), (ii) Borrower or Operating Lessee incurs any voluntary secured Indebtedness other than the Debt and Permitted Debt (excluding Indebtedness relating to trade and operational indebtedness incurred in the ordinary course of business, mechanic’s gross negligence or willful misconduct).
(bother similar liens, such as statutory liens, judgment liens or lis pendens) Notwithstanding anything to without the contrary prior written consent of Lender or except as expressly permitted in this Agreement, (iii) of the Note occurrence of a Prohibited Transfer (excluding a mortgage foreclosure or deed-in-lieu of foreclosure), (iv) the Properties or any part thereof shall become an asset in a bankruptcy or insolvency proceeding initiated by Borrower or Operating Lessee, (v) Borrower, Operating Lessee, Guarantor or any Affiliate, officer, director, or representative which Controls, directly or indirectly, Borrower, Operating Lessee or Guarantor files, or joins in the filing of, an involuntary petition against Borrower or Operating Lessee under any Creditors Rights Laws, or solicits or causes to be solicited petitioning creditors or colludes with petitioning creditors for the filing of any involuntary petition against Borrower or Operating Lessee from any Person under any Creditors Rights Laws; (vi) Borrower or Operating Lessee files an answer consenting to or otherwise acquiescing in or joining in any involuntary petition filed against it, by any other Person under any Creditors Rights Laws, or solicits or causes to be solicited petitioning creditors for any involuntary petition from any Person; (vii) other than with the written consent of Lender or at Lxxxxx’s written direction or request, any Affiliate, officer, director, or representative which Controls Borrower or Operating Lessee consents to in writing, approves in writing or joins in an application for the appointment of a custodian, receiver, trustee, or examiner for Borrower, Operating Lessee or any portion of the Loan DocumentsProperties; or (viii) Borrower’s or Operating Lessee’s, as applicable, termination, or acceptance of termination, of the Franchise Agreement, and Bxxxxxxx’s or Operating Lessee’s, as applicable, failure to replace Franchisor with a Qualified Franchisor pursuant to a Replacement Franchise Agreement within sixty (A60) Lender days of such termination in accordance with Section 5.25(b) hereof; provided, however, for purposes of this clause (viii), Borrower shall be permitted to release any Individual Property in which there is a termination or acceptance of termination by Borrower or Operating Lessee of the Franchise Agreement, and Borrower or Operating Lessee fails to replace Franchisor with a Qualified Franchisor pursuant to a Replacement Franchise Agreement within sixty (60) days of such termination in accordance with Section 5.25(b) hereof, provided that Borrower releases such Individual Property in accordance with the provisions of (x) to the extent such release occurs prior to the earlier of the third (3rd) anniversary of the Closing Date or a REMIC Prohibition Period, Section 2.9 hereof pursuant to a release in connection with a prepayment or (y) to the extent such release occurs after the earlier of the third (3rd) anniversary of the Closing Date or a REMIC Prohibition Period, Section 2.8 hereof pursuant to a Partial Defeasance. For the avoidance of doubt, if, to Lxxxxx’s satisfaction, Borrower satisfies the provisions of Section 2.8 or Section 2.9 hereof, as applicable, with respect to the release of an Individual Property pursuant to the immediately preceding sentence, the Debt shall not be fully recourse to Borrower.
(d) Nothing herein shall be deemed to have waived be a waiver of 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 Debt indebtedness secured by the Mortgages or to require that all collateral shall continue to secure all of the Debt indebtedness owing to Lender in accordance with this Agreement, the Note, the Mortgages or the other Loan Documents.
(e) Notwithstanding anything to the contrary in this Section 15.1, (i) Borrower and Guarantor shall have no liability under this Section 15.1 to the extent such liability solely arises (1) as a result of any exercise of remedies, foreclosure or deed-in-lieu of foreclosure by Lender, or (2) as a result of an act or omission of (A) Lender or a third-party purchaser following Lender or such third-party taking title to the Properties pursuant to a foreclosure, deed-in-lieu of foreclosure or otherwise or (B) a court appointed receiver after such receiver takes control of the Debt shall be fully recourse day-to-day operations of the Properties; unless in each case, such act or omission was caused by Borrower, Guarantor or any of their respective Affiliates (but only prior to such Exculpated Party becoming an Affiliate of Lender or any purchaser at any foreclosure of the Loan) or such acts or omissions are the proximate result of acts, events, conditions, or circumstances that existed prior to the date of such foreclosure or deed in lieu of foreclosure, whether or not discovered prior or subsequent to the date of such foreclosure or deed in lieu of foreclosure, provided, however, Borrower and Guarantor will bear the burden of proof to show that an event triggering liability of Borrower or Guarantor under this Section 15.1 first occurred after such foreclosure or deed in lieu of foreclosure, was not the event that: proximate result of events that first occurred prior to such foreclosure or deed in lieu of foreclosure and was not caused by any Exculpated Party (ibut only prior to such Exculpated Party becoming an Affiliate of Lender or any purchaser at any foreclosure of the Loan) the first full monthly payment of principal and interest under the Note is not paid when dueor their respective Affiliates; (ii) Borrower fails and Guarantor shall have no liability under Section 15.1(b) to comply with any provisions hereof relating the extent such liability solely arises after (1) Lender or a third-party has taken title to cash management the Properties pursuant to a foreclosure, deed-in-lieu of foreclosure or fails to appoint otherwise or (2) a new property manager upon court appointed receiver has taken control of the request day-to-day operations of Lender, fails to cooperate with any New Manager or fails to comply with any limitations on instructing the property manager, each as required by Properties and in accordance with, as applicable, the terms and provisions of, this Agreement, the Assignment of Management Agreement and the Security Instrument; (iii) no Operating Lessee shall have any representationliability under this Section 15.1, warranty the Guaranty, or covenant contained in Article 5 the Environmental Indemnity, except to the extent that such liability arises as a result of any act or Article 6 hereof is violated omission of such Operating Lessee (but only prior to such Operating Lessee becoming an Affiliate of Lender or breached; any purchaser at any foreclosure of the Loan), provided, however, such Operating Lessee will bear the burden of proof to show that an event triggering liability of Operating Lessee under this Section 15.1 was not caused by Operating Lessee (iv) a Bankruptcy Event occurs; but only prior to such Operating Lessee becoming an Affiliate of Lender or (v) Sections 11.1 or 11.6 hereof are violated or breached in any material respectpurchaser at any foreclosure of the Loan).
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 Security Instrument or the other Loan Documents by any action or proceeding wherein a money judgment or any deficiency judgment or other judgment establishing personal liability shall be sought against Borrower or any principal, director, officer, employee, beneficiary, shareholder, partner, member, trustee, agent, or Affiliate of Borrower (but specifically excluding Guarantor) or any legal representatives, successors or assigns of any of the foregoing (collectively, the “Exculpated Parties”), except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender to enforce and realize upon its interest under the Note, this Agreement, the Security Instrument and the other Loan Documents, or in the 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 Property, in the Rents and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Security Instrument and the other Loan Documents, shall not xxx for, seek or demand any deficiency judgment against Borrower or any of the Exculpated Parties in any such action or proceeding under or by reason of or under or in connection with the Note, this Agreement, the Security Instrument or the other Loan Documents. The provisions of this Section shall not, however, (1) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (2) impair the right of Lender to name Borrower as a party defendant in any action or suit for foreclosure and sale under the Security Instrument; (3) affect the validity or enforceability of any indemnity, guaranty or similar instrument (including, without limitation, the indemnities set forth in Article 12 11 hereof, Section 11.2 13.2 hereof, in the Guaranty and in the Environmental Indemnity) made in connection with the Loan or any of the rights and remedies of Lender thereunder (including, without limitation, Lender’s right to enforce said rights and remedies against Borrower and/or Guarantor (as applicable) personally and without the effect of the exculpatory provisions of this Article 1312); (4) impair the rights right of Lender to (A) obtain the appointment of a receiver and/or (B) enforce its rights and remedies provided in Articles 8 and 9 hereofreceiver; (5) impair the enforcement of the assignment of leases and rents contained in the Security Instrument and in any other Loan DocumentsInstrument; (6) impair the right of Lender to enforce Section 4.12(e7.12(e) of this Agreement; (7) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted by the Security Instrument or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against the Property; or (8) constitute a waiver of the right of Lender to enforce the liability and obligation of Borrower, by money judgment or otherwise, to the extent of any Loss Losses 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 or any failure to disclose a material fact by Borrower, any SPE Component Entity, Guarantor, Sponsor, or any Borrower Party in connection with the Loan;
(ii) the gross negligence or willful misconduct of Borrower, any SPE Component Entity, Guarantor, Sponsor, or any Borrower PartyParty or the commission of a criminal act by Borrower, any SPE Component Entity, Guarantor, Sponsor or any Borrower Party which results in any seizure or forfeiture of the Property, or any portion thereof, or Borrower’s interest therein;
(iii) any litigation or other legal proceeding related to the Debt filed by any Borrower Party 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 other Loan Documents;
(iv) material physical waste to the Property caused by the intentional acts or intentional omissions of Borrower, any SPE Component Entity, Guarantor, Sponsor, or any Borrower Party (including, without limitation, any arson or abandonment of the Property) and/or the removal or disposal of any portion of the Property after an Event of DefaultDefault by Borrower, any SPE Component Entity, Guarantor, Sponsor or any Borrower Party;
(viv) the misapplication, misappropriation or conversion by any Borrower Party in contravention of the Loan Documents 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 Rents following an Event of Default or (D) any Tenant security deposits or Rents collected in advance;
(vi) any act of arson by any Borrower Party or of which any Borrower Party has knowledge;
(viiv) failure to pay Taxesany Taxes or Other Charges, charges for labor or materials or any other charges that can create liens on any portion of the Property to the extent that the revenue from the Property is sufficient to pay such amounts (other than (x) amounts deposited with Lender as Tax and Insurance Reserve Funds for Taxes or Other Charges where Lender elects not to apply such funds toward payment of such Taxes or Other Charges owed or (y) Taxes or Other Charges owed that are contested strictly in accordance with the terms of the Loan Documents);
(vi) failure to maintain insurance as required by this Agreement to the extent that the revenue from the Property is sufficient to pay the Insurance Premiums relating thereto (other than the failure to pay amounts deposited with Lender as Tax and Insurance Reserve Funds for Insurance Premiums to be paid to maintain such insurance where Lender elects not to apply such funds toward payment of such Insurance Premiums);
(vii) the breach of any representation, warranty, covenant or indemnification provision in the Environmental Indemnity, this Agreement or in the Security Instrument concerning Environmental Laws and Hazardous Substances;
(viii) any fees or commissions paid by Borrower after the occurrence of an Event of Default to Guarantor, Sponsor and/or any Affiliate of Borrower, Guarantor and/or Sponsor in violation of the terms of the Note, this Agreement, the Security Instrument or the other Loan Documents;
(ix) Borrower’s breach of, or failure to comply with, the representations, warranties and covenants contained in Article 14 of this Agreement and/or the provisions of Sections 7.24, 13.2, 11.2 and 11.3 hereof;
(x) Borrower fails to appoint a new property manager upon the request of Lender, each as required by, and in accordance with the terms and provisions hereof;
(viii) failure to pay Insurance Premiumsof, to maintain this Agreement, the Policies in full force Assignment of Management Agreement and effect and/or to provide Lender evidence of the same, in each case, as expressly provided herein;
(ix) any security deposits, advance deposits other Loan Documents or any Borrower appoints a new property manager or replaces the property manager other deposits collected with respect to the Property which are not delivered to Lender upon a foreclosure of the Property or action in lieu thereof, except to the extent any such security deposits were applied than 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;
(x) any tax on the making and/or recording of the Security Instrumentthis Agreement, the Note or any Assignment of Management Agreement and the other Loan Documents or any transfer or similar taxes (whether due upon the making of the same or upon Lender’s exercise of its remedies under the Loan Documents), but excluding any income, franchise or other similar taxes;
(xi) the seizure or forfeiture of the Property, or failure to make any portion thereof, or Borrower’s interest therein, resulting from criminal wrongdoing by any Borrower Party;True Up Payment as and when required hereunder; and/or
(xii) the failure to make any Condemnation Payment and/or any Balancing Payment, to permit on-site inspections of the Property and/or to provide the Required Financial Items, in each case, as and when required herein;
(xiii) Intentionally Omitted;
(xiv) the failure to make repairs, renewals litigation or replacements (including, without limitation, structural and nonstructural, exterior and interior, ordinary and extraordinary, foreseen and unforeseen) other legal proceeding related to the Property Debt filed by Borrower, any SPE Component Entity, Guarantor, Sponsor or any portion thereof (includingBorrower Party that is determined by final, without limitationnon-appealable judgment of a court of competent jurisdiction to have been undertaken in bad faith for the sole purpose of delaying, opposing, impeding, obstructing, hindering, enjoining or otherwise interfering with or frustrating the Improvements now or at any time hereafter erected on the Property) as and when required pursuant to the terms of the Loan Documents or as and when necessary to maintain the Property in good and safe condition, in a rentable and tenantable state of repair and/or in the condition required pursuant to the terms of the Loan Documents; and/or
(xv) any indemnity obligations efforts of Lender to Bank under exercise any rights and remedies available to Lender as provided herein and in the Restricted Account Agreement (other than those arising as a direct result of Lender’s gross negligence or willful misconduct)Loan Documents.
(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 Debt or to require that all collateral shall continue to secure all of the Debt owing to Lender in accordance with the Loan Documents, Documents and (B) the Debt shall be fully recourse to Borrower in the event that: (i) the first full monthly payment of principal any representation, warranty or covenant contained in Article 6 hereof is violated or breached (unless such breach is de minimis and interest under the Note is not paid when duepromptly cured); (ii) Borrower fails to comply with any provisions hereof relating to cash management or fails to appoint a new property manager upon the request of Lender, fails to cooperate with any New Manager or fails to comply with any limitations on instructing the property manager, each as required by and in accordance with, as applicable, the terms and provisions of, this Agreement, the Assignment of Management Agreement and the Security Instrument; (iii) any representation, warranty or covenant contained in Article 5 or Article 6 8 hereof is violated (unless such violation is de minimis and promptly cured); (iii) Borrower or breachedany SPE Component Entity files a voluntary petition under the Bankruptcy Code or any other Creditors Rights Laws; (iv) an Affiliate, officer, director, or representative which Controls, directly or indirectly, Borrower or any SPE Component Entity files, or joins in the filing of, an involuntary petition against Borrower or any SPE Component Entity under the Bankruptcy Code or any other Creditors Rights Laws, or solicits or causes to be solicited petitioning creditors for any involuntary petition against Borrower or any SPE Component Entity from any Person; (v) Borrower or any SPE Component Entity 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 Creditors Rights Laws, 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 SPE Component Entity consents to or acquiesces in or joins in an application for the appointment of a Bankruptcy Event occurscustodian, receiver, trustee, or examiner for Borrower, any SPE Component Entity or any portion of the Property; (vii) Borrower or any SPE Component Entity makes an assignment for the benefit of creditors, or admits in any legal proceeding its insolvency or inability to pay its debts as they become due; (viii) there is substantive consolidation of Borrower or any SPE Component Entity (or any Restricted Party) with any other Person in connection with any federal or state bankruptcy proceeding involving the Guarantor or any of its Affiliates; (ix) Borrower or any SPE Component Entity (or any Restricted Party) 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 the Guarantor or its Affiliates; or (vx) Sections 11.1 Borrower’s failure to deposit any springing Reserve Funds deposits pursuant to the terms of this Agreement. Survival . The obligations and liabilities of Borrower under this Article 12 shall fully survive indefinitely notwithstanding any termination, satisfaction, assignment, entry of a judgment of foreclosure, exercise of any power of sale, or 11.6 hereof are violated or breached delivery of a deed in any material respectlieu of foreclosure of the Security Instrument.
Appears in 1 contract
Samples: Loan Agreement (Gaia, Inc)
Exculpation. (a) Subject to the qualifications below, Lender shall not enforce the liability and obligation of Borrower to perform and observe the obligations contained in the Note, this Agreement, the Security Instrument or the other Loan Documents by any action or proceeding wherein a money judgment or any deficiency judgment or other judgment establishing personal liability shall be sought against Borrower or any principal, director, officer, employee, beneficiary, shareholder, partner, member, trustee, agent, or Affiliate of Borrower or any legal representatives, successors or assigns of any of the foregoing (collectively, the “Exculpated Parties”), except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender to enforce and realize upon its interest under the Note, this Agreement, the Security Instrument and the other Loan Documents, or in the PropertyProperty (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 Property, in the Rents and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Security Instrument and the other Loan Documents, shall not xxx sue for, seek or demand any deficiency judgment against Borrower or any of the Exculpated Parties in any such action or proceeding under or by reason of or under or in connection with the Note, this Agreement, the Security Instrument or the other Loan Documents. The provisions of this Section shall not, however, (1) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (2) impair the right of Lender to name Borrower as a party defendant in any action or suit for foreclosure and sale under the Security Instrument; (3) affect the validity or enforceability of any indemnity, guaranty or similar instrument (including, without limitation, indemnities set forth in Article 12 hereof, Section 11.2 hereof, in the Guaranty and the Environmental Indemnity) made in connection with the Loan or any of the rights and remedies of Lender thereunder (including, without limitation, LenderLxxxxx’s right to enforce said rights and remedies against Borrower Bxxxxxxx and/or Guarantor (as applicable) personally and without the effect of the exculpatory provisions of this Article 13); (4) impair the rights of Lender to (A) obtain the appointment of a receiver and/or (B) enforce its rights and remedies provided in Articles 8 and 9 hereof; (5) impair the enforcement of the assignment of leases and rents contained in the Security Instrument and in any other Loan Documents; (6) impair the right of Lender to enforce Section 4.12(e) of this Agreement; (7) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted by the Security Instrument or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against the PropertyProperty (or any portion thereof); or (8) constitute a waiver of the right of Lender to enforce the liability and obligation of Borrower, by money judgment or otherwise, to the extent of any Loss actually incurred by Lender Lxxxxx (including reasonable attorneys’ fees and costs reasonably incurred) arising out of or in connection with the following:
(i) fraud or intentional material misrepresentation by Bxxxxxxx, any Borrower Party SPE Component Entity, Sponsor, any Affiliated Manager, Guarantor or any director, officer, beneficiary, shareholder, partner, member, employee or agent acting on behalf of any of the foregoing (each, a “Recourse Party”) in connection with the Loan;
(ii) the gross negligence or willful misconduct of any Borrower PartyRecourse Party in connection with the Loan;
(iii) the breach of any litigation or other legal proceeding related to indemnification provision in the Debt filed by Loan Documents concerning environmental laws, hazardous substances and asbestos and any Borrower Party that delays, opposes, impedes, obstructs, hinders, enjoins or otherwise interferes with or frustrates the efforts indemnification of Lender to exercise any rights and remedies available to Lender as provided herein and in the other Loan Documentswith respect thereto;
(iv) material physical waste to the any Property caused by the intentional acts or intentional omissions of any Borrower Party and/or Recourse Party, but only to the removal or disposal extent there is sufficient cash flow from the Properties to prevent such physical waste and such cash flow is made available by Lender for the purpose of any portion of the Property after an Event of Defaultpreventing such physical waste;
(v) the misapplication, removal of any property in contravention of the Loan Documents during the continuance of an Event of Default other than in the ordinary course of business;
(vi) the misappropriation or conversion of any of the following by any Borrower a Recourse Party in contravention of the Loan Documents: (A) any insurance proceeds paid received by Borrower by reason of any loss, damage or destruction to the PropertyCasualty, (B) any Awards or other amounts received by Borrower from a governmental authority in connection with the a Condemnation of all or a portion of the Property, or (C) any Rents following an Event of Default or (D) any Tenant security deposits or Rents collected in advance;
(vi) any act of arson revenues generated by any Borrower Party or of which any Borrower Party has knowledgethe Properties;
(vii) failure to pay Taxes, charges for labor or materials or other charges that can create liens on any portion of the Property in accordance with the terms and provisions hereof;
(viii) failure to pay Insurance Premiums, to maintain the Policies in full force and effect and/or to provide Lender evidence of the same, in each case, as expressly provided herein;
(ix) any security depositsSecurity Deposits, advance deposits or any other deposits collected with respect to the any Property which are not delivered to Lender upon a foreclosure of the such Property or action in lieu thereof, except to the extent any such security deposits Security Deposits were applied in accordance with the terms and conditions of any of the Leases prior applicable Lease;
(viii) any litigation or other legal proceeding related to the occurrence Loan filed by a Recourse Party with the effect of delaying, opposing, impeding, obstructing, hindering, enjoining or otherwise interfering with the efforts of Lxxxxx to exercise any rights and remedies available to Lender during the continuance of an Event of Default; provided, however, that there shall be no liability hereunder on account of, and the foregoing shall not restrict, Bxxxxxxx’s or Guarantor’s right to, dispute, in good faith, whether the relevant Event of Default that gave rise shall have occurred or whether an action taken by Lender pursuant to such the Loan Documents is permitted thereby, nor shall Borrower be restricted from, or have liability hereunder for, bringing a good faith counterclaim which if not raised in the foreclosure proceeding would be barred, and which does not seek to enjoin the enforcement action by Lxxxxx;
(ix) Borrower fails to obtain Lxxxxx’s prior written consent to any additional indebtedness or action in lieu thereofvoluntary lien encumbering any Property and not permitted by the Loan Documents;
(x) any tax on the making and/or recording a material breach by Borrower of the Security Instrument, the Note or any of the other Loan Documents or any transfer or similar taxes (whether due upon the making of the same or upon Lender’s exercise of its remedies under the Loan Documents), but excluding any income, franchise or other similar taxesSection 5.5;
(xi) the seizure or forfeiture of the Propertyany voluntary termination, or any portion thereofvoluntary, or Borrowermaterial modification of any Ground Lease by Borrower without Lxxxxx’s interest thereinprior written consent other than as expressly permitted under this Agreement; provided, resulting from criminal wrongdoing by any Borrower Partythat the liability with respect to this Section 13.1(a)(xi) shall not exceed the Allocated Loan Amount of the applicable Ground Leased Property;
(xii) (A) any voluntary termination of any PILOT Lease and/or PILOT Document or transfer or surrender of any PILOT Lease and/or PILOT Document (including any PILOT Bond) by Borrower without Lxxxxx’s prior written consent other than in connection with Borrower acquiring the fee estate from the applicable PILOT Lessor or as otherwise expressly permitted under this Agreement, (B) any termination of any PILOT Lease and/or PILOT Document as a result of a foreclosure of the applicable Security Instrument or deed in lieu thereof or (C) Borrower’s or the applicable Tenant’s failure to make comply with or Borrower’s or the applicable Tenant’s breach of any Condemnation Payment PILOT Lease and/or PILOT Document that results in (x) a reduction of any Balancing Paymenttax abatement and/or mandatory repayment of any past or current tax abatement under such PILOT Lease and/or PILOT Document, to permit on-site inspections as applicable, (y) termination of such PILOT Lease and/or PILOT Document, as applicable, and the benefits thereunder in favor of Borrower or Tenant or (z) a default by such Borrower under the applicable Lease for such PILOT Property and/or to provide the Required Financial Items(and, in any such case, Losses shall include lost rental income); provided, that, in each case, as and when required herein;the liability with respect to this Section 13.1(a)(xii) shall not exceed the Allocated Loan Amount of the applicable PILOT Property; and/or
(xiii) Intentionally Omitted;
(xiv) the failure to make repairs, renewals or replacements (including, without limitation, structural and nonstructural, exterior and interior, ordinary and extraordinary, foreseen and unforeseen) to the Property or any portion thereof (including, without limitation, the Improvements now or at any time hereafter erected on the Property) as and when required pursuant to the terms of the Loan Documents or as and when necessary to maintain the Property in good and safe condition, in a rentable and tenantable state of repair and/or in the condition required pursuant to the terms of the Loan Documents; and/or
(xv) any indemnity obligations of Lender to Bank under the Restricted Account Agreement (other than those arising as set forth in Section 13.1(b)(v), a direct result breach by Borrower of Lender’s gross negligence any covenant of Article 5 of this Agreement documents (excluding any provision requiring each Borrower to remain solvent, maintain adequate capital or willful misconductpay its debts as they come due).
(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 Debt or to require that all collateral shall continue to secure all of the 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 any SPE Component Entity or any Affiliate thereof files, or joins in the first full monthly payment of principal and interest filing of, a petition against Borrower under the Note is not paid when due; Bankruptcy Code or any other Federal or state bankruptcy or insolvency law, or solicits or causes to be solicited (or otherwise colludes with) petitioning creditors for any involuntary petition against Borrower, (ii) Borrower fails or any SPE Component Entity or any Affiliate thereof files an answer consenting to comply with an involuntary petition filed against Borrower (other than any provisions hereof relating answer which is required to cash management be made by applicable law), by any other person under the Bankruptcy Code or fails to appoint a new property manager upon the request of Lenderany other federal or state bankruptcy or insolvency law, fails to cooperate with any New Manager or fails to comply with any limitations on instructing the property manager, each as required by and in accordance with, as applicable, the terms and provisions of, this Agreement, the Assignment of Management Agreement and the Security Instrument; (iii) Borrower or any representationSPE Component Entity consents to or joins in an application for the appointment of a custodian, warranty receiver, trustee, or covenant contained in Article 5 or Article 6 hereof is violated or breached; examiner for Borrower (other than with the prior written consent of Lender), (iv) a Bankruptcy Event occursBorrower makes an assignment for the benefit of creditors (other than to Lender in connection with the Loan or with the prior written consent of Lender); or (v) Sections 11.1 there is a breach of any provision of Article 5 (Single Purpose Entity Covenants) hereof or 11.6 hereof are violated the separateness covenants contained in the Borrower’s or breached SPE Component Entity’s organizational documents (excluding, in each case, any provision requiring each Borrower to remain solvent, maintain adequate capital or pay its debts as they come due) and such breach is cited by a court of competent jurisdiction in a final order in a proceeding under the Bankruptcy Code as a material respectfactor in ordering the substantive consolidation of Borrower with any other Person other than a co-Borrower under the Loan; provided that the motion or pleading seeking substantive consolidation was not brought or supported by Lender and, as a result thereof, Borrower is subsequently substantively consolidated in a case under the Bankruptcy Code with any Person other than a co-Borrower under the Loan, or (vi) Borrower fails to obtain Lxxxxx’s prior consent to (a) the transfer or conveyance of all or any portion of any Property, or (b) the transfer of direct or indirect equity interests in Borrower, in each case in violation of the Loan Documents.
Appears in 1 contract
Samples: Loan Agreement (Industrial Logistics Properties Trust)
Exculpation. (a) Subject to Except as otherwise provided in this Section 9.4 and comparable provisions in the qualifications belowPledge Agreement or in the other Loan Documents, Lender shall not enforce the liability and obligation of Borrower to perform and observe the obligations contained in the Note, this Agreement, the Security Instrument Note or the other Loan Documents Pledge Agreement by any action or proceeding wherein a money judgment or any deficiency judgment or other judgment establishing personal liability shall be sought against Borrower or any principal, director, officer, employee, beneficiary, shareholder, partner, member, trustee, agent, or Affiliate of Borrower or any legal representatives, successors or assigns of any of the foregoing (collectively, the “Exculpated Parties”)Borrower's Affiliates, except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender to enforce and realize upon its interest under the Note, this Agreement, the Security Instrument and Note, the Pledge Agreement, the other Loan Documents, or in and the PropertyCollateral, and any other Collateral created by this Agreement, the RentsNote, or any the Pledge Agreement and the other collateral given to Lender pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, that any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower’s 's interest in the Property, in the Rents Collateral and in any other collateral given to Lender, and . Lender, by accepting the Note, this Agreement, the Security Instrument Note and the other Loan DocumentsPledge Agreement, agrees that it shall not xxx not, except as otherwise provided in this Section 9.4 and comparable provisions or in the Pledge Agreement, sue for, seek or demand any deficiency judgment against Borrower or any xxx of the Exculpated Parties Borrower's Affiliates in any such action or proceeding proceeding, under or by reason of or under or in connection with the Note, this Agreement, the Security Instrument Note, the Pledge Agreement or the other Loan Documents. The provisions of this Section shall not, however, (1i) 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; (2ii) impair the right of Lender to name Borrower as a party defendant in any action or suit for judicial foreclosure and sale under the Security InstrumentPledge Agreement; (3iii) except as set forth in this Section 9.4, affect the validity or enforceability of any indemnity, guaranty or similar instrument indemnity (including, without limitation, indemnities set forth in Article 12 hereof, Section 11.2 hereof, in the Guaranty and the Environmental Indemnity) made in connection with the Loan or any of the rights and remedies of Lender thereunder ), guaranty (including, without limitation, Lender’s right to enforce said rights and remedies against Borrower and/or Guarantor (as applicable) personally and without the effect of Guaranty), master lease or similar instrument made in connection with this Agreement, the exculpatory provisions of this Article 13)Note, the Pledge Agreement, or the other Loan Documents; (4iv) impair the rights right of Lender to (A) obtain the appointment of a receiver and/or (B) enforce its rights and remedies provided in Articles 8 and 9 hereofreceiver; (5) impair the enforcement of the assignment of leases and rents contained in the Security Instrument and in any other Loan Documents; (6v) impair the right of Lender to enforce Section 4.12(e) of this Agreement; (7) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted by the Security Instrument or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against the PropertySections 4.1.9, 4.1.29, 5.1.9 and 5.2.8 hereof; or (8) constitute a waiver of vi) 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 to the extent necessary to (A) preserve or enforce its rights and remedies against the Collateral or (B) obtain any Insurance Proceeds or Awards to which Lender would otherwise be entitled under the terms of this Agreement or the Pledge Agreement; provided however, Lender shall only enforce such judgment to the extent of any Loss incurred by amounts Lender is entitled to under the terms of this Agreement from such Insurance Proceeds and/or Awards.
(including attorneys’ fees and costs reasonably incurredb) arising out Notwithstanding the provisions of or in connection with this Section 9.4 to the following:
contrary, Borrower shall be personally liable to Lender for the Losses Lender incurs to the extent due to: (i) fraud or intentional material misrepresentation by any Borrower Party in connection with the Loan;
(ii) execution and the gross negligence or willful misconduct delivery of any Borrower Party;
(iii) any litigation or other legal proceeding related to the Debt filed by any Borrower Party 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 other Loan Documents;
(iv) waste to the Property caused by the intentional acts or intentional omissions of any Borrower Party and/or the removal or disposal of any portion of the Property after an Event of Default;
(v) the misapplication, misappropriation or conversion by any Borrower Party 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 Rents following an Event of Default or (D) any Tenant security deposits or Rents collected in advance;
(vi) any act of arson by any Borrower Party or of which any Borrower Party has knowledge;
(vii) failure to pay Taxes, charges for labor or materials or other charges that can create liens on any portion of the Property in accordance with the terms and provisions hereof;
(viii) failure to pay Insurance Premiums, to maintain the Policies in full force and effect and/or to provide Lender evidence of the same, in each case, as expressly provided herein;
(ix) any security deposits, advance deposits or any other deposits collected with respect to the Property which are not delivered to Lender upon a foreclosure of the 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;
(x) any tax on the making and/or recording of the Security Instrumentthis Agreement, the Note or any of Note, the Pledge Agreement, the other Loan Documents or any transfer or similar taxes (whether due upon the making of the same or upon Lender’s exercise of its remedies under the Mortgage Loan Documents), but excluding any income, franchise or other similar taxes;
(xi) the seizure or forfeiture of the Property, or any portion thereof, or Borrower’s interest therein, resulting from criminal wrongdoing by any Borrower Party;
(xii) the failure to make any Condemnation Payment and/or any Balancing Payment, to permit on-site inspections of the Property and/or to provide the Required Financial Items, in each case, as and when required herein;
(xiii) Intentionally Omitted;
(xiv) the failure to make repairs, renewals or replacements (including, without limitation, structural and nonstructural, exterior and interior, ordinary and extraordinary, foreseen and unforeseen) to the Property or any portion thereof (including, without limitation, the Improvements now or at any time hereafter erected on the Property) as and when required pursuant to the terms of the Loan Documents or as and when necessary to maintain the Property in good and safe condition, in a rentable and tenantable state of repair and/or in the condition required pursuant to the terms of the Loan Documents; and/or
(xv) any indemnity obligations of Lender to Bank under the Restricted Account Agreement (other than those arising as a direct result of Lender’s gross negligence or willful misconduct).
(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 Debt or to require that all collateral shall continue to secure all of the Debt owing to Lender in accordance with the Loan Documents, and (B) the Debt shall be fully recourse to Borrower in the event that: (i) the first full monthly payment of principal and interest under the Note is not paid when dueDocument; (ii) Borrower's or Pledgor's or Operating Lessee's or Mortgage Borrower's misapplication or misappropriation of Rents received by Borrower, Pledgor, Operating Lessee or Mortgage Borrower fails to comply with any provisions hereof relating to cash management or fails to appoint a new property manager upon after the request occurrence of Lender, fails to cooperate with any New Manager or fails to comply with any limitations on instructing the property manager, each as required by and in accordance with, as applicable, the terms and provisions of, this Agreement, the Assignment an Event of Management Agreement and the Security InstrumentDefault; (iii) any representation, warranty or covenant contained in Article 5 or Article 6 hereof is violated or breached; (iv) a Bankruptcy Event occurs; or (v) Sections 11.1 or 11.6 hereof are violated or breached in any material respect.
Appears in 1 contract
Samples: Mezzanine Loan Agreement (Felcor Lodging Trust Inc)
Exculpation. 120 0123905.0782082 4863-1270-3898v11
(a) Subject to the qualifications below, Lender Xxxxxx shall not enforce the liability and obligation of Borrower to perform and observe the obligations contained in the Note, this Agreement, the Security Instrument or the other Loan Documents by any action or proceeding wherein a money judgment or any deficiency judgment or other judgment establishing personal liability shall be sought against Borrower or any principalofficer, director, officer, employee, beneficiary, shareholder, partner, member, trusteeprincipal, agent, or Affiliate employee of Borrower or any legal representativesdirect or indirect owner of Borrower (provided that the foregoing shall not limit in any manner, successors or assigns the liability of any of the foregoing (collectively, the “Exculpated Parties”Guarantor), except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender to enforce and realize upon its interest under the Note, this Agreement, the Security Instrument and the other Loan Documents, or in the PropertyProperty (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 Property, in the Rents and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Security Instrument and the other Loan Documents, agrees that it shall not xxx sue for, seek or demand any deficiency judgment against Borrower or any of the Exculpated Parties in any such action or proceeding under or by reason of or under or in connection with the Note, this Agreement, the Security Instrument or the other Loan Documents. The provisions of this Section 9.3 shall not, however, (1i) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (2ii) impair the right of Lender to name Borrower as a party defendant in any action or suit for foreclosure and sale under the Security Instrument; (3iii) affect the validity or enforceability of any indemnityguaranty, guaranty indemnity or similar instrument (including, without limitation, indemnities set forth in Article 12 hereof, Section 11.2 hereof, in the Guaranty and the Environmental Indemnity) agreement or undertaking made in connection with the Loan or any of the rights and remedies of Lender thereunder (including, without limitation, Lender’s right to enforce said rights and remedies against Borrower and/or Guarantor (as applicable) personally and without the effect of the exculpatory provisions of this Article 13)thereunder; (4) impair the rights of Lender to (A) obtain the appointment of a receiver and/or (B) enforce its rights and remedies provided in Articles 8 and 9 hereof; (5) impair the enforcement of the assignment of leases and rents contained in the Security Instrument and in any other Loan Documents; (6iv) impair the right of Lender to enforce Section 4.12(e) obtain the appointment of this Agreementa receiver; (7v) impair the enforcement of any assignment of leases contained in the Security Instrument and any other Loan Documents; or (vi) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted by the Security Instrument (if required by applicable law and provided such deficiency judgment is not enforced personally against Borrower or any officer, director, shareholder, partner, member, principal, employee of Borrower or any direct or indirect owner of Borrower (excluding Guarantor under the Guaranty and Environmental Indemnity, as applicable)) or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against the Property; Property (or any portion thereof).
(8) constitute a waiver of b) Nothing contained herein shall in any manner or way release, affect or impair the right of Lender to enforce the liability and obligation of recover from Borrower, by money judgment and Borrower shall be fully and personally liable and subject to legal action, for any actual out-of-pocket loss, cost, expense, damage, claim or otherwise, to the extent of any Loss incurred by Lender other obligation (including reasonable out-of-pocket attorneys’ fees and costs reasonably incurredexpenses and other collection and litigation expenses, but excluding consequential, punitive, special, indirect and exemplary damages or diminutions in value) incurred or suffered by Lender arising out of or in connection with the following:
(i) fraud or intentional misrepresentation by any Borrower Party or Guarantor in connection with the Loan;
(ii) the gross negligence or willful misconduct of any Borrower Partyor Guarantor;
(iii) arson or any litigation or other legal proceeding related intentional material physical waste of the Property, provided, however, that if Borrower does not have sufficient cash flow on a current basis to the Debt filed by prevent waste, any waste shall not be deemed intentional and Borrower Party 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 other Loan Documentsshall have no liability under this clause (iii);
(iv) waste to the Property caused by the intentional acts or intentional omissions of any Borrower Party and/or the removal or disposal of any portion of the Property after by Borrower during the continuance of an Event of Default;, unless such removed or disposed portion of the Property is subsequently replaced with property of equal or greater utility or value; 121 0123905.0782082 4863-1270-3898v11
(v) the misapplicationmisappropriation, misappropriation misapplication or conversion by Borrower or Guarantor, or any Borrower Party Affiliate of the foregoing, of (A) any insurance proceeds 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 a Condemnation of all or a portion of the PropertyProperty during the continuance of an Event of Default, (C) any Rents following an Event of Default or other Property income or collateral proceeds, or (D) any Tenant Rents paid more than one month in advance (including security deposits or Rents collected in advancedeposits) during the continuance of an Event of Default;
(vi) any act following the occurrence and during the continuance of arson an Event of Default, the failure to either apply rents or other Property income, collected after such Event of Default, to the ordinary, customary, and necessary expenses of operating the Property or, upon demand, to deliver such rents or other Property income to Lender (or otherwise to the Clearing Account or Cash Management Account, as required by any Borrower Party or of which any Borrower Party has knowledgethis Agreement);
(vii) failure to maintain insurance or to pay Taxestaxes and assessments, or to pay charges for labor or materials or other charges or judgments that can create liens Liens on any portion of the Property in accordance with (unless Lender is escrowing funds therefor and fails to make such payments or has taken possession of the terms Property following an Event of Default, has received all Rents from the Property applicable to the period for which such insurance, taxes or other items are due, and provisions hereofthereafter fails to make such payments), it being acknowledged that if Borrower does not have sufficient cash flow on a current basis to maintain insurance or to pay taxes and assessments or to pay charges for labor or materials or other charges or judgments (unless such charges were incurred following the occurrence and during the continuance of an Event of Default) that create Liens on any portion of the Property, Borrower shall have no liability under this clause (vii);
(viii) failure to pay Insurance Premiums, to maintain the Policies in full force and effect and/or to provide Lender evidence of the same, in each case, as expressly provided herein;
(ix) any security deposits, advance deposits or any other deposits collected with respect to the Property which are not delivered to Lender upon a foreclosure of the Property or action in lieu thereof, except to the extent any such security deposits were (A) applied or returned to Tenants in accordance with the terms and conditions of any of the Leases prior to the occurrence of the Event of Default that gave rise to such foreclosure or action in lieu thereofthereof or (B) previously delivered to Lender to be applied to repay the Loan;
(ix) any voluntary Liens, other than Permitted Encumbrances and Liens described in Sections 9.3(b)(vii) or 9.3(c)(B) hereof;
(x) any tax on the making and/or recording of the Security Instrument, the Note or failure by Borrower to comply with any of the other Loan Documents representations, warranties or any transfer covenants set forth in Sections 4.1.37 or similar taxes (whether due upon the making of the same or upon Lender’s exercise of its remedies under the Loan Documents), but excluding any income, franchise or other similar taxes5.1.19 hereof;
(xi) the seizure or forfeiture of the Property, or any portion thereof, or Borrower’s interest therein, resulting from criminal wrongdoing by any Borrower Party[intentionally omitted];
(xii) the failure to make any Condemnation Payment and/or any Balancing Payment, to permit on-site inspections of the Property and/or to provide the Required Financial Items, in each case, as and when required herein[intentionally omitted];
(xiii) Intentionally Omittedany failure by Borrower to comply with any representation, warranty or covenant set forth in Section 4.1.30 hereof to the extent such failure is not expressly covered by the full recourse event set forth in Section 9.3(c)(D) below;
(xiv) the failure Borrower fails to make repairsobtain Xxxxxx’s prior written consent to any Transfer that is not a Full Recourse Transfer, renewals or replacements (including, without limitation, structural and nonstructural, exterior and interior, ordinary and extraordinary, foreseen and unforeseen) to the Property or any portion thereof (including, without limitation, the Improvements now or at any time hereafter erected on the Property) as and when required pursuant to the terms of the Loan Documents or as and when necessary to maintain the Property in good and safe condition, in a rentable and tenantable state of repair and/or in the condition extent required pursuant to the terms of the Loan Documents; and/or;
(xv) [intentionally omitted];
(xvi) Xxxxxxxx’s failure to comply with the provisions of Sections 5.1.9 hereof; 122 0123905.0782082 4863-1270-3898v11
(xvii) criminal acts of Borrower or Guarantor, or executives of Borrower or Guarantor, resulting in the seizure, forfeiture or loss of the Property;
(xviii) Xxxxxxxx, acting in bad faith, fails to cooperate in transferring any indemnity obligations licenses or permits requested by Lender in connection with any foreclosure of the Property, deed in lieu or other transfer of the Property to Lender or Xxxxxx’s designee;
(xix) 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 Security Instruments or any other Loan Document, (a) 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 and (b) the court in any such action or proceeding determines that Guarantor’s, Borrower’s or such Affiliate’s defense or request for judicial intervention (1) was made by Guarantor, Borrower or such Affiliate with the intent to Bank hinder, delay or otherwise interfere with Lender’s exercise of its remedies (whether at law or granted under the Restricted Account Agreement Loan Documents), or (other than those arising as a direct result 2) was made in bad faith by Guarantor, Borrower or such Affiliate;
(xx) if there shall be any (A) termination of the Condominium Documents without Lender’s gross negligence prior written consent, or willful misconduct).(B) amendment or modification to the Condominium Documents without Lender’s prior written consent that materially and adversely affects Borrower’s ability to perform its obligations under the Loan Documents or Xxxxxx’s security and rights hereunder; or
(bxxi) Borrower’s failure to purchase (or cause the Association to purchase) the Additional Association Insurance. Notwithstanding the foregoing, there shall be no liability under this clause (xxi) (and this clause (xxi) shall be deemed to have been intentionally omitted) following Borrower’s (or the Association’s) purchase of the Additional Association Insurance and the delivery of Evidence of Commercial Property Insurance (XXXXX 28) evidencing the same to Lender. 123 0123905.0782082 4863-1270-3898v11
(c) Notwithstanding anything to the contrary in this Agreement, the Note or any of the other Loan Documents, Borrower shall be personally liable for the Debt if (A) Borrower fails to obtain Xxxxxx’s prior written consent (to the extent such consent is required pursuant to the terms of the Loan Documents) to any Transfer (other than a Transfer approved by Lender or a Transfer in connection with Lender’s enforcement of its rights and remedies)
(1) that results in a change in Control over Borrower or (2) of any of the Property by deed, bill of sale, installment sales agreement or ground lease (excluding any lease to a Tenant in the ordinary course of business) (a “Full Recourse Transfer”); (B) except for any Permitted Encumbrances and Permitted Indebtedness, Borrower fails to obtain Xxxxxx’s prior written consent to any Indebtedness or voluntary mortgage, deed of trust, collateral assignment or similar voluntary Lien (including a XXXX Xxxx) encumbering the Property; provided, however, in no event shall a mechanic’s or materialman’s Lien encumbering the Property apply to this clause (B); (C) Borrower shall at any time hereafter make an assignment for the benefit of its creditors; (D) Borrower fails to comply with any representation, warranty or covenant set forth in Section 4.1.30 hereof, which failure is cited as a factor in the substantive consolidation of Borrower with any other entity in connection with any proceeding under the Bankruptcy Code; (E) Borrower admits, in any legal proceeding (other than Borrower admitting or making any truthful statement that it has been advised by counsel is required to be admitted or made under applicable laws, regulations or court orders), its insolvency or inability to pay its debts as they become due, provided that neither Borrower nor Guarantor shall have liability under this clause (E) in connection with the delivery of financial statements or any other filing required to be delivered pursuant to a subpoena or any order entered in a bankruptcy proceeding or required under applicable law in connection with any such petition made by any Person which is not an Affiliate of Borrower; or (F) Borrower files, or consents in writing 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 Guarantor colludes with, or otherwise assists any party in connection with such filing, or solicits or causes to be solicited petitioning creditors for any involuntary petition against Borrower from any party (provided, however, that the failure to defend such an involuntary petition where no meritorious defense exists shall not be deemed “assisting” for purposes hereof).
(d) Nothing herein shall be deemed to have waived constitute a waiver by Lender of any right which Lender may have under Section Sections 506(a), 506(b), 1111(b) or any other provisions provision of the Bankruptcy Code to file a claim for the full amount of the Debt or to require that all collateral shall continue to secure all of the Debt owing Debt.
(e) Notwithstanding anything to the contrary contained herein or in any of the other Loan Documents, Borrower shall not have any liability pursuant to this Section 9.3 if a court of competent jurisdiction issues a final non-appealable judgement that any acts or omissions creating liability hereunder were caused by the fraud, bad faith, willful misconduct or gross negligence of Lender or Servicer.
(f) Notwithstanding anything to the contrary contained in accordance with the Loan Documents, other than with respect to the Guarantor under the Guaranty and (B) the Debt Environmental Indemnity, neither Guarantor, nor any officer, director, shareholder, partner, member, principal, employee of, shall have any personal liability for, nor be fully recourse joined as a party to, any action with respect to Borrower in the event that: (i) the first full monthly payment of principal and interest any sum which is or may be payable under this Agreement or the Note is not paid when due; Loan Documents, or (ii) the performance or discharge of any covenants, obligations or undertakings of Borrower. In addition to the foregoing, in no event will the assets of any officer, director, shareholder, partner, member, principal, employee of Borrower fails or Guarantor be available to comply with satisfy any obligation of Guarantor thereunder. 124 0123905.0782082 4863-1270-3898v11
(g) Notwithstanding the foregoing provisions hereof relating of this Section 9.3 or anything to the contrary in this Agreement or the other Loan Documents, (i) Guarantor shall have no liability under Sections 9.3(b)(ix), (xiii), or (xiv) or Section 9.3(c) for Permitted Equipment Financing or Permitted Trade Payables that constituted Permitted Equipment Financing or Permitted Trade Payables when incurred but, due to insufficient cash management flow at the Property, subsequently breaches the definition of Permitted Equipment Financing or fails to appoint a new property manager upon Permitted Trade Payables by being outstanding for longer than any time period specified in such definitions, or by exceeding the request of Lender, fails to cooperate with any New Manager one percent (1%) or fails to comply with any limitations on instructing the property manager, each as required by and in accordance withtwo percent (2%) cap, as applicable, specified in such definitions, and (ii) Guarantor shall have no liability under any of the terms Loan Documents with respect to liabilities or obligations arising from events, acts, omissions, facts or circumstances first occurring from and provisions ofafter the date that Lender (or any Affiliate, this Agreementdesignee, agent, nominee, successor to or assignee of Lender) takes title to the Assignment Property or the ownership interests in Borrower pursuant to a foreclosure, deed-in-lieu of Management Agreement foreclosure, assignment-in-lieu of foreclosure, other exercise of remedies under the Loan Documents or any other means, and which do not arise as a result of the Security Instrumentacts of Guarantor or any Affiliate thereof; (iii) provided, however, that Guarantor’s liability shall be automatically reinstated upon any representationsuch foreclosure or conveyance being set aside, warranty rescinded or covenant contained in Article 5 or Article 6 hereof is violated or breached; (iv) a Bankruptcy Event occurs; or (v) Sections 11.1 or 11.6 hereof are violated or breached in any material respectinvalidated.
Appears in 1 contract
Exculpation. (a) Subject to Except as otherwise provided in this Section 9.4 and comparable provisions in the qualifications belowPledge Agreement or in the other Loan Documents, Lender shall not enforce the liability and obligation of Borrower to perform and observe the obligations contained in the Note, this Agreement, the Security Instrument Note or the other Loan Documents Pledge Agreement by any action or proceeding wherein a money judgment or any deficiency judgment or other judgment establishing personal liability shall be sought against Borrower or any principal, director, officer, employee, beneficiary, shareholder, partner, member, trustee, agent, or Affiliate of Borrower or any legal representatives, successors or assigns of any of the foregoing (collectively, the “Exculpated Parties”)Borrower's Affiliates, except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender to enforce and realize upon its interest under the Note, this Agreement, the Security Instrument and Note, the Pledge Agreement, the other Loan Documents, or in and the PropertyCollateral, and any other Collateral created by this Agreement, the RentsNote, or any the Pledge Agreement and the other collateral given to Lender pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, that any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower’s 's interest in the Property, in the Rents Collateral and in any other collateral given to Lender, and . Lender, by accepting the Note, this Agreement, the Security Instrument Note and the other Loan DocumentsPledge Agreement, agrees that it shall not xxx not, except as otherwise provided in this Section 9.4 and comparable provisions or in the Pledge Agreement, sue for, seek or demand any deficiency judgment against Borrower or any xxx of the Exculpated Parties Borrower's Affiliates in any such action or proceeding proceeding, under or by reason of or under or in connection with the Note, this Agreement, the Security Instrument Note, the Pledge Agreement or the other Loan Documents. The provisions of this Section shall not, however, (1i) 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; (2ii) impair the right of Lender to name Borrower as a party defendant in any action or suit for judicial foreclosure and sale under the Security InstrumentPledge Agreement; (3iii) except as set forth in this Section 9.4, affect the validity or enforceability of any indemnity, guaranty or similar instrument indemnity (including, without limitation, indemnities set forth in Article 12 hereof, Section 11.2 hereof, in the Guaranty and the Environmental Indemnity) made in connection with the Loan or any of the rights and remedies of Lender thereunder ), guaranty (including, without limitation, Lender’s right to enforce said rights and remedies against Borrower and/or Guarantor (as applicable) personally and without the effect of Guaranty), master lease or similar instrument made in connection with this Agreement, the exculpatory provisions of this Article 13)Note, the Pledge Agreement, or the other Loan Documents; (4iv) impair the rights right of Lender to (A) obtain the appointment of a receiver and/or (B) enforce its rights and remedies provided in Articles 8 and 9 hereofreceiver; (5) impair the enforcement of the assignment of leases and rents contained in the Security Instrument and in any other Loan Documents; (6v) impair the right of Lender to enforce Section 4.12(e) of this Agreement; (7) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted by the Security Instrument or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against the PropertySections 4.1.9, 4.1.29, 5.1.9 and 5.2.8 hereof; or (8) constitute a waiver of vi) 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 to the extent necessary to (A) preserve or enforce its rights and remedies against the Collateral or (B) obtain any Insurance Proceeds or Awards to which Lender would otherwise be entitled under the terms of this Agreement or the Pledge Agreement; provided however, Lender shall only enforce such judgment to the extent of any Loss incurred by amounts Lender is entitled to under the terms of this Agreement from such Insurance Proceeds and/or Awards.
(including attorneys’ fees and costs reasonably incurredb) arising out Notwithstanding the provisions of or in connection with this Section 9.4 to the following:
contrary, Borrower shall be personally liable to Lender for the Losses Lender incurs to the extent due to: (i) fraud or intentional material misrepresentation by any Borrower Party in connection with the Loan;
(ii) execution and the gross negligence or willful misconduct delivery of any Borrower Party;
(iii) any litigation or other legal proceeding related to the Debt filed by any Borrower Party 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 other Loan Documents;
(iv) waste to the Property caused by the intentional acts or intentional omissions of any Borrower Party and/or the removal or disposal of any portion of the Property after an Event of Default;
(v) the misapplication, misappropriation or conversion by any Borrower Party 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 Rents following an Event of Default or (D) any Tenant security deposits or Rents collected in advance;
(vi) any act of arson by any Borrower Party or of which any Borrower Party has knowledge;
(vii) failure to pay Taxes, charges for labor or materials or other charges that can create liens on any portion of the Property in accordance with the terms and provisions hereof;
(viii) failure to pay Insurance Premiums, to maintain the Policies in full force and effect and/or to provide Lender evidence of the same, in each case, as expressly provided herein;
(ix) any security deposits, advance deposits or any other deposits collected with respect to the Property which are not delivered to Lender upon a foreclosure of the 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;
(x) any tax on the making and/or recording of the Security Instrumentthis Agreement, the Note or any of Note, the Pledge Agreement, the other Loan Documents or any transfer or similar taxes (whether due upon the making of the same or upon Lender’s exercise of its remedies under the Mortgage Loan Documents), but excluding any income, franchise or other similar taxes;
(xi) the seizure or forfeiture of the Property, or any portion thereof, or Borrower’s interest therein, resulting from criminal wrongdoing by any Borrower Party;
(xii) the failure to make any Condemnation Payment and/or any Balancing Payment, to permit on-site inspections of the Property and/or to provide the Required Financial Items, in each case, as and when required herein;
(xiii) Intentionally Omitted;
(xiv) the failure to make repairs, renewals or replacements (including, without limitation, structural and nonstructural, exterior and interior, ordinary and extraordinary, foreseen and unforeseen) to the Property or any portion thereof (including, without limitation, the Improvements now or at any time hereafter erected on the Property) as and when required pursuant to the terms of the Loan Documents or as and when necessary to maintain the Property in good and safe condition, in a rentable and tenantable state of repair and/or in the condition required pursuant to the terms of the Loan Documents; and/or
(xv) any indemnity obligations of Lender to Bank under the Restricted Account Agreement (other than those arising as a direct result of Lender’s gross negligence or willful misconduct).
(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 Debt or to require that all collateral shall continue to secure all of the Debt owing to Lender in accordance with the Loan Documents, and (B) the Debt shall be fully recourse to Borrower in the event that: (i) the first full monthly payment of principal and interest under the Note is not paid when dueDocument; (ii) Borrower's or Pledgor's or Operating Lessee's or Mortgage Borrower's or Mezzanine Borrower's misapplication or misappropriation of Rents received by Borrower, Pledgor, Operating Lessee, Mortgage Borrower fails to comply with any provisions hereof relating to cash management or fails to appoint a new property manager upon Mezzanine Borrower after the request occurrence of Lender, fails to cooperate with any New Manager or fails to comply with any limitations on instructing the property manager, each as required by and in accordance with, as applicable, the terms and provisions of, this Agreement, the Assignment an Event of Management Agreement and the Security InstrumentDefault; (iii) any representation, warranty or covenant contained in Article 5 or Article 6 hereof is violated or breached; (iv) a Bankruptcy Event occurs; or (v) Sections 11.1 or 11.6 hereof are violated or breached in any material respect.
Appears in 1 contract
Samples: Junior Mezzanine Loan Agreement (Felcor Lodging 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 Security Instrument or the other Loan Documents by any action or proceeding wherein a money judgment or any deficiency judgment or other judgment establishing personal liability shall be sought against Borrower or any principal, director, officer, employee, beneficiary, shareholder, partner, member, trustee, agent, or Affiliate of Borrower or any legal representatives, successors or assigns of any of the foregoing (collectively, the “Exculpated Parties”), except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender to enforce and realize upon its interest under the Note, this Agreement, the Security Instrument and the other Loan Documents, or in the PropertyProperty (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 Property, in the Rents and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Security Instrument and the other Loan Documents, shall not xxx sue for, seek or demand any deficiency judgment against Borrower or any of the Exculpated Parties in any such action or proceeding under or by reason of or under or in connection with the Note, this Agreement, the Security Instrument or the other Loan Documents. The provisions of this Section shall not, however, (1) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (2) impair the right of Lender to name Borrower as a party defendant in any action or suit for foreclosure and sale under the Security Instrument; (3) affect the validity or enforceability of any indemnity, guaranty or similar instrument (including, without limitation, indemnities set forth in Article 12 hereof, Section 11.2 hereof, in the Guaranty and the Environmental Indemnity) made in connection with the Loan or any of the rights and remedies of Lender thereunder (including, without limitation, LenderLxxxxx’s right to enforce said rights and remedies against Borrower Bxxxxxxx and/or Guarantor (as applicable) personally and without the effect of the exculpatory provisions of this Article 13); (4) impair the rights of Lender to (A) obtain the appointment of a receiver and/or (B) enforce its rights and remedies provided in Articles 8 and 9 hereof; (5) impair the enforcement of the assignment of leases and rents contained in the Security Instrument and in any other Loan Documents; (6) impair the right of Lender to enforce Section 4.12(e) of this Agreement; (7) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted by the Security Instrument or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against the PropertyProperty (or any portion thereof); or (8) constitute a waiver of the right of Lender to enforce the liability and obligation of Borrower, by money judgment or otherwise, to the extent of any Loss actually incurred by Lender Lxxxxx (including reasonable attorneys’ fees and costs reasonably incurred) arising out of or in connection with the following:
(i) fraud or intentional material misrepresentation by Bxxxxxxx, Mxxxxxxxx Xxxxxxxx, any Borrower Party SPE Component Entity, any Mezzanine SPE Component Entity, Sponsor, any Affiliated Manager, Guarantor or any director, officer, beneficiary, shareholder, partner, member, employee or agent acting on behalf of any of the foregoing (each, a “Recourse Party”) in connection with the Loan;
(ii) the gross negligence or willful misconduct of any Borrower PartyRecourse Party in connection with the Loan;
(iii) the breach of any litigation or other legal proceeding related to indemnification provision in the Debt filed by Loan Documents concerning environmental laws, hazardous substances and asbestos and any Borrower Party that delays, opposes, impedes, obstructs, hinders, enjoins or otherwise interferes with or frustrates the efforts indemnification of Lender to exercise any rights and remedies available to Lender as provided herein and in the other Loan Documentswith respect thereto;
(iv) material physical waste to the any Property caused by the intentional acts or intentional omissions of any Borrower Party and/or Recourse Party, but only to the removal or disposal extent there is sufficient cash flow from the Properties to prevent such physical waste and such cash flow is made available by Lender for the purpose of any portion of the Property after an Event of Defaultpreventing such physical waste;
(v) the misapplication, removal of any property in contravention of the Loan Documents during the continuance of an Event of Default other than in the ordinary course of business;
(vi) the misappropriation or conversion of any of the following by any Borrower a Recourse Party in contravention of the Loan Documents: (A) any insurance proceeds paid received by Borrower by reason of any loss, damage or destruction to the PropertyCasualty, (B) any Awards or other amounts received by Borrower from a governmental authority in connection with the a Condemnation of all or a portion of the Property, or (C) any Rents following an Event of Default or (D) any Tenant security deposits or Rents collected in advance;
(vi) any act of arson revenues generated by any Borrower Party or of which any Borrower Party has knowledgethe Properties;
(vii) failure to pay Taxes, charges for labor or materials or other charges that can create liens on any portion of the Property in accordance with the terms and provisions hereof;
(viii) failure to pay Insurance Premiums, to maintain the Policies in full force and effect and/or to provide Lender evidence of the same, in each case, as expressly provided herein;
(ix) any security depositsSecurity Deposits, advance deposits or any other deposits collected with respect to the any Property which are not delivered to Lender upon a foreclosure of the such Property or action in lieu thereof, except to the extent any such security deposits Security Deposits were applied in accordance with the terms and conditions of any of the Leases prior applicable Lease;
(viii) any litigation or other legal proceeding related to the occurrence Loan filed by a Recourse Party with the effect of delaying, opposing, impeding, obstructing, hindering, enjoining or otherwise interfering with the efforts of Lxxxxx to exercise any rights and remedies available to Lender during the continuance of an Event of Default; provided, however, that there shall be no liability hereunder on account of, and the foregoing shall not restrict, Bxxxxxxx’s or Guarantor’s right to, dispute, in good faith, whether the relevant Event of Default that gave rise shall have occurred or whether an action taken by Lender pursuant to such the Loan Documents is permitted thereby, nor shall Borrower be restricted from, or have liability hereunder for, bringing a good faith counterclaim which if not raised in the foreclosure proceeding would be barred, and which does not seek to enjoin the enforcement action by Lxxxxx;
(ix) Borrower fails to obtain Lxxxxx’s prior written consent to any additional indebtedness or action in lieu thereofvoluntary lien encumbering any Property and not permitted by the Loan Documents;
(x) any tax on the making and/or recording a material breach by Borrower of the Security Instrument, the Note or any of the other Loan Documents or any transfer or similar taxes (whether due upon the making of the same or upon Lender’s exercise of its remedies under the Loan Documents), but excluding any income, franchise or other similar taxesSection 5.5;
(xi) the seizure or forfeiture of the Propertyany voluntary termination, or any portion thereofvoluntary, or Borrowermaterial modification of any Ground Lease by Borrower without Lxxxxx’s interest thereinprior written consent other than as expressly permitted under this Agreement; provided, resulting from criminal wrongdoing by any Borrower Partythat the liability with respect to this Section 13.1(a)(xi) shall not exceed the Allocated Loan Amount of the applicable Ground Leased Property;
(xii) (A) any voluntary termination of any PILOT Lease and/or PILOT Document or transfer or surrender of any PILOT Lease and/or PILOT Document (including any PILOT Bond) by Borrower without Lxxxxx’s prior written consent other than in connection with Borrower acquiring the fee estate from the applicable PILOT Lessor or as otherwise expressly permitted under this Agreement, (B) any termination of any PILOT Lease and/or PILOT Document as a result of a foreclosure of the applicable Security Instrument or deed in lieu thereof or (C) Borrower’s or the applicable Tenant’s failure to make comply with or Borrower’s or the applicable Tenant’s breach of any Condemnation Payment PILOT Lease and/or PILOT Document that results in (x) a reduction of any Balancing Paymenttax abatement and/or mandatory repayment of any past or current tax abatement under such PILOT Lease and/or PILOT Document, to permit on-site inspections as applicable, (y) termination of such PILOT Lease and/or PILOT Document, as applicable, and the benefits thereunder in favor of Borrower or Tenant or (z) a default by such Borrower under the applicable Lease for such PILOT Property and/or to provide the Required Financial Items(and, in any such case, Losses shall include lost rental income); provided, that, in each case, as and when required hereinthe liability with respect to this Section 13.1(a)(xii) shall not exceed the Allocated Loan Amount of the applicable PILOT Property;
(xiii) Intentionally Omittedother than as set forth in Section 13.1(b)(v), a breach by Borrower of any covenant of Article 5 of this Agreement documents (excluding any provision requiring each Borrower to remain solvent, maintain adequate capital or pay its debts as they come due);
(xiv) the failure Condominium Documents are amended, modified, supplemented, terminated, cancelled or otherwise cease to make repairs, renewals or replacements (including, exist without limitation, structural and nonstructural, exterior and interior, ordinary and extraordinary, foreseen and unforeseen) to the Property or any portion thereof (including, without limitation, the Improvements now or at any time hereafter erected on the Property) as and when required pursuant to the terms of the Loan Documents or as and when necessary to maintain the Property in good and safe condition, in a rentable and tenantable state of repair and/or in the condition required pursuant to the terms of the Loan Documents; and/orLender’s prior written consent;
(xv) any indemnity obligations breach or violation of the representations and warranties in Section 3.18 hereof with respect to any Leases for which a tenant estoppel certificate was not delivered on or prior to the Closing Date;
(xvi) any liability or obligation of Borrower relating to the Previously-Owned Property; and/or
(xvii) failure to pay (A) Taxes when the same become delinquent, subject to Borrower’s right to contest the same as provided in this Agreement or (B) Insurance Premiums on or prior to the date the same is due; provided, in each case, there shall be no liability under this Section 13.1(a)(xvii) if (x) there is insufficient cash flow from the Properties to pay such Taxes or Insurance Premiums prior to the date upon which such payment becomes delinquent or (y) there are sufficient funds in the Tax Account or the Insurance Account, as applicable, to pay such Taxes or Insurance Premiums prior to the date upon which such payment becomes delinquent and Lender is required to Bank under use such amounts for the Restricted Account Agreement (other than those arising as a direct result payment of Lender’s gross negligence such Taxes or willful misconduct)Insurance Premiums and fails to make such payment in accordance with this Agreement.
(b) Notwithstanding anything to the contrary in this Agreement, the Note or any of the Loan Documents, (A) Lender shall not be deemed to have waived any right which Lender may have under Section 506(a), 506(b), 1111(b) or any other provisions of the Bankruptcy Code to file a claim for the full amount of the Debt or to require that all collateral shall continue to secure all of the 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 any SPE Component Entity or any Affiliate thereof files, or joins in the first full monthly payment of principal and interest filing of, a petition against Borrower under the Note is not paid when due; Bankruptcy Code or any other Federal or state bankruptcy or insolvency law, or solicits or causes to be solicited (or otherwise colludes with) petitioning creditors for any involuntary petition against Borrower,
(ii) Borrower fails or any SPE Component Entity or any Affiliate thereof files an answer consenting to comply with an involuntary petition filed against Borrower (other than any provisions hereof relating answer which is required to cash management be made by applicable law), by any other person under the Bankruptcy Code or fails to appoint a new property manager upon the request of Lender, fails to cooperate with any New Manager other federal or fails to comply with any limitations on instructing the property manager, each as required by and in accordance with, as applicable, the terms and provisions of, this Agreement, the Assignment of Management Agreement and the Security Instrument; state bankruptcy or insolvency law,
(iii) Borrower or any representationSPE Component Entity consents to or joins in an application for the appointment of a custodian, warranty receiver, trustee, or covenant contained in Article 5 or Article 6 hereof is violated or breached; examiner for Borrower (other than with the prior written consent of Lxxxxx),
(iv) a Bankruptcy Event occurs; Bxxxxxxx makes an assignment for the benefit of creditors (other than to Lender in connection with the Loan or with the prior written consent of Lxxxxx),
(v) Sections 11.1 there is a breach of any provision of Article 5 (Single Purpose Entity Covenants) hereof or 11.6 hereof are violated the separateness covenants contained in the Borrower’s or breached SPE Component Entity’s organizational documents (excluding, in each case, any provision requiring each Borrower to remain solvent, maintain adequate capital or pay its debts as they come due) and such breach is cited by a court of competent jurisdiction in a final order in a proceeding under the Bankruptcy Code as a material respectfactor in ordering the substantive consolidation of Borrower with any other Person other than a co-Borrower under the Loan; provided that the motion or pleading seeking substantive consolidation was not brought or supported by Lxxxxx and, as a result thereof, Borrower is subsequently substantively consolidated in a case under the Bankruptcy Code with any Person other than a co-Borrower under the Loan, or
(vi) Borrower fails to obtain Lxxxxx’s prior consent to (a) the transfer or conveyance of all or any portion of any Property, or (b) the transfer of direct or indirect equity interests in Borrower or Mezzanine Borrower, in each case in violation of the Loan Documents.
Appears in 1 contract
Samples: Loan Agreement (Industrial Logistics Properties Trust)
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 Security Instrument Mortgage or the other Loan Documents by any action or proceeding wherein a money judgment or any deficiency judgment or other judgment establishing personal liability shall be sought against Borrower or any principal, director, officer, employee, beneficiary, shareholder, partner, member, trustee, agent, or Affiliate of Borrower or any legal representatives, successors or assigns of Borrower or its Affiliate or any principals, directors, officers, employees, beneficiaries, shareholders, partners, members, trustees, agents, or Affiliates of any of the foregoing (collectively, but specifically excluding (i) ALX to the extent of ALX’s obligations and liabilities under the ALX Letter of Credit Agreement and (ii) any Qualified Guarantor to the extent of such Qualified Guarantor’s liability under any Alteration Deficiency Guaranty, Completion Guaranty or any other guaranty provided in connection with the Loan, the “Exculpated Parties”), except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender to enforce and realize upon its interest under the Note, this Agreement, the Security Instrument Mortgage and the other Loan Documents, or in the Property, the Rents, 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 Property, in the Rents and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Security Instrument Mortgage and the other Loan Documents, shall not xxx for, seek or demand any deficiency judgment against Borrower or any of the Exculpated Parties Party in any such action or proceeding under or by reason of or under or in connection with the Note, this Agreement, the Security Instrument Mortgage or the other Loan Documents. The provisions of this Section 10.1 shall not, however, (1a) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (2b) impair the right of Lender to name Borrower as a party defendant in any action or suit for foreclosure and sale under the Security InstrumentMortgage; (3c) affect the validity or enforceability of any indemnityof the Loan Documents, or any guaranty or similar instrument (including, without limitation, indemnities set forth in Article 12 hereof, Section 11.2 hereof, in the Guaranty and the Environmental Indemnity) made in connection with the Loan or any of the rights and remedies of Lender thereunder (including, without limitation, Lender’s right to enforce said rights and remedies against Borrower and/or Guarantor (as applicable) personally and without the effect of the exculpatory provisions of this Article 13)thereunder; (4) impair the rights of Lender to (A) obtain the appointment of a receiver and/or (B) enforce its rights and remedies provided in Articles 8 and 9 hereof; (5) impair the enforcement of the assignment of leases and rents contained in the Security Instrument and in any other Loan Documents; (6d) impair the right of Lender to enforce Section 4.12(e) obtain the appointment of this Agreementa receiver; (7e) impair 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 Security Instrument Mortgage or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against the Property; or (8) h) 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 Loss loss, damage, cost, expense, liability, claim or other obligation reasonably incurred by Lender (including out-of-pocket attorneys’ fees and costs reasonably incurredincurred but excluding any consequential, special or punitive damages) arising out of or in connection with the following:following (all such liability and obligation of Borrower for any or all of the following being referred to herein as “Borrower’s Recourse Liabilities”):
(i) fraud fraudulent acts, willful misconduct or material intentional misrepresentation by Borrower or any Borrower Party Affiliate in connection with the Loan;
(ii) the gross negligence or willful misconduct breach by Borrower of any Borrower Partyrepresentation, warranty, covenant or indemnification provision in the Environmental Indemnity;
(iii) the intentional misappropriation by Borrower of any litigation Reserve Funds disbursed to Borrower, or other legal proceeding related any intentional failure to deposit rents into the Clearing Account to the Debt filed by any Borrower Party 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 extent in the other Loan Documentscontrol of Borrower, unless such rents are otherwise delivered to Lender;
(iv) any intentional (other than, in each case, as part of or to facilitate any alteration that is permitted hereunder) material physical waste of the Property by Borrower or any Borrower Affiliate, or any intentional wrongful removal or destruction of a material portion of the Property or damage to a material portion of the Property caused by the intentional acts willful misconduct or intentional omissions gross negligence of Borrower or any Borrower Party and/or the removal or disposal of any portion of the Property after an Event of DefaultAffiliate;
(v) the misapplication, misappropriation commission of any criminal act by Borrower or conversion by any Borrower Party Affiliate which results in the forfeiture of the Property;
(vi) the intentional misappropriation by Borrower or any Borrower Affiliate of (A) any insurance proceeds paid Insurance Proceeds actually received by reason of Borrower or any loss, damage Borrower Affiliate 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 Rents following an Event of Default Property actually received by Borrower or (D) any Tenant security deposits or Rents collected in advance;
(vi) any act of arson by any Borrower Party or of which any Borrower Party has knowledgeAffiliate;
(vii) failure to pay Taxesafter the occurrence and during the continuance of an Event of Default, charges for labor the intentional misappropriation by Borrower or materials or other charges that can create liens on any portion Borrower Affiliate of any Rents in violation of the Property in accordance with the terms and provisions hereofLoan Documents;
(viii) all or any material portion of the Property being encumbered by a Lien voluntarily granted by Borrower (i.e., not arising by operation of law) in violation of the Loan Documents, or Borrower’s failure to pay Insurance Premiumsany charges (including, without limitation, charges for labor and materials) that create Liens on the Property, regardless of whether arising by operation of law, to maintain the Policies in full force and effect and/or extent cash flow from the Property is sufficient to provide Lender evidence make such payments and, during a Trigger Period, funds are made available to Borrower for payment of the same, in each case, as expressly provided hereinsuch charges;
(ix) Borrower’s failure to pay Taxes or transfer taxes, maintain required Policies, pay insurance premiums for such Policies, or pay any Condominium Charges to the extent cash flow from the Property is sufficient to make such payments and all other payments required of Borrower and, during a Trigger Period, funds are made available to Borrower to make such payments;
(x) the voluntary incurrence by Borrower of any Indebtedness for borrowed money in violation of the provisions of this Agreement or any other Loan Document (other than Permitted Encumbrances);
(xi) the failure by Borrower to deliver to Lender any security deposits, advance deposits or any other deposits collected with respect to the Property which are not delivered to Lender upon a foreclosure of by Lender under the Property or action in lieu thereofLoan Documents, unless previously applied (except to the extent any that such security deposits were applied in accordance with the terms and conditions applicable lease or other governing document or Borrower did not have the legal right, because of any of the Leases prior to the occurrence of the Event of Default that gave rise to such foreclosure or action in lieu thereof;
(x) any tax on the making and/or recording of the Security Instrumenta bankruptcy, the Note or any of the other Loan Documents or any transfer receivership or similar taxes (whether due upon the making judicial proceeding, to direct disbursement of the same or upon Lender’s exercise of its remedies under the Loan Documentssuch deposits), but excluding any income, franchise or other similar taxes;
(xi) the seizure or forfeiture of the Property, or any portion thereof, or Borrower’s interest therein, resulting from criminal wrongdoing by any Borrower Party;
(xii) the failure to make any Condemnation Payment and/or any Balancing Payment, to permit on-site inspections termination of the Property and/or to provide Condominium or the Required Financial Itemsremoval of any Unit from the Condominium, in each case, as and when required herein;in violation of the terms of this Agreement, which was voted for or consented to or approved by Borrower (or the members of the Condominium Board appointed by Borrower); and/or
(xiii) Intentionally Omitted;
(xivA) the failure by Borrower, any Borrower Affiliate and/or any other owner of the Additional Option Space (as defined in the Bloomberg Lease) and/or the Lower Option Space (as defined in the Option Agreement) (other than Lender or any Affiliate of Lender) to make repairscomply with the terms of Article 36 of the Bloomberg Lease and/or Article 2 of the Option Agreement or any other provision of the Option Agreement (an “Expansion Space/Option Agreement Default”), renewals (B) the exercise of any rights that the Tenant under the Bloomberg Lease and/or the Option Agreement may have as a result of an Expansion Space/Option Agreement Default (whether pursuant to the Bloomberg Lease, the Option Agreement, at law or replacements (in equity), including, without limitation, structural and nonstructural, exterior and interior, ordinary and extraordinary, foreseen and unforeseenany rights to set off any payments required under the Bloomberg Lease and/or (C) paying any amount or performing any obligation with respect to the Property or any portion thereof (including, without limitation, Additional Option Space and/or the Improvements now or at any time hereafter erected on Lower Option Space after the Property) as and when required pursuant to the terms occurrence of the Loan Documents or as and when necessary to maintain the Property in good and safe condition, in a rentable and tenantable state of repair and/or in the condition required pursuant to the terms of the Loan Documents; and/or
(xv) any indemnity obligations of Lender to Bank under the Restricted Account an Expansion Space/Option Agreement (other than those arising as a direct result of Lender’s gross negligence or willful misconduct).
(b) Default. 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 Debt Obligations or to require that all collateral shall continue to secure all of the Debt Obligations owing to Lender in accordance with the Loan Documents, and (B) the Debt Obligations shall be fully recourse to Borrower in the event that: that any of the following occur (each, a “Springing Recourse Event”): (i) a breach of the first full monthly payment covenants set forth in Schedule V hereof (other than those single purpose entity covenants that relate to solvency or adequacy of principal capital) or a breach of any of the certifications set forth in the “Recycled Entity Certificate”, in each case, that results in a substantive consolidation of the assets and interest liabilities of Borrower with any other Person in connection with a proceeding under the Note is not paid when dueBankruptcy Code or under federal, state or foreign insolvency law (other than on motion or pleading seeking a substantive consolidation brought or actively supported by Lender); (ii) Borrower fails or any Borrower Affiliate, officer, director or representative which Controls Borrower consents to comply or files a voluntary petition with respect to Borrower under the Bankruptcy Code or any provisions hereof relating to cash management other Federal or fails to appoint a new property manager upon the request of Lender, fails to cooperate with any New Manager state bankruptcy or fails to comply with any limitations on instructing the property manager, each as required by and in accordance with, as applicable, the terms and provisions of, this Agreement, the Assignment of Management Agreement and the Security Instrumentinsolvency law; (iii) Borrower files an application for the appointment of a receiver, trustee or examiner for Borrower or any representationportion of the Property, warranty except at the request of or covenant contained in Article 5 or Article 6 hereof is violated or breached; with the consent of Lender, (iv) the filing of an involuntary petition against Borrower under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law by any other Person in which Borrower or a Borrower Affiliate that directly or indirectly Controls Borrower colludes with and/or Borrower or a Borrower Affiliate that directly or indirectly Controls Borrower solicits or causes to be solicited petitioning creditors for any involuntary petition against Borrower by any Person; (v) Borrower files an answer consenting to, or joining in, any involuntary petition filed against it by any other Person under the Bankruptcy Event occursCode or any other Federal or state bankruptcy or insolvency law; (vi) Borrower makes an assignment for the benefit of creditors or admits, in writing or in any legal proceeding, its insolvency or inability to pay its debts as they become due, which admission is used as evidence of Borrower’s insolvency in connection with an involuntary petition under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law by a Person other than Lender (except for (A) any admissions that Borrower believes in good faith are truthful when made and (B) any such admission to Lender or any servicer of the Loan that Borrower cannot pay its operating expenses (including Debt Service payments due in respect of the Loan) or that Borrower cannot refinance the Loan on the Maturity Date); or (vvii) Sections 11.1 there is a voluntary Transfer of all or 11.6 hereof are violated or breached in any material respectportion of the Property or any direct or indirect interest therein or any Transfer of any direct or indirect interest in Borrower, in either case, in violation of the Loan Documents.
Appears in 1 contract
Samples: Loan Agreement (Alexanders Inc)
Exculpation. (a) Subject to the qualifications below, Lender shall not enforce the liability and obligation of Borrower to perform and observe the obligations contained in the Note, this Agreement, the Security Instrument or the other Loan Documents by any action or proceeding wherein a money judgment or any deficiency judgment or other judgment establishing personal liability shall be sought against Borrower or any principal, director, officer, employee, beneficiary, shareholder, partner, member, trustee, agent, or Affiliate affiliate of Borrower (but specifically excluding Guarantor) or any legal representatives, successors or assigns of any of the foregoing (collectively, the “Exculpated Parties”), except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender to enforce and realize upon its interest under the Note, this Agreement, the Security Instrument and the other Loan Documents, or in the 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 Property, in the Rents and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Security Instrument and the other Loan Documents, shall not xxx for, seek or demand any deficiency judgment against Borrower or any of the Exculpated Parties in any such action or proceeding under or by reason of or under or in connection with the Note, this Agreement, the Security Instrument or the other Loan Documents. The provisions of this Section shall not, however, (1) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (2) impair the right of Lender to name Borrower as a party defendant in any action or suit for foreclosure and sale under the Security Instrument; (3) affect the validity or enforceability of any indemnity, guaranty or similar instrument (including, without limitation, indemnities set forth in Article 12 hereof, Section 11.2 hereof, in the Guaranty and the Environmental Indemnity) made in connection with the Loan or any of the rights and remedies of Lender thereunder (including, without limitation, Lender’s right to enforce said rights and remedies against Borrower and/or Guarantor (as applicable) personally and without the effect of the exculpatory provisions of this Article 13); (4) impair the rights right of Lender to (A) obtain the appointment of a receiver and/or (B) enforce its rights and remedies provided in Articles 8 and 9 hereofreceiver; (5) impair the enforcement of the assignment Assignment of leases and rents contained in the Security Instrument and in any other Loan DocumentsLeases; (6) impair the right of Lender to enforce Section 4.12(e4.12(f) of this Agreement; (7) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted by the Security Instrument or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against the Property; or (8) constitute a waiver of the right of Lender to enforce the liability and obligation of Borrower, by money judgment or otherwise, to the extent of any Loss incurred by Lender (including attorneys’ fees and costs reasonably incurred) arising out of or in connection with the following:
(i) fraud or intentional misrepresentation by Borrower, any Borrower Party of the Exculpated Parties, Sponsor or Guarantor in connection with the Loan;
(ii) the gross negligence or willful misconduct of any Borrower PartyBorrower, its agents, Affiliates, officers, or employees;
(iii) any litigation or other legal proceeding related to the Debt filed by Borrower or any Borrower Party Affiliate thereof that delaysdelays or impairs Lender’s ability to preserve, opposesenforce or foreclose its lien on the Property in which action a claim, impedescounterclaim, 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 other Loan Documentsdefense is asserted against Lender;
(iv) waste to the Property caused by the intentional acts or intentional omissions of any Borrower Party Borrower, its agents, Affiliates, officers, employees or contractors and/or the removal or disposal of any portion of the Property after an Event of Default;
(v) the misapplication, misappropriation or conversion by any Borrower Party 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 Rents following an Event of Default or (D) any Tenant security deposits or Rents collected in advance;
(vi) any act of arson by any Borrower Party or of which any Borrower Party has knowledge;
(vii) failure to pay Taxes, charges for labor or materials or other charges that can create liens on any portion of the Property and/or failure to pay Insurance Premiums in accordance with the terms and provisions hereof, but only to the extent the net cash flow of the Property (that is, Operating Income less Operating Expenses) was sufficient to permit payment of the same by Borrower;
(viii) failure to pay Insurance Premiums, to maintain the Policies in full force and effect and/or to provide Lender evidence of the same, in each case, as expressly provided herein;
(ixvii) any security deposits, advance deposits or any other deposits collected with respect to the Property which are not delivered to Lender upon a foreclosure of the 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;
(xviii) any tax on the making and/or recording of the Security Instrument, the Note or any of the other Loan Documents or any transfer or similar taxes (whether due upon the making of the same or upon Lender’s exercise of its remedies under the Loan Documents), but excluding any income, franchise or other similar taxes;
(xiix) the seizure or forfeiture of the Property, or any portion thereof, or Borrower’s interest therein, resulting from criminal wrongdoing by any Borrower Party;Borrower, its agents, Affiliates, officers, or employees; or
(xii) the failure to make any Condemnation Payment and/or any Balancing Payment, to permit on-site inspections of the Property and/or to provide the Required Financial Items, in each case, as and when required herein;
(xiii) Intentionally Omitted;
(xiv) the failure to make repairs, renewals or replacements (including, without limitation, structural and nonstructural, exterior and interior, ordinary and extraordinary, foreseen and unforeseen) to the Property or any portion thereof (including, without limitation, the Improvements now or at any time hereafter erected on the Property) as and when required pursuant to the terms of the Loan Documents or as and when necessary to maintain the Property in good and safe condition, in a rentable and tenantable state of repair and/or in the condition required pursuant to the terms of the Loan Documents; and/or
(xvx) any indemnity obligations violation or breach of Lender to Bank under the Restricted Account Agreement (other than those arising as a direct result of Lender’s gross negligence any representation, warranty or willful misconduct).covenant contained in Article 5 hereof;
(b) Notwithstanding anything to the contrary in this Agreement, the Note or any of the Loan Documents, (A) Lender shall not be deemed to have waived any right which Lender may have under Section 506(a), 506(b), 1111(b) or any other provisions of the Bankruptcy Code to file a claim for the full amount of the Debt or to require that all collateral shall continue to secure all of the Debt owing to Lender in accordance with the Loan Documents, and (B) the Debt shall be fully recourse to Borrower in the event that: (i) the first full monthly payment of principal and interest under the Note is not paid when due; (ii) Borrower fails to comply with any provisions hereof relating permit on-site inspections of the Property, fails to cash management provide the Required Financial Items or fails to appoint a new property manager upon the request of Lender, fails to cooperate with any New Manager or fails to comply with any limitations on instructing the property manager, each as required by by, and in accordance with, as applicable, with the terms and provisions of, this Agreement, the Assignment of Management Agreement and the Security Instrument; (iii) any representation, warranty or covenant contained in Article 5 or Article 6 hereof is violated or breached; (iv) Borrower files a voluntary petition under the Bankruptcy Event occursCode or any other Creditors Rights Laws; or (v) Sections 11.1 an Affiliate, officer, director, or 11.6 hereof are violated representative which Controls, directly or breached indirectly, Borrower files, or joins in the filing of, an involuntary petition against Borrower under the Bankruptcy Code or any other Creditors Rights Laws, 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 material respect.involuntary petition filed against it, by any other Person under the Bankruptcy Code or any other Creditors Rights Laws, 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 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
Appears in 1 contract
Exculpation. (a) Subject Notwithstanding any other provision of 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 this Agreement, the Note, this Agreement, the Security Instrument or the other Loan Documents by any action or proceeding wherein a money judgment or any deficiency judgment or other judgment establishing personal liability shall be sought against Borrower or any principal, director, officer, employee, beneficiary, shareholder, partner, member, trustee, agent, or Affiliate of Borrower or any legal representatives, successors or assigns of any of the foregoing (collectively, the “Exculpated Parties”)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 to enforce and realize upon its interest under this Agreement, the Note, this Agreement, the Security Instrument and the other Loan Documents, or in the 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 and Operating Lessee only to the extent of Borrower’s and Operating Lessee’s interest in the Property, in the Rents Rents, and in any other collateral given to Lender, and Lender, by accepting this Agreement, the Note, this Agreement, the Security Instrument and the other Loan Documents, agrees that it shall not xxx for, seek or demand any deficiency judgment against Borrower or any of the Exculpated Parties and Operating Lessee in any such action or proceeding under or by reason of or under or in connection with this Agreement, the Note, this Agreement, the Security Instrument or the other Loan Documents. 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 any Person that directly or indirectly own any equity interest in or otherwise controls any partner, member, director, officer or representative thereof (other than, in each case, the Guarantor). The provisions of this Section 11.22 shall not, however, (1a) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents, except to the extent Lender has expressly waived in this Section 11.22 the right to xxx Borrower and Operating Lessee for a money judgment; (2b) impair the right of Lender to name Borrower as a party defendant in any action or suit for foreclosure and sale under the Security Instrument; (3) affect the validity or enforceability of any indemnity, guaranty or similar instrument (including, without limitation, indemnities set forth in Article 12 hereof, Section 11.2 hereof, in the Guaranty and the Environmental Indemnity) made in connection with the Loan or any of the rights and remedies of Lender thereunder (including, without limitation, Lender’s right to enforce said rights and remedies against Borrower and/or Guarantor (as applicable) personally and without the effect of the exculpatory provisions of this Article 13); (4) impair the rights of Lender to (A) obtain the appointment of a receiver and/or (B) enforce its rights and remedies provided in Articles 8 and 9 hereof; (5) impair the enforcement of the assignment of leases and rents contained in the Security Instrument and in any other Loan Documents; (6) impair the right of Lender to enforce Section 4.12(e) of this Agreement; (7) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted by the Security Instrument or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against the Property; or (8) constitute a waiver of the right of Lender to enforce the liability and obligation of Borrower, by money judgment or otherwise, to the extent of any Loss incurred by Lender (including attorneys’ fees and costs reasonably incurred) arising out of or in connection with the following:
(i) fraud or intentional misrepresentation by any Borrower Party in connection with the Loan;
(ii) the gross negligence or willful misconduct of any Borrower Party;
(iii) any litigation or other legal proceeding related to the Debt filed by any Borrower Party 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 other Loan Documents;
(iv) waste to the Property caused by the intentional acts or intentional omissions of any Borrower Party and/or the removal or disposal of any portion of the Property after an Event of Default;
(v) the misapplication, misappropriation or conversion by any Borrower Party 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 Rents following an Event of Default or (D) any Tenant security deposits or Rents collected in advance;
(vi) any act of arson by any Borrower Party or of which any Borrower Party has knowledge;
(vii) failure to pay Taxes, charges for labor or materials or other charges that can create liens on any portion of the Property in accordance with the terms and provisions hereof;
(viii) failure to pay Insurance Premiums, to maintain the Policies in full force and effect and/or to provide Lender evidence of the same, in each case, as expressly provided herein;
(ix) any security deposits, advance deposits or any other deposits collected with respect to the Property which are not delivered to Lender upon a foreclosure of the 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;
(x) any tax on the making and/or recording of the Security Instrument, the Note or any of the other Loan Documents or any transfer or similar taxes (whether due upon the making of the same or upon Lender’s exercise of its remedies under the Loan Documents), but excluding any income, franchise or other similar taxes;
(xi) the seizure or forfeiture of the Property, or any portion thereof, or Borrower’s interest therein, resulting from criminal wrongdoing by any Borrower Party;
(xii) the failure to make any Condemnation Payment and/or any Balancing Payment, to permit on-site inspections of the Property and/or to provide the Required Financial Items, in each case, as and when required herein;
(xiii) Intentionally Omitted;
(xiv) the failure to make repairs, renewals or replacements (including, without limitation, structural and nonstructural, exterior and interior, ordinary and extraordinary, foreseen and unforeseen) to the Property or any portion thereof (including, without limitation, the Improvements now or at any time hereafter erected on the Property) as and when required pursuant to the terms of the Loan Documents or as and when necessary to maintain the Property in good and safe condition, in a rentable and tenantable state of repair and/or in the condition required pursuant to the terms of the Loan Documents; and/or
(xv) any indemnity obligations of Lender to Bank under the Restricted Account Agreement (other than those arising as a direct result of Lender’s gross negligence or willful misconduct).
(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 Debt or to require that all collateral shall continue to secure all of the Debt owing to Lender in accordance with the Loan Documents, and (B) the Debt shall be fully recourse to Borrower in the event that: (i) the first full monthly payment of principal and interest under the Note is not paid when due; (ii) Borrower fails to comply with any provisions hereof relating to cash management or fails to appoint a new property manager upon the request of Lender, fails to cooperate with any New Manager or fails to comply with any limitations on instructing the property manager, each as required by and in accordance with, as applicable, the terms and provisions of, this Agreement, the Assignment of Management Agreement and the Security Instrument; (iii) any representation, warranty or covenant contained in Article 5 or Article 6 hereof is violated or breached; (iv) a Bankruptcy Event occurs; or (v) Sections 11.1 or 11.6 hereof are violated or breached in any material respect.
Appears in 1 contract
Exculpation. (a) Subject to the qualifications below, Lender Administrative Agent shall not enforce the liability and obligation of Borrower to perform and observe the obligations contained in the NoteNotes, this Agreement, the Security Instrument Pledge Agreement or the other Loan Documents by any action or proceeding wherein a money judgment or any deficiency judgment or other judgment establishing personal liability shall be sought against Borrower or any principal, director, officer, employee, beneficiary, shareholder, partner, member, trustee, agent, or Affiliate of Borrower or any legal representatives, successors or assigns of any of the foregoing (collectively, the “Exculpated Parties”)Borrower, except that Lender Administrative Agent may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender Administrative Agent to enforce and realize upon its interest under the NoteNotes, this Agreement, the Security Instrument Pledge Agreement and the other Loan Documents, or in the Property, the Rents, Operating Income or any other collateral given to Lender Administrative Agent pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower’s interest in the Property, in the Rents Operating Income and in any other collateral given to LenderAdministrative Agent in the Loan Documents as security for the Loan, and LenderAdministrative Agent, by accepting the NoteNotes, this Agreement, the Security Instrument Pledge Agreement and the other Loan Documents, agrees for itself and its successors and assigns that it and its successors and assigns shall not xxx for, seek or demand any deficiency judgment against Borrower or any of (except to the Exculpated Parties extent set forth in subclause (vii) below) in any such action or proceeding under under, or by reason of or under of, or in connection with with, the NoteNotes, this Agreement, the Security Instrument Pledge Agreement or the other Loan Documents. The provisions of this Section 19.1(a) shall not, however, (1i) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (2ii) impair the right of Lender Administrative Agent to name Borrower as a party defendant in any action or suit for foreclosure and sale under the Security InstrumentPledge Agreement; (3iii) affect the validity or enforceability of the Guarantees or any indemnity, other guaranty or similar instrument (including, without limitation, indemnities set forth in Article 12 hereof, Section 11.2 hereof, in the Guaranty and the Environmental Indemnity) made in connection with the Loan or any of the rights and remedies of Lender thereunder (including, without limitation, Lender’s right to enforce said rights Administrative Agent and remedies against Borrower and/or Guarantor (as applicable) personally and without the effect of the exculpatory provisions of this Article 13)Lenders thereunder; (4iv) impair the rights right of Lender Administrative Agent to (A) obtain the appointment of a receiver and/or (B) enforce its rights and remedies provided in Articles 8 and 9 hereofreceiver; (5v) impair the enforcement of the assignment of leases and rents contained in the Security Instrument and in any other Loan Documents; (6) impair the right of Lender to enforce Section 4.12(e) of this Pledge Agreement; (7vi) constitute a prohibition against Lender to seek Administrative Agent seeking a deficiency judgment against Borrower in order to fully realize the security granted by the Security Instrument Pledge Agreement or to commence commencing any other appropriate action or proceeding in accordance with the terms of this Agreement in order for Lender Administrative Agent to exercise its remedies against the Property; or (8) vii) constitute a waiver of the right of Lender Administrative Agent to enforce the liability and obligation of BorrowerBorrower under the terms of this Agreement, by money judgment or otherwise, to the extent of any Loss actual out-of-pocket loss, actual damage, out-of-pocket cost and expense, liability, claim or other obligation actually suffered or actually incurred by Lender Administrative Agent or the Lenders (including reasonable attorneys’ fees and costs reasonably incurred) arising out of or in connection with the following:following but expressly excluding any and all punitive, special and exemplary damages, and any and all consequential damages in the nature of “lost profits” or “lost opportunities” or diminution in value (which diminution in value results solely from general market conditions) (all such liability and obligation of Borrower for any or all of the following being referred to herein as “Borrower Recourse Liabilities”):
(iA) fraud or intentional misrepresentation in writing by Borrower, Mortgage Borrower, Hotel Lessee, Guarantor or any of the Borrower Party Group in connection with the Loan;
(iiB) intentional physical waste of the gross negligence Property by any of the Borrower Group or willful misconduct any Person at the direction of any Borrower Partyof the foregoing;
(iiiC) any litigation or other legal proceeding related to the Debt filed by any Borrower Party 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 other Loan Documents;
(iv) waste to the Property caused by the intentional acts or intentional omissions of any Borrower Party and/or the removal or disposal of any portion of the Property by Borrower, Hotel Lessee or Mortgage Borrower in violation of the Loan Documents after an Event of Default;
(vD) the misapplication, misappropriation or conversion by or at the direction of any of the Borrower Party Group of (A) any insurance proceeds paid by reason of any loss, damage or destruction to the PropertyProceeds, (B) any Awards or other amounts received in connection with the Condemnation of all or a portion of the PropertyRevenues, (C) Advances or any Rents following an Event of Default or funds disbursed from the Collateral Accounts, (D) any Tenant security deposits or Rents collected Revenues received after an Event of Default, (E) any Revenues paid more than one (1) month in advance; or (F) any Gross Sales Proceeds or Net Sales Proceeds;
(vi) any act of arson by any Borrower Party or of which any Borrower Party has knowledge;
(viiE) failure to pay Taxes, charges for labor or materials or other charges that can create liens a Lien on any portion of the Property Property, except to the extent such Lien is subordinate to the Security Instrument and is being contested by Borrower, Hotel Lessee or Mortgage Borrower in accordance with the terms and provisions hereofof this Agreement;
(viii) failure to pay Insurance Premiums, to maintain the Policies in full force and effect and/or to provide Lender evidence of the same, in each case, as expressly provided herein;
(ixF) any unapplied security deposits, advance deposits or any other deposits collected with respect to the Property which are not delivered to Lender Administrative Agent upon a foreclosure of the Property or action in lieu thereof, except to the extent (A) any such security deposits were applied in accordance with the terms and conditions of any of the Leases Leases, or (B) such delivery to Administrative Agent is prohibited by Applicable Law;
(G) failure of the Borrower to purchase and maintain any Interest Rate Cap Agreement in accordance with Article XI (it being agreed that Administrative Agent shall have no obligation to purchase an Interest Rate Cap Agreement on behalf of Borrower, and that Lenders’ losses on account of Borrower’s failure to purchase an Interest Rate Cap Agreement are not limited to the cost of such Interest Rate Cap Agreement at the time the same was required to be purchased);
(H) Borrower’s, Hotel Lessee’s or Mortgage Borrower’s failure to obtain and maintain the fully paid for Policies in accordance with Section 8.1, except (i) as a result of the failure of any Lender to make an Advance for such payment of such Policies when required to have been made by the Lenders pursuant to this Agreement or (ii) during a Cash Management Event, to the extent Revenues are insufficient to pay same;
(I) Borrower’s, Hotel Lessee’s or Mortgage Borrower’s failure to pay all Impositions prior to the occurrence same becoming delinquent, except (i) as a result of the Event failure of Default that gave rise any Lender to make an Advance for such foreclosure payment of such Impositions when required to have been made by the Lenders pursuant to this Agreement or action in lieu thereof(ii) during a Cash Management Event, to the extent Revenues are insufficient to pay same;
(xJ) any tax on except to the making and/or recording of extent the Security Instrumentsame constitutes a Springing Recourse Event as set forth in Section 19.1(b)(G), the Note failure of Borrower, Mortgage Borrower or any SPE Entity to maintain its status as a Single Purpose Entity; provided, however, the foregoing shall not require any direct or indirect shareholder, partner or member of the other Loan Documents Borrower, Hotel Lessee, Mortgage Borrower or any transfer SPE Entity to make additional capital contributions to Borrower, Hotel Lessee, Mortgage Borrower or similar taxes (whether due upon the making of the same any SPE Entity, directly or upon Lender’s exercise of its remedies under the Loan Documents), but excluding any income, franchise or other similar taxesindirectly;
(xiK) the seizure or forfeiture of the Property, or any portion thereof, or Borrower’s interest therein, resulting from criminal wrongdoing by any Borrower Party[intentionally omitted];
(xiiL) the failure to make any Condemnation Payment and/or any Balancing Payment, to permit on-site inspections of the Property and/or to provide the Required Financial Items, in each case, as and when required hereinlitigation disclosed on Schedule V attached hereto;
(xiii) Intentionally Omitted;
(xivM) the failure to make repairs, renewals or replacements (including, without limitation, structural and nonstructural, exterior and interior, ordinary and extraordinary, foreseen and unforeseen) to the Property or any portion thereof (including, without limitation, the Improvements now or at any time hereafter erected on the Property) as and when required pursuant to the terms occurrence of the Loan Documents or as and when necessary to maintain the Property a voluntary Transfer in good and safe condition, in a rentable and tenantable state violation of repair and/or in the condition required pursuant to the terms of the Loan Documents; and/or
(xv) any indemnity obligations of Lender to Bank under the Restricted Account this Agreement (other than those arising that result in a Springing Recourse Event as a direct result expressly set forth in clause (H) of Lenderthe definition of Springing Recourse Event set forth below); and/or
(N) reasonable attorney’s gross negligence fees and expenses incurred by Administrative Agent or willful misconductany Lender in connection with the enforcement of its rights and remedies and any legal proceeding filed on account of any of the foregoing clauses (A) through (N).
(b) Notwithstanding anything to the contrary in this Agreement, the Note Notes or any of the other Loan Documents, (Ai) Lender Administrative Agent shall not be deemed to have waived any right which Lender Administrative Agent may have under Section 506(a), 506(b), 1111(b) or any other provisions of the U.S. Bankruptcy Code to file a claim for the full amount of the Debt secured by the Pledge Agreement or to require that all collateral shall continue to secure all of the Debt owing to Lender Obligations in accordance with the Loan Documents, and (Bii) the Debt shall be fully recourse to Borrower in the event that: of any of the following (each, a “Springing Recourse Event”):
(A) Borrower, Hotel Lessee, Mortgage Borrower or any SPE Entity 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, Hotel Lessee, Mortgage Borrower or any SPE Entity under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law by any of the Borrower Group or any other Person in which any of the Borrower Group colludes;
(C) any of the Borrower Group soliciting or petitioning creditors for any involuntary petition against Borrower, Hotel Lessee, Mortgage Borrower or any SPE Entity from any Person under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law;
(D) Borrower, Hotel Lessee, Mortgage Borrower, any SPE Entity, or any of Borrower Group consenting to or joining in any involuntary petition filed against Borrower, Hotel Lessee, Mortgage Borrower or any SPE Entity by any other Person under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law;
(E) Borrower, Hotel Lessee, Mortgage Borrower, any SPE Entity, or any of the Borrower Group consenting to or joining in an application for the appointment of a custodian, receiver, trustee, or examiner for Borrower, Hotel Lessee, Mortgage Borrower or an SPE Entity or all or any portion of the Property or the Collateral (other than an application by Administrative Agent or any Lender in connection with the enforcement of Administrative Agent’s or any Lender’s remedies under the Loan Documents);
(F) Borrower, Hotel Lessee, Mortgage Borrower or any SPE Entity making an assignment for the benefit of creditors;
(G) the failure of Borrower, Hotel Lessee, Mortgage Borrower or any SPE Entity to be a Single Purpose Entity, and such failure is cited as a material factor in any order for substantive consolidation of Borrower, Hotel Lessee, Mortgage Borrower or such SPE Entity with any other Person provided, however, the foregoing shall not require any direct or indirect shareholder, partner or member of Borrower, Hotel Lessee, Mortgage Borrower or any SPE Entity to make additional capital contributions to Borrower, Hotel Lessee, Mortgage Borrower or any SPE Entity, directly or indirectly;
(H) other than (i) the first full monthly payment of principal and interest under the Note is not paid when due; Permitted Transfers or (ii) Transfers which violate the provisions of this Agreement solely as a result of the failure of Borrower fails to comply deliver to Administrative Agent notice or other information required to be delivered in connection with any provisions hereof relating to cash management or fails to appoint such Transfer (provided that the applicable Transferee is not a new property manager upon the request of Lender, fails to cooperate with any New Manager or fails to comply with any limitations on instructing the property manager, each Prohibited Person and otherwise qualifies as required by and a permitted transferee in accordance with, as applicablewith the provisions of Article X hereof), the occurrence of one or more of the following Transfers in violation of this Agreement beyond applicable notice and cure periods (if any): (A) a voluntary sale, conveyance, master or ground lease, assignment or mortgage of all or any material portion of the fee interest in the Property or (B) a Transfer of the direct or indirect Equity Interests in Borrower, Hotel Lessee or Mortgage Borrower that results in a change of Control of Borrower, Hotel Lessee or Mortgage Borrower (other than a foreclosure of the Loan);
(I) the voluntary incurrence by Borrower, Hotel Lessee, Mortgage Borrower or any SPE Entity of any Indebtedness secured by the Property or the Collateral in violation of this Agreement; and/or
(J) if any Borrower Party, in any judicial or quasi-judicial case, action or proceeding contests (or any Borrower Party colludes with or otherwise assists any other Person, or solicits or causes to be solicited any other Person to contest) the validity or enforceability of the Loan Documents or contests or intentionally hinders, delays or obstructs (or any Borrower Party colludes with or otherwise assists any other Person, or solicits or causes to be solicited any other Person to contest, hinder, delay or obstruct) the pursuit of any rights or remedies by Administrative Agent or Lenders (including the commencement and/or prosecution of a foreclosure action, judicial or non-judicial, the appointment of a receiver for the Property or the Collateral or any portion thereof or any enforcement of the terms of the Assignment of Leases), and provisions ofa court of competent jurisdiction has determined by a final non-appealable order of the court that such actions taken by such Borrower Party were in bad faith.
(c) Notwithstanding anything to the contrary in this Agreement or any other Loan Documents, none of (i) any present or future Constituent Member in Borrower, or (ii) any present or future officer, director, employee, trustee, beneficiary, advisor, principal, participant, representative or agent of or in any Borrower or of or in any Person that is or becomes a Constituent Member in Borrower, shall have any personal liability, directly or indirectly, under or in connection with this Agreement or any of the Loan Documents, and Administrative Agent on behalf of itself, the Lenders and their respective successors and assigns, hereby waives any and all such personal liability, provided, however, that the foregoing shall not limit or modify any liability or obligation of any Guarantor under any Guaranty. As used in this Agreement, the Assignment of Management Agreement and the Security Instrument; term “Constituent Member” shall mean (iiix) any representationdirect shareholder, warranty member or covenant contained partner in Article 5 Borrower and (y) any Person that, indirectly through one or Article 6 hereof more other corporations, limited liability companies, partnerships, or other entities, is violated a shareholder, member or breached; (iv) a Bankruptcy Event occurs; or (v) Sections 11.1 or 11.6 hereof are violated or breached partner in any material respectBorrower.
Appears in 1 contract
Samples: Mezzanine Loan and Security Agreement (NRI Real Token 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 Security Instrument Instruments or the other Loan Documents by any action or proceeding wherein a money judgment or any deficiency judgment or other judgment establishing personal liability shall be sought against Borrower Borrowers or any principal, director, officer, employee, beneficiary, shareholder, partner, member, trustee, agent, or Affiliate of Borrower Borrowers (but specifically excluding Guarantor) or any legal representatives, successors or assigns of any of the foregoing (collectively, the “Exculpated Parties”), except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender to enforce and realize upon its interest under the Note, this Agreement, the Security Instrument Instruments and the other Loan Documents, or in the PropertyProperties, the Rents, or any other collateral given to Lender pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower Borrowers only to the extent of Borrower’s Borrowers’ interest in the PropertyProperties, in the Rents and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Security Instrument Instruments and the other Loan Documents, shall not xxx for, seek or demand any deficiency judgment against Borrower Borrowers or any of the Exculpated Parties in any such action or proceeding under or by reason of or under or in connection with the Note, this Agreement, the Security Instrument Instruments or the other Loan Documents. The provisions of this Section shall not, however, (1) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (2) impair the right of Lender to name Borrower Borrowers as a party defendant in any action or suit for foreclosure and sale under the Security InstrumentInstruments; (3) affect the validity or enforceability of any indemnity, guaranty or similar instrument (including, without limitation, the indemnities set forth in Article 12 hereof, Section 11.2 hereof, in the Guaranty and in the Environmental Indemnity) made in connection with the Loan or any of the rights and remedies of Lender thereunder (including, without limitation, Lender’s right to enforce said rights and remedies against Borrower Borrowers and/or Guarantor (as applicable) personally and without the effect of the exculpatory provisions of this Article 13); (4) impair the rights right of Lender to (A) obtain the appointment of a receiver and/or (B) enforce its rights and remedies provided in Articles 8 and 9 hereofreceiver; (5) impair the enforcement of the assignment of leases and rents contained in the Security Instrument and in any other Loan DocumentsInstruments; (6) impair the right of Lender to enforce Section 4.12(e) of this Agreement; (7) constitute a prohibition against Lender to seek a deficiency judgment against Borrower Borrowers in order to fully realize the security granted by the Security Instrument Instruments or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against the PropertyProperties; or (8) 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 Loss Losses 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 or any failure to disclose a material fact by any Borrower, any SPE Component Entity, Guarantor, or any Borrower Party in connection with the Loan;
(ii) the gross negligence or willful misconduct of any Borrower, any SPE Component Entity, Guarantor, or any Borrower Party or the commission of a criminal act by any Borrower, any SPE Component Entity, Guarantor, or any Borrower Party which results in any seizure or forfeiture of any Property or any portion thereof or any Borrower’s interest therein;
(iii) material physical waste to any Property caused by the intentional acts or intentional omissions of any Borrower, any SPE Component Entity, Guarantor, or any Borrower Party (including, without limitation, any arson or abandonment of any Property) and/or the removal or disposal of any portion of any Property after an Event of Default by any Borrower, any SPE Component Entity, Guarantor, or any Borrower Party;
(iiiiv) the misapplication, misappropriation or conversion by any Borrower of (A) any insurance proceeds paid to any Borrower Party by reason of any loss, damage or destruction to any Property, (B) any Awards or other amounts received by any Borrower Party in connection with the Condemnation of all or a portion of any Property, (C) any Rents following an Event of Default or (D) any Tenant security deposits or Rents collected in advance;
(v) failure to pay any Taxes or Other Charges, charges for labor or materials or any other charges that can create liens on any portion of any Property to the extent that the revenue from the Properties is sufficient to pay such amounts (provided that Borrower shall have no liability for (x) amounts deposited with Lender as Tax Reserve Funds for Taxes or Other Charges where Lender elects not to apply such funds toward payment of such Taxes or Other Charges owed or (y) Taxes or Other Charges owed that are contested strictly in accordance with the terms of the Loan Documents);
(vi) failure to maintain insurance as required by this Agreement to the extent that the revenue from the Properties is sufficient to pay the Insurance Premiums relating thereto (provided that Borrower shall have no liability for pay amounts deposited with Lender as Insurance Reserve Funds for Insurance Premiums to be paid to maintain such insurance where Lender elects not to apply such funds toward payment of such Insurance Premiums);
(vii) the breach of any representation, warranty, covenant or indemnification provision in the Environmental Indemnity, this Agreement or in any Security Instrument concerning Environmental Laws and Hazardous Substances;
(viii) any fees or commissions paid by any Borrower after the occurrence of any Event of Default to Guarantor, and/or any Affiliate of any Borrower and/or Guarantor in violation of the terms of the Note, this Agreement, the Security Instruments or the other Loan Documents;
(ix) any Borrower’s breach of, or failure to comply with, the representations, warranties and covenants contained in Section 15.1 of this Agreement and/or the provisions of Sections 11.2 and 12.3 hereof;
(x) any Borrower’s breach or failure to comply with the covenants, conditions and/or restrictions contained in the documents described on Schedule VII hereto and relating to the Properties known as Johnstown Industrial Park in Johnstown, New York and Crossroads Industrial Park in Gloversville, New York;
(xi) any litigation or other legal proceeding related to the Debt filed by any Borrower, any SPE Component Entity, Guarantor, or any Borrower Party 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 other Loan Documents;
(iv) waste to , which the Property caused by the intentional acts or intentional omissions of any Borrower Party and/or the removal or disposal of any portion of the Property after an Event of Default;
(v) the misapplication, misappropriation or conversion by any Borrower Party of (A) any insurance proceeds paid by reason of any loss, damage or destruction to the Property, (B) any Awards or other amounts received court in connection with the Condemnation of all or a portion of the Property, (C) any Rents following an Event of Default or (D) any Tenant security deposits or Rents collected in advance;
(vi) any act of arson by any Borrower Party or of which any Borrower Party has knowledge;
(vii) failure to pay Taxes, charges for labor or materials or other charges that can create liens on any portion of the Property in accordance with the terms and provisions hereof;
(viii) failure to pay Insurance Premiums, to maintain the Policies in full force and effect and/or to provide Lender evidence of the same, in each case, as expressly provided herein;
(ix) any security deposits, advance deposits or any other deposits collected with respect to the Property which are not delivered to Lender upon a foreclosure of the Property or action in lieu thereof, except to the extent any such security deposits were applied litigation or proceeding determines is frivolous, brought 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 bad faith or action wholly without basis in lieu thereof;
(x) any tax on the making and/or recording of the Security Instrument, the Note fact or any of the other Loan Documents or any transfer or similar taxes (whether due upon the making of the same or upon Lender’s exercise of its remedies under the Loan Documents), but excluding any income, franchise or other similar taxes;
(xi) the seizure or forfeiture of the Property, or any portion thereof, or Borrower’s interest therein, resulting from criminal wrongdoing by any Borrower Party;law; and/or
(xii) the failure to make any Condemnation Payment and/or any Balancing Paymentviolation or breach of a representation, to permit on-site inspections of the Property and/or to provide the Required Financial Items, warranty or covenant contained in each case, as and when required herein;
(xiii) Intentionally Omitted;
(xiv) the failure to make repairs, renewals or replacements (including, without limitation, structural and nonstructural, exterior and interior, ordinary and extraordinary, foreseen and unforeseen) to the Property or any portion thereof (including, without limitation, the Improvements now or at any time hereafter erected on the Property) as and when required pursuant to the terms of the Loan Documents or as and when necessary to maintain the Property in good and safe condition, in a rentable and tenantable state of repair and/or in the condition required pursuant to the terms of the Loan Documents; and/or
(xv) any indemnity obligations of Lender to Bank under the Restricted Account Agreement (other than those arising as a direct result of Lender’s gross negligence or willful misconduct)Section 5.1 hereof.
(b) Notwithstanding anything to the contrary in this Agreement, the Note or any of the Loan Documents, (A) Lender shall not be deemed to have waived any right which Lender may have under Section 506(a), 506(b), 1111(b) or any other provisions of the Bankruptcy Code to file a claim for the full amount of the Debt or to require that all collateral shall continue to secure all of the Debt owing to Lender in accordance with the Loan Documents, and (B) the Debt shall be fully recourse to Borrower Borrowers in the event that: (i) the first full monthly payment any violation of principal and interest under the Note is not paid when due; (ii) Borrower fails to comply with any provisions hereof relating to cash management or fails to appoint a new property manager upon the request breach of Lender, fails to cooperate with any New Manager or fails to comply with any limitations on instructing the property manager, each as required by and in accordance with, as applicable, the terms and provisions of, this Agreement, the Assignment of Management Agreement and the Security Instrument; (iii) any representation, warranty or covenant contained in Article 5 which results in the substantive consolidation of the assets and liabilities of Borrower with any other Person (other than the other Borrowers) as a result of such breach; (ii) if any Sale or Article 6 hereof Pledge occurs that is violated not a Permitted Transfer (iii) any Borrower or breachedany SPE Component Entity files a voluntary petition under the Bankruptcy Code or any other Creditors Rights Laws; (iv) a an Affiliate, officer, director, or representative which Controls, directly or indirectly, any Borrower or any SPE Component Entity files, or joins in the filing of, an involuntary petition against any Borrower or any SPE Component Entity under the Bankruptcy Event occursCode or any other Creditors Rights Laws, or solicits or causes to be solicited petitioning creditors for any involuntary petition against any Borrower or any SPE Component Entity from any Person; or (v) Sections 11.1 any Borrower or 11.6 hereof are violated any SPE Component Entity files an answer consenting to or breached otherwise acquiescing in or joining in any material respectinvoluntary petition filed against it, by any other Person under the Bankruptcy Code or any other Creditors Rights Laws, 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 any Borrower or any SPE Component Entity consents to or acquiesces in or joins in an application by a party other than Lender for the appointment of a custodian, receiver, trustee, or examiner for any Borrower, any SPE Component Entity or any portion of any Property; (vii) any Borrower or any SPE Component Entity makes an assignment for the benefit of creditors or admits in any legal proceeding, its insolvency or inability to generally pay its debts as they become due unless in each of the foregoing cases to do otherwise would require a false statement in any such legal proceeding or violate Rule 9011 of the Federal Rules of Bankruptcy Procedure or other applicable rules requiring a sufficient legal and factual basis for filing papers in a proceeding under Federal or state insolvency law or in connection with any other legal proceeding; (viii) there is substantive consolidation of any Borrower or any SPE Component Entity (or any Restricted Party) with any other Person (other than other Borrowers) in connection with any federal or state bankruptcy proceeding involving the Guarantor or any of its Affiliates; (ix) any Borrower or any SPE Component Entity (or any Affiliate of Borrower or any SPE Component Entity 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 the Guarantor or its Affiliates.
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 Security Instrument Mortgage or the other Loan Documents by any action or proceeding wherein a money judgment or any deficiency judgment or other judgment establishing personal liability shall be sought against the Borrower or any principaldirect or indirect members, director, officer, employee, beneficiary, shareholder, partner, member, trustee, agent, partners or Affiliate shareholders of Borrower or any legal representativesthe employees, successors agents, directors or assigns officers of any of the foregoing (collectively, the “Exculpated Parties”)Borrower or its Affiliates, except that Lender may bring an action against Borrower, including a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender to enforce and realize upon its interest under the Note, this Agreement, the Security Instrument Mortgage and the other Loan Documents, or in the Property, the RentsBusiness Income, or any other collateral given to Lender pursuant to the Loan DocumentsDocuments or any other assets of 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 Property, in the Rents and Business Income in any other collateral given to LenderLender or any other assets of Borrower, and Lender, by accepting the Note, this Agreement, the Security Instrument Mortgage and the other Loan Documents, shall not xxx for, seek or demand any deficiency judgment or any other monetary payment against Borrower or any the direct or indirect members, partners or shareholders of Borrower or the Exculpated Parties employees, agents, directors or officers of Borrower or its Affiliates in any such action or proceeding under or by reason of or under or in connection with the Note, this Agreement, the Security Instrument Mortgage or the other Loan Documents. The provisions of this Section shall not, however, : (1a) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (2b) impair the right of Lender to name Borrower as a party defendant in any action or suit for foreclosure and sale under the Security InstrumentMortgage; (3c) affect the validity or enforceability of any indemnity, guaranty or similar instrument indemnity made in connection with the Loan (including, without limitation, indemnities set forth in Article 12 hereof, Section 11.2 hereof, in the Guaranty and the Environmental IndemnityGuaranty) made in connection with the Loan or any of the rights and remedies of Lender thereunder (including, without limitation, Lender’s right to enforce said rights and remedies against Borrower and/or Guarantor (as applicable) personally and without the effect of the exculpatory provisions of this Article 13)thereunder; (4) impair the rights of Lender to (A) obtain the appointment of a receiver and/or (B) enforce its rights and remedies provided in Articles 8 and 9 hereof; (5) impair the enforcement of the assignment of leases and rents contained in the Security Instrument and in any other Loan Documents; (6d) impair the right of Lender to enforce Section 4.12(e) obtain the appointment of this Agreementa receiver; (7e) impair the enforcement of the Assignment of Leases; or (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 Loan (including the security granted by the Security Instrument Mortgage) or any other assets of Borrower or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against such security (including the Property; Property or any other assets of Borrower).
(8) constitute a waiver of a) Nothing contained in this Section 11.22 shall limit the right rights of Lender to enforce proceed against Borrower for any of the liability following (or against Guarantor under the Guaranty, on the additional terms and obligation of Borrower, by money judgment conditions thereof and subject to any limitations set forth herein or otherwise, to the extent of any Loss incurred by Lender (including attorneys’ fees and costs reasonably incurred) arising out of or in connection with the following:therein):
(i) fraud to enforce any Leases entered into by Borrower or intentional misrepresentation by any Borrower Party in connection with the Loanits Affiliates as Tenant;
(ii) the gross negligence to recover damages for fraud, material misrepresentation, material breach of warranty or willful misconduct of any Borrower Partyintentional physical waste;
(iii) to recover any litigation Condemnation Proceeds or other legal proceeding related to the Debt filed by any Borrower Party 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 other Loan Documents;
(iv) waste to the Property caused by the intentional acts or intentional omissions of any Borrower Party and/or the removal or disposal of any portion of the Property after an Event of Default;
(v) the misapplication, misappropriation or conversion by any Borrower Party 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 Rents following an Event of Default or (D) any Tenant security deposits or Rents collected in advance;
(vi) any act of arson by any Borrower Party or of which any Borrower Party has knowledge;
(vii) failure to pay Taxes, charges for labor or materials or other charges that can create liens on any portion of the Property in accordance with the terms and provisions hereof;
(viii) failure to pay Insurance Premiums, to maintain the Policies in full force and effect and/or to provide Lender evidence of the same, in each case, as expressly provided herein;
(ix) any security deposits, advance deposits or any other deposits collected with respect to the Property which are not delivered to Lender upon a foreclosure of the 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;
(x) any tax on the making and/or recording of the Security Instrument, the Note or any of the other Loan Documents or any transfer or similar taxes (whether due upon the making of the same or upon Lender’s exercise of its remedies under the Loan Documents), but excluding any income, franchise Proceeds or other similar taxes;
(xi) the seizure funds which have been misappropriated by Borrower or forfeiture of the Propertywhich, or any portion thereof, or Borrower’s interest therein, resulting from criminal wrongdoing by any Borrower Party;
(xii) the failure to make any Condemnation Payment and/or any Balancing Payment, to permit on-site inspections of the Property and/or to provide the Required Financial Items, in each case, as and when required herein;
(xiii) Intentionally Omitted;
(xiv) the failure to make repairs, renewals or replacements (including, without limitation, structural and nonstructural, exterior and interior, ordinary and extraordinary, foreseen and unforeseen) to the Property or any portion thereof (including, without limitation, the Improvements now or at any time hereafter erected on the Property) as and when required pursuant to the terms of the Loan Documents or as and when necessary to maintain the Property in good and safe condition, in a rentable and tenantable state of repair and/or in the condition required pursuant to under the terms of the Loan Documents; and/or, should have been paid to Lender;
(xviv) to recover (A) any indemnity obligations Tenant security deposits, Tenant letters of credit or other deposits or fees paid to Borrower or (B) prepaid rents for a period of more than thirty (30) days in advance of its due date which have not been delivered to Lender;
(v) to recover Business Income received by Borrower during an Event of Default which have not been applied to the Loan or in accordance with the Loan Documents to operating and maintenance expenses of the Property;
(vi) to recover damages, costs and expenses arising from, or in connection with the provisions of the Mortgage pertaining to Hazardous Materials or the Environmental Indemnity;
(vii) to recover any amount expended by Lender in connection with the foreclosure of the Mortgage, but only in the event that any Borrower or any Guarantor takes action to Bank impede such foreclosure or otherwise contests the foreclosure in bad faith;
(viii) to recover damages, costs and expenses arising from, or in connection with, the failure by Borrower to pay Taxes and Insurance Premiums when due to the extent that Borrower was not required to deposit such amounts with Lender pursuant to Section 6 hereof, but only to the extent there was available revenue from the Property for the period in question sufficient to pay such Taxes and Insurance Premiums, and provided further that Lender does not prevent such proceeds from being so applied;
(ix) to recover damages, costs and expenses arising from the failure of the representations set forth in Section 3.1.8 to be true or Borrower’s failure to comply with the provisions of Sections 4.2.11 of this Agreement; and
(x) to recover damages, costs and expenses arising from, or in connection with, any Lien arising from a written instrument executed by any Borrower or any Affiliate thereof expressly creating such Lien, to the extent such Lien is prohibited under the Restricted Account Agreement (other than those arising as a direct result of Lender’s gross negligence or willful misconduct)this Agreement.
(b) Notwithstanding anything to the contrary in this Agreementforegoing, the Note agreement of Lender not to limit recourse liability as set forth in Section 11.22(a) above SHALL BECOME NULL AND VOID and shall be of no further force and effect and the Debt shall be fully recourse to Borrower (and to Guarantor under the Guaranty, on the additional terms and conditions thereof and subject to any limitations set forth herein or therein) in the event that:
(i) any Borrower commences a voluntary bankruptcy or insolvency proceeding;
(ii) an involuntary bankruptcy or insolvency proceeding is commenced against any Borrower and is not dismissed within 90 days of filing; or
(iii) voluntary Transfer of the Property occurs by written instrument executed by any Borrower or any Affiliate thereof, which instrument expressly effects such Transfer, or a Secondary Financing is voluntarily incurred in violation of the Loan Documents, except as otherwise consented to by Lender in writing (Awhich consent may be withheld in Lender’s sole discretion).
(c) Lender Notwithstanding the provisions of clauses (i) and (ii) of Section 11.22(b) no Guarantor shall be liable for any amount related to a Qualified Involuntary Bankruptcy.
(d) In addition, this agreement shall not be deemed to have waived waive any right rights which Lender may would have under Section 506(a), 506(b), 1111(b) or any other provisions of Title 11 of the Bankruptcy Code to file a claim for the full amount of the Debt or to require that all collateral the Property shall continue to secure all of the Debt owing to Lender in accordance with the Loan Documents, and (B) the Debt shall be fully recourse to Borrower in the event that: (i) the first full monthly payment of principal and interest under the Note is not paid when due; (ii) Borrower fails to comply with any provisions hereof relating to cash management or fails to appoint a new property manager upon the request of Lender, fails to cooperate with any New Manager or fails to comply with any limitations on instructing the property manager, each as required by and in accordance with, as applicable, the terms and provisions of, this Agreement, the Assignment of Management Agreement and the Security Instrument; (iii) any representation, warranty or covenant contained in Article 5 or Article 6 hereof is violated or breached; (iv) a Bankruptcy Event occurs; or (v) Sections 11.1 or 11.6 hereof are violated or breached in any material respectDebt.
Appears in 1 contract
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 Security Instrument or the other Loan Documents by any action or proceeding wherein a money judgment or any deficiency judgment or other judgment establishing personal liability shall be sought against Borrower or any principal, director, officer, employee, beneficiary, shareholder, partner, member, trustee, agent, or Affiliate of Borrower or any legal representatives, successors or assigns of any of the foregoing (collectively, the “Exculpated Parties”)Principal, except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender to enforce and realize upon its interest under the Note, this Agreement, the Security Instrument Note, the Mortgage and the other Loan Documents, or and the interest in the Property, the Rents, or Rents and any other collateral given to Lender pursuant to created by this Agreement, the Note, the Mortgage and the other Loan Documents; provided, however, that, except as specifically provided herein, that any judgment in any such action or proceeding shall be enforceable against Borrower or Borrower Principal, as applicable, only to the extent of Borrower’s 's or Borrower Principal's interest in the Property, in the Rents and in any other collateral given to Lender, and . Lender, by accepting the Note, this Agreement, the Security Instrument Note, the Mortgage and the other Loan Documents, agrees that it shall not xxx not, except as otherwise provided in this Section 15.1, sue for, seek or demand any deficiency judgment against Borrower or any of the Exculpated Parties Xxxrower Principal in any such action or proceeding proceeding, under or by reason of or under or in connection with the Note, this Agreement, the Security Instrument Note, the Mortgage or the other Loan Documents. The provisions of this Section 15.1 shall not, however, (1i) 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; (2ii) 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 Security InstrumentMortgage; (3iii) affect the validity or enforceability of any indemnity, guaranty or similar instrument indemnity (including, without limitation, indemnities set forth in Article 12 hereof, Section 11.2 hereof, in the Guaranty and the Environmental Indemnity) , Section 13.5 and Article 14 of this Agreement), 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 thereunder (including, without limitation, Lender’s right to enforce said rights and remedies against Borrower and/or Guarantor (as applicable) personally and without the effect of the exculpatory provisions of this Article 13)Documents; (4iv) impair the rights right of Lender to (A) obtain the appointment of a receiver and/or (B) enforce its rights and remedies provided in Articles 8 and 9 hereofreceiver; (5v) impair the enforcement of the assignment of leases and rents provisions contained in the Security Instrument and in any other Loan DocumentsMortgage; or (6vi) impair the right of Lender to enforce Section 4.12(e) of obtain a deficiency judgment or other 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; (7) constitute a prohibition against provided however, Lender to seek a deficiency shall only enforce such judgment against Borrower in order to fully realize the security granted by the Security Instrument or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against the Property; or (8) constitute a waiver of the right of Lender to enforce the liability and obligation of Borrower, by money judgment or otherwise, to the extent of any Loss incurred by the Insurance Proceeds and/or Awards.
(b) Notwithstanding the provisions of this Section 15.1 to the contrary, 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, Borrower Principal or any other Affiliate of Borrower Party 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 or during the term of the Loan;
(ii) Borrower's misapplication or misappropriation of Rents received by Borrower after the gross negligence or willful misconduct occurrence of any Borrower Party;
(iii) any litigation or other legal proceeding related to the Debt filed by any Borrower Party 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 other Loan Documents;
(iv) waste to the Property caused by the intentional acts or intentional omissions of any Borrower Party and/or the removal or disposal of any portion of the Property after an Event of Default;
(viii) the misapplication, Borrower's misapplication or misappropriation or conversion by any Borrower Party 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 Rents following an Event of Default or (D) any Tenant tenant security deposits or Rents collected in advance;
(viiv) any act the misapplication or the misappropriation of arson by any Borrower Party Insurance Proceeds or of which any Borrower Party has knowledgeAwards;
(viiv) 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), charges for labor or materials or other charges that can create liens on the Property beyond any portion applicable notice and cure periods specified herein;
(vi) Borrower's failure to return or to reimburse Lender for all Personal Property taken from the Property by or on behalf of Borrower and not replaced with Personal Property of the Property in accordance with same utility and of the terms and provisions hereofsame or greater value;
(vii) any act of intentional waste or arson by Borrower, any principal, Affiliate, member or general partner thereof or by Borrower Principal, any principal, Affiliate, member or general partner thereof;
(viii) Borrower's failure following any Event of Default to pay Insurance Premiums, deliver to maintain Lender upon demand all Rents and books and records relating to the Policies in full force and effect and/or to provide Lender evidence of the same, in each case, as expressly provided herein;Property; or
(ix) any security deposits, advance deposits or any other deposits collected with respect to the Property which are not delivered to Lender upon a foreclosure of the 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;
(x) any tax on the making and/or recording of the Security Instrument, the Note or any of the other Loan Documents or any transfer or similar taxes (whether due upon the making of the same or upon Lender’s exercise of its remedies under the Loan Documents), but excluding any income, franchise or other similar taxes;
(xi) the seizure or forfeiture of the Property, or any portion thereof, or Borrower’s interest therein, resulting from criminal wrongdoing by any Borrower Party;
(xii) the failure to make any Condemnation Payment and/or any Balancing Payment, to permit on-site inspections of the Property and/or to provide the Required Financial Items, in each case, as and when required herein;
(xiii) Intentionally Omitted;
(xiv) the failure to make repairs, renewals or replacements (including, without limitation, structural and nonstructural, exterior and interior, ordinary and extraordinary, foreseen and unforeseen) to the Property or any portion thereof (including, without limitation, the Improvements now or at any time hereafter erected on the Property) as and when required pursuant to the terms of the Loan Documents or as and when necessary to maintain the Property in good and safe condition, in a rentable and tenantable state of repair and/or in the condition required pursuant to the terms of the Loan Documents; and/or
(xv) any indemnity obligations of Lender to Bank under the Restricted Account Agreement (other than those arising as a direct result of Lender’s 's gross negligence or willful misconduct.
(c) Notwithstanding the foregoing, the agreement of Lender not to pursue recourse liability against Borrower and Borrower Principal as set forth in subsection (a) above SHALL BECOME NULL AND VOID and shall be of no further force and effect and the Debt shall be fully recourse to Borrower and Borrower Principal jointly and severally in the event of (i) a default by Borrower, Borrower Principal of any of the covenants set forth in Article 6, provided, however, that a breach by Borrower of the covenants set forth in Article 6 shall not result in recourse liability hereunder unless such breach was material and, within fifteen (15) days of notice from Lender, Borrower fails to cure such breach and fails to deliver to Lender a new or revised substantive non-consolidation opinion, in form and substance and from counsel reasonably satisfactory to Lender in accordance with the Rating Agency standards for the same, to the effect that such failure does not negate/impair the opinion previously delivered to Lender, (ii) a default by Borrower, Borrower Principal or of any of the covenants set forth in Article 7 hereof, or (iii) if (A) a voluntary bankruptcy or insolvency proceeding is commenced by Borrower, or (B) an involuntary bankruptcy or insolvency proceeding is commenced against Borrower which is not dismissed within ninety (90) days of filing (provided, however, that Borrower and Borrower Principal shall not have recourse liability hereunder in connection with any involuntary bankruptcy or insolvency proceeding unless such involuntary proceeding is solicited, procured, consented to or acquiesced in by Borrower, any Affiliate of Borrower or Borrower Principal in bad faith collusion with an intent to circumvent the prohibition on recourse liability against the Borrower or Borrower Principal set forth herein).
(bd) Notwithstanding anything to the contrary in this Agreement, the Note or any of the Loan Documents, (A) Lender Nothing herein shall not be deemed to have waived be a waiver of 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 Debt indebtedness secured by the Mortgage or to require that all collateral shall continue to secure all of the Debt indebtedness owing to Lender in accordance with the Loan Documents, and (B) the Debt shall be fully recourse to Borrower in the event that: (i) the first full monthly payment of principal and interest under the Note is not paid when due; (ii) Borrower fails to comply with any provisions hereof relating to cash management or fails to appoint a new property manager upon the request of Lender, fails to cooperate with any New Manager or fails to comply with any limitations on instructing the property manager, each as required by and in accordance with, as applicable, the terms and provisions of, this Agreement, the Assignment Note, the Mortgage or the other Loan Documents.
(e) Notwithstanding any provisions of Management Agreement this Article 15 to the contrary, in no event shall Borrower's failure to pay Operating Expenses in the event cash flow is insufficient to pay such expenses be considered an act of waste.
(f) Notwithstanding any other provision hereof, in the event that of a foreclosure under the pledge agreement(s) executed by Mezzanine Borrower in connection with the Permitted Mezzanine Financing, and the Security Instrument; (iii) subsequent transfer of interests in Borrower to Mezzanine Lender, Borrower Principal shall be released from its liabilities under this Article 15 with respect to any representationmatters arising from events occurring subsequent to the date of such transfer, warranty or covenant contained as of the effective date of such transfer of interests in Article 5 or Article 6 hereof is violated or breached; (iv) a Bankruptcy Event occurs; or (v) Sections 11.1 or 11.6 hereof are violated or breached in any material respectBorrower.
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 Security Instrument or the other Loan Documents by any action or proceeding wherein a money judgment or any deficiency judgment or other judgment establishing personal liability shall be sought against Borrower or any principal, director, officer, employee, beneficiary, shareholder, partner, member, trustee, agent, or Affiliate affiliate of Borrower or any legal representatives, successors or assigns of any of the foregoing (collectively, the “Exculpated Parties”), except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender to enforce and realize upon its interest under the Note, this Agreement, the Security Instrument and the other Loan Documents, or in the PropertyProperty (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 Property, in the Rents and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Security Instrument and the other Loan Documents, shall not xxx sxx for, seek or demand any deficiency judgment against Borrower or any of the Exculpated Parties in any such action or proceeding under or by reason of or under or in connection with the Note, this Agreement, the Security Instrument or the other Loan Documents. The provisions of this Section shall not, however, (1) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (2) impair the right of Lender to name Borrower as a party defendant in any action or suit for foreclosure and sale under the Security Instrument; (3) affect the validity or enforceability of the Guaranty, the Environmental Indemnity and/or any indemnity, guaranty or similar instrument (including, without limitation, indemnities set forth in Article 12 hereof, Section 11.2 hereof, in the Guaranty and the Environmental Indemnity) made in connection with the Loan hereof or any of the rights and remedies of Lender thereunder (including, without limitation, Lender’s right to enforce said rights and remedies against Borrower and/or Guarantor (as applicable) personally and without the effect of the exculpatory provisions of this Article 13); (4) impair the rights of Lender to (A) obtain the appointment of a receiver and/or (B) enforce its rights and remedies security interest in the Accounts as provided in Articles 8 and 9 hereof; (5) impair the enforcement of the assignment of leases and rents contained in the Security Instrument and in any other Loan Documents; (6) impair the right of Lender to enforce Section 4.12(e) of this Agreement; (7) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted by the Security Instrument or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against the PropertyProperty (or any portion thereof); or (8) 7) 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 Loss incurred by Lender (including reasonable attorneys’ fees and costs reasonably incurred) arising out of or in connection with the following:
(i) fraud or intentional material willful misrepresentation by any Borrower Party in connection with the Loan;
(ii) the gross negligence or willful misconduct of any Borrower Party;
(iii) any litigation intentional act or other legal proceeding related to the Debt filed omission of any Borrower Party made frivolously or in bad faith, including any assertion of defenses or counterclaims asserted in bad faith by any Borrower Party that delaysand which, opposes, impedes, obstructsin bad faith, hinders, enjoins delays or otherwise interferes in any material respect with the Lender’s enforcement of its rights under the Loan Documents or frustrates the efforts realization of Lender to exercise any rights and remedies available to Lender as provided herein and in the other Loan Documentscollateral;
(iv) (A) material physical waste to the Property caused by (or any portion thereof) and/or (B) after the intentional acts or intentional omissions occurrence and during the continuance of any Borrower Party and/or the an Event of Default, removal or disposal of any portion of the Property after an Event of Defaultother than in the ordinary course;
(v) the misapplication, misappropriation or conversion by (I) any Borrower Party and/or (II) any Affiliated Manager that is Controlled by Borrower, any SPE Component Entity and/or any of their respective Affiliates, in each instance, of (A) any insurance proceeds paid by reason of any loss, damage or destruction to the PropertyProperty (or any portion thereof), (B) any Awards or other amounts received in connection with the Condemnation of all or a portion of the Property, (C) any Rents following an Event of Default or Rents, (D) any Tenant security deposits or Rents collected in advance;advance or (E) any other monetary collateral for the Loan (including, without limitation, any Reserve Funds and/or any portion thereof disbursed to (or at the direction of) Borrower); and/or
(vi) any act of arson by any Borrower Party or of which any Borrower Party has knowledge;
(vii) failure to pay Taxes, charges for labor or materials or other charges that can create liens on any portion of the Property Taxes in accordance with the terms and provisions hereof;
hereof to the extent that the Property has generated sufficient net operating income for the immediately preceding twelve (viii12) failure month period to pay Insurance Premiums, to maintain the Policies in full force and effect and/or to provide Lender evidence of the same, unless such charges are the subject to a bona fide dispute in each case, as expressly provided herein;
(ix) any security deposits, advance deposits which the Borrower is contesting the amount or any other deposits collected with respect to the Property which are not delivered to Lender upon a foreclosure of the Property or action in lieu thereof, except to the extent any such security deposits were applied validity thereof 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;
(x) any tax on the making and/or recording of the Security Instrument, the Note or any of the other Loan Documents or any transfer or similar taxes (whether due upon the making of the same or upon Lender’s exercise of its remedies under the Loan Documents), but excluding any income, franchise or other similar taxes;
(xi) the seizure or forfeiture of the Property, or any portion thereof, or Borrower’s interest therein, resulting from criminal wrongdoing by any Borrower Party;
(xii) the failure to make any Condemnation Payment and/or any Balancing Payment, to permit on-site inspections of the Property and/or to provide the Required Financial Items, in each case, as and when required set forth herein;
(xiii) Intentionally Omitted;
(xiv) the failure to make repairs, renewals or replacements (including, without limitation, structural and nonstructural, exterior and interior, ordinary and extraordinary, foreseen and unforeseen) to the Property or any portion thereof (including, without limitation, the Improvements now or at any time hereafter erected on the Property) as and when required pursuant to the terms of the Loan Documents or as and when necessary to maintain the Property in good and safe condition, in a rentable and tenantable state of repair and/or in the condition required pursuant to the terms of the Loan Documents; and/or
(xv) any indemnity obligations of Lender to Bank under the Restricted Account Agreement (other than those arising as a direct result of Lender’s gross negligence or willful misconduct).
(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 Debt or to require that all collateral shall continue to secure all of the 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) any Borrower and/or any SPE Component Entity fails to obtain Lender’s prior written consent to any indebtedness or voluntary lien encumbering the first full monthly payment of principal and interest under Property to the Note is not paid when due; extent required by this Agreement or the other Loan Documents, (ii) any Borrower and/or any SPE Component Entity fails to comply with obtain Lender’s prior written consent to any provisions transfer in violation of Article 6 hereof relating to cash management or fails to appoint a new property manager upon the request of Lender, fails to cooperate with any New Manager or fails to comply with any limitations on instructing the property manager, each as extent required by and in accordance with, as applicable, this Agreement or the terms and provisions of, this Agreement, the Assignment of Management Agreement and the Security Instrumentother Loan Documents; (iii) a Bankruptcy Event occurs; or (iv) any representation, warranty or covenant contained in Article 5 or Article 6 hereof is violated or breached; (iv) breached and such breach or violation is cited as a Bankruptcy Event occurs; or (v) Sections 11.1 or 11.6 hereof are violated or breached material contributing factor by the applicable bankruptcy court in the substantive consolidation of Borrower and/or any material respectSPE Component Entity with any other Person.
Appears in 1 contract
Samples: Loan Agreement (American Realty Capital New York City 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 to perform and observe the obligations contained herein or in the Note, this Agreement, the Security Instrument or the other Loan Documents by any action or proceeding wherein a money judgment or any deficiency judgment or other judgment establishing personal liability shall be sought against (1) Borrower (except as set forth in this Section 15.1 and the Environmental Indemnity), (2) Guarantor (except as set forth in the Guaranty and the Environmental Indemnity), (3) any Affiliate of Borrower, (4) any Person owning, directly or indirectly, any legal or beneficial interest in Borrower or any principal, director, officer, employee, beneficiary, shareholder, Affiliate of Borrower or (5) any direct or indirect limited partner, member, principal, officer, beneficiary, trustee, agentshareholder, Affiliate or Affiliate of Borrower or any legal representatives, successors or assigns director of any of the foregoing Persons described in clauses (1) through (5) above (collectively, subject to the exceptions in clauses (i) and (ii) below, the “Exculpated Parties”), except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender to enforce and realize upon its interest under the Note, this Agreement, the Security Instrument Note, the Mortgages and the other Loan Documents, or and the interest in the PropertyProperties, the Rents, or Rents and any other collateral given to Lender pursuant to created by this Agreement, the Note, the Mortgages and the other Loan Documents; provided, however, that, except as specifically provided herein, that any judgment in any such action or proceeding shall be enforceable against Borrower Borrower, only to the extent of Borrower’s interest in the PropertyProperties, in the Rents and in any other collateral given to Lender, and . Lender, by accepting the Note, this Agreement, the Security Instrument Note, the Mortgages and the other Loan Documents, agrees that it shall not not, except as otherwise provided in this Section 15.1, xxx for, seek or demand any deficiency judgment against Borrower or any of the Exculpated Parties Party in any such action or proceeding proceeding, under or by reason of or under or in connection with the Note, this Agreement, the Security Instrument Note, the Mortgages or the other Loan Documents. The provisions of this Section 15.1 shall not, however, (1i) constitute a waiver, release or impairment of any obligation evidenced or secured by any of this Agreement, the Note, the Mortgages or the other Loan Documents; (2ii) impair the right of Lender to name Borrower or Operating Lessee as a party defendant in any action or suit for judicial foreclosure and sale under this Agreement and the Security InstrumentMortgages; (3iii) affect the validity or enforceability of any indemnity, guaranty or similar instrument indemnity (including, without limitation, indemnities set forth those contained in Article 12 hereof, Section 11.2 hereof, in the Guaranty 14 of this Agreement and the Environmental Indemnity) ), guaranty, master lease or similar instrument made in connection with this Agreement, the Note, the Mortgages and the other Loan or any of the rights and remedies of Lender thereunder (including, without limitation, Lender’s right to enforce said rights and remedies against Borrower and/or Guarantor (as applicable) personally and without the effect of the exculpatory provisions of this Article 13)Documents; (4iv) impair the rights right of Lender to (A) obtain the appointment of a receiver and/or (B) enforce its rights and remedies provided in Articles 8 and 9 hereofreceiver; (5v) impair the enforcement of the assignment of leases and rents provisions contained in the Security Instrument and in any other Loan DocumentsMortgages; or (6vi) impair the right of Lender to enforce Section 4.12(e) of obtain a deficiency judgment or other 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; (7) constitute a prohibition against provided, however, Lender to seek a deficiency shall only enforce such judgment against Borrower in order to fully realize the security granted by the Security Instrument or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against the Property; or (8) constitute a waiver of the right of Lender to enforce the liability and obligation of Borrower, by money judgment or otherwise, to the extent of any Loss the Insurance Proceeds and/or Awards.
(b) Notwithstanding the provisions of this Section 15.1 to the contrary, Borrower shall be personally liable to Lender for Losses incurred by Lender (including attorneys’ fees and costs reasonably incurred) arising out of or in connection with the followingdue to:
(i) fraud or intentional misrepresentation by Borrower, Operating Lessee, Guarantor or any Borrower Party Affiliate of any of the foregoing in connection with the execution and the delivery of this Agreement, the Note, the Mortgages, 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 or during the term of the Loan;
(ii) the gross negligence or willful misconduct of any Borrower an Exculpated Party;
(iii) Remington’s or any litigation Exculpated Party’s misapplication, misappropriation or other legal proceeding related to conversion of Rents received by Borrower during the Debt filed by any Borrower Party that delays, opposes, impedes, obstructs, hinders, enjoins or otherwise interferes with or frustrates the efforts continuance of Lender to exercise any rights and remedies available to Lender as provided herein and in the other Loan Documentsan Event of Default;
(iv) waste any Exculpated Party’s misapplication, misappropriation or conversion of tenant security deposits (including the failure to deliver to Lender tenant security deposits upon foreclosure or deed in lieu thereof, to the Property caused by extent not applied in accordance with the intentional acts or intentional omissions applicable Leases prior to the occurrence of any Borrower Party and/or the removal or disposal of any portion of the Property after an Event of Default) or Rents collected in advance;
(v) the misapplication, misappropriation or conversion of Insurance Proceeds or Awards by any Borrower Party 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 Rents following an Event of Default or (D) any Tenant security deposits or Rents collected in advanceExculpated Party;
(vi) any act of arson by any Borrower Party or of which any Borrower Party has knowledge;
(vii) Borrower’s failure to pay Property Taxes, Insurance Premiums, Other Charges (provided that there shall be no liability hereunder to the extent that (A) sums sufficient to pay such amounts have been deposited in escrow with Lender pursuant to the terms hereof and Borrower has not made a claim against such escrowed amounts or otherwise taken action to restrict Lender from applying such sums for the purpose of paying such items) or (B) there is insufficient cash flow from the operation of the Properties to pay such items), charges for labor or materials or other charges that can create liens on any portion Individual Property beyond any applicable notice and cure periods specified herein;
(vii) Borrower’s failure to return or to reimburse Lender for all Personal Property taken from any Individual Property by or on behalf of Borrower or Operating Lessee and not replaced with Personal Property of the same utility and of the same or greater value;
(viii) material physical waste to any Individual Property caused by the intentional acts or omissions of any Exculpated Party when there is sufficient cash flow from the operation of any Individual Property to avoid such waste from occurring;
(ix) intentionally omitted;
(x) Borrower’s assertion or raising of any defense to a proceeding instituted by Lender (whether judicial or otherwise) for the foreclosure of the Mortgages following an Event of Default caused by Borrower’s failure to timely pay the Monthly Payment Amount or the Debt due on the Maturity Date, which defense is determined by a court of competent jurisdiction to be without merit or brought in bad faith;
(xi) Borrower’s failure to pay to Lender each PIP Required Deposit in accordance with the terms and provisions hereof;
(viii) failure to pay Insurance Premiums, to maintain the Policies in full force and effect and/or to provide Lender evidence of the same, in each case, as expressly provided herein;
(ix) any security deposits, advance deposits or any other deposits collected with respect to the Property which are not delivered to Lender upon a foreclosure of the 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;
(x) any tax on the making and/or recording of the Security Instrument, the Note or any of the other Loan Documents or any transfer or similar taxes (whether due upon the making of the same or upon Lender’s exercise of its remedies under the Loan Documents), but excluding any income, franchise or other similar taxes;
(xi) the seizure or forfeiture of the Property, or any portion thereof, or Borrower’s interest therein, resulting from criminal wrongdoing by any Borrower Party;
(xii) the failure breach of any representation, warranty or covenant of (i) any Borrower with respect to make itself or any Condemnation Payment and/or SPE Component Entity set forth in Article 6 hereof (other than Section 6.1(a)(xv) and (xviii)) or (ii) any Balancing Payment, Operating Lessee with respect to permit on-site inspections itself or any Operating Lessee Principal as set forth in Paragraph 15 of the Property and/or to provide the Required Financial Items, in each case, as Operating Lease Subordination Agreement (other than Paragraph 15(h) and when required herein;(q) thereof); or
(xiii) Intentionally Omitted;
(xiv) the failure of Borrower and/or Operating Lessee to make repairs, renewals or replacements (including, without limitation, structural and nonstructural, exterior and interior, ordinary and extraordinary, foreseen and unforeseen) to the Property or any portion thereof (including, without limitation, the Improvements now or at any time hereafter erected on the Property) as and when required contributions pursuant to the terms Collective Bargaining Agreement, whether or not such failure results in an Event of Default hereunder (provided that there shall be no liability hereunder to the extent that there is insufficient cash flow from the operation of the Loan Documents or as and when necessary applicable Individual Property to maintain the Property in good and safe condition, in a rentable and tenantable state of repair and/or in the condition make such required pursuant to the terms of the Loan Documents; and/or
(xv) any indemnity obligations of Lender to Bank under the Restricted Account Agreement (other than those arising as a direct result of Lender’s gross negligence or willful misconductcontributions).
(bc) Notwithstanding anything 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 and the contrary Debt shall be fully recourse to Borrower in the event (i) of a breach by Borrower, any SPE Component Entity, Operating Lessee or any Operating Lessee Principal of any of the covenants set forth in Article 6 hereof or Paragraph 15 of the Operating Lease Subordination Agreement, as applicable, that is cited as a factor in a court’s decision that results in a substantive consolidation (other than a substantive consolidation petitioned for or joined in by Lender) of Borrower or Operating Lessee with any other Person (excluding another Borrower or Operating Lessee) in a proceeding under any Creditors’ Rights Laws, (ii) Borrower or Operating Lessee incurs any voluntary secured Indebtedness other than the Debt and Permitted Debt (excluding Indebtedness relating to trade payables incurred in the ordinary course of business, mechanic’s or other similar liens, such as statutory liens, judgment liens or lis pendens) without the prior written consent of Lender or except as expressly permitted in this Agreement, (iii) of the Note occurrence of a Prohibited Transfer (excluding a mortgage foreclosure or deed-in-lieu of foreclosure); (iv) the Properties or any part thereof shall become an asset in a bankruptcy or insolvency proceeding initiated by Borrower or Operating Lessee, (v) Borrower, Operating Lessee, Guarantor or any Affiliate, officer, director, or representative which Controls, directly or indirectly, Borrower, Operating Lessee or Guarantor files, or joins in the filing of, an involuntary petition against Borrower or Operating Lessee under any Creditors Rights Laws, or solicits or causes to be solicited petitioning creditors or colludes with petitioning creditors for the filing of any involuntary petition against Borrower or Operating Lessee from any Person under any Creditors Rights Laws; (vi) Borrower or Operating Lessee files an answer consenting to or otherwise acquiescing in or joining in any involuntary petition filed against it, by any other Person under any Creditors Rights Laws, or solicits or causes to be solicited petitioning creditors for any involuntary petition from any Person; (vii) other than with the written consent of Lender, any Affiliate, officer, director, or representative which Controls 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 Borrower, Operating Lessee or any portion of the Loan Documents, Properties; (Aviii) Lender [intentionally omitted] or (ix) [intentionally omitted].
(d) Nothing herein shall not be deemed to have waived be a waiver of 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 Debt indebtedness secured by the Mortgages or to require that all collateral shall continue to secure all of the Debt indebtedness owing to Lender in accordance with this Agreement, the Note, the Mortgages or the other Loan Documents.
(e) Notwithstanding anything to the contrary in this Section 15.1, (i) Borrower and Guarantor shall have no liability under this Section 15.1 to the extent such liability solely arises (1) as a result of any exercise of remedies, foreclosure, deed-in-lieu of foreclosure or assignment-in-lieu of foreclosure by Lender, Senior Mezzanine Lender or Junior Mezzanine Lender, (2) as a result of an act or omission of (A) Lender or a third-party purchaser following Lender or such third-party taking title to the Properties pursuant to a foreclosure, deed-in-lieu of foreclosure or otherwise or (B) a court appointed receiver after such receiver takes control of the Debt shall be fully recourse day-to-day operations of the Properties or (3) as a result of an act or omission of Senior Mezzanine Lender, Junior Mezzanine Lender, a third-party purchaser or any Affiliate or subsidiary of any of the foregoing following a foreclosure or an assignment-in-lieu of foreclosure of the Senior Mezzanine Loan or the Junior Mezzanine Loan; unless in each case, such act or omission was caused by Borrower, Guarantor or any of their respective Affiliates (but only prior to such Exculpated Party becoming an Affiliate of Lender, Senior Mezzanine Lender or Junior Mezzanine Lender or any purchaser at any foreclosure of the Mortgage Loan, the Senior Mezzanine Loan or the Junior Mezzanine Loan) or such acts or omissions are the proximate result of acts, events, conditions, or circumstances that existed prior to the date of such foreclosure, deed in lieu of foreclosure or assignment in lieu of foreclosure, whether or not discovered prior or subsequent to the date of such foreclosure, deed in lieu of foreclosure or assignment in lieu of foreclosure, provided, however, Borrower and Guarantor will bear the burden of proof to show that an event triggering liability of Borrower or Guarantor under this Section 15.1 first occurred after such foreclosure, deed in lieu of foreclosure or assignment in lieu of foreclosure, was not the event that: proximate result of events that first occurred prior to such foreclosure, deed in lieu of foreclosure or assignment in lieu of foreclosure and was not caused by any Exculpated Party (ibut only prior to such Exculpated Party becoming an Affiliate of Lender, Senior Mezzanine Lender or Junior Mezzanine Lender or any purchaser at any foreclosure of the Mortgage Loan, the Senior Mezzanine Loan or the Junior Mezzanine Loan) the first full monthly payment of principal and interest under the Note is not paid when dueor their respective Affiliates; (ii) Borrower fails and Guarantor shall have no liability under Section 15.1(b) to comply with the extent such liability solely arises after (1) Lender or a third-party has taken title to the Properties pursuant to a foreclosure, deed-in-lieu of foreclosure or otherwise or (2) a court appointed receiver has taken control of the day-to-day operations of the Properties; and (iii) no Operating Lessee shall have any provisions hereof relating liability under this Section 15.1, the Guaranty, or the Environmental Indemnity, except to cash management the extent that such liability arises as a result of any act or fails omission of such Operating Lessee (but only prior to appoint a new property manager upon the request such Operating Lessee becoming an Affiliate of Lender, fails to cooperate with Senior Mezzanine Lender or Junior Mezzanine Lender or any New Manager or fails to comply with purchaser at any limitations on instructing foreclosure of the property manager, each as required by and in accordance with, as applicableMortgage Loan, the terms and provisions ofSenior Mezzanine Loan or the Junior Mezzanine Loan), provided, however, such Operating Lessee will bear the burden of proof to show that an event triggering liability of Operating Lessee under this AgreementSection 15.1 was not caused by Operating Lessee (but only prior to such Operating Lessee becoming an Affiliate of Lender, Senior Mezzanine Lender or Junior Mezzanine Lender or any purchaser at any foreclosure of the Mortgage Loan, the Assignment of Management Agreement and Senior Mezzanine Loan or the Security Instrument; (iii) any representation, warranty or covenant contained in Article 5 or Article 6 hereof is violated or breached; (iv) a Bankruptcy Event occurs; or (v) Sections 11.1 or 11.6 hereof are violated or breached in any material respectJunior Mezzanine Loan).
Appears in 1 contract
Exculpation. (a) Subject Notwithstanding anything to the qualifications belowcontrary contained herein, Lender shall not enforce the but subject to Paragraph 6.6 hereof, any claim based on or in respect of any liability and obligation of Borrower to perform and observe under the obligations contained in the Note, Note or under this Agreement, the Security Instrument or the other Loan Documents by any action or proceeding wherein a money judgment or any deficiency judgment or other judgment establishing personal liability shall be sought against Borrower or any principal, director, officer, employee, beneficiary, shareholder, partner, member, trustee, agent, or Affiliate of Borrower or any legal representatives, successors or assigns of any of the foregoing (collectively, the “Exculpated Parties”), except that Lender may bring a foreclosure action, an action for specific performance Mortgages or any other appropriate action or proceeding to enable Lender to enforce Loan Document shall be enforced only against the Mortgaged Property and realize upon its interest under the Note, this Agreement, the Security Instrument and the other Loan Documents, or in the Property, the Rents, or any other collateral now or hereafter given to Lender pursuant to secure the Loan Documentsand not against any other assets, properties or funds of Borrower; provided, however, thatthat the liability of Borrower for loss, except as specifically provided hereincosts or damage arising out of the matters described below (collectively, any judgment in any such action or proceeding “Non-Recourse Carveout Obligations”) shall not be enforceable against Borrower only limited solely to the extent Mortgaged Property and other collateral now or hereafter given to secure the Loan but shall include all of the assets, properties and funds of Borrower’s interest in the Property: (i) fraud, in the Rents misrepresentation and in waste; (ii) any other collateral given to Lenderrents, and Lender, by accepting the Note, this Agreement, the Security Instrument and the other Loan Documents, shall not xxx for, seek issues or demand any deficiency judgment against Borrower or any of the Exculpated Parties in any such action or proceeding under or by reason of or under or in connection with the Note, this Agreement, the Security Instrument or the other Loan Documents. The provisions of this Section shall not, however, profits collected more than one (1) constitute a waiver, release or impairment month in advance of any obligation evidenced or secured by any of the Loan Documentstheir due dates; (2iii) impair the right any misapplication of Lender to name Borrower as a party defendant in rents, issues or profits, security deposits and any action other payments from tenants or suit for foreclosure and sale under the Security Instrument; (3) affect the validity or enforceability of any indemnity, guaranty or similar instrument occupants (including, without limitation, lease termination fees) insurance proceeds, condemnation awards, or other sums of a similar nature; (iv) liability under environmental covenants, conditions and indemnities set forth in Article 12 hereof, Section 11.2 hereof, contained in the Guaranty and the Environmental Indemnity) made in connection with the Loan or any of the rights and remedies of Lender thereunder (this Agreement, including, without limitation, Lender’s right to enforce said rights and remedies against Borrower and/or Guarantor (as applicable) personally and without Section 3.9, the effect of the exculpatory provisions of this Article 13); (4) impair the rights of Lender to (A) obtain the appointment of a receiver and/or (B) enforce its rights and remedies provided in Articles 8 and 9 hereof; (5) impair the enforcement of the assignment of leases and rents contained in the Security Instrument Mortgage and in any other Loan Documentsseparate environmental indemnity agreements; (6) impair the right of Lender to enforce Section 4.12(e) of this Agreement; (7) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted by the Security Instrument or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against the Property; or (8) constitute a waiver of the right of Lender to enforce the liability and obligation of Borrower, by money judgment or otherwise, to the extent of any Loss incurred by Lender (including attorneys’ fees and costs reasonably incurred) arising out of or in connection with the following:
(i) fraud or intentional misrepresentation by any Borrower Party in connection with the Loan;
(ii) the gross negligence or willful misconduct of any Borrower Party;
(iii) any litigation or other legal proceeding related to the Debt filed by any Borrower Party 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 other Loan Documents;
(iv) waste to the Property caused by the intentional acts or intentional omissions of any Borrower Party and/or the removal or disposal of any portion of the Property after an Event of Default;
(v) personalty or fixtures removed or allowed to be removed by or on behalf of Borrower and not replaced by items of equal or greater value or functionality than the misapplication, misappropriation personalty or conversion by any Borrower Party 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 Rents following an Event of Default or (D) any Tenant security deposits or Rents collected in advance;
fixtures so removed; (vi) any act of arson by any Borrower Party or of which any Borrower Party has knowledge;
(vii) failure to pay Taxestaxes, assessments or ground rents prior to delinquency, or to pay charges for labor or labor, materials or other charges that which can create liens on any portion of the Mortgaged Property before such charges become a lien on such Mortgaged Property or any portion thereof and any sums expended by Lender in accordance the performance of or compliance with the terms and provisions hereof;
obligations of Borrower under the Loan Documents, including, without limitation, sums expended to pay taxes or assessments or hazard insurance premiums or bills for utilities or other services or products for the benefit of the Mortgaged Property; (vii) the unauthorized sale, conveyance or transfer of title to the Mortgaged Property or encumbrance of the Mortgaged Property; (viii) the failure to pay Insurance Premiums, of Borrower to maintain its status as a single purpose, bankruptcy-remote entity pursuant to its organizational documents and the Policies in full force and effect and/or to provide Lender evidence of the same, in each case, as expressly provided herein;
Loan Documents; (ix) a violation of the provisions of Section 3.7(h) of this Agreement; (x) the filing of any security depositsaction to partition the Mortgaged Property or any Individual Property or the occurrence of any such partition or any sale pursuant to any such action; (xi) the transfer of any TIC interests in any of the Mortgaged Property or any Individual Property, advance deposits or any direct or indirect interests in the holder of any such TIC interest, other than as expressly permitted under Section 3.4(h) of this Agreement; (xii) the termination, cancellation or non-renewal of an Approved Manager, or any other deposits collected with respect failure of an Approved Manager to the Property which are not delivered to Lender upon a foreclosure of the Property or action in lieu thereof, except to the extent any such security deposits were applied in accordance with the terms and conditions serve as manager of any Permitted TIC; (xiii) the failure of any Approved Manager to meet the Leases prior to the occurrence of the Event of Default that gave rise to such foreclosure or action Management Requirements; and (xiv) attorney’s fees court costs and other expenses incurred by Lender in lieu thereof;
(x) any tax on the making and/or recording of the Security Instrument, the Note or any of the other Loan Documents or any transfer or similar taxes (whether due upon the making of the same or upon Lender’s exercise connection with enforcement of its remedies under the Loan Documents), including, but excluding not limited to, in connection with any income, franchise bankruptcy proceeding or other similar taxes;
(xi) the seizure reorganization brought by or forfeiture of the Property, against Borrower or any portion thereof, or Principal (as defined in the Commitment) of Borrower’s interest therein, resulting from criminal wrongdoing by any Borrower Party;
. Nothing herein shall be deemed (xii) the failure to make any Condemnation Payment and/or any Balancing Payment, to permit on-site inspections of the Property and/or to provide the Required Financial Items, in each case, as and when required herein;
(xiii) Intentionally Omitted;
(xiv) the failure to make repairs, renewals or replacements (including, without limitation, structural and nonstructural, exterior and interior, ordinary and extraordinary, foreseen and unforeseenw) to the Property or any portion thereof (including, without limitation, the Improvements now or at any time hereafter erected on the Property) as and when required pursuant to the terms be a waiver of the Loan Documents or as and when necessary to maintain the Property in good and safe condition, in a rentable and tenantable state of repair and/or in the condition required pursuant to the terms of the Loan Documents; and/or
(xv) any indemnity obligations of Lender to Bank under the Restricted Account Agreement (other than those arising as a direct result of Lender’s gross negligence or willful misconduct).
(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 any bankruptcy law of the United States or the state where the Mortgaged Property is located including, but not limited to, Section 506(a), 506(b), 1111(b) or any other provisions of the U.S. Bankruptcy Code Code, to file a claim for the full amount of the Debt indebtedness secured by the Mortgages or to require that all of the collateral securing the indebtedness encumbered by the Mortgages or any of the other Loan Documents shall continue to secure all of the Debt indebtedness owing to Lender in accordance with the Loan Documents, and (B) the Debt shall be fully recourse to Borrower in the event that: (i) the first full monthly payment of principal and interest under the Note is not paid when due; (ii) Borrower fails to comply with any provisions hereof relating to cash management or fails to appoint a new property manager upon the request of Lender, fails to cooperate with any New Manager or fails to comply with any limitations on instructing the property manager, each as required by and in accordance with, as applicable, the terms and provisions ofNote, this Agreement, the Assignment of Management Agreement Mortgages and the Security Instrumentother Loan Documents; (iiix) any representation, warranty or covenant contained in Article 5 or Article 6 hereof is violated or breachedto impair the validity of the indebtedness secured by the Mortgages and other Loan Documents; (ivy) a Bankruptcy Event occursto impair the right of Lender as mortgagee or secured party to commence an action to foreclose any lien or security interest; or (vz) Sections 11.1 to modify, diminish or 11.6 hereof are violated or breached in discharge the liability of any material respectGuarantor under any Guaranty Agreement.
Appears in 1 contract
Samples: Loan Agreement (GTJ REIT, Inc.)
Exculpation. (a) Subject to the qualifications below, Administrative Agent and Lender shall not enforce the liability and obligation of Borrower Bxxxxxxx to perform and observe the obligations contained in the Note, this Agreement, the Security Instrument or the other Loan Documents by any action or proceeding wherein a money judgment or any deficiency judgment or other judgment establishing personal liability shall be sought against Borrower or any principal, director, officer, employee, beneficiary, shareholder, partner, member, trustee, agent, or Affiliate of Borrower or any legal representatives, successors or assigns of any of the foregoing (collectively, the “Exculpated Parties”), except that Lender Administrative Agent may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Administrative Agent and/or Lender to enforce and realize upon its interest under the Note, this Agreement, the Security Instrument and the other Loan Documents, or in the PropertyProperty (or any portion thereof), the Rents, or any other collateral given to Administrative Agent and Lender pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower’s interest in the Property, in the Rents and in any other collateral given to Administrative Agent and Lender, and Administrative Agent and Lender, by accepting the Note, this Agreement, the Security Instrument and the other Loan Documents, shall not xxx sue for, seek or demand any deficiency judgment against Borrower or any of the Exculpated Parties in any such action or proceeding under or by reason of or under or in connection with the Note, this Agreement, the Security Instrument or the other Loan Documents. The provisions of this Section shall not, however, (1) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (2) impair the right of Administrative Agent or Lender to name Borrower as a party defendant in any action or suit for foreclosure and sale under the Security Instrument; (3) affect the validity or enforceability of any indemnity, guaranty or similar instrument (including, without limitation, indemnities set forth in Article 12 hereof, Section 11.2 hereof, in the Guaranty and the Environmental Indemnity) made in connection with the Loan or any of the rights and remedies of Administrative Agent and Lender thereunder (including, without limitation, LenderAdministrative Agent’s and Lxxxxx’s right to enforce said rights and remedies against Borrower and/or Guarantor (as applicable) personally and without the effect of the exculpatory provisions of this Article 13); (4) impair the rights of Administrative Agent or Lender to (A) obtain the appointment of a receiver and/or (B) enforce its rights and remedies provided in Articles 8 and 9 hereof; (5) impair the enforcement of the assignment of leases and rents contained in the Security Instrument and in any other Loan Documents; (6) impair the right of Administrative Agent or Lender to enforce Section 4.12(e) of this Agreement; (7) constitute a prohibition against Administrative Agent or Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted by the Security Instrument or to commence any other appropriate action or proceeding in order for Administrative Agent or Lender to exercise its remedies against the PropertyProperty (or any portion thereof); or (8) constitute a waiver of the right of Administrative Agent or Lender to enforce the liability and obligation of Borrower, by money judgment or otherwise, to the extent of any Loss actually incurred by Administrative Agent and/or Lender (including reasonable attorneys’ fees and costs reasonably incurred) arising out of or in connection with the following:
(i) fraud or intentional material misrepresentation by Bxxxxxxx, Mxxxxxxxx Xxxxxxxx, any Borrower Party SPE Component Entity, any Mezzanine SPE Component Entity, Sponsor, any Affiliated Manager, Guarantor or any director, officer, beneficiary, shareholder, partner, member, employee or agent acting on behalf of any of the foregoing (each, a “Recourse Party”) in connection with the Loan;
(ii) the gross negligence or willful misconduct of any Borrower PartyRecourse Party in connection with the Loan;
(iii) the breach of any litigation or other legal proceeding related to the Debt filed by any Borrower Party 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 indemnification provision in the other Loan DocumentsDocuments concerning environmental laws, hazardous substances and asbestos and any indemnification of Administrative Agent and/or Lender with respect thereto;
(iv) material physical waste to the any Property caused by the intentional acts or intentional omissions of any Borrower Party and/or Recourse Party, but only to the removal or disposal extent there is sufficient cash flow from the Properties to prevent such physical waste and such cash flow is made available by Administrative Agent for the purpose of any portion of the Property after an Event of Defaultpreventing such physical waste;
(v) the misapplication, removal of any property in contravention of the Loan Documents during the continuance of an Event of Default other than in the ordinary course of business;
(vi) the misappropriation or conversion of any of the following by any Borrower a Recourse Party in contravention of the Loan Documents: (A) any insurance proceeds paid received by Borrower by reason of any loss, damage or destruction to the PropertyCasualty, (B) any Awards or other amounts received by Borrower from a governmental authority in connection with the a Condemnation of all or a portion of the Property, Property or (C) any Rents following an Event of Default or (D) any Tenant security deposits or Rents collected in advance;
(vi) any act of arson revenues generated by any Borrower Party or of which any Borrower Party has knowledgethe Properties;
(vii) failure to pay Taxes, charges for labor or materials or other charges that can create liens on any portion of the Property in accordance with the terms and provisions hereof;
(viii) failure to pay Insurance Premiums, to maintain the Policies in full force and effect and/or to provide Lender evidence of the same, in each case, as expressly provided herein;
(ix) any security depositsSecurity Deposits, advance deposits or any other deposits collected with respect to the any Property which are not delivered to Lender Administrative Agent upon a foreclosure of the such Property or action in lieu thereof, except to the extent any such security deposits Security Deposits were applied in accordance with the terms and conditions of any of the Leases prior applicable Lease;
(viii) any litigation or other legal proceeding related to the occurrence Loan filed by a Recourse Party with the effect of delaying, opposing, impeding, obstructing, hindering, enjoining or otherwise interfering with the efforts of Administrative Agent and/or Lender to exercise any rights and remedies available to Administrative Agent and Lender during the continuance of an Event of Default; provided, however, that there shall be no liability hereunder on account of, and the foregoing shall not restrict, Borrower’s or Guarantor’s right to, dispute, in good faith, whether the relevant Event of Default that gave rise shall have occurred or whether an action taken by Administrative Agent pursuant to such the Loan Documents is permitted thereby, nor shall Borrower be restricted from, or have liability hereunder for, bringing a good faith counterclaim which if not raised in the foreclosure proceeding would be barred, and which does not seek to enjoin the enforcement action by Administrative Agent;
(ix) Bxxxxxxx fails to obtain Administrative Agent’s prior written consent to any additional indebtedness or action in lieu thereofvoluntary lien encumbering any Property and not permitted by the Loan Documents;
(x) any tax on the making and/or recording a material breach by Borrower of the Security Instrument, the Note or any of the other Loan Documents or any transfer or similar taxes (whether due upon the making of the same or upon Lender’s exercise of its remedies under the Loan Documents), but excluding any income, franchise or other similar taxesSection 5.5;
(xi) the seizure or forfeiture of the Propertyany voluntary termination, or any portion thereofvoluntary, or Borrowermaterial modification of any Ground Lease by Borrower without Administrative Agent’s interest thereinprior written consent other than as expressly permitted under this Agreement; provided, resulting from criminal wrongdoing by any Borrower Partythat the liability with respect to this Section 13.1(a)(xi) shall not exceed the Allocated Loan Amount of the applicable Ground Leased Property;
(xii) (A) any voluntary termination of any PILOT Lease and/or PILOT Document or transfer or surrender of any PILOT Lease and/or PILOT Document (including any PILOT Bond) by Borrower without Administrative Agent’s prior written consent other than in connection with Borrower acquiring the fee estate from the applicable PILOT Lessor or as otherwise expressly permitted under this Agreement or (B) Borrower’s or the applicable Tenant’s failure to make comply with or Borrower’s or the applicable Tenant’s breach of any Condemnation Payment PILOT Lease and/or PILOT Document that results in (x) a reduction of any Balancing Paymenttax abatement and/or mandatory repayment of any past or current tax abatement under such PILOT Lease and/or PILOT Document, to permit on-site inspections as applicable, (y) termination of such PILOT Lease and/or PILOT Document, as applicable, and the benefits thereunder in favor of Borrower or Tenant or (z) a default by such Borrower under the applicable Lease for such PILOT Property and/or to provide the Required Financial Items(and, in any such case, Losses shall include lost rental income); provided, that, in each case, as and when required hereinthe liability with respect to this Section 13.1(a)(xii) shall not exceed the Allocated Loan Amount of the applicable PILOT Property;
(xiii) Intentionally Omittedother than as set forth in Section 13.1(b)(v), a breach by Borrower of any covenant of Article 5 of this Agreement documents (excluding any provision requiring each Borrower to remain solvent, maintain adequate capital or pay its debts as they come due);
(xiv) the failure Condominium Documents are amended, modified, supplemented, terminated, cancelled or otherwise cease to make repairs, renewals or replacements (including, exist without limitation, structural and nonstructural, exterior and interior, ordinary and extraordinary, foreseen and unforeseen) to the Property or any portion thereof (including, without limitation, the Improvements now or at any time hereafter erected on the Property) as and when required pursuant to the terms of the Loan Documents or as and when necessary to maintain the Property in good and safe condition, in a rentable and tenantable state of repair and/or in the condition required pursuant to the terms of the Loan Documents; and/orAdministrative Agent’s prior written consent;
(xv) any indemnity obligations Losses related to title defects with respect to the Hawaii Easement Properties in excess of Lender any amount paid on the Title Insurance Policies for such Hawaii Easement Properties;
(xvi) any breach or violation of the representations and warranties in Section 3.18 hereof with respect to Bank under any Leases for which a tenant estoppel certificate was not delivered on or prior to the Restricted Account Agreement Closing Date; and/or
(other than those arising as a direct result xvii) any liability or obligation of Lender’s gross negligence or willful misconduct)Borrower relating to the Previously-Owned Property.
(b) Notwithstanding anything to the contrary in this Agreement, the Note or any of the Loan Documents, (A) neither Administrative Agent nor any Lender shall not be deemed to have waived any right which Administrative Agent or 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 Debt or to require that all collateral shall continue to secure all of the 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 any SPE Component Entity or any Affiliate thereof files, or joins in the first full monthly payment of principal and interest filing of, a petition against Borrower under the Note is not paid when due; Bankruptcy Code or any other Federal or state bankruptcy or insolvency law, or solicits or causes to be solicited (or otherwise colludes with) petitioning creditors for any involuntary petition against Borrower,
(ii) Borrower or any SPE Component Entity or any Affiliate thereof files an answer consenting to an involuntary petition filed against Borrower (other than any answer which is required to be made by applicable law), by any other person under the Bankruptcy Code or any other federal or state bankruptcy or insolvency law,
(iii) Borrower or any SPE Component Entity consents to or joins in an application for the appointment of a custodian, receiver, trustee, or examiner for Borrower (other than with the prior written consent of Administrative Agent),
(iv) Bxxxxxxx makes an assignment for the benefit of creditors (other than to Lender in connection with the Loan or with the prior written consent of Administrative Agent);
(v) there is a breach of any provision of Article 5 (Single Purpose Entity Covenants) hereof or the separateness covenants contained in the Borrower’s or SPE Component Entity’s organizational documents (excluding, in each case, any provision requiring each Borrower to remain solvent, maintain adequate capital or pay its debts as they come due) and such breach is cited by a court of competent jurisdiction in a final order in a proceeding under the Bankruptcy Code as a material factor in ordering the substantive consolidation of Borrower with any other Person other than a co-Borrower under the Loan; provided that the motion or pleading seeking substantive consolidation was not brought or supported by Administrative Agent and, as a result thereof, Borrower is subsequently substantively consolidated in a case under the Bankruptcy Code with any Person other than a co-Borrower under the Loan,
(vi) Borrower fails to comply with obtain Administrative Agent’s prior consent to (a) the transfer or conveyance of all or any provisions hereof relating to cash management portion of any Property, or fails to appoint a new property manager upon (b) the request transfer of Lenderdirect or indirect equity interests in Borrower, in each case in violation of the Loan Documents,
(vii) Borrower fails to cooperate with or effectuate a Hawaii Loan Bifurcation or pay all costs and expenses related thereto as required pursuant to Section 6.7 hereof, or an event of default occurs with respect to the Hawaii Individual Property after the Hawaii Loan Bifurcation for all amounts due under the Hawaii Individual Property Loan, provided that liability with respect to this Section 13.1(b)(vii) shall not exceed the Allocated Loan Amount of the Hawaii Individual Property under this Agreement and the allocated loan amount of the Hawaii Individual Property under the Mezzanine Loan Agreement, plus any New Manager and all third-party costs incurred by Administrative Agent or Lender (including attorneys’ fees and costs reasonably incurred) in connection with the collection of amounts due hereunder,
(viii) Bxxxxxxx fails to comply pay to Administrative Agent for the account of Lender any Excess Cash Flow in violation of Section 2.6(b) hereof; provided that liability with respect to this Section 13.1(b)(viii) shall not exceed the amount of such Excess Cash Flow required to be paid to Administrative Agent, plus any limitations on instructing and all third-party costs incurred by Administrative Agent or Lender (including attorneys’ fees and costs reasonably incurred) in connection with the property managercollection of amounts due hereunder,
(ix) Borrower fails to deliver to Administrative Agent a Title Insurance Policy satisfactory to Administrative Agent with respect to the Hawaii Easement Properties; provided that liability with respect to this Section 13.1(b)(ix) shall not exceed the Allocated Loan Amount of the applicable Hawaii Easement Property under this Agreement required to be paid to Administrative Agent and the allocated loan amount of the applicable Hawaii Easement Property under the Mezzanine Loan Agreement, each as required plus any and all third-party costs incurred by Administrative Agent or Lender (including attorneys’ fees and costs reasonably incurred) in connection with the collection of amounts due hereunder; provided, further, that liability with respect to this Section 13.1(b)(ix) shall terminate and this Section 13.1(b)(ix) shall be of no further force and effect with respect to any Hawaii Easement Property upon delivery to Administrative Agent of a Title Insurance Policy satisfactory to Administrative Agent with respect to such Hawaii Easement Property,
(x) Following a Casualty or Condemnation, Borrower fails to cause Tenant to and fails to promptly commence and diligently prosecute the completion of the Restoration of the applicable Individual Property, subject to and in accordance withwith the provisions of Sections 7.2, as applicable7.3 and 7.4, whether or not such costs are covered by the Net Proceeds; provided that liability with respect to this Section 13.1(b)(x) shall not exceed the Allocated Loan Amount of the applicable Individual Property under this Agreement required to be paid to Administrative Agent and the allocated loan amount of the applicable Individual Property under the Mezzanine Loan Agreement, plus any and all third-party costs incurred by Administrative Agent or Lender (including attorneys’ fees and costs reasonably incurred) in connection with the collection of amounts due hereunder;
(xi) Borrower fails to pay to Administrative Agent for the account of Lender any Exit Fee due and payable pursuant to the terms hereof; provided that liability with respect to this Section 13.1(b)(xi) shall not exceed the amount of any unpaid Exit Fee required to be paid to Administrative Agent for the account of Lender, plus any and provisions of, this Agreement, all third-party costs incurred by Administrative Agent or Lender (including attorneys’ fees and costs reasonably incurred) in connection with the Assignment collection of Management Agreement and the Security Instrument; (iii) any representation, warranty or covenant contained in Article 5 or Article 6 hereof is violated or breached; (iv) a Bankruptcy Event occurs; or (v) Sections 11.1 or 11.6 hereof are violated or breached in any material respectamounts due hereunder.
Appears in 1 contract
Samples: Loan Agreement (Industrial Logistics Properties Trust)
Exculpation. (a) Subject to Notwithstanding anything in this Mortgage, the qualifications below, Lender shall not enforce the liability and obligation of Borrower to perform and observe the obligations contained in Note or any other security instrument securing the Note, in order to affirm the absence of personal liability on the part of Mortgagor, Mortgagee agrees that in any action brought to enforce the obligation of Mortgagor to pay or perform any indebtedness or obligation created or arising under the Note or this AgreementMortgage, the Security Instrument or the other Loan Documents by any action or proceeding wherein a money judgment or any deficiency judgment or other judgment establishing personal liability shall be sought against Borrower or any principal, director, officer, employee, beneficiary, shareholder, partner, member, trustee, agent, or Affiliate of Borrower or any legal representatives, successors or assigns of any of the foregoing (collectively, the “Exculpated Parties”), except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender to enforce and realize upon its interest under the Note, this Agreement, the Security Instrument and the other Loan Documents, or in the 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 decree shall be enforceable against Borrower Mortgagor only to the extent of Borrower’s interest the joint and several interests of Mortgagor in the Mortgaged Property, and any such judgment shall not be subject to execution on, nor be a lien on, assets of Mortgagor other than the joint and several interests in the Rents and in any other collateral given to Lender, and Lender, by accepting Mortgaged Property. The foregoing limitation of liability of the Note, this Agreement, the Security Instrument and the other Loan Documents, Mortgagor or its general partner shall not xxx forapply, seek however, to any of the following:
(a) Fraud or demand any deficiency judgment against Borrower misrepresentation on the part of the Mortgagor or any of its partners, or any waste of the Exculpated Parties in any such action Mortgaged Property.
(b) Any rents, issues or proceeding under or by reason of or under or in connection with the Note, this Agreement, the Security Instrument or the other Loan Documents. The provisions of this Section shall not, however, profits collected more than one (1) constitute a waivermonth in advance of their due dates.
(c) Any misapplication of proceeds, release rents, issues or impairment of profits, security deposits, and any obligation evidenced other payments from tenants or secured by any of the Loan Documents; (2) impair the right of Lender to name Borrower as a party defendant in any action or suit for foreclosure and sale under the Security Instrument; (3) affect the validity or enforceability of any indemnity, guaranty or similar instrument occupancy (including, without limitation, indemnities set forth lease termination fees), insurance proceeds, condemnation awards, or other sums of a similar nature.
(d) Mortgagor's or any of its partners otherwise committing any wrongful act, the apparent purpose or intent of which is to deprive Mortgagee of any of its security for the Secured Indebtedness.
(e) Liability under any environmental covenants, conditions, and indemnity contained in Article 12 hereofthis Mortgage and in any separate environmental indemnity agreement executed by Mortgagor.
(f) Rents or other income not properly applied to any portion then due of the Secured Indebtedness or the normal operating expenses incurred or accrued.
(g) Personalty or fixtures removed or allowed to be removed by or on behalf of Mortgagor or any of its partners and not replaced by items of equal or greater value than the personalty or fixtures so removed; however, Section 11.2 hereof, this provision shall not apply to those items destroyed in the Guaranty ordinary course of business or those items removed in the ordinary course of business and not intended to deprive Mortgagee of any of its security for the Environmental IndemnitySecured Indebtedness.
(h) An amount equal to the sum of all payments made by Mortgagor to any junior lienholders during any period in which a monetary default exists under the Note, this Mortgage or any loan agreement executed by Mortgagor in connection with the Loan or any of the rights and remedies of Lender thereunder (including, without limitation, Lender’s right to enforce said rights and remedies against Borrower and/or Guarantor (as applicable) personally and without the effect of the exculpatory provisions of this Article 13); (4) impair the rights of Lender to (A) obtain the appointment of a receiver and/or (B) enforce its rights and remedies provided in Articles 8 and 9 hereof; (5) impair the enforcement of the assignment of leases and rents contained in the Security Instrument and in any other Loan Documents; (6) impair the right of Lender to enforce Section 4.12(e) of this Agreement; (7) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted by the Security Instrument or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against the Property; or (8) constitute a waiver of the right of Lender to enforce the liability and obligation of Borrower, by money judgment or otherwise, to the extent of any Loss incurred by Lender (including attorneys’ fees and costs reasonably incurred) arising out of or in connection with the following:Secured Indebtedness.
(i) fraud or intentional misrepresentation by any Borrower Party in connection with the Loan;
(ii) the gross negligence or willful misconduct of any Borrower Party;
(iii) any litigation or other legal proceeding related to the Debt filed by any Borrower Party 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 other Loan Documents;
(iv) waste to the Property caused by the intentional acts or intentional omissions of any Borrower Party and/or the removal or disposal of any portion of the Property after an Event of Default;
(v) the misapplication, misappropriation or conversion by any Borrower Party 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 Rents following an Event of Default or (D) any Tenant security deposits or Rents collected in advance;
(vi) any act of arson by any Borrower Party or of which any Borrower Party has knowledge;
(vii) failure Failure to pay Taxesany taxes or assessments prior to delinquency, or to pay charges for labor or labor, materials or other charges that which can create liens on any portion of the Mortgaged Property and any sums expended by Mortgagee in accordance the performance of or compliance with the terms and provisions hereof;
(viii) failure to pay Insurance Premiums, to maintain the Policies in full force and effect and/or to provide Lender evidence obligations of the same, in each case, as expressly provided herein;
(ix) any security deposits, advance deposits or any other deposits collected with respect to the Property which are not delivered to Lender upon a foreclosure of the 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;
(x) any tax on the making and/or recording of the Security Instrument, the Note Mortgagor or any of its partners under any loan agreement executed by Mortgagor in connection with the other Loan Documents or any transfer or similar taxes (whether due upon the making of the same or upon Lender’s exercise of its remedies under the Loan Documents)Secured Indebtedness, but excluding any income, franchise or other similar taxes;
(xi) the seizure or forfeiture of the Property, or any portion thereof, or Borrower’s interest therein, resulting from criminal wrongdoing by any Borrower Party;
(xii) the failure to make any Condemnation Payment and/or any Balancing Payment, to permit on-site inspections of the Property and/or to provide the Required Financial Items, in each case, as and when required herein;
(xiii) Intentionally Omitted;
(xiv) the failure to make repairs, renewals or replacements (including, without limitation, structural sums expended to pay taxes or assessments or hazard insurance premiums, capital improvement expenditures, bills for utilities or other service or products for the benefit of the Mortgaged Property.
(j) The cost of compliance with all federal, state and nonstructurallocal laws and regulations, exterior and interioras well as the cost of investigating any action or charge thereunder, ordinary and extraordinary, foreseen and unforeseen) to and/or damages suffered by Mortgagee as a result of the Property failure of Mortgagor or any portion thereof of its partners to pay or comply with any of the foregoing.
(k) Tortious or other acts or omissions giving rise to claims against Mortgagee, including, without limitation, the Improvements now claims by tenants for damages or at any time hereafter erected on the Property) as and when required pursuant to the terms of the Loan Documents or as and when necessary to maintain the Property in good and safe condition, in a rentable and tenantable state of repair and/or in the condition required pursuant to the terms of the Loan Documents; and/or
(xv) any indemnity obligations of Lender to Bank under the Restricted Account Agreement (other than those arising as a direct result of Lender’s gross negligence or willful misconduct)offsets.
(bl) Notwithstanding anything Attorneys' fees, court costs and other expenses incurred by Mortgagee in connection with the Mortgagee's enforcement of Mortgagor's personal liability as set forth herein. In addition to the contrary foregoing, nothing contained in this Agreement, Section shall in any manner limit the Note or liability of Mortgagor to pay over to Mortgagee 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) Rents and Profits or any other provisions proceeds of the Bankruptcy Code to file a claim for Mortgaged Property, if the full amount same are received or held by Mortgagor after Mortgagor is made aware, by written notice from Mortgagee or otherwise, of the Debt or to require that all collateral shall continue to secure all occurrence of the 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 an Event of principal and interest under the Note is not paid when due; (ii) Borrower fails to comply with any provisions hereof relating to cash management or fails to appoint a new property manager upon the request of Lender, fails to cooperate with any New Manager or fails to comply with any limitations on instructing the property manager, each as required by and in accordance withDefault, as applicable, the terms and provisions of, this Agreement, the Assignment of Management Agreement and the Security Instrument; (iii) any representation, warranty or covenant contained in Article 5 or Article 6 hereof is violated or breached; (iv) a Bankruptcy Event occurs; or (v) Sections 11.1 or 11.6 hereof are violated or breached in any material respecthereinbefore defined.
Appears in 1 contract
Samples: Mortgage, Assignment of Rents and Security Agreement (Angeles Partners Viii)
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 Security Instrument or the other Loan Documents by any action or proceeding wherein a money judgment or any deficiency judgment or other judgment establishing personal liability shall be sought against Borrower or any principal, director, officer, employee, beneficiary, shareholder, partner, member, trustee, agent, or Affiliate of Borrower or any legal representatives, successors or assigns of any of the foregoing (collectively, the “Exculpated Parties”)Principal, except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender to enforce and realize upon its interest under the Note, this Agreement, the Security Instrument Note, the Mortgage and the other Loan Documents, or and the interest in the Property, the Rents, or Rents and any other collateral given to Lender pursuant to created by this Agreement, the Note, the Mortgage and the other Loan Documents; provided, however, that, except as specifically provided herein, that any judgment in any such action or proceeding shall be enforceable against Borrower or Borrower Principal, as applicable, only to the extent of Borrower’s or Borrower Principal’s interest in the Property, in the Rents and in any other collateral given to Lender, and . Lender, by accepting the Note, this Agreement, the Security Instrument 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 any of the Exculpated Parties Borrower Principal in any such action or proceeding proceeding, under or by reason of or under or in connection with the Note, this Agreement, the Security Instrument Note, the Mortgage or the other Loan Documents. The provisions of this Section 15.1 shall not, however, (1i) 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; (2ii) 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 Security InstrumentMortgage; (3iii) affect the validity or enforceability of any indemnity, guaranty or similar instrument indemnity (including, without limitation, indemnities set forth in Article 12 hereof, Section 11.2 hereof, in the Guaranty and the Environmental Indemnity) , Section 13.5 and Article 14 of this Agreement), 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 thereunder (including, without limitation, Lender’s right to enforce said rights and remedies against Borrower and/or Guarantor (as applicable) personally and without the effect of the exculpatory provisions of this Article 13)Documents; (4iv) impair the rights right of Lender to (A) obtain the appointment of a receiver and/or (B) enforce its rights and remedies provided in Articles 8 and 9 hereofreceiver; (5v) impair the enforcement of the assignment of leases and rents provisions contained in the Security Instrument and in any other Loan DocumentsMortgage; or (6vi) impair the right of Lender to enforce Section 4.12(e) of obtain a deficiency judgment or other 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; (7) constitute a prohibition against provided however, Lender to seek a deficiency shall only enforce such judgment against Borrower in order to fully realize the security granted by the Security Instrument or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against the Property; or (8) constitute a waiver of the right of Lender to enforce the liability and obligation of Borrower, by money judgment or otherwise, to the extent of any Loss incurred by the Insurance Proceeds and/or Awards.
(b) Notwithstanding the provisions of this Section 15.1 to the contrary, 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, Borrower Principal or any other Affiliate of Borrower Party or Borrower Principal in connection with the Loanexecution 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 in connection with the Loan either at the time of the closing of the Loan or during the term of the Loan (provided that if the applicable fraud or intentional misrepresentation is made by Borrower Principal, Borrower Principal, but not Borrower, shall have liability hereunder);
(ii) Borrower’s misapplication or misappropriation of Rents received by Borrower after the gross negligence or willful misconduct occurrence of any Borrower Party;
(iii) any litigation or other legal proceeding related to the Debt filed by any Borrower Party 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 other Loan Documents;
(iv) waste to the Property caused by the intentional acts or intentional omissions of any Borrower Party and/or the removal or disposal of any portion of the Property after an Event of Default;
(viii) the misapplication, Borrower’s misapplication or misappropriation or conversion by any Borrower Party 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 Rents following an Event of Default or (D) any Tenant tenant security deposits or Rents collected in advance;
(iv) Borrower’s misapplication or misappropriation of Insurance Proceeds or Awards;
(v) Borrower’s failure to pay Taxes and Other Charges, in each case to the extent that the net operating cash flow of the Property is sufficient therefor (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), and in each case beyond any applicable notice and cure periods specified herein;
(vi) any act Borrower’s failure to return or to reimburse Lender for all Personal Property taken from the Property by or on behalf of arson by any Borrower Party and not replaced with Personal Property of the same utility and of the same or of which any Borrower Party has knowledgegreater value;
(vii) failure to pay Taxesany act of intentional waste or arson by Borrower, charges for labor any principal, Affiliate, member or materials general partner thereof or other charges that can create liens on by Borrower Principal, any portion of the Property in accordance with the terms and provisions hereofprincipal, Affiliate, member or general partner thereof;
(viii) Borrower’s failure following any Event of Default to pay Insurance Premiums, deliver to Lender upon demand all Rents and books and records relating to the Property; or
(ix) Borrower’s failure to maintain the Policies in full accordance with this Agreement.
(c) Notwithstanding the foregoing, the agreement of Lender not to pursue recourse liability against Borrower and Borrower Principal as set forth in subsection (a) above SHALL BECOME NULL AND VOID and shall be of no further force and effect and/or and the Debt shall be fully recourse to provide Borrower and Borrower Principal jointly and severally in the event of (i) a default by Borrower or Borrower Principal of any of the covenants set forth in Section 6.1, provided that (x) such breach was material and (y) within fifteen (15) days of notice from Lender, Borrower or Borrower Principal fails to cure such breach and fails to deliver to Lender evidence of a new or revised substantive non-consolidation opinion, in form and substance and from counsel reasonably satisfactory to Lender in accordance with the Rating Agency standards for the same, in each case, as expressly provided herein;
(ix) any security deposits, advance deposits or any other deposits collected with respect to the Property which are effect that such failure does not negate/impair the opinion previously delivered to Lender upon Lender, and provided further that the Debt shall be recourse to Borrower Principal only if Borrower Principal itself breaches, or causes or permits Borrower to breach, such covenants, (ii) a foreclosure default by Borrower or Borrower Principal under any of the prohibitions on transfers of the Property or action direct or indirect interest of Borrower set forth in lieu thereof, Article 7 hereof (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;
(x) any tax on the making and/or recording of the Security Instrument, the Note or any of the other Loan Documents or any transfer or similar taxes (whether due upon the making of the same or upon Lender’s exercise of its remedies as may be expressly permitted under the Loan Documents), but excluding any income, franchise or other similar taxes;
(xi) provided that the seizure or forfeiture Debt shall be recourse to Borrower Principal in connection with a default of the Propertysuch Article 7 prohibitions only if Borrower Principal itself breaches, or any portion thereofcauses or permits Borrower to breach, such prohibitions, or (iii) if (A) a voluntary bankruptcy or insolvency proceeding is commenced by Borrower’s interest therein, resulting from criminal wrongdoing (provided that the Debt shall be recourse to Borrower Principal in connection with a voluntary bankruptcy or insolvency proceeding of Borrower only if Borrower Principal commences or causes or permits Borrower to commence such a voluntary proceeding) or (B) an involuntary bankruptcy or insolvency proceeding is commenced against Borrower which is not dismissed within ninety (90) days of filing (provided, however, that Borrower and Borrower Principal shall not have recourse liability hereunder in connection with any involuntary bankruptcy or insolvency proceeding unless such involuntary proceeding is solicited, procured, consented to or acquiesced in by Borrower, any Affiliate of Borrower Party;
(xii) or Borrower Principal in bad faith collusion with an intent to circumvent the failure to make any Condemnation Payment and/or any Balancing Payment, to permit on-site inspections of prohibition on recourse liability against the Property and/or to provide the Required Financial Items, in each case, as and when required Borrower or Borrower Principal set forth herein;
(xiii) Intentionally Omitted;
(xiv) the failure to make repairs, renewals or replacements (including, without limitation, structural and nonstructural, exterior and interior, ordinary and extraordinary, foreseen and unforeseen) to the Property or any portion thereof (including, without limitation, the Improvements now or at any time hereafter erected on the Property) as and when required pursuant to the terms of the Loan Documents or as and when necessary to maintain the Property in good and safe condition, in a rentable and tenantable state of repair and/or in the condition required pursuant to the terms of the Loan Documents; and/or
(xv) any indemnity obligations of Lender to Bank under the Restricted Account Agreement (other than those arising as a direct result of Lender’s gross negligence or willful misconduct).
(bd) Notwithstanding anything to the contrary in this Agreement, the Note or any of the Loan Documents, (A) Lender Nothing herein shall not be deemed to have waived be a waiver of 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 Debt indebtedness secured by the Mortgage or to require that all collateral shall continue to secure all of the Debt indebtedness owing to Lender in accordance with the Loan Documents, and (B) the Debt shall be fully recourse to Borrower in the event that: (i) the first full monthly payment of principal and interest under the Note is not paid when due; (ii) Borrower fails to comply with any provisions hereof relating to cash management or fails to appoint a new property manager upon the request of Lender, fails to cooperate with any New Manager or fails to comply with any limitations on instructing the property manager, each as required by and in accordance with, as applicable, the terms and provisions of, this Agreement, the Assignment Note, the Mortgage or the other Loan Documents.
(e) Notwithstanding any provisions of Management Agreement and this Article 15 to the Security Instrument; (iii) any representationcontrary, warranty or covenant contained in Article 5 or Article 6 hereof no event shall Borrower’s failure to pay Operating Expenses in the event cash flow is violated or breached; (iv) a Bankruptcy Event occurs; or (v) Sections 11.1 or 11.6 hereof are violated or breached in any material respectinsufficient to pay such expenses be considered an act of waste.
Appears in 1 contract
Exculpation. (a) Subject to the qualifications below, Lender shall not enforce the liability and obligation of Borrower or its constituent members, partners, shareholders, directors, employees or agents or the direct or indirect constituent members, partners, shareholders, directors, employees or agents thereof (collectively, the “Borrower Parties”) or any other Person, to perform and observe the obligations contained in the Note, this Agreement, the Security Instrument Note or any of the other Loan Documents by any action or proceeding wherein a money judgment or any deficiency judgment or other judgment establishing personal liability shall be sought against Borrower or any principal, director, officer, employee, beneficiary, shareholder, partner, member, trustee, agent, or Affiliate of Borrower or any legal representatives, successors or assigns of any of the foregoing (collectively, the “Exculpated Parties”)Borrower Parties or any other Person, except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender to enforce and realize upon its interest under the Note, this Agreement, the Security Instrument and the other Loan Documents, or in the Property, the Rents, all or any other collateral given to Lender pursuant to portion of the Loan DocumentsCollateral; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against the Borrower Parties only to the extent of Borrower’s their interest in the Property, in the Rents and in any other collateral given to LenderCollateral, and Lender, by accepting the Note, this Agreement, the Security Instrument Note and the other Loan Documents, agrees that it shall not xxx sxx for, seek or demand any deficiency judgment against Borrower or any of the Exculpated Borrower Parties or any other Person in any such action or proceeding under or by reason of or under or in connection with the Note, this Agreement, the Security Instrument Note or any of the other Loan Documents. The provisions of this Section paragraph shall not, however, (1i) constitute a waiver, release or impairment of any obligation evidenced or secured by this Agreement, the Note or any of the other Loan Documents; (2ii) impair the right of Lender to name any of the Borrower Parties, as a party defendant in any action or suit for foreclosure and sale in connection with exercising its remedies under the Security InstrumentDocuments and the Pledged Securities; (3iii) affect the validity or enforceability of any indemnity, guaranty or similar instrument (including, without limitation, indemnities set forth in Article 12 hereof, Section 11.2 hereof, in the Guaranty and the Environmental Indemnity) made in connection with the Loan or any of the rights and remedies of Lender thereunder (including, without limitation, Lender’s right to enforce said rights and remedies against Borrower and/or Guarantor (as applicable) personally and without the effect of the exculpatory provisions of this Article 13)thereunder; (4) impair the rights of Lender to (A) obtain the appointment of a receiver and/or (B) enforce its rights and remedies provided in Articles 8 and 9 hereof; (5) impair the enforcement of the assignment of leases and rents contained in the Security Instrument and in any other Loan Documents; (6iv) impair the right of Lender to enforce Section 4.12(e) obtain the appointment of this Agreement; (7) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted by the Security Instrument or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against the Propertyreceiver; or (8) v) constitute a waiver of the right of Lender to enforce the liability and obligation of BorrowerBorrower (but not against any members of Borrower (other than Guarantor to the extent provided in the Non-Recourse Guaranty) or their direct or indirect constituent members or partners or any other Person), by money judgment or otherwise, to the extent of any Loss loss, damage, cost, expense, liability, claim or other obligation (but excluding any punitive, consequential or speculative damages) incurred by Lender (including attorneys’ fees and costs reasonably incurred) arising out of or in connection with the following:
(ia) fraud or intentional misrepresentation by any Borrower Party Borrower, Owner or Guarantor in connection with the Loan;
(iib) intentional physical waste of the Property (including, but not limited to, waste due to gross negligence negligence) by Borrower, Owner or willful misconduct any affiliate thereof; provided, however, such physical waste shall exclude wear and tear to the Property that occurs in the ordinary course of business of the Property by Borrower, Owner or any Borrower Partyaffiliate thereof;
(iiic) the material breach of any litigation representation, warranty, covenant or other legal proceeding related to the Debt filed by any Borrower Party 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 indemnification provision in the other Loan DocumentsEnvironmental Indemnity or in this Agreement concerning Environmental Laws, Hazardous Substances or Asbestos;
(ivd) waste to the Property caused by the intentional acts or intentional omissions of any Borrower Party and/or the removal or disposal by Borrower, Owner or any affiliate thereof of any portion of the Property after an Event of DefaultDefault has occurred and while it is continuing, unless such portion of the Property is replaced by an item of equal or greater value as determined by Lender in its reasonable discretion;
(ve) the misapplication, misappropriation misapplication or conversion by Borrower, Owner or any Borrower Party affiliate thereof of (Ai) any insurance proceeds paid by reason of any loss, damage or destruction to the Property, (Bii) any Awards awards or other amounts received in connection with the Condemnation condemnation of all or a portion of the Property, (Ciii) any Rents following an Event of Default or (Div) any Tenant security deposits or Rents collected paid more than one (1) month in advance;
(vi) any act of arson by any Borrower Party or of which any Borrower Party has knowledge;
(viif) failure to pay Taxes, charges for labor or materials or taxes or other charges that can create liens superior to the lien of the Mortgage on any portion of the Property unless such taxes or other charges are being contested in accordance with the Senior Loan Documents or in accordance with the terms and provisions herewith or such taxes or charges have been delivered to Senior Lender in accordance with the terms of the Senior Loan Documents or Borrower has complied with Section 5.2 hereof;
(viii) failure to pay Insurance Premiums, to maintain the Policies in full force and effect and/or to provide Lender evidence of the same, in each case, as expressly provided herein;
(ixg) any security depositsdeposits collected by Borrower, advance deposits Owner or any other deposits collected affiliate thereof with respect to the Property which are not delivered to Lender (subject to the rights of Senior Lender) upon a foreclosure of the 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;
(x) any tax on the making and/or recording of the Security Instrument, the Note or any of the other Loan Documents or any transfer or similar taxes (whether due upon the making of the same or upon Lender’s exercise of its remedies under the Loan Documents), but excluding any income, franchise or other similar taxes;
(xi) the seizure or forfeiture of the Property, or any portion thereof, or Borrower’s interest therein, resulting from criminal wrongdoing by any Borrower Party;
(xiih) the failure by Borrower to make any Condemnation Payment and/or any Balancing Paymentcause Owner to deposit with Senior Lender all Rents, to permit on-site inspections as required under Article 3 of the Property and/or to provide the Required Financial Items, in each case, as and when required herein;Senior Loan Agreement; or
(xiii) Intentionally Omitted;
(xivi) the failure by Borrower to make repairs, renewals or replacements (including, without limitation, structural and nonstructural, exterior and interior, ordinary and extraordinary, foreseen and unforeseen) cause Owner to use any funds released by Senior Lender from any subaccount provided for in the Property or any portion thereof (including, without limitation, Senior Loan Agreement for the Improvements now or at any time hereafter erected on the Property) as and when required pursuant to the terms intended use therefor in default of the Loan Documents or as and when necessary to maintain the Property in good and safe condition, in a rentable and tenantable state of repair and/or in the condition required pursuant to the terms requirements of the Senior Loan Documents; and/or
(xv) any indemnity obligations of Lender to Bank under the Restricted Account Agreement (other than those arising as a direct result of Lender’s gross negligence or willful misconduct).
(b) Agreement. Notwithstanding anything to the contrary in this Agreement, the Note or any of the Loan Documents, Documents (Ai) 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 Debt or to require that all collateral shall continue to secure all of the Debt owing to Lender in accordance with the Loan Documents, and (Bii) the Debt shall be become fully recourse to Borrower (but not its members (other than Guarantor solely to the extent provided in the Non-Recourse Guaranty) or other direct or indirect constituent members or partners or any other Person) in the event that: (iA) the first full monthly payment of principal and interest Monthly Debt Service Payment Amount under the Note is not paid when due; (iiB) other than in connection with a default under subsection (x) of the definition of Special Purpose Bankruptcy Remote Entity set forth in Schedule 5 hereto, Borrower fails to comply maintain its status as a Special Purpose Bankruptcy Remote Entity in accordance with any the provisions hereof relating of this Agreement and such failure results in the substantive consolidation of Borrower with another Person; (C) except as otherwise permitted pursuant to cash management or the Loan Documents, Borrower fails to appoint a new property manager upon obtain Lender’s prior written consent to any subordinate financing or other voluntary lien encumbering the request Property or any portion of Lender, fails to cooperate with any New Manager or fails to comply with any limitations on instructing the property manager, each as required by and in accordance with, as applicable, the terms and provisions of, this Agreement, the Assignment of Management Agreement and the Security Instrument; (iii) any representation, warranty or covenant contained in Article 5 or Article 6 hereof is violated or breached; (iv) a Bankruptcy Event occurs; or (v) Sections 11.1 or 11.6 hereof are violated or breached in any material respect.Collateral;
Appears in 1 contract
Samples: Senior 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 Security Instrument Pledge Agreement or the other Loan Documents by any action or proceeding wherein a money judgment or any deficiency judgment or other judgment establishing personal liability shall be sought against Borrower or any principal, director, officer, employee, beneficiary, shareholder, partner, member, trustee, agent, or Affiliate of Borrower or any legal representatives, successors or assigns of any of the foregoing (collectively, the “Exculpated Parties”), except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender to enforce and realize upon its interest under the Note, this Agreement, the Security Instrument Pledge Agreement and the other Loan Documents, or in the Property, the RentsCollateral (or any portion thereof), or any other collateral given to Lender pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower’s interest in the Property, in the Rents Collateral and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Security Instrument Pledge Agreement and the other Loan Documents, shall not xxx for, seek or demand any deficiency judgment against Borrower or any of the Exculpated Parties in any such action or proceeding under or by reason of or under or in connection with the Note, this Agreement, the Security Instrument Pledge Agreement or the other Loan Documents. The provisions of this Section shall not, however, (1) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (2) impair the right of Lender to name Borrower as a party defendant in any action or suit for foreclosure and sale under the Security InstrumentPledge Agreement; (3) affect the validity or enforceability of any indemnity, guaranty or similar instrument (including, without limitation, indemnities set forth in Article 12 hereof, Section 11.2 hereof, in the Guaranty and the Environmental Indemnity) made in connection with the Loan or any of the rights and remedies of Lender thereunder (including, without limitation, Lender’s right to enforce said rights and remedies against Borrower and/or Guarantor (as applicable) personally and without the effect of the exculpatory provisions of this Article 13); (4) impair the rights of Lender to (A) obtain the appointment of a receiver and/or (B) enforce its rights and remedies provided in Articles 8 and 9 hereof; (5) impair the enforcement of the assignment of leases and rents contained in the Security Instrument and in any other Loan DocumentsPledge Agreement; (6) impair the right of Lender to enforce Section 4.12(e) of this Agreement; (7) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted by the Security Instrument Pledge Agreement or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against the PropertyProperty (or any portion thereof) or the Collateral (or any portion thereof); or (8) constitute a waiver of the right of Lender to enforce the liability and obligation of Borrower, by money judgment or otherwise, to the extent of any Loss incurred by Lender (including attorneys’ fees and costs reasonably incurred) arising out of or in connection with the following:
(i) fraud or intentional misrepresentation by any Borrower Party in connection with the Loan;
(ii) the gross negligence or willful misconduct of any Borrower Party;
(iii) any litigation or other legal proceeding related to the Debt filed by any Borrower Party or any other action of any Borrower Party 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 other Loan Documents; provided, however, that Borrower shall have no liability under this clause (iii) in the event that such Borrower Party asserts any defense or otherwise exercises any of its rights in good faith, including, without limitation, by means of, or in connection with, the filing, pursuit or maintenance by such Borrower Party of any litigation, proceeding, action or claim in good faith;
(iv) (A) waste to the Property caused by the intentional acts or intentional omissions of any Borrower Party and/or (B) the removal or disposal of any portion of the Property by any Borrower Party or its Affiliates after an Event of Default;
(v) the misapplication, misappropriation or conversion by any Borrower Party of (A) any insurance proceeds paid by reason of any loss, damage or destruction to the PropertyProperty (or any portion thereof), (B) any Awards or other amounts received in connection with the Condemnation of all or a portion of the Property, (C) any Rents following an Event of Default or Rents, if any, (D) any Tenant security deposits or Rents collected in advance, if any, (E) any other monetary collateral for the Loan (including, without limitation, any Reserve Funds and/or any portion thereof disbursed to (or at the direction of) Borrower), or (F) any Net Liquidation Proceeds After Debt Service or any distributions or other payments made in respect of any part of the Properties (or any portion thereof) or the Collateral (or any portion thereof);
(vi) any act of arson by any Borrower Party or of which any Borrower Party has knowledge;
(vii) failure to pay Taxes, charges for labor or materials or other charges that can create liens on any portion of the Property in accordance with the terms and provisions hereofhereof (except (1) to the extent that Mortgage Borrower does not have sufficient revenue from the Properties to make such payment, (2) to the extent that sums sufficient to pay such amounts have been deposited in escrow with Mortgage Lender pursuant to the terms of Sections 8.1, 8.2, 8.3, 8.6 or 8.8 of the Mortgage Loan Agreement, as applicable and Mortgage Lender has not made such sums available to Mortgage Borrower or (3) to the extent that Mortgage Borrower is contesting (or causing Mortgage Borrower to contest) such charges in accordance with the terms and conditions of Section 4.5 hereof (with respect to Taxes) and in accordance with the terms and conditions of Section 4.16 hereof (with respect to Work Charges and/or other trade payables));
(viiivii) failure to pay Insurance Premiums, to maintain the Policies in full force and effect and/or to provide Lender evidence of the same, in each case, as expressly provided hereinherein (except (1) to the extent that Mortgage Borrower does not have sufficient revenue from the Properties to make such payment or (2) to the extent that sums sufficient to pay such amounts have been deposited in escrow with Mortgage Lender pursuant to the terms of Section 8.6 of the Mortgage Loan Agreement and Mortgage Lender has not made such sums available to Mortgage Borrower);
(ixviii) any security deposits, advance deposits or any other deposits collected with respect to the Property which are not delivered to Mortgage Lender upon a foreclosure of the 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;
(xix) any tax on the making and/or recording of the Security Instrument, the Note or any of the other Loan Documents or any transfer or similar taxes (whether due upon the making of the same or upon Lender’s exercise of its remedies under the Loan Documents)same, but excluding any income, franchise or other similar taxes;
(xix) any violation or breach of any applicable law mandating the forfeiture or seizure or forfeiture of the Property, Property (or any portion thereof, or Borrower’s thereof and/or interest therein);
(xi) any material violation or breach by Mortgage Borrower with respect to any representation, resulting warranty or covenant contained in Article 5 of the Mortgage Loan Agreement (except with respect to Mortgage Borrower or any SPE Component Entity (as defined in the Mortgage Loan Agreement) remaining solvent, maintaining adequate capital or complying with Section 5.1(a)(vii) of the Mortgage Loan Agreement with respect to trade payables or Permitted Equipment Leases (as defined in the Mortgage Loan Agreement) solely (1) to the extent that Mortgage Borrower does not have sufficient revenue from criminal wrongdoing by any Borrower Partythe Properties to make such payment or (2) to the extent that sums sufficient to pay such amounts have been deposited in an escrow for the payment of such amounts with Mortgage Lender pursuant to the terms of Article VIII of the Mortgage Loan Agreement and Mortgage Lender has not made such sums available to Mortgage Borrower);
(xii) (A) the failure of Mortgage Borrower to make any True Up Payment (as defined in the Mortgage Loan Agreement) (except to the extent that Mortgage Borrower does not have sufficient revenue from the Properties to make such payment) or (B) the failure of Borrower to make any True Up Payment (except to the extent that Borrower does not have sufficient revenue from the Collateral to make such payment), as applicable;
(xiii) the failure to make purchase or replace (as applicable) any Condemnation Payment and/or any Balancing Payment, to permit on-site inspections of the Property and/or to provide the Required Financial ItemsInterest Rate Cap Agreement or Replacement Interest Rate Cap Agreement (as applicable), in each case, as and when required herein;
(xiii) Intentionally Omittedby the terms hereof;
(xiv) any material violation or breach with respect to any representation, warranty or covenant contained in Article 5 (except with respect to Borrower or any SPE Component Entity remaining solvent or maintaining adequate capital solely to the failure extent that Borrower does not have sufficient revenue from the Properties to make repairs, renewals or replacements (including, without limitation, structural and nonstructural, exterior and interior, ordinary and extraordinary, foreseen and unforeseen) to the Property or any portion thereof (including, without limitation, the Improvements now or at any time hereafter erected on the Property) as and when required pursuant to the terms of the Loan Documents or as and when necessary to maintain the Property in good and safe condition, in a rentable and tenantable state of repair and/or in the condition required pursuant to the terms of the Loan Documents; and/orsuch payments);
(xv) any indemnity obligations violation or breach of Section 11.6 or 11.8 hereof;
(xvi) any Property Document Event shall occur;
(xvii) intentionally omitted;
(xviii) any violation or breach of Section 7(a)(ii), Section 7(a)(iii) or Section 7(b) of any Subordination of Management Agreement;
(xix) the failure of Borrower or Manager to make required contributions to the CBA Multiemployer Plan (whether or not such failure results in an Event of Default hereunder); and/or
(xx) the failure of Mortgage Borrower, Borrower or Manager to cooperate with Lender and/or its assignees or designees in transitioning to Bank under the Restricted Account Agreement (other than those arising as a direct result of Lender’s gross negligence Lender and/or its assignees or willful misconduct)designees any liquor licenses with respect to any Individual Property.
(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 Debt or to require that all collateral shall continue to secure all of the Debt owing to Lender in accordance with the Loan Documents, and (B) the Debt shall be fully recourse to Borrower in the event that: (i) Borrower fails or fails to cause Mortgage Borrower to comply with any Mortgage Loan Cash Management Provisions or the first full monthly payment of principal Waived Cash Management Provisions, as applicable, and interest under the Note is does not paid when due; cure such failure within ten (10) days after written notice thereof, (ii) Borrower fails to comply with any provisions hereof relating to cash management or fails cause Mortgage Borrower to appoint a new property manager upon the request of Lender, when required to do so pursuant to this Agreement or fails to cooperate with any New Manager or fails cause Mortgage Borrower to comply with any limitations on instructing the property manager, each as required by and in accordance with, as applicable, the terms and provisions of, this Agreement, the Assignment of Management Agreement and the Security Instrumentother Loan Documents; (iii) any representation, warranty or covenant contained in Article 5 hereof is violated or Article 6 breached which results in the substantive consolidation of Borrower, Mortgage Borrower or any SPE Component Entity (as defined herein and in the Mortgage Loan Agreement) with any other Person that is a debtor in any proceeding under the Bankruptcy Code or any other Creditors Rights Laws; (iv) a Prohibited Transfer occurs, (v) a Bankruptcy Event occurs; (vi) Section 11.1 hereof is violated or breached; (iv) a Bankruptcy Event occurs; or (vvii) Sections 11.1 the Ground Lease is terminated or 11.6 hereof are violated cancelled or breached the Renewal Deadline occurs and Lender has not received evidence acceptable to Lender of the renewal of the Ground Lease in any material respectaccordance with its terms.
Appears in 1 contract
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 Security Instrument or the other Loan Documents by any action or proceeding wherein a money judgment or any deficiency judgment or other judgment establishing personal liability shall be sought against Borrower or any principal, director, officer, employee, beneficiary, shareholder, partner, member, trustee, agent, or Affiliate of Borrower or any legal representatives, successors or assigns of any of the foregoing (collectively, the “Exculpated Parties”)Principal, except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender to enforce and realize upon its interest under the Note, this Agreement, the Security Instrument Note, the Deed of Trust and the other Loan Documents, or and the interest in the Property, the Rents, or Rents and any other collateral given to Lender pursuant to created by this Agreement, the Note, the Deed of Trust and the other Loan Documents; provided, however, that, except as specifically provided herein, that any judgment in any such action or proceeding shall be enforceable against Borrower or Borrower Principal, as applicable, only to the extent of Borrower’s 's or Borrower Principal's interest in the Property, in the Rents (following an Event of Default) and in any other collateral given to Lender, and . Lender, by accepting the Note, this Agreement, the Security Instrument Note, the Deed of Trust and the other Loan Documents, agrees that it shall not not, except as otherwise provided in this Section 15.1, xxx for, seek or demand any deficiency judgment against Borrower or any of the Exculpated Parties Borrower Principal in any such action or proceeding proceeding, under or by reason of or under or in connection with the Note, this Agreement, the Security Instrument Note, the Deed of Trust or the other Loan Documents. The provisions of this Section 15.1 shall not, however, (1i) constitute a waiver, release or impairment of any obligation evidenced or secured by any this Agreement, the Note, the Deed of Trust or the other Loan Documents; (2ii) 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 Security InstrumentDeed of Trust; (3iii) affect the validity or enforceability of any indemnity, guaranty or similar instrument indemnity (including, without limitation, indemnities set forth those contained in Section 12.6 and Article 12 hereof14 of this Agreement), Section 11.2 hereofguaranty, in the Guaranty and the Environmental Indemnity) master lease or similar instrument made in connection with this Agreement, the Note, the Deed of Trust and the other Loan or any of the rights and remedies of Lender thereunder (including, without limitation, Lender’s right to enforce said rights and remedies against Borrower and/or Guarantor (as applicable) personally and without the effect of the exculpatory provisions of this Article 13)Documents; (4iv) impair the rights right of Lender to (A) obtain the appointment of a receiver and/or (B) enforce its rights and remedies provided in Articles 8 and 9 hereofreceiver; (5v) impair the enforcement of the assignment of leases and rents provisions contained in the Security Instrument and in any other Loan DocumentsDeed of Trust; or (6vi) impair the right of Lender to enforce Section 4.12(e) of obtain a deficiency judgment or other 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; (7) constitute a prohibition against provided however, Lender to seek a deficiency shall only enforce such judgment against Borrower in order to fully realize the security granted by the Security Instrument or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against the Property; or (8) constitute a waiver of the right of Lender to enforce the liability and obligation of Borrower, by money judgment or otherwise, to the extent of any Loss incurred by Lender (including attorneys’ fees and costs reasonably incurred) arising out of or in connection with the following:
(i) fraud or intentional misrepresentation by any Borrower Party in connection with the Loan;
(ii) the gross negligence or willful misconduct of any Borrower Party;
(iii) any litigation or other legal proceeding related to the Debt filed by any Borrower Party 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 other Loan Documents;
(iv) waste to the Property caused by the intentional acts or intentional omissions of any Borrower Party Insurance Proceeds and/or the removal or disposal of any portion of the Property after an Event of Default;
(v) the misapplication, misappropriation or conversion by any Borrower Party 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 Rents following an Event of Default or (D) any Tenant security deposits or Rents collected in advance;
(vi) any act of arson by any Borrower Party or of which any Borrower Party has knowledge;
(vii) failure to pay Taxes, charges for labor or materials or other charges that can create liens on any portion of the Property in accordance with the terms and provisions hereof;
(viii) failure to pay Insurance Premiums, to maintain the Policies in full force and effect and/or to provide Lender evidence of the same, in each case, as expressly provided herein;
(ix) any security deposits, advance deposits or any other deposits collected with respect to the Property which are not delivered to Lender upon a foreclosure of the 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;
(x) any tax on the making and/or recording of the Security Instrument, the Note or any of the other Loan Documents or any transfer or similar taxes (whether due upon the making of the same or upon Lender’s exercise of its remedies under the Loan Documents), but excluding any income, franchise or other similar taxes;
(xi) the seizure or forfeiture of the Property, or any portion thereof, or Borrower’s interest therein, resulting from criminal wrongdoing by any Borrower Party;
(xii) the failure to make any Condemnation Payment and/or any Balancing Payment, to permit on-site inspections of the Property and/or to provide the Required Financial Items, in each case, as and when required herein;
(xiii) Intentionally Omitted;
(xiv) the failure to make repairs, renewals or replacements (including, without limitation, structural and nonstructural, exterior and interior, ordinary and extraordinary, foreseen and unforeseen) to the Property or any portion thereof (including, without limitation, the Improvements now or at any time hereafter erected on the Property) as and when required pursuant to the terms of the Loan Documents or as and when necessary to maintain the Property in good and safe condition, in a rentable and tenantable state of repair and/or in the condition required pursuant to the terms of the Loan Documents; and/or
(xv) any indemnity obligations of Lender to Bank under the Restricted Account Agreement (other than those arising as a direct result of Lender’s gross negligence or willful misconduct)Awards.
(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 Debt or to require that all collateral shall continue to secure all of the Debt owing to Lender in accordance with the Loan Documents, and (B) the Debt shall be fully recourse to Borrower in the event that: (i) the first full monthly payment of principal and interest under the Note is not paid when due; (ii) Borrower fails to comply with any provisions hereof relating to cash management or fails to appoint a new property manager upon the request of Lender, fails to cooperate with any New Manager or fails to comply with any limitations on instructing the property manager, each as required by and in accordance with, as applicable, the terms and provisions of, this Agreement, the Assignment of Management Agreement and the Security Instrument; (iii) any representation, warranty or covenant contained in Article 5 or Article 6 hereof is violated or breached; (iv) a Bankruptcy Event occurs; or (v) Sections 11.1 or 11.6 hereof are violated or breached in any material respect.
Appears in 1 contract
Samples: Loan Agreement (Inland Western Retail Real Estate Trust Inc)
Exculpation. (a) Subject to the qualifications belowset forth in this Section 6.3, Lender Administrative Agent shall not enforce the liability and obligation of Borrower to perform and observe the obligations contained in the NoteNotes, this Agreement, the Security Instrument or the other Loan Documents by any action or proceeding wherein a money judgment or any deficiency judgment or other judgment establishing personal liability shall be sought against Borrower or any principal, director, officer, employee, beneficiary, shareholder, partner, member, trustee, agentBorrower, or Affiliate of Borrower its direct or indirect owners (other than pursuant to any legal representativesseparate agreement, successors indemnity or assigns of any of guaranty, including pursuant to the foregoing (collectively, Guaranty and the “Exculpated Parties”Environmental Indemnity), except that Lender Administrative Agent may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender Administrative Agent to enforce and realize upon its interest under the NoteNotes, this Agreement, the Security Instrument and the other Loan Documents, or in the Property, the RentsRevenues, or any other collateral given to Lender Administrative Agent pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, any judgment awarded in any such action or proceeding shall be enforceable against Borrower only to the extent of BorrowerXxxxxxxx’s interest in the Property, in the Rents Revenues and in any other collateral given to LenderAdministrative Agent as collateral security for the Debt, and LenderAdministrative Agent, by accepting without limitation of the Noteforegoing and in addition thereto, this Agreement, the Security Instrument agrees for itself and the other Loan Documents, its successors and assigns that it and its successors and assigns shall not xxx sue for, seek or demand any deficiency judgment against Borrower or any of the Exculpated Parties in any such action or proceeding under under, or by reason of or under of, or in connection with with, the NoteNotes, this Agreement, the Security Instrument or the other Loan Documents. The provisions of this Section 6.3(a) shall not, however, (1i) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (2ii) impair the right of Lender Administrative Agent to name Borrower as a party defendant in any action or suit for foreclosure and sale under the Security Instrument; (3iii) affect the validity or enforceability of any indemnityseparate agreement, indemnity or guaranty or similar instrument (including, without limitation, indemnities set forth in Article 12 hereof, Section 11.2 hereof, in including the Guaranty and the Environmental Indemnity) made in connection with the Loan ), or any of the rights and remedies of Administrative Agent or Lender thereunder (including, without limitation, Lender’s right to enforce said rights and remedies against Borrower and/or Guarantor (as applicable) personally and without the effect of the exculpatory provisions of this Article 13)thereunder; (4iv) impair the rights right of Lender Administrative Agent to (A) obtain the appointment of a receiver and/or (B) enforce its rights and remedies provided in Articles 8 and 9 hereofreceiver; (5v) impair the enforcement of the assignment Assignment of leases and rents contained in the Security Instrument and in any other Loan DocumentsLeases; or (6) impair the right of Lender to enforce Section 4.12(e) of this Agreement; (7vi) constitute a prohibition against Lender to seek Administrative Agent seeking a deficiency judgment against Borrower not otherwise prohibited by this Section 6.3(a) in order to fully realize the security granted by the Security Instrument or to commence commencing any other appropriate action or proceeding in order for Lender Administrative Agent to exercise its remedies against the Property; or (8) constitute a waiver of the right of Lender to enforce , provided, that, the liability and obligation of Borrower, by money judgment or otherwiseBorrower in connection with any such deficiency action shall be limited (Y) to the Recourse Liabilities and (Z) if a Springing Recourse Event has occurred, to the extent of any Loss incurred by Lender (including attorneys’ fees and costs reasonably incurred) arising out of or in connection with the following:
(i) fraud or intentional misrepresentation by any Borrower Party in connection with the Loan;
(ii) the gross negligence or willful misconduct of any Borrower Party;
(iii) any litigation or other legal proceeding related to the Debt filed by any Borrower Party 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 other Loan Documents;
(iv) waste to the Property caused by the intentional acts or intentional omissions of any Borrower Party and/or the removal or disposal of any portion of the Property after an Event of Default;
(v) the misapplication, misappropriation or conversion by any Borrower Party 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 Rents following an Event of Default or (D) any Tenant security deposits or Rents collected in advance;
(vi) any act of arson by any Borrower Party or of which any Borrower Party has knowledge;
(vii) failure to pay Taxes, charges for labor or materials or other charges that can create liens on any portion of the Property in accordance with the terms and provisions hereof;
(viii) failure to pay Insurance Premiums, to maintain the Policies in full force and effect and/or to provide Lender evidence of the same, in each case, as expressly provided herein;
(ix) any security deposits, advance deposits or any other deposits collected with respect to the Property which are not delivered to Lender upon a foreclosure of the 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;
(x) any tax on the making and/or recording of the Security Instrument, the Note or any of the other Loan Documents or any transfer or similar taxes (whether due upon the making of the same or upon Lender’s exercise of its remedies under the Loan Documents), but excluding any income, franchise or other similar taxes;
(xi) the seizure or forfeiture of the Property, or any portion thereof, or Borrower’s interest therein, resulting from criminal wrongdoing by any Borrower Party;
(xii) the failure to make any Condemnation Payment and/or any Balancing Payment, to permit on-site inspections of the Property and/or to provide the Required Financial Items, in each case, as and when required herein;
(xiii) Intentionally Omitted;
(xiv) the failure to make repairs, renewals or replacements (including, without limitation, structural and nonstructural, exterior and interior, ordinary and extraordinary, foreseen and unforeseen) to the Property or any portion thereof (including, without limitation, the Improvements now or at any time hereafter erected on the Property) as and when required pursuant to the terms of the Loan Documents or as and when necessary to maintain the Property in good and safe condition, in a rentable and tenantable state of repair and/or in the condition required pursuant to the terms of the Loan Documents; and/or
(xv) any indemnity obligations of Lender to Bank under the Restricted Account Agreement (other than those arising as a direct result of Lender’s gross negligence or willful misconduct)Debt.
(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 Debt or to require that all collateral shall continue to secure all of the Debt owing to Lender in accordance with the Loan Documents, and (B) the Debt shall be fully recourse to Borrower in the event that: (i) the first full monthly payment of principal and interest under the Note is not paid when due; (ii) Borrower fails to comply with any provisions hereof relating to cash management or fails to appoint a new property manager upon the request of Lender, fails to cooperate with any New Manager or fails to comply with any limitations on instructing the property manager, each as required by and in accordance with, as applicable, the terms and provisions of, this Agreement, the Assignment of Management Agreement and the Security Instrument; (iii) any representation, warranty or covenant contained in Article 5 or Article 6 hereof is violated or breached; (iv) a Bankruptcy Event occurs; or (v) Sections 11.1 or 11.6 hereof are violated or breached in any material respect.
Appears in 1 contract
Samples: Loan Agreement (Nexpoint Diversified Real Estate Trust)
Exculpation. (a) Subject to Except as otherwise provided herein or in the qualifications belowother Loan Documents, Lender shall not enforce the liability and obligation of Borrower to perform and observe the obligations contained herein or in the Note, this Agreement, the Security Instrument or the other Loan Documents by any action or proceeding wherein a money judgment or any deficiency judgment or other judgment establishing personal liability shall be sought against (1) Borrower (except as set forth in this Section 15.1 and the Environmental Indemnity), (2) Guarantor (except as set forth in the Guaranty and the Environmental Indemnity), (3) any Affiliate of Borrower, (4) any Person owning, directly or indirectly, any legal or beneficial interest in Borrower or any principal, director, officer, employee, beneficiary, shareholder, Affiliate of Borrower or (5) any direct or indirect limited partner, member, principal, officer, beneficiary, trustee, advisor, shareholder, employee, agent, Affiliate or Affiliate of Borrower or any legal representatives, successors or assigns director of any of the foregoing Persons described in clauses (1) through (5) above (collectively, subject to the exceptions in clauses (1) and (2) above, the “Exculpated Parties”), except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender to enforce and realize upon its interest under the Note, this Agreement, the Security Instrument Note, the Mortgage and the other Loan Documents, or and the interest in the Property, the Rents, or 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 Borrower, only to the extent of Borrower’s interest in the Property, in the Rents and in any other collateral given to Lender, and . Lender, by accepting the Note, this Agreement, the Security Instrument 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 any of the Exculpated Parties Party in any such action or proceeding proceeding, under or by reason of or under or in connection with the Note, this Agreement, the Security Instrument Note, the Mortgage or the other Loan Documents. The provisions of this Section 15.1 shall not, however, (1i) 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; (2ii) 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 Security InstrumentMortgage; (3iii) affect the validity or enforceability of any indemnity, guaranty or similar instrument indemnity (including, without limitation, indemnities set forth those contained in Article 12 hereof, Section 11.2 hereof, in the Guaranty 14 of this Agreement and the Environmental Indemnity) ), 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 thereunder (including, without limitation, Lender’s right to enforce said rights and remedies against Borrower and/or Guarantor (as applicable) personally and without the effect of the exculpatory provisions of this Article 13)Documents; (4iv) impair the rights right of Lender to (A) obtain the appointment of a receiver and/or (B) enforce its rights and remedies provided in Articles 8 and 9 hereofreceiver; (5v) impair the enforcement of the assignment of leases and rents provisions contained in the Security Instrument and in any other Loan DocumentsMortgage; or (6vi) impair the right of Lender to enforce Section 4.12(e) of obtain a deficiency judgment or other 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; (7) constitute a prohibition against provided, however, Lender to seek a deficiency shall only enforce such judgment against Borrower in order to fully realize the security granted by the Security Instrument or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against the Property; or (8) constitute a waiver of the right of Lender to enforce the liability and obligation of Borrower, by money judgment or otherwise, to the extent of any Loss incurred by the Insurance Proceeds and/or Awards.
(b) Notwithstanding the provisions of this Section 15.1 to the contrary, Borrower shall be personally liable to Lender (including attorneys’ fees and costs reasonably incurred) arising out of or in connection with the followingfor Losses due to:
(i) fraud or intentional misrepresentation by an Exculpated Party in connection with the execution and the delivery of this Agreement, the Note, the Mortgage, any Borrower Party 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 or during the term of the Loan and in connection with the Loan;
(ii) the gross negligence or willful misconduct of any Borrower an Exculpated Party;
(iii) any litigation Exculpated Party’s misapplication or other legal proceeding related to misappropriation of Rents received by Borrower during the Debt filed by any Borrower Party that delays, opposes, impedes, obstructs, hinders, enjoins or otherwise interferes with or frustrates the efforts continuance of Lender to exercise any rights and remedies available to Lender as provided herein and in the other Loan Documents;
(iv) waste to the Property caused by the intentional acts or intentional omissions of any Borrower Party and/or the removal or disposal of any portion of the Property after an Event of Default;
(v) the misapplication, misappropriation or conversion by any Borrower Party of (Aiv) any insurance proceeds paid by reason Exculpated Party’s misapplication or misappropriation of any losstenant security deposits (including the failure to deliver to Lender tenant security deposits upon foreclosure or deed in lieu thereof, damage or destruction to the Property, (B) any Awards or other amounts received extent not applied in connection accordance with the Condemnation applicable Leases prior to the occurrence of all or a portion of the Property, (C) any Rents following an Event of Default or (DDefault) any Tenant security deposits or Rents collected in advance;
(viv) any act the misapplication or the misappropriation of arson Insurance Proceeds or Awards by any Borrower Party or of which any Borrower Party has knowledgeExculpated Party;
(viivi) Borrower’s failure to pay Property Taxes, Insurance, Other Charges, charges for labor or materials or other charges that can create liens on the Property beyond any portion applicable notice and cure periods specified herein (provided that there shall be no liability hereunder to the extent that (A) sums sufficient to pay such amounts have been deposited in escrow with Lender pursuant to the terms hereof and Borrower has not made a claim against such escrowed amounts or otherwise taken action to restrict Lender from applying such sums for the purpose of paying such items) or (B) there is insufficient cash flow from the operation of the Property in accordance with the terms and provisions hereofto pay such items);
(vii) [intentionally omitted];
(viii) failure material physical waste to pay Insurance Premiums, to maintain the Policies in full force and effect and/or to provide Lender evidence Property caused by the intentional acts or omissions of any Exculpated Party when there is sufficient cash flow from the operation of the same, in each case, as expressly provided hereinProperty to avoid such waste from occurring;
(ix) Borrower’s failure during the continuance of any security deposits, advance deposits or any other deposits collected with respect Event of Default to the Property which are not delivered deliver to Lender upon a foreclosure of the Property or action in lieu thereof, except demand all Rents and books and records relating 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;
(x) Borrower’s assertion or raising of any tax defense to a proceeding instituted by Lender (whether judicial or otherwise) for the foreclosure of the Mortgage following an Event of Default caused by Borrower’s failure to timely pay the Monthly Payment Amount or the Debt due on the making and/or recording Maturity Date, which defense is determined by a court of the Security Instrument, the Note or any of the other Loan Documents or any transfer or similar taxes (whether due upon the making of the same or upon Lender’s exercise of its remedies under the Loan Documents), but excluding any income, franchise or other similar taxescompetent jurisdiction to be brought in bad faith;
(xi) the seizure Breach by Borrower of any representation, warranty or forfeiture of the Property, covenant set forth in Section 10.1(a) or any portion thereof, or Borrower’s interest therein, resulting from criminal wrongdoing by any Borrower Party;Section 10.2(a) hereof; or
(xii) the failure breach of any representation, warranty or covenant of any Borrower with respect to make itself or any Condemnation Payment and/or SPE Component Entity set forth in Article 6 hereof.
(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 and the Debt shall be fully recourse to Borrower in the event (i) of a breach by Borrower or any Balancing Payment, to permit on-site inspections SPE Component Entity of any of the Property and/or to provide covenants set forth in Article 6 hereof that is expressly cited in a court’s decision as a basis for a substantive consolidation (other than a substantive consolidation petitioned for or joined in by Lender) of the Required Financial ItemsBorrower with any other Person in a proceeding under any Creditors’ Rights Laws, (ii) Borrower incurs any Indebtedness other than the Debt and Permitted Debt without the prior written consent of Lender or except as expressly permitted in each casethis Agreement, as and when required herein;
(xiiiiii) Intentionally Omitted;
of the occurrence of a Prohibited Transfer, (xiviv) the failure to make repairs, renewals or replacements (including, without limitation, structural and nonstructural, exterior and interior, ordinary and extraordinary, foreseen and unforeseen) to the Property or any part thereof shall become an asset in a bankruptcy or insolvency proceeding initiated by Borrower, (v) Borrower, Guarantor or any 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 under any Creditors Rights Laws, or solicits or causes to be solicited petitioning creditors for the filing of any involuntary petition against Borrower from any Person under any Creditors Rights Laws; (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 any Creditors Rights Laws, or solicits or causes to be solicited petitioning creditors for any involuntary petition from any Person; or (vii) any Affiliate, officer, director, or representative which Controls Borrower 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 thereof (including, without limitation, the Improvements now or at any time hereafter erected on of the Property) as and when required pursuant to the terms of the Loan Documents or as and when necessary to maintain the Property in good and safe condition, in a rentable and tenantable state of repair and/or in the condition required pursuant to the terms of the Loan Documents; and/or
(xv) any indemnity obligations of Lender to Bank under the Restricted Account Agreement (other than those arising as a direct result of Lender’s gross negligence or willful misconduct).
(bd) Notwithstanding anything to the contrary in this Agreement, the Note or any of the Loan Documents, (A) Lender Nothing herein shall not be deemed to have waived be a waiver of 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 Debt indebtedness secured by the Mortgage or to require that all collateral shall continue to secure all of the Debt indebtedness owing to Lender in accordance with the Loan Documents, and (B) the Debt shall be fully recourse to Borrower in the event that: (i) the first full monthly payment of principal and interest under the Note is not paid when due; (ii) Borrower fails to comply with any provisions hereof relating to cash management or fails to appoint a new property manager upon the request of Lender, fails to cooperate with any New Manager or fails to comply with any limitations on instructing the property manager, each as required by and in accordance with, as applicable, the terms and provisions of, this Agreement, the Assignment of Management Agreement and Note, the Security Instrument; (iii) any representation, warranty Mortgage or covenant contained in Article 5 or Article 6 hereof is violated or breached; (iv) a Bankruptcy Event occurs; or (v) Sections 11.1 or 11.6 hereof are violated or breached in any material respectthe other Loan Documents.
Appears in 1 contract
Exculpation. (a) Subject Notwithstanding anything in the Loan Documents to the contrary, but subject to the qualifications below, Lender and Borrower agree that:
(i) Xxxrower shall be liable upon the Debt and for the other obligations arising under the Loan Documents to the full extent (but only to the extent) of the security therefor; provided, however, that in the event (A) of fraud, wilful misconduct or material misrepresentation by Borrower or by any Guarantor or any Indemnitor in connection with the loan evidenced by this Note, (B) an Event of Default (as defined in the Security Instrument) arising under Sections 4.3 or 8.2 of the Security Instrument, or (C) the Property or any material part thereof becomes an asset in (1) a voluntary bankruptcy or insolvency proceeding, or (2) an involuntary bankruptcy or insolvency proceeding commenced by any affiliate of Borrower, the limitation on recourse set forth in this Subsection 10(a) will be null and void and completely inapplicable, and this Note shall be with full recourse to Borrower.
(ii) If a default occurs in the timely and proper payment of all or any part of the Debt, Lender shall not enforce the liability and obligation of Borrower to perform and observe the obligations contained in the Note, this Agreement, Note or the Security Instrument or the other Loan Documents by any action or proceeding wherein a money judgment or any deficiency judgment or other judgment establishing personal liability shall be sought against Borrower or any principal, director, officer, employee, beneficiary, shareholder, partner, member, trustee, agent, or Affiliate of Borrower or any legal representatives, successors or assigns of any of the foregoing (collectively, the “Exculpated Parties”)Borrower, except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender to enforce and realize upon its interest under the Note, this AgreementSecurity Instrument, the Security Instrument Other Loan Documents and the other Loan Documents, or interest in the Property, the Rents, or Rents and any other collateral given to Lender pursuant to created by the Security Instrument 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 Property, in the Rents and in any xxx other collateral given to Lender, and . Lender, by accepting the Note, this Agreement, Note and the Security Instrument and the other Loan DocumentsInxxxxxxnt, agrees that it shall not xxx not, except as otherwise herein provided, sue for, seek or demand any deficiency judgment against Borrower or any of the Exculpated Parties in any such action or proceeding proceeding, under or by reason of or under or in connection with the this Note, this Agreement, the Other Loan Documents or the Security Instrument or the other Loan Documents. Instrument.
(iii) The provisions of this Section Subsection 10(a) shall not, however, not (1A) constitute a waiver, release or impairment of any obligation evidenced or secured by any of this Note, the Other Loan DocumentsDocuments or the Security Instrument; (2B) impair the right of Lender to name MORGAN GUARANTY TRUST COMPANY 6 Borrower as a party defendant in any action or suit for judicial foreclosure and sale under the Security Instrument; (3C) affect the validity or enforceability of any indemnity, guaranty guaranty, master lease or similar instrument (including, without limitation, indemnities set forth in Article 12 hereof, Section 11.2 hereof, in the Guaranty and the Environmental Indemnity) made in connection with this Note, the Security Instrument, or the Other Loan or any of the rights and remedies of Lender thereunder (including, without limitation, Lender’s right to enforce said rights and remedies against Borrower and/or Guarantor (as applicable) personally and without the effect of the exculpatory provisions of this Article 13)Documents; (4D) impair the rights right of Lender to (A) obtain the appointment of a receiver and/or (B) enforce its rights and remedies provided in Articles 8 and 9 hereofreceiver; (5E) impair the enforcement of the assignment of leases and rents contained Assignment executed in the Security Instrument and in any other Loan Documentsconnection herewith; (6F) impair the right of Lender to enforce Section 4.12(e) the provisions of this Agreement; (7) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted by Article 11 of the Security Instrument or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against the PropertyInstrument; or (8) constitute a waiver of G) impair the right of Lender to enforce the liability and obligation of Borrower, by money obtain a deficiency judgment or otherwisejudgment on this Note against Borrower if necessary to obtain any insurance proceeds or condemnation awards to which Lender would otherwise be entitled under the Securitx Xxxtrument; provided, to however, Lender shall only enforce such judgment against the extent of any Loss incurred by Lender (including attorneys’ fees and costs reasonably incurred) arising out of or in connection with the following:
(i) fraud or intentional misrepresentation by any Borrower Party in connection with the Loan;
(ii) the gross negligence or willful misconduct of any Borrower Party;
(iii) any litigation or other legal proceeding related to the Debt filed by any Borrower Party 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 other Loan Documents;insurance proceeds and/or condemnation awards.
(iv) waste Notwithstanding the provisions of this Article to the Property caused by contrary, Borrower shall be personally liable to Lender for the intentional acts Losses it incurs due to: (A) the misapplication or intentional omissions misappropriation of any Borrower Party and/or the removal or disposal of any portion of the Property Rents after an Event of Default;
(v) the misapplication, misappropriation or conversion by any Borrower Party of (A) any insurance proceeds paid by reason of any loss, damage or destruction to the Property, ; (B) any Awards the misapplication or other amounts received in connection with the Condemnation misappropriation of all insurance proceeds or a portion of the Property, condemnation awards; (C) any Rents following an Event Borrower's failure to return or to reimburse Lender for all Xxxxxxxl Property taken from the Property by or on behalf of Default Borrower and not replaced with Personal Property of xxx xxxe utility and of the same or greater value; (D) any Tenant security deposits act of actual waste or Rents collected in advance;
arson by Borrower, any principal, affiliate, general partner or member thereof or by any Indemnitor or any Guarantor; (viE) any act fees or commissions paid by Borrower to any principal, affiliate, general partner or member of arson by Borrower, any Borrower Party Indemnitor or any Guarantor in violation of which any Borrower Party has knowledge;
the terms of this Note, the Security Instrument or the Other Loan Documents; (viiF) Borrower's failure to pay Taxes, charges for labor or materials or other charges that can create liens on any portion of the Property in accordance comply with the terms and provisions hereof;
(viii) failure to pay Insurance Premiums, to maintain the Policies in full force and effect and/or to provide Lender evidence of the same, in each case, as expressly provided herein;
(ix) any security deposits, advance deposits or any other deposits collected with respect to the Property which are not delivered to Lender upon a foreclosure of the 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;
(x) any tax on the making and/or recording Section 11.2 of the Security Instrument, the Note ; or (G) any breach of the other Loan Documents or any transfer or similar taxes (whether due upon the making of the same or upon Lender’s exercise of its remedies under the Loan Documents), but excluding any income, franchise or other similar taxes;
(xi) the seizure or forfeiture of the Property, or any portion thereof, or Borrower’s interest therein, resulting from criminal wrongdoing by any Borrower Party;
(xii) the failure to make any Condemnation Payment and/or any Balancing Payment, to permit on-site inspections of the Property and/or to provide the Required Financial Items, in each case, as and when required herein;
(xiii) Intentionally Omitted;
(xiv) the failure to make repairs, renewals or replacements (including, without limitation, structural and nonstructural, exterior and interior, ordinary and extraordinary, foreseen and unforeseen) to the Property or any portion thereof (including, without limitation, the Improvements now or at any time hereafter erected on the Property) as and when required pursuant to the terms of the Loan Documents or as and when necessary to maintain the Property in good and safe condition, in a rentable and tenantable state of repair and/or in the condition required pursuant to the terms of the Loan Documents; and/or
(xv) any indemnity obligations of Lender to Bank under the Restricted Account Agreement (other than those arising as a direct result of Lender’s gross negligence or willful misconduct)Environmental Indemnity.
(b) Notwithstanding anything to the contrary in this Agreement, the Note or any of the Loan Documents, (A) Lender Nothing herein shall not be deemed to have waived be a waiver of any right which Lender may have under Section Sections 506(a), 506(b), 1111(b) or any other provisions of the Bankruptcy Code to file a claim for the full amount of the Debt or to require that all collateral shall continue to secure all of the Debt Debt, owing to Lender in accordance with this Note, the Security Instrument and the Other Loan Documents, and (B) the Debt shall be fully recourse to Borrower in the event that: (i) the first full monthly payment of principal and interest under the Note is not paid when due; (ii) Borrower fails to comply with any provisions hereof relating to cash management or fails to appoint a new property manager upon the request of Lender, fails to cooperate with any New Manager or fails to comply with any limitations on instructing the property manager, each as required by and in accordance with, as applicable, the terms and provisions of, this Agreement, the Assignment of Management Agreement and the Security Instrument; (iii) any representation, warranty or covenant contained in Article 5 or Article 6 hereof is violated or breached; (iv) a Bankruptcy Event occurs; or (v) Sections 11.1 or 11.6 hereof are violated or breached in any material respect.
Appears in 1 contract
Samples: Loan Agreement (Poore Brothers 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 Security Instrument or the other Loan Documents by any action or proceeding wherein a money judgment or any deficiency judgment or other judgment establishing personal liability shall be sought against Borrower Borrowers or any principal, director, officer, employee, beneficiary, shareholder, partner, member, trustee, agent, or Affiliate of Borrower Borrowers (but specifically excluding Guarantor) or any legal representatives, successors or assigns of any of the foregoing (collectively, the “Exculpated Parties”), except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender to enforce and realize upon its interest under the Note, this Agreement, the Security Instrument and the other Loan Documents, or in the 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 Borrowers only to the extent of such Borrower’s interest in the Property, in the Rents and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Security Instrument and the other Loan Documents, shall not xxx for, seek or demand any deficiency judgment against Borrower Borrowers or any of the Exculpated Parties in any such action or proceeding under or by reason of or under or in connection with the Note, this Agreement, the Security Instrument or the other Loan Documents. The provisions of this Section shall not, however, (1) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (2) impair the right of Lender to name each Borrower as a party defendant in any action or suit for foreclosure and sale under the Security Instrument; (3) affect the validity or enforceability of any indemnity, guaranty or similar instrument (including, without limitation, the indemnities set forth in Article 12 hereof, Section 11.2 hereof, in the Guaranty and in the Environmental Indemnity) made in connection with the Loan or any of the rights and remedies of Lender thereunder (including, without limitation, Lender’s right to enforce said rights and remedies against each Borrower and/or Guarantor (as applicable) personally and without the effect of the exculpatory provisions of this Article 13); (4) impair the rights right of Lender to (A) obtain the appointment of a receiver and/or (B) enforce its rights and remedies provided in Articles 8 and 9 hereofreceiver; (5) impair the enforcement of the assignment of leases and rents contained in the Security Instrument and in any other Loan DocumentsInstrument; (6) impair the right of Lender to enforce Section 4.12(e) of this Agreement; (7) constitute a prohibition against Lender to seek a deficiency judgment against each Borrower in order to fully realize the security granted by the Security Instrument or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against the Property; or (8) constitute a waiver of the right of Lender to enforce the liability and obligation of each Borrower, by money judgment or otherwise, to the extent of any Loss Losses 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 any Borrower Party in connection with the Loan;
(ii) the gross negligence or willful misconduct of any Borrower Party;
(iii) any litigation or other legal proceeding related to the Debt filed by any Borrower Party 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 other Loan Documents;
(iv) waste to the Property caused by the intentional acts or intentional omissions of any Borrower Party and/or the removal or disposal of any portion of the Property after an Event of Default;
(v) the misapplication, misappropriation or conversion by any Borrower Party 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 Rents following an Event of Default or (D) any Tenant security deposits or Rents collected in advance;
(vi) any act of arson by any Borrower Party or of which any Borrower Party has knowledge;
(vii) failure to pay Taxes, charges for labor or materials or other charges that can create liens on any portion of the Property in accordance with the terms and provisions hereof;
(viii) failure to pay Insurance Premiums, to maintain the Policies in full force and effect and/or to provide Lender evidence of the same, in each case, as expressly provided herein;
(ix) any security deposits, advance deposits or any other deposits collected with respect to the Property which are not delivered to Lender upon a foreclosure of the 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;
(x) any tax on the making and/or recording of the Security Instrument, the Note or any of the other Loan Documents or any transfer or similar taxes (whether due upon the making of the same or upon Lender’s exercise of its remedies under the Loan Documents), but excluding any income, franchise or other similar taxes;
(xi) the seizure or forfeiture of the Property, or any portion thereof, or Borrower’s interest therein, resulting from criminal wrongdoing by any Borrower Party;
(xii) the failure to make any Condemnation Payment and/or any Balancing Payment, to permit on-site inspections of the Property and/or to provide the Required Financial Items, in each case, as and when required herein;
(xiii) Intentionally Omitted;
(xiv) the failure to make repairs, renewals or replacements (including, without limitation, structural and nonstructural, exterior and interior, ordinary and extraordinary, foreseen and unforeseen) to the Property or any portion thereof (including, without limitation, the Improvements now or at any time hereafter erected on the Property) as and when required pursuant to the terms of the Loan Documents or as and when necessary to maintain the Property in good and safe condition, in a rentable and tenantable state of repair and/or in the condition required pursuant to the terms of the Loan Documents; and/or
(xv) any indemnity obligations of Lender to Bank under the Restricted Account Agreement (other than those arising as a direct result of Lender’s gross negligence or willful misconduct).
(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 Debt or to require that all collateral shall continue to secure all of the Debt owing to Lender in accordance with the Loan Documents, and (B) the Debt shall be fully recourse to Borrower in the event that: (i) the first full monthly payment of principal and interest under the Note is not paid when due; (ii) Borrower fails to comply with any provisions hereof relating to cash management or fails to appoint a new property manager upon the request of Lender, fails to cooperate with any New Manager or fails to comply with any limitations on instructing the property manager, each as required by and in accordance with, as applicable, the terms and provisions of, this Agreement, the Assignment of Management Agreement and the Security Instrument; (iii) any representation, warranty or covenant contained in Article 5 or Article 6 hereof is violated or breached; (iv) a Bankruptcy Event occurs; or (v) Sections 11.1 or 11.6 hereof are violated or breached in any material respect.
Appears in 1 contract
Exculpation. (a) Subject The obligations of each Borrower pursuant to the Loan Documents shall constitute general obligations of such Borrower. The foregoing notwithstanding and subject to the qualifications below, Lender Agent and the Lenders shall not enforce be entitled to, and shall not enforce, the liability and obligation of Borrower to perform and observe the obligations contained in the Note, this Agreement, the Security Instrument Notes or in any of the other Loan Documents by any action or proceeding wherein a money judgment or any deficiency judgment or other judgment establishing personal liability shall be sought against any General Partner, any other general partner, from time to time, of any Borrower (other than a Borrower) or any principal, director, officer, employee, beneficiary, shareholder, partner, member, trustee, agent"related person" (as defined in Treasury Regulation Section 1.752-4(b) of the Code) to any General Partner or any other general partner (which "related person" shall in no event ever be construed to include a Borrower, or Affiliate any Borrower which is a general partner or member of Borrower a Borrower), any REIT or any legal representativesofficers, successors shareholders, partners, members or assigns beneficial owners (other than any Borrower), directors, agents, employees or servants of any of Borrower, General Partner or REIT or any other Person (other than a Borrower) (the foregoing (collectively, the “"Exculpated Parties”"), except that Lender Agent and/or Lenders may bring a foreclosure an enforcement action, a suit on the Note (provided, that neither Agent nor any Lender shall be entitled to a money judgment against any Exculpated Party pursuant to such suit), or an action for specific performance or against any other appropriate action or proceeding Exculpated Party to enable Lender Agent and/or Lenders to enforce and realize upon its interest interests under the Note, this Agreement, the Security Instrument and Notes, the Pledge Agreement or the other Loan Documents, Documents or in the Property, the RentsCollateral, or any other collateral given to Lender the 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 the Exculpated Parties only to the extent of Borrower’s 's interest in the Property, in the Rents Collateral and in any other collateral given or granted to LenderAgent and/or Lenders, and Lender, by accepting the Note, this Agreement, the Security Instrument and the other Loan Documents, Agent and/or Lenders agree that it shall not xxx sue for, seek or demand any deficiency judgment against Borrower or any of the Exculpated Exxxlpated Parties in any such action or proceeding under under, or by reason of or under of, or in connection with the Note, this Agreement, the Security Instrument Pledge Agreement, the Notes or the other Loan Documents. The provisions of this Section paragraph shall not, however, (1a) constitute a waiver, release or impairment of any obligation evidenced or secured by this Agreement, the Pledge Agreement, the Notes or any of the other Loan Documents; (2b) impair the right of Lender Agent and/or Lenders to name any Borrower as a party defendant in any action or suit for foreclosure and sale under to enforce the Security InstrumentPledge Agreement; (3c) affect the validity or enforceability of any indemnity, guaranty or similar instrument (including, without limitation, indemnities set forth in Article 12 hereof, Section 11.2 hereof, in the Guaranty and the Environmental Indemnity) indemnity made in connection with the Loan or any of the rights and remedies of Lender thereunder (includingAgent and/or Lenders thereunder, without limitation, Lender’s right to enforce said rights and remedies against Borrower and/or Guarantor (as applicable) personally and without the effect of the exculpatory provisions of this Article 13); (4) impair the rights of Lender to (A) obtain the appointment of a receiver and/or (B) enforce its rights and remedies provided in Articles 8 and 9 hereof; (5) impair the enforcement of the assignment of leases and rents contained in the Security Instrument and in any other Loan Documents; (6) impair the right of Lender to enforce Section 4.12(e) of this Agreement; (7) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted by the Security Instrument or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against the Property; or (8) constitute a waiver of the right of Lender to enforce the liability and obligation of Borrower, by money judgment or otherwise, to the extent of any Loss incurred by Lender (including attorneys’ fees and costs reasonably incurred) arising out of or in connection with the following:
(i) fraud or intentional misrepresentation by any Borrower Party in connection with the Loan;
(ii) the gross negligence or willful misconduct of any Borrower Party;
(iii) any litigation or other legal proceeding related to the Debt filed by any Borrower Party 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 other Loan Documents;
(iv) waste to the Property caused by the intentional acts or intentional omissions of any Borrower Party and/or the removal or disposal of any portion of the Property after an Event of Default;
(v) the misapplication, misappropriation or conversion by any Borrower Party 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 Rents following an Event of Default or (D) any Tenant security deposits or Rents collected in advance;
(vi) any act of arson by any Borrower Party or of which any Borrower Party has knowledge;
(vii) failure to pay Taxes, charges for labor or materials or other charges that can create liens on any portion of the Property in accordance with the terms and provisions hereof;
(viii) failure to pay Insurance Premiums, to maintain the Policies in full force and effect and/or to provide Lender evidence of the same, in each case, as expressly provided herein;
(ix) any security deposits, advance deposits or any other deposits collected with respect to the Property which are not delivered to Lender upon a foreclosure of the 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;
(x) any tax on the making and/or recording of the Security Instrument, the Note or any of the other Loan Documents or any transfer or similar taxes (whether due upon the making of the same or upon Lender’s exercise of its remedies under the Loan Documents), but excluding any income, franchise or other similar taxes;
(xi) the seizure or forfeiture of the Property, or any portion thereof, or Borrower’s interest therein, resulting from criminal wrongdoing by any Borrower Party;
(xii) the failure to make any Condemnation Payment and/or any Balancing Payment, to permit on-site inspections of the Property and/or to provide the Required Financial Items, in each case, as and when required herein;
(xiii) Intentionally Omitted;
(xiv) the failure to make repairs, renewals or replacements (including, without limitation, structural and nonstructural, exterior and interior, ordinary and extraordinary, foreseen and unforeseen) to the Property or any portion thereof (including, without limitation, the Improvements now or at any time hereafter erected on the Property) as and when required pursuant to the terms of the Loan Documents or as and when necessary to maintain the Property in good and safe condition, in a rentable and tenantable state of repair and/or in the condition required pursuant to the terms of the Loan Documents; and/or
(xv) any indemnity obligations of Lender to Bank under the Restricted Account Agreement (other than those arising as a direct result of Lender’s gross negligence or willful misconduct).
(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 Debt or to require that all collateral shall continue to secure all of the Debt owing to Lender in accordance with the Loan Documents, and (B) the Debt shall be fully recourse to Borrower in the event that: (i) the first full monthly payment of principal and interest under the Note is not paid when dueEnvironmental Indemnity; (iid) Borrower fails impair the right of Agent and/or Lenders to comply with any provisions hereof relating to cash management or fails to appoint obtain the appointment of a new property manager upon the request of Lender, fails to cooperate with any New Manager or fails to comply with any limitations on instructing the property manager, each as required by and in accordance with, as applicable, the terms and provisions of, this Agreement, the Assignment of Management Agreement and the Security Instrument; (iii) any representation, warranty or covenant contained in Article 5 or Article 6 hereof is violated or breached; (iv) a Bankruptcy Event occursreceiver; or (ve) Sections 11.1 impair the right of Agent and/or Lenders to obtain a deficiency judgment or 11.6 hereof are violated or breached in other judgment on the Note against Borrower if necessary to obtain any material respectNet Proceeds to which Agent and/or Lenders would otherwise be entitled under this Agreement.
Appears in 1 contract
Samples: Revolving Credit Agreement (Shelbourne Properties Ii Inc)
Exculpation. (a) Subject to the qualifications below, Lender shall not enforce the liability and obligation of Borrower to perform and observe the obligations contained in the Note, this Agreement, the Security Instrument Mortgage or the other Loan Documents by any action or proceeding wherein a money judgment or any deficiency judgment or other judgment establishing personal liability shall be sought against Borrower or any principal, director, officer, employee, beneficiary, shareholder, partner, member, trustee, agent, or Affiliate affiliate of Borrower (but specifically excluding Guarantor) or any legal representatives, successors or assigns of any of the foregoing (collectively, the “Exculpated Parties”), except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender to enforce and realize upon its interest under the Note, this Agreement, the Security Instrument Mortgage and the other Loan Documents, or in the 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 Property, in the Rents and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Security Instrument Mortgage and the other Loan Documents, shall not xxx for, seek or demand any deficiency judgment against Borrower or any of the Exculpated Parties in any such action or proceeding under or by reason of or under or in connection with the Note, this Agreement, the Security Instrument Mortgage or the other Loan Documents. The provisions of this Section shall not, however, (1a) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (2b) impair the right of Lender to name Borrower as a party defendant in any action or suit for foreclosure and sale under the Security InstrumentMortgage; (3c) affect the validity or enforceability of any indemnity, guaranty or similar instrument (including, without limitation, indemnities set forth in Article 12 hereof, Section 11.2 hereof, in the Guaranty and the Environmental Indemnity) made in connection with the Loan or any of the rights and remedies of Lender thereunder (including, without limitation, Lender’s right to enforce said rights and remedies against Borrower and/or Guarantor (as applicable) personally and without the effect of the exculpatory provisions of this Article 13)thereunder; (4d) impair the rights right of Lender to (A) obtain the appointment of a receiver and/or (B) enforce its rights and remedies provided in Articles 8 and 9 hereofreceiver; (5e) impair the enforcement of the assignment Assignment of leases and rents contained in the Security Instrument and in any other Loan DocumentsLeases; (6f) impair the right of Lender to enforce Section 4.12(e4.1.6(g) of this Agreement; (7g) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted by the Security Instrument Mortgage or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against the Property; or (8) h) 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 Loss loss, damage, cost, expense, liability, claim or other obligation incurred by Lender (including attorneys’ fees and costs reasonably incurred) arising out of or in connection with the following:
(i) fraud or intentional misrepresentation by Borrower, any Borrower Party of the Exculpated Parties, Sponsor or Guarantor in connection with the Loan;
(ii) the gross negligence or willful misconduct of any Borrower PartyBorrower;
(iii) the breach of any litigation representation, warranty, covenant or other legal proceeding related to indemnification provision in the Debt filed by Environmental Indemnity or in the Mortgage concerning environmental laws, hazardous substances and asbestos and any Borrower Party that delays, opposes, impedes, obstructs, hinders, enjoins or otherwise interferes with or frustrates the efforts indemnification of Lender to exercise any rights and remedies available to Lender as provided herein and with respect thereto in the other Loan Documentseither document;
(iv) waste to the Property caused by the intentional acts or intentional omissions of any Borrower Party and/or the removal or disposal of any portion of the Property after an Event of Default;
(v) the misapplication, misappropriation or conversion by any Borrower Party 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 Rents following an Event of Default or (D) any Tenant security deposits or Rents collected in advance;
(vi) any act of arson by any Borrower Party or of which any Borrower Party has knowledge;
(vii) failure to pay Taxes, charges for labor or materials or other charges that can create liens Liens on any portion of the Property in accordance with the terms and provisions hereofProperty;
(viii) failure to pay Insurance Premiums, to maintain the Policies in full force and effect and/or to provide Lender evidence of the same, in each case, as expressly provided herein;
(ixvii) any security deposits, advance deposits or any other deposits collected with respect to the Property which are not delivered to Lender upon a foreclosure of the 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;
(xviii) any tax on the making and/or recording representation, warranty or covenant contained in Section 2.5.2 or 6.5 hereof is violated or breached;
(ix) Borrower’s indemnification of Lender set forth in Section 9.2 of the Security Instrument;
(x) the exercise of any remedies, or the Note or bringing of any action, by the District of Columbia under Section 22.2(b) of the other Loan Documents or any transfer or similar taxes (whether due upon the making of the same or upon Lender’s exercise of its remedies under the Loan Documents), but excluding any income, franchise or other similar taxesDevelopment Agreement;
(xi) the seizure any misstatement or forfeiture of the Property, or any portion thereof, or Borrower’s interest therein, resulting from criminal wrongdoing by any Borrower Partyinaccuracy in that certain Real Property Recordation and Transfer Tax Form FP 7/C filed in connection with Mortgage;
(xii) the Borrower’s failure to make any Condemnation Payment and/or any Balancing Payment, deliver evidence satisfactory to permit on-site inspections Lender evidencing the valid transfer of development rights from the adjoining property to the Property such that the Property shall be in conformance with the building density requirements and zoning regulations of the Property and/or to provide the Required Financial Items, in each case, as and when required herein;District of Columbia: and/or
(xiii) Intentionally Omitted;
(xiv) the failure to make repairs, renewals or replacements (including, without limitation, structural and nonstructural, exterior and interior, ordinary and extraordinary, foreseen and unforeseen) to the Property or any portion thereof (including, without limitation, the Improvements now or at any time hereafter erected on the Property) as and when required pursuant to the terms of the Loan Documents or as and when necessary to maintain the Property in good and safe condition, in a rentable and tenantable state of repair and/or in the condition required pursuant to the terms of the Loan Documents; and/or
(xv) any indemnity obligations Borrower’s indemnification of Lender to Bank under the Restricted Account Agreement (other than those arising as a direct result of Lender’s gross negligence or willful misconduct).
(b) set forth in Section 9.2 hereof. 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(b1111 (b) or any other provisions of the Bankruptcy Code to file a claim for the full amount of the Debt or to require that all collateral shall continue to secure all of the Debt owing to Lender in accordance with the Loan Documents, and (B) the Debt shall be fully recourse to Borrower in the event that: (i) the first full monthly payment of principal and interest under the Note is not paid when due; (ii) Borrower fails to comply with any provisions hereof relating to cash management or fails to appoint a new property manager upon the request of Lender, fails to cooperate with any New Manager or fails to comply with any limitations on instructing the property manager, each as required by and in accordance with, as applicable, the terms and provisions of, this Agreement, the Assignment of Management Agreement and the Security Instrument; (iii) any representation, warranty or covenant contained in Article 5 or Article 6 hereof is violated or breached; (iv) a Bankruptcy Event occurs; or (v) Sections 11.1 or 11.6 hereof are violated or breached in any material respect.Code
Appears in 1 contract
Exculpation. (a) Subject Notwithstanding anything to the qualifications belowcontrary contained in this Note, the Security Instrument or any Other Security Document (but subject to the provisions of subsections (b), (c) and (d) of this Article 11), Lender shall not enforce the liability and obligation of Borrower to perform and observe the obligations contained in the Note, this Agreement, Note or the Security Instrument or the other Loan Documents by any action or proceeding wherein a money judgment or any deficiency judgment or other judgment establishing any personal liability shall be sought against Borrower or any principal, director, officer, employee, beneficiary, shareholder, partner, member, trustee, agent, agent or Affiliate affiliate of Borrower or any person owning, directly or indirectly, any legal representativesor beneficial interest in Borrower, or any successors or assigns of any of the foregoing (collectively, the “"Exculpated Parties”"), except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender to enforce and realize upon its interest under the this Note, this Agreement, the Security Instrument Instrument, the Other Security Documents, and the other Loan Documents, or interest in the Property, the Rents, or Rents (as defined in the Security Instrument) and any other collateral given to Lender pursuant to the Loan Documents; secure this Note, provided, however, thatsubject to the provisions of subsections (b), except as specifically provided herein(c) and (d) of this Article 11, 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 Property, in the Rents and in any other collateral cxxxxxxxxl given to Lender, and Lender to secure this Note Lender, by accepting the Note, this Agreement, Note and the Security Instrument and the other Loan DocumentsInstrument, agrees that it shall not xxx not, except as otherwise provided in this Article 11, sue for, seek or demand any deficiency judgment against Borrower or any of the Exculpated Parties Parties, in any such action or proceeding proceeding, under or by reason of or under or in connection with the this Note, this Agreement, the Security Instrument or the other Loan Other Security Documents. The provisions of this Section Article 11 shall not, however, (1i) constitute a waiver, release or impairment of any obligation evidenced or secured by any of this Note, the Loan DocumentsSecurity Instrument or the Other Security Documents delivered to Lender; (2ii) impair the right of Lender to name Borrower as a party defendant in any action or suit for judicial foreclosure and sale under the Security Instrument; , (3iii) affect the validity or enforceability of any indemnity, guaranty guaranty, master lease or similar instrument (including, without limitation, indemnities set forth in Article 12 hereof, Section 11.2 hereof, in the Guaranty and the Environmental Indemnity) made in connection with this Note, the Loan Security Instrument, or any of the rights and remedies of Lender thereunder Other Security Documents, (including, without limitation, Lender’s right to enforce said rights and remedies against Borrower and/or Guarantor (as applicable) personally and without the effect of the exculpatory provisions of this Article 13); (4iv) impair the rights right of Lender to (A) obtain the appointment of a receiver and/or (B) enforce its rights and remedies provided in Articles 8 and 9 hereofreceiver; (5v) impair the enforcement of the assignment Assignment of leases Leases and rents contained Rents executed in the Security Instrument and in any other Loan Documents; connection herewith, (6vi) impair the right of Lender to enforce the provisions of Section 4.12(e12.2 of the Security Instrument or of Section 3 12(e) of this Agreementthe Security Instrument; or (7vii) constitute a prohibition against impair the right of Lender to seek obtain a deficiency judgment or other judgment on the Note against Borrower in order if necessary to fully realize the security granted by the Security Instrument or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against the Property; or .
(8) constitute a waiver b) Notwithstanding the provisions of the right of Lender to enforce the liability and obligation of Borrower, by money judgment or otherwise, this Article 11 to the extent of any Loss incurred by contrary, Borrower shall be personally liable to Lender for the Losses (including attorneys’ fees and costs reasonably incurredas defined in the Security Instrument) arising out of or in connection with the following:
Lender incurs due to: (i) fraud or intentional misrepresentation by Borrower or any Borrower Party of the Exculpated Parties in connection with the Loan;
; (ii) the gross negligence or willful misconduct of any Borrower Party;
Borrower, (iii) any litigation or other legal proceeding related to the Debt filed by any Borrower Party 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 other Loan Documents;
(iv) waste to the Property caused by the intentional acts or intentional omissions of any Borrower Party and/or the removal or disposal of any portion of the Property after an Event of Default;
(v) the misapplication, misappropriation or conversion by any Borrower Party 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 Rents following an Event of Default or (D) any Tenant security deposits or Rents collected in advance;
(vi) any act of arson by any Borrower Party or of which any Borrower Party has knowledge;
(vii) failure to pay Taxes, charges for labor or materials or other charges that can create liens on any portion of the Property in accordance with the terms and provisions hereof;
(viii) failure to pay Insurance Premiums, to maintain the Policies in full force and effect and/or to provide Lender evidence of the same, in each case, as expressly provided herein;
(ix) any security deposits, advance deposits or any other deposits collected with respect to the Property which are not delivered to Lender upon a foreclosure of the 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;
(x) any tax on the making and/or recording of the Security Instrument, the Note or any of the other Loan Documents or any transfer or similar taxes (whether due upon the making of the same or upon Lender’s exercise of its remedies under the Loan Documents), but excluding any income, franchise or other similar taxes;
(xi) the seizure or forfeiture of the Property, or any portion thereof, or Borrower’s interest therein, resulting from criminal wrongdoing by any Borrower Party;
(xii) the failure to make any Condemnation Payment and/or any Balancing Payment, to permit on-site inspections of the Property and/or to provide the Required Financial Items, in each case, as and when required herein;
(xiii) Intentionally Omitted;
(xiv) the failure to make repairs, renewals or replacements (including, without limitation, structural and nonstructural, exterior and interior, ordinary and extraordinary, foreseen and unforeseen) to the Property or any portion thereof (including, without limitation, the Improvements now or at any time hereafter erected on the Property) as and when required pursuant to the terms of the Loan Documents or as and when necessary to maintain the Property in good and safe condition, in a rentable and tenantable state of repair and/or in the condition required pursuant to the terms of the Loan Documents; and/or
(xv) any indemnity obligations of Lender to Bank under the Restricted Account Agreement (other than those arising as a direct result of Lender’s gross negligence or willful misconduct).
(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 Debt or to require that all collateral shall continue to secure all of the Debt owing to Lender in accordance with the Loan Documents, and (B) the Debt shall be fully recourse to Borrower in the event that: (i) the first full monthly payment of principal and interest under the Note is not paid when due; (ii) Borrower fails to comply with any provisions hereof relating to cash management or fails to appoint a new property manager upon the request of Lender, fails to cooperate with any New Manager or fails to comply with any limitations on instructing the property manager, each as required by and in accordance with, as applicable, the terms and provisions of, this Agreement, the Assignment of Management Agreement and the Security Instrument; (iii) any representation, warranty or covenant contained in Article 5 or Article 6 hereof is violated or breached; (iv) a Bankruptcy Event occurs; or (v) Sections 11.1 or 11.6 hereof are violated or breached in any material respect.
Appears in 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 Security Instrument or the other Loan Documents by any action or proceeding wherein a money judgment or any deficiency judgment or other judgment establishing personal liability shall be sought against Borrower or any principalofficer, director, officer, employee, beneficiary, shareholder, partner, member, trusteeprincipal, agent, or Affiliate employee of Borrower or any legal representativesdirect or indirect owner of Borrower (provided that the foregoing shall not limit in any manner, successors or assigns the liability of any of the foregoing (collectively, the “Exculpated Parties”Guarantor), except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender to enforce and realize upon its interest under the Note, this Agreement, the Security Instrument and the other Loan Documents, or in the PropertyProperty (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 Property, in the Rents and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Security Instrument and the other Loan Documents, agrees that it shall not xxx for, seek or demand any deficiency judgment against Borrower or any of the Exculpated Parties in any such action or proceeding under or by reason of or under or in connection with the Note, this Agreement, the Security Instrument or the other Loan Documents. The provisions of this Section 9.3 shall not, however, (1i) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (2ii) impair the right of Lender to name Borrower as a party defendant in any action or suit for foreclosure and sale under the Security Instrument; (3iii) affect the validity or enforceability of any indemnityguaranty, guaranty indemnity or similar instrument (including, without limitation, indemnities set forth in Article 12 hereof, Section 11.2 hereof, in the Guaranty and the Environmental Indemnity) agreement or undertaking made in connection with the Loan or any of the rights and remedies of Lender thereunder (including, without limitation, Lender’s right to enforce said rights and remedies against Borrower and/or Guarantor (as applicable) personally and without the effect of the exculpatory provisions of this Article 13)thereunder; (4) impair the rights of Lender to (A) obtain the appointment of a receiver and/or (B) enforce its rights and remedies provided in Articles 8 and 9 hereof; (5) impair the enforcement of the assignment of leases and rents contained in the Security Instrument and in any other Loan Documents; (6iv) impair the right of Lender to enforce Section 4.12(e) obtain the appointment of this Agreementa receiver; (7v) impair the enforcement of any assignment of leases contained in the Security Instrument and any other Loan Documents; or (vi) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted by the Security Instrument or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against the Property; Property (or any portion thereof).
(8) constitute a waiver of b) Nothing contained herein shall in any manner or way release, affect or impair the right of Lender to enforce the liability and obligation of recover from Borrower, by money judgment and Borrower shall be fully and personally liable and subject to legal action, for any actual out-of-pocket loss, cost, expense, damage, claim or otherwise, to the extent of any Loss incurred by Lender other obligation (including reasonable out-of-pocket attorneys’ fees and costs reasonably incurredexpenses and other collection and litigation expenses but in all events excluding consequential, punitive, special, indirect and exemplary damages) incurred or suffered by Lender arising out of or in connection with the following:
(i) fraud or intentional misrepresentation by Borrower or Guarantor, or any Borrower Party in connection with Affiliate of the Loanforegoing;
(ii) the gross negligence or willful misconduct of Borrower or Guarantor, or any Borrower PartyAffiliate of the foregoing;
(iii) intentional material physical waste of the Property, provided, however, that if Borrower does not have sufficient cash flow on a current basis to prevent waste, any litigation or other legal proceeding related to the Debt filed by any waste shall not be deemed intentional and Borrower Party 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 other Loan Documentsshall have no liability under this clause (iii);
(iv) waste to the Property caused by the intentional acts or intentional omissions of any Borrower Party and/or the removal or disposal of any portion of the Property after an Event in violation of Defaultthe terms of the Loan Documents;
(v) the misapplication, misappropriation or conversion by Borrower or Guarantor, or any Borrower Party Affiliate of the foregoing, of (A) any insurance proceeds 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 a Condemnation of all or a portion of the Property, (C) any Rents following an Event of Default or other Property income or collateral proceeds, or (D) any Tenant Rents paid more than one month in advance (including security deposits or Rents collected in advancedeposits);
(vi) any act following the occurrence of arson by any Borrower Party an Event of Default, the failure to either apply rents or other Property income, collected after such Event of which any Borrower Party has knowledgeDefault, 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 Taxestaxes and assessments, or to pay charges for labor or materials or other charges or judgments that can create liens Liens on any portion of the Property in accordance with (unless Lender is escrowing funds therefor and fails to make such payments or has taken possession of the terms Property following an Event of Default, has received all Rents from the Property applicable to the period for which such insurance, taxes or other items are due, and provisions hereofthereafter fails to make such payments), it being acknowledged that if Borrower does not have sufficient cash flow on a current basis to maintain insurance or to pay taxes and assessments or to pay charges for labor or materials or other charges or judgments that create Liens on any portion of the Property, Borrower shall have no liability under this clause (vii);
(viii) failure to pay Insurance Premiums, to maintain the Policies in full force and effect and/or to provide Lender evidence of the same, in each case, as expressly provided herein;
(ix) any security deposits, advance deposits or any other deposits collected by or on behalf of Borrower with respect to the Property which are not delivered to Lender upon a foreclosure of the Property or action in lieu thereof, except to the extent any such security deposits were applied (A) in accordance with the terms and conditions of any of the Leases prior to the occurrence of the Event of Default that gave rise to such foreclosure or action in lieu thereofthereof or (B) previously delivered to Lender to be applied to repay the Loan;
(ix) any failure by Borrower to obtain Lender’s prior written consent (to the extent such consent is required pursuant to the terms of the Loan Documents) to any modification, amendment or terminations of any Lease;
(x) any tax on the making and/or recording of the Security Instrument, the Note or failure by Borrower to comply with any of the other Loan Documents representations, warranties or any transfer covenants set forth in Sections 4.1.37 or similar taxes (whether due upon the making of the same or upon Lender’s exercise of its remedies under the Loan Documents), but excluding any income, franchise or other similar taxes5.1.19 hereof;
(xi) the seizure or forfeiture of the Property, or any portion thereof, or Borrower’s interest therein, resulting from criminal wrongdoing failure by any Borrower Party;
(xii) the failure to make any Condemnation Payment and/or any Balancing Payment, to permit on-site inspections of the Property and/or in accordance with the terms and provisions of the Loan Documents;
(xii) the failure of Borrower to provide appoint a new Manager at Lender’s request, to the Required Financial Items, in each case, as and when extent Borrower is expressly required hereinto do so pursuant to this Agreement;
(xiii) Intentionally Omittedany failure by Borrower to comply with any representation, warranty or covenant set forth in Section 4.1.30 hereof that does not result, in whole or in part, in the substantive consolidation of the assets and liabilities of Borrower with those of any other Person or entity pursuant to the Bankruptcy Code;
(xiv) the failure Borrower fails to make repairs, renewals or replacements (including, without limitation, structural and nonstructural, exterior and interior, ordinary and extraordinary, foreseen and unforeseen) obtain Lender’s prior written consent to any Transfer to the Property or any portion thereof (including, without limitation, the Improvements now or at any time hereafter erected on the Property) as and when extent required pursuant to the terms of the Loan Documents or as and when necessary that is not a Full Recourse Transfer;
(xv) Borrower fails to maintain obtain Lender’s prior written consent, to the Property in good and safe condition, in a rentable and tenantable state of repair and/or in the condition extent required pursuant to the terms of the Loan Documents, to any Indebtedness or voluntary Lien encumbering the Property that is not a Full Recourse Lien; and/oror
(xvxvi) any indemnity obligations the failure of Lender the AT&T Sprinkler Installation Work to Bank under be completed in accordance herewith on or before the Restricted Account Agreement (other than those arising as a direct result of Lender’s gross negligence or willful misconduct)applicable AT&T Sprinkler Installation Work Completion Deadlines.
(bc) Notwithstanding anything to the contrary in this Agreement, the Note or any of the other Loan Documents, Borrower shall be personally liable for the Debt if (A) Lender Borrower fails to obtain Lender’s prior written consent (to the extent such consent is required pursuant to the terms of the Loan Documents) to any Transfer (a “Full Recourse Transfer”)
(1) that results in a change in Control over Borrower or (2) of any of the Property by deed, xxxx of sale, installment sales agreement, ground lease (excluding any lease to a Tenant in the ordinary course of business) or any similar agreement; (B) Borrower fails to obtain Lender’s prior written consent (to the extent such consent is required pursuant to the terms of the Loan Documents) to any voluntary mortgage, deed of trust, collateral assignment or similar voluntary lien or interest encumbering all or a substantial portion of the Property (a “Full Recourse Lien”); (C) Borrower shall at any time hereafter make an assignment for the benefit of its creditors; (D) Borrower fails to comply with any representation, warranty or covenant set forth in Section 4.1.30 hereof, which failure results in a substantive consolidation of Borrower with another Person or entity pursuant to the Bankruptcy Code; (E) Borrower admits, in writing or in any legal proceeding, its insolvency or inability to pay its debts as they become due, provided that neither Borrower nor Guarantor shall have liability under this clause (E) in connection with the delivery of financial statements or any other filing required to be delivered pursuant to a subpoena or any order entered in a bankruptcy proceeding or required under applicable law in connection with any such petition made by any Person which is not an Affiliate of Borrower; (F) intentionally omitted; (G) Borrower files, or consents in writing to, 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 Guarantor colludes with, or otherwise assists any party in connection with such filing, or solicits or causes to be solicited petitioning creditors for any involuntary petition against Borrower from any party (provided, however, that the failure to defend such an involuntary petition where no meritorious defense exists shall not be deemed “assisting” for purposes hereof).
(d) Nothing herein shall be deemed to have waived constitute a waiver by Lender of any right which Lender may have under Section Sections 506(a), 506(b), 1111(b) or any other provisions provision of the Bankruptcy Code to file a claim for the full amount of the Debt or to require that all collateral shall continue to secure all of the Debt owing to Lender in accordance with the Loan Documents, and (B) the Debt shall be fully recourse to Borrower in the event that: (i) the first full monthly payment of principal and interest under the Note is not paid when due; (ii) Borrower fails to comply with any provisions hereof relating to cash management or fails to appoint a new property manager upon the request of Lender, fails to cooperate with any New Manager or fails to comply with any limitations on instructing the property manager, each as required by and in accordance with, as applicable, the terms and provisions of, this Agreement, the Assignment of Management Agreement and the Security Instrument; (iii) any representation, warranty or covenant contained in Article 5 or Article 6 hereof is violated or breached; (iv) a Bankruptcy Event occurs; or (v) Sections 11.1 or 11.6 hereof are violated or breached in any material respectDebt.
Appears in 1 contract
Exculpation. (a) Subject to the qualifications below, Lender Optionee agrees that it shall not enforce the liability and obligation of Borrower Optionor to perform and observe the obligations contained in the Note, this Agreement, the Security Instrument or the other Loan Documents Agreement by any action or proceeding wherein a against any Optionor Exculpated Party (as hereinafter defined), and shall not sxx for, seek or demand any money judgment against any direct or any deficiency judgment or other judgment establishing personal liability shall be sought against Borrower or any principalindirect member, director, officer, employee, beneficiarymanager, shareholder, partner, memberbeneficiary or other owner of beneficial ownership interests in Optionor, trusteeor any director, officer, agent, attorney, employee or Affiliate of Borrower or any legal representatives, successors or assigns trustee of any of the foregoing (each, an “Optionor Exculpated Party” and, collectively, the “Optionor Exculpated Parties”), except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender to enforce and realize upon its interest under the Note, this Agreement, the Security Instrument and the other Loan Documents, or in the 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 Property, in the Rents and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Security Instrument and the other Loan Documents, shall not xxx for, seek or demand any deficiency judgment against Borrower or any of the Exculpated Parties in any such action or proceeding ) under or by reason of or under or in connection with the Note, this Agreement, the Security Instrument or the other Loan Documents. The provisions of this Section 21(a) shall not, however, (1i) constitute a waiver, release or impairment of any obligation evidenced of Optionor hereunder; or secured by any of the Loan Documents; (2ii) impair the right of Lender Optionee to name Borrower Optionor as a party defendant in any action or suit for foreclosure and sale under the Security Instrument; (3) affect the validity or enforceability of any indemnity, guaranty or similar instrument (including, without limitation, indemnities set forth in Article 12 hereof, Section 11.2 hereof, in the Guaranty and the Environmental Indemnity) made in connection with the Loan or any of the rights and remedies of Lender thereunder (including, without limitation, Lender’s right to enforce said rights and remedies against Borrower and/or Guarantor (as applicable) personally and without the effect of the exculpatory provisions of this Article 13); (4) impair the rights of Lender to (A) obtain the appointment of a receiver and/or (B) enforce its rights and remedies provided in Articles 8 and 9 hereof; (5) impair the enforcement of the assignment of leases and rents contained in the Security Instrument and in any other Loan Documents; (6) impair the right of Lender to enforce Section 4.12(e) of this Agreement; .
(7b) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted by the Security Instrument or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against the Property; or (8) constitute a waiver of the right of Lender to Optionor agrees that it shall not enforce the liability and obligation of BorrowerOptionee to perform and observe the obligations contained in this Agreement by any action or proceeding against any Optionee 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 Optionee, or any director, officer, agent, attorney, employee or trustee of any Loss incurred of the foregoing (each, an “Optionee Exculpated Party” and, collectively, the “Optionee Exculpated Parties”) under or 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 21(b) shall not, however, (i) fraud constitute a waiver, release or intentional misrepresentation by impairment of any Borrower Party in connection with the Loan;
obligation of Optionee hereunder; or (ii) impair the gross negligence or willful misconduct right of any Borrower Party;
(iii) any litigation or other legal proceeding related Optionor to the Debt filed by any Borrower Party 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 other Loan Documents;
(iv) waste to the Property caused by the intentional acts or intentional omissions of any Borrower Party and/or the removal or disposal of any portion of the Property after an Event of Default;
(v) the misapplication, misappropriation or conversion by any Borrower Party 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 Rents following an Event of Default or (D) any Tenant security deposits or Rents collected in advance;
(vi) any act of arson by any Borrower Party or of which any Borrower Party has knowledge;
(vii) failure to pay Taxes, charges for labor or materials or other charges that can create liens on any portion of the Property in accordance with the terms and provisions hereof;
(viii) failure to pay Insurance Premiums, to maintain the Policies in full force and effect and/or to provide Lender evidence of the same, in each case, as expressly provided herein;
(ix) any security deposits, advance deposits or any other deposits collected with respect to the Property which are not delivered to Lender upon a foreclosure of the 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;
(x) any tax on the making and/or recording of the Security Instrument, the Note or any of the other Loan Documents or any transfer or similar taxes (whether due upon the making of the same or upon Lender’s exercise of its remedies under the Loan Documents), but excluding any income, franchise or other similar taxes;
(xi) the seizure or forfeiture of the Property, or any portion thereof, or Borrower’s interest therein, resulting from criminal wrongdoing by any Borrower Party;
(xii) the failure to make any Condemnation Payment and/or any Balancing Payment, to permit on-site inspections of the Property and/or to provide the Required Financial Items, in each case, as and when required herein;
(xiii) Intentionally Omitted;
(xiv) the failure to make repairs, renewals or replacements (including, without limitation, structural and nonstructural, exterior and interior, ordinary and extraordinary, foreseen and unforeseen) to the Property or any portion thereof (including, without limitation, the Improvements now or at any time hereafter erected on the Property) as and when required pursuant to the terms of the Loan Documents or as and when necessary to maintain the Property in good and safe condition, in a rentable and tenantable state of repair and/or in the condition required pursuant to the terms of the Loan Documents; and/or
(xv) any indemnity obligations of Lender to Bank under the Restricted Account Agreement (other than those arising name Optionee as a direct result of Lender’s gross negligence party defendant in any action or willful misconduct)suit under this Agreement.
(bc) Notwithstanding anything to The provisions of this Section 21 shall survive the contrary in Closing, the expiration of the Option Period and the termination of 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 Debt or to require that all collateral shall continue to secure all of the Debt owing to Lender in accordance with the Loan Documents, and (B) the Debt shall be fully recourse to Borrower in the event that: (i) the first full monthly payment of principal and interest under the Note is not paid when due; (ii) Borrower fails to comply with any provisions hereof relating to cash management or fails to appoint a new property manager upon the request of Lender, fails to cooperate with any New Manager or fails to comply with any limitations on instructing the property manager, each as required by and in accordance with, as applicable, the terms and provisions of, this Agreement, the Assignment of Management Agreement and the Security Instrument; (iii) any representation, warranty or covenant contained in Article 5 or Article 6 hereof is violated or breached; (iv) a Bankruptcy Event occurs; or (v) Sections 11.1 or 11.6 hereof are violated or breached in any material respect.
Appears in 1 contract
Exculpation. (a) Subject to Except as otherwise provided herein or in the qualifications belowother Loan Documents, Lender shall not enforce the liability liabilities and obligation of Borrower to perform and observe the obligations contained in the Note, this Agreement, the Security Instrument arising hereunder or under the other Loan Documents, or otherwise arising in connection with the Loan or Loan Documents by any action or proceeding the enforcement thereof, wherein a money judgment or any deficiency judgment or other judgment establishing personal liability shall be sought against (1) Borrower (except as set forth in this Section 10.1 and the Environmental Indemnity), (2) Guarantor (except as set forth in the Guaranty, the Environmental Indemnity and any other guaranty provided in connection with the Loan), (3) any Affiliate of Borrower (other than ALX to the extent of ALX’s obligations and liabilities under the ALX Letter of Credit Agreement), (4) any Person owning, directly or indirectly, any legal or beneficial interest in Borrower, Guarantor or any Affiliate of Borrower or Guarantor (other than ALX to the extent of ALX’s obligations and liabilities under the ALX Letter of Credit Agreement) or (5) any principal, director, officer, employee, beneficiary, shareholder, direct or indirect limited partner, member, principal, officer, beneficiary, trustee, advisor, shareholder, employee, agent, Affiliate or Affiliate of Borrower or any legal representatives, successors or assigns director of any Persons described in clauses (1) through (5) above (other than ALX to the extent of ALX’s obligations and liabilities under the foregoing ALX Letter of Credit Agreement) (collectively, subject to the exceptions in clauses (1) through (5) above, the “Exculpated Parties”), except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender to enforce and realize upon its interest under the Note, this Agreement, the Security Instrument Note, the Mortgage and the other Loan Documents, or and the interest in the Property, the Rents, or Rents and any other collateral given to Lender pursuant to this Agreement, the Note, the Mortgage and the other Loan Documents; provided, however, that, that except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower Borrower, only to the extent of Borrower’s interest in the Property, in the Rents and in any other collateral for the Loan given to Lender, and . Lender, by accepting the Note, this Agreement, the Security Instrument Note, the Mortgage and the other Loan Documents, agrees that it shall not xxx not, except as otherwise provided in this Section 10.1, sue for, seek or demand any deficiency judgment against Borrower or any of the Exculpated Parties Party in any such action or proceeding proceeding, under or by reason of or under or in connection with the Note, this Agreement, the Security Instrument Note, the Mortgage or the other Loan Documents. The provisions of this Section 10.1 shall not, however, (1i) 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; (2ii) 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 Security InstrumentMortgage; (3iii) affect the validity or enforceability of any indemnityindemnity (including the Environmental Indemnity), guaranty guaranty, master lease or similar instrument (including, without limitation, indemnities set forth in Article 12 hereof, Section 11.2 hereof, in the Guaranty and the Environmental Indemnityif any) made in connection with this Agreement, the Note, the Mortgage and the other Loan or any of the rights and remedies of Lender thereunder (including, without limitation, Lender’s right to enforce said rights and remedies against Borrower and/or Guarantor (as applicable) personally and without the effect of the exculpatory provisions of this Article 13)Documents; (4iv) impair the rights right of Lender to (A) obtain the appointment of a receiver and/or (B) enforce its rights and remedies provided in Articles 8 and 9 hereofreceiver; (5v) impair the enforcement of the assignment of leases and rents provisions contained in the Security Instrument and in any other Loan DocumentsMortgage; or (6) impair the right of Lender to enforce Section 4.12(e) of this Agreement; (7vi) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted by the Security Instrument Mortgage or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against the Property; or , including without limitation, any Insurance Proceeds and/or Awards.
(8) constitute a waiver b) Notwithstanding the provisions of the right of Lender to enforce the liability and obligation of Borrower, by money judgment or otherwise, Section 10.1(a) to the extent of any Loss incurred by contrary, Borrower shall be personally liable to Lender (including attorneys’ fees and costs reasonably incurred) for Losses arising out of or in connection with the following:following (all such liability and obligation of Borrower for any or all of the following being referred to herein as “Borrower’s Recourse Liabilities”):
(i) fraud intentional physical waste or intentional misrepresentation arson to the Property committed by Borrower or Guarantor or any Affiliate of Borrower Party in connection with the Loanor Guarantor;
(ii) the gross negligence or fraud, willful misconduct or intentional misrepresentation by Borrower or Guarantor or any Affiliate of any Borrower Partyor Guarantor in connection with the making of the Loan by Xxxxxx or during the term of the Loan;
(iii) any litigation or other legal proceeding related to the Debt filed initiated by Borrower or any Affiliate of Borrower Party in bad faith 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 other Loan Documents;
(iv) waste to Documents during the Property caused by the intentional acts or intentional omissions continuance of any Borrower Party and/or the removal or disposal of any portion of the Property after an Event of Default;
(vA) the misapplication, misappropriation or conversion intentional misapplication of funds by any Borrower Party or on behalf of Xxxxxxxx, in violation of the terms of the Loan Documents, including (A1) any insurance proceeds paid Insurance Proceeds received by Borrower by reason of any loss, damage or destruction to the PropertyProperty (it being agreed that Borrower shall not be deemed to have misapplied such proceeds unless the same are received by Borrower and not paid to Lender in a circumstance in which Lender is expressly entitled to receive the same pursuant to the terms of the Loan Documents to be applied toward payment of the Loan), (B2) any Awards or other amounts received by Borrower in connection with the Condemnation condemnation of all or a portion of the PropertyProperty (it being agreed that Borrower shall not be deemed to have misapplied such proceeds unless the same are received by Borrower and not paid to Lender in a circumstance in which Lender is expressly entitled to receive the same pursuant to the terms of the Loan Documents to be applied toward payment of the Loan), (C3) any Rents or other revenues received by Borrower following the occurrence and during the continuation of an Event of Default (including Lease Sweep Lease Termination Payments and Lease Termination Payments) or (D4) any Tenant security deposits Reserve Funds disbursed to Borrower or Rents collected (B) the intentional failure to deposit rents into the Clearing Account to the extent in advancethe control of Borrower, unless such rents are otherwise delivered to Lender;
(viv) any act of arson by any Borrower Party or of which any Borrower Party has knowledge;
(vii) Borrower’s failure to pay Taxes, charges for labor or materials or other charges that can create liens on any portion of the Property in accordance with the terms and provisions hereof;
(viii) failure deliver to pay Insurance Premiums, to maintain the Policies in full force and effect and/or to provide Lender evidence of the same, in each case, as expressly provided herein;
(ix) any security deposits, advance deposits or any other deposits collected with respect to the Property which are not delivered to Lender upon a foreclosure of the Property except to the extent the same were applied or action returned to the tenant or other party in lieu thereofaccordance with the applicable Lease or other agreement relating to such deposit;
(vi) Borrower’s failure to pay Taxes or transfer taxes, Condominium Charges, Other Charges, charges for labor or materials or other charges that can create liens on the Property beyond any applicable notice and cure periods specified herein (in each case, except to the extent any that (A) sums sufficient to pay such security deposits were applied amounts have been deposited in accordance escrow with Lender pursuant to the terms and conditions hereof or (B) there is insufficient cash flow from the operation of the Property);
(vii) any failure to pay or maintain the Policies or pay the amount of any deductible required thereunder following a Casualty or other insurance claim, except to the extent that (A) such Policies are not commercially available, (B) sums sufficient to pay such amounts have been deposited in escrow with Lender pursuant to the terms hereof or (C) there is insufficient cash flow from the operation of the Leases prior Property;
(viii) Borrower’s failure to return or to reimburse Lender for Personal Property destroyed or damaged due to the occurrence willful misconduct or gross negligence of Borrower, Guarantor or any Affiliate of Borrower or Guarantor or wrongfully taken from the Property during the continuance of an Event of Default by or on behalf of Borrower, Guarantor or any Affiliate of Borrower or Guarantor and not replaced with Personal Property of at least the same utility (it being agreed that gave rise the removal and replacement of Personal Property in the ordinary course of maintenance and operation of the Property shall not be deemed to such foreclosure be wrongful removal);
(ix) the breach of any representation, warranty, covenant or action indemnification obligation set forth in lieu thereofthe Environmental Indemnity;
(x) any tax on the making and/or recording voluntary Indebtedness, voluntary Lien or voluntary Transfer, in each case, in violation of the Security InstrumentLoan Documents that does not trigger full recourse under clause (d) below (for the avoidance of doubt, the Note entry into, or any amendment of, a Lease of space in the other Loan Documents or any transfer or similar taxes Improvements to a Tenant shall not be a violation of this clause (whether due upon the making of the same or upon Lender’s exercise of its remedies under the Loan Documentsx), but excluding any income, franchise or other similar taxes);
(xi) any failure of Borrower to comply with, and at all times have complied with, the seizure or forfeiture requirements of the Property, or any portion thereof, or Borrower’s interest therein, resulting from criminal wrongdoing by any Borrower Partya Special Purpose Bankruptcy Remote Entity that does not trigger full recourse under clause (d) below;
(xii) any opposition by Borrower or Sponsor to any motion filed by Lender for relief from the failure to make automatic stay in any Condemnation Payment and/or any Balancing Payment, to permit on-site inspections bankruptcy proceeding of Borrower;
(xiii) the termination of the Property and/or to provide Condominium or the Required Financial Itemsremoval of any Unit from the Condominium, in each case, as and when required herein;
(xiii) Intentionally Omitted;
(xiv) the failure to make repairs, renewals or replacements (including, without limitation, structural and nonstructural, exterior and interior, ordinary and extraordinary, foreseen and unforeseen) to the Property or any portion thereof (including, without limitation, the Improvements now or at any time hereafter erected on the Property) as and when required pursuant to in violation of the terms of the Loan Documents or as and when necessary to maintain the Property in good and safe condition, in a rentable and tenantable state of repair and/or in the condition required pursuant to the terms of the Loan Documents; and/or
(xv) any indemnity obligations of Lender to Bank under the Restricted Account Agreement (other than those arising as a direct result of Lender’s gross negligence or willful misconduct).
(b) Notwithstanding anything to the contrary in this Agreement, which was voted for or consented to or approved by Borrower (or the Note or any members of the Loan Documents, (A) Lender shall not be deemed to have waived any right which Lender may have under Section 506(aCondominium Board appointed by Xxxxxxxx), 506(b), 1111(b) or any other provisions of the Bankruptcy Code to file a claim for the full amount of the Debt or to require that all collateral shall continue to secure all of the Debt owing to Lender in accordance with the Loan Documents, and (B) the Debt shall be fully recourse to Borrower in the event that: (i) the first full monthly payment of principal and interest under the Note is not paid when due; (ii) Borrower fails to comply with any provisions hereof relating to cash management or fails to appoint a new property manager upon the request of Lender, fails to cooperate with any New Manager or fails to comply with any limitations on instructing the property manager, each as required by and in accordance with, as applicable, the terms and provisions of, this Agreement, the Assignment of Management Agreement and the Security Instrument; (iii) any representation, warranty or covenant contained in Article 5 or Article 6 hereof is violated or breached; (iv) a Bankruptcy Event occurs; or (v) Sections 11.1 or 11.6 hereof are violated or breached in any material respect.;
Appears in 1 contract
Samples: Loan Agreement (Alexanders Inc)
Exculpation. (a) Subject to Except as otherwise provided herein or in the qualifications belowother Loan Documents, Lender shall not enforce the liability and obligation of Borrower to perform and observe the obligations contained herein or in the Note, this Agreement, the Security Instrument or the other Loan Documents by any action or proceeding wherein a money judgment or any deficiency judgment or other judgment establishing personal liability shall be sought against (1) Borrower (except as set forth in this Section 15.1 and the Environmental Indemnity), (2) Guarantor (except as set forth in the Guaranty and the Environmental Indemnity), (3) any Affiliate of Borrower, (4) any Person owning, directly or indirectly, any legal or beneficial interest in Borrower or any principal, director, officer, employee, beneficiary, shareholder, Affiliate of Borrower or (5) any direct or indirect limited partner, member, principal, officer, beneficiary, trustee, agentshareholder, Affiliate or Affiliate of Borrower or any legal representatives, successors or assigns director of any of the foregoing Persons described in clauses (1) through (5) above (collectively, subject to the exceptions in clauses (i) and (ii) below, the “Exculpated Parties”), except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender to enforce and realize upon its interest under the Note, this Agreement, the Security Instrument Note, the Pledge Agreements and the other Loan Documents, or and the interest in the Property, the Rents, or Collateral and any other collateral given to Lender pursuant to created by this Agreement, the Note, the Pledge Agreements and the other Loan Documents; provided, however, that, except as specifically provided herein, that any judgment in any such action or proceeding shall be enforceable against Borrower Borrower, only to the extent of Borrower’s interest in the Property, in the Rents Collateral and in any other collateral given to Lender, and . Lender, by accepting the Note, this Agreement, the Security Instrument Note, the Pledge Agreements and the other Loan Documents, agrees that it shall not not, except as otherwise provided in this Section 15.1, xxx for, seek or demand any deficiency judgment against Borrower or any of the Exculpated Parties Party in any such action or proceeding proceeding, under or by reason of or under or in connection with the Note, this Agreement, the Security Instrument Note, the Pledge Agreements or the other Loan Documents. The provisions of this Section 15.1 shall not, however, (1i) constitute a waiver, release or impairment of any obligation evidenced or secured by any of this Agreement, the Note, the Pledge Agreements or the other Loan Documents; (2ii) impair the right of Lender to name Borrower or Ashford Keys Junior Operating Lessee as a party defendant in any action or suit for judicial foreclosure and sale under this Agreement and the Security InstrumentPledge Agreements; (3iii) affect the validity or enforceability of any indemnity, guaranty or similar instrument indemnity (including, without limitation, indemnities set forth those contained in Article 12 hereof, Section 11.2 hereof, in the Guaranty 14 of this Agreement and the Environmental Indemnity) ), guaranty, master lease or similar instrument made in connection with this Agreement, the Loan or any of Note, the rights Pledge Agreements and remedies of Lender thereunder (including, without limitation, Lender’s right to enforce said rights and remedies against Borrower and/or Guarantor (as applicable) personally and without the effect of the exculpatory provisions of this Article 13); (4) impair the rights of Lender to (A) obtain the appointment of a receiver and/or (B) enforce its rights and remedies provided in Articles 8 and 9 hereof; (5) impair the enforcement of the assignment of leases and rents contained in the Security Instrument and in any other Loan Documents; (6iv) impair the right of Lender to enforce Section 4.12(e) obtain the appointment of this Agreementa receiver; (7v) constitute a prohibition against Lender to seek a deficiency judgment against Borrower impair the enforcement of the provisions contained in order to fully realize the security granted by the Security Instrument or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against the PropertyPledge Agreements; or (8) constitute a waiver of vi) impair the right of Lender to enforce the liability and obligation of Borrower, by money obtain a deficiency judgment or otherwiseother judgment on the Note against Borrower if necessary to obtain any Net Liquidation Proceeds After Debt Service to which Lender would otherwise be entitled under this Agreement; provided, however, Lender shall only enforce such judgment to the extent of any Loss the Insurance Proceeds and/or Awards.
(b) Notwithstanding the provisions of this Section 15.1 to the contrary, Borrower shall be personally liable to Lender for Losses incurred by Lender (including attorneys’ fees and costs reasonably incurred) arising out of or in connection with the followingdue to:
(i) fraud or intentional misrepresentation by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Lessee, Ashford Keys Senior Operating Lessee, Ashford Keys Junior Operating Lessee, Guarantor or any Borrower Party Affiliate of any of the foregoing in connection with the execution and the delivery of this Agreement, the Note, the Pledge Agreements, 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 or during the term of the Loan;
(ii) the gross negligence or willful misconduct of any Borrower an Exculpated Party;
(iii) Remington’s or any litigation Exculpated Party’s misapplication, misappropriation or other legal proceeding related to conversion of Rents received by Mortgage Borrower during the Debt filed by any Borrower Party that delays, opposes, impedes, obstructs, hinders, enjoins or otherwise interferes with or frustrates the efforts continuance of Lender to exercise any rights and remedies available to Lender as provided herein and in the other Loan Documentsan Event of Default;
(iv) waste any Exculpated Party’s misapplication, misappropriation or conversion of tenant security deposits (including the failure to deliver to Mortgage Lender tenant security deposits upon foreclosure or deed in lieu thereof, to the Property caused by extent not applied in accordance with the intentional acts or intentional omissions applicable Leases prior to the occurrence of any Borrower Party and/or the removal or disposal of any portion of the Property after an Event of Default) or Rents collected in advance;
(v) the misapplication, misappropriation or conversion of Insurance Proceeds or Awards by any Borrower Party 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 Rents following an Event of Default or (D) any Tenant security deposits or Rents collected in advanceExculpated Party;
(vi) any act of arson by any Borrower Party Borrower’s, Mortgage Borrower’s or of which any Borrower Party has knowledge;
(vii) Senior Mezzanine Borrower’s failure to pay Property Taxes, Insurance Premiums, Other Charges (provided that there shall be no liability hereunder to the extent that (A) sums sufficient to pay such amounts have been deposited in escrow with Lender, Mortgage Lender or Senior Mezzanine Lender pursuant to the terms hereof or the Mortgage Loan Agreement or the Senior Mezzanine Loan Agreement and neither Borrower, Mortgage Borrower nor Senior Mezzanine Borrower have made a claim against such escrowed amounts or otherwise taken action to restrict Lender, Mortgage Lender or Senior Mezzanine Lender from applying such sums for the purpose of paying such items) or (B) there is insufficient cash flow from the operation of the Properties to pay such items), charges for labor or materials or other charges that can create liens on any portion of the Individual Property in accordance with the terms beyond any applicable notice and provisions hereof;
(viii) failure to pay Insurance Premiums, to maintain the Policies in full force and effect and/or to provide Lender evidence of the same, in each case, as expressly provided cure periods specified herein;
(ix) any security deposits, advance deposits or any other deposits collected with respect to the Property which are not delivered to Lender upon a foreclosure of the 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;
(x) any tax on the making and/or recording of the Security Instrument, the Note or any of the other Loan Documents or any transfer or similar taxes (whether due upon the making of the same or upon Lender’s exercise of its remedies under the Loan Documents), but excluding any income, franchise or other similar taxes;
(xi) the seizure or forfeiture of the Property, or any portion thereof, or Borrower’s interest therein, resulting from criminal wrongdoing by any Borrower Party;
(xii) the failure to make any Condemnation Payment and/or any Balancing Payment, to permit on-site inspections of the Property and/or to provide the Required Financial Items, in each case, as and when required herein;
(xiii) Intentionally Omitted;
(xiv) the failure to make repairs, renewals or replacements (including, without limitation, structural and nonstructural, exterior and interior, ordinary and extraordinary, foreseen and unforeseen) to the Property or any portion thereof (including, without limitation, the Improvements now or at any time hereafter erected on the Property) as and when required pursuant to the terms of the Loan Documents or as and when necessary to maintain the Property in good and safe condition, in a rentable and tenantable state of repair and/or in the condition required pursuant to the terms of the Loan Documents; and/or
(xv) any indemnity obligations of Lender to Bank under the Restricted Account Agreement (other than those arising as a direct result of Lender’s gross negligence or willful misconduct).
(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 Debt or to require that all collateral shall continue to secure all of the Debt owing to Lender in accordance with the Loan Documents, and (B) the Debt shall be fully recourse to Borrower in the event that: (i) the first full monthly payment of principal and interest under the Note is not paid when due; (ii) Borrower fails to comply with any provisions hereof relating to cash management or fails to appoint a new property manager upon the request of Lender, fails to cooperate with any New Manager or fails to comply with any limitations on instructing the property manager, each as required by and in accordance with, as applicable, the terms and provisions of, this Agreement, the Assignment of Management Agreement and the Security Instrument; (iii) any representation, warranty or covenant contained in Article 5 or Article 6 hereof is violated or breached; (iv) a Bankruptcy Event occurs; or (v) Sections 11.1 or 11.6 hereof are violated or breached in any material respect.
Appears in 1 contract
Samples: Junior Mezzanine Loan Agreement (Ashford Hospitality Trust Inc)
Exculpation. (a) Subject to the qualifications belowset forth in this Article VIII, Lender shall not enforce the liability and obligation of Borrower to perform and observe the obligations contained in the NoteNotes, this Agreement, the Security Instrument Pledge Agreement or the other Loan Documents by any action or proceeding wherein a money judgment or any deficiency judgment or other judgment establishing personal liability shall be sought against Borrower or any principal, director, officer, employee, beneficiary, shareholder, partner, member, trustee, agentBorrower, or Affiliate of Borrower its direct or indirect owners (other than pursuant to any legal representativesseparate agreement, successors indemnity or assigns of any of guaranty, including pursuant to the foregoing (collectively, Guarantees and the “Exculpated Parties”Environmental Indemnity), except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender to enforce and realize upon its interest under the NoteNotes, this Agreement, the Security Instrument Pledge Agreement and the other Loan Documents, or in the Property, the RentsRevenues, or any other collateral given to Lender pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, any judgment awarded in any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower’s interest in the Property, in the Rents Revenues and in any other collateral given to Lender, and Lender, by accepting the NoteNotes, this Agreement, the Security Instrument Pledge Agreement and the other Loan Documents, and without limitation of the foregoing and in addition thereto, agrees for itself and its successors and assigns that it and its successors and assigns shall not xxx for, seek or demand any deficiency judgment against Borrower or any of the Exculpated Parties in any such action or proceeding under under, or by reason of or under of, or in connection with with, the NoteNotes, this Agreement, the Security Instrument Pledge Agreement or the other Loan Documents. The provisions of this Section 8.1 shall not, however, (1a) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (2b) impair the right of Lender to name Borrower as a party defendant in any action or suit for foreclosure and sale under the Security InstrumentPledge Agreement; (3c) affect the validity or enforceability of any indemnityseparate agreement, indemnity or guaranty or similar instrument (including, without limitation, indemnities set forth in Article 12 hereof, Section 11.2 hereof, in including the Guaranty Guarantees and the Environmental Indemnity) made in connection with the Loan ), or any of the rights and remedies of Lender thereunder (including, without limitation, Lender’s right to enforce said rights and remedies against Borrower and/or Guarantor (as applicable) personally and without the effect of the exculpatory provisions of this Article 13)thereunder; (4) impair the rights of Lender to (A) obtain the appointment of a receiver and/or (B) enforce its rights and remedies provided in Articles 8 and 9 hereof; (5) impair the enforcement of the assignment of leases and rents contained in the Security Instrument and in any other Loan Documents; (6d) impair the right of Lender to enforce Section 4.12(e) obtain the appointment of this Agreementa receiver; (7e) intentionally omitted; 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 Security Instrument Pledge Agreement or to commence commencing any other appropriate action or proceeding in order for Lender to exercise its remedies against the Property; or (8) constitute a waiver of the right of Lender to enforce the liability and obligation of Borrower, by money judgment or otherwise, to the extent of any Loss incurred by Lender (including attorneys’ fees and costs reasonably incurred) arising out of or in connection with the following:
(i) fraud or intentional misrepresentation by any Borrower Party in connection with the Loan;
(ii) the gross negligence or willful misconduct of any Borrower Party;
(iii) any litigation or other legal proceeding related to the Debt filed by any Borrower Party 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 other Loan Documents;
(iv) waste to the Property caused by the intentional acts or intentional omissions of any Borrower Party and/or the removal or disposal of any portion of the Property after an Event of Default;
(v) the misapplication, misappropriation or conversion by any Borrower Party 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 Rents following an Event of Default or (D) any Tenant security deposits or Rents collected in advance;
(vi) any act of arson by any Borrower Party or of which any Borrower Party has knowledge;
(vii) failure to pay Taxes, charges for labor or materials or other charges that can create liens on any portion of the Property in accordance with the terms and provisions hereof;
(viii) failure to pay Insurance Premiums, to maintain the Policies in full force and effect and/or to provide Lender evidence of the same, in each case, as expressly provided herein;
(ix) any security deposits, advance deposits or any other deposits collected with respect to the Property which are not delivered to Lender upon a foreclosure of the 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;
(x) any tax on the making and/or recording of the Security Instrument, the Note or any of the other Loan Documents or any transfer or similar taxes (whether due upon the making of the same or upon Lender’s exercise of its remedies under the Loan Documents), but excluding any income, franchise or other similar taxes;
(xi) the seizure or forfeiture of the Property, or any portion thereof, or Borrower’s interest therein, resulting from criminal wrongdoing by any Borrower Party;
(xii) the failure to make any Condemnation Payment and/or any Balancing Payment, to permit on-site inspections of the Property and/or to provide the Required Financial Items, in each case, as and when required herein;
(xiii) Intentionally Omitted;
(xiv) the failure to make repairs, renewals or replacements (including, without limitation, structural and nonstructural, exterior and interior, ordinary and extraordinary, foreseen and unforeseen) to the Property or any portion thereof (including, without limitation, the Improvements now or at any time hereafter erected on the Property) as and when required pursuant to the terms of the Loan Documents or as and when necessary to maintain the Property in good and safe condition, in a rentable and tenantable state of repair and/or in the condition required pursuant to the terms of the Loan Documents; and/or
(xv) any indemnity obligations of Lender to Bank under the Restricted Account Agreement (other than those arising as a direct result of Lender’s gross negligence or willful misconduct).
(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 Debt or to require that all collateral shall continue to secure all of the Debt owing to Lender in accordance with the Loan Documents, and (B) the Debt shall be fully recourse to Borrower in the event that: (i) the first full monthly payment of principal and interest under the Note is not paid when due; (ii) Borrower fails to comply with any provisions hereof relating to cash management or fails to appoint a new property manager upon the request of Lender, fails to cooperate with any New Manager or fails to comply with any limitations on instructing the property manager, each as required by and in accordance with, as applicable, the terms and provisions of, this Agreement, the Assignment of Management Agreement and the Security Instrument; (iii) any representation, warranty or covenant contained in Article 5 or Article 6 hereof is violated or breached; (iv) a Bankruptcy Event occurs; or (v) Sections 11.1 or 11.6 hereof are violated or breached in any material respect.
Appears in 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 Security Instrument Pledge Agreement or the other Loan Documents by any action or proceeding wherein a money judgment or any deficiency judgment or other judgment establishing personal liability shall be sought against Borrower or any principal, director, officer, employee, beneficiary, shareholder, partner, member, trustee, agent, or Affiliate of Borrower or any legal representatives, successors or assigns of any of the foregoing (collectively, the “Exculpated Parties”), except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender to enforce and realize upon its interest under the Note, this Agreement, the Security Instrument Pledge Agreement and the other Loan Documents, or in the Property, the RentsCollateral (or any portion thereof), or any other collateral given to Lender pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower’s interest in the Property, in the Rents Collateral and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Security Instrument Pledge Agreement and the other Loan Documents, shall not xxx for, seek or demand any deficiency judgment against Borrower or any of the Exculpated Parties in any such action or proceeding under or by reason of or under or in connection with the Note, this Agreement, the Security Instrument Pledge Agreement or the other Loan Documents. The provisions of this Section shall not, however, (1) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (2) impair the right of Lender to name Borrower as a party defendant in any action or suit for foreclosure and sale under the Security InstrumentPledge Agreement; (3) affect the validity or enforceability of any indemnity, guaranty or similar instrument (including, without limitation, indemnities set forth in Article 12 hereof, Section 11.2 hereof, in the Guaranty and the Environmental Indemnity) made in connection with the Loan or any of the rights and remedies of Lender thereunder (including, without limitation, Lender’s right to enforce said rights and remedies against Borrower and/or Guarantor (as applicable) personally and without the effect of the exculpatory provisions of this Article 13); (4) impair the rights of Lender to (A) obtain the appointment of a receiver and/or (B) enforce its rights and remedies provided in Articles 8 and 9 hereof; (5) impair the enforcement of the assignment of leases and rents contained in the Security Instrument and in any other Loan DocumentsPledge Agreement; (6) impair the right of Lender to enforce Section 4.12(e) of this Agreement; (7) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted by the Security Instrument Pledge Agreement or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against the PropertyProperty (or any portion thereof), the Mezzanine A Collateral (or any portion thereof) or the Collateral (or any portion thereof); or (8) constitute a waiver of the right of Lender to enforce the liability and obligation of Borrower, by money judgment or otherwise, to the extent of any Loss incurred by Lender (including attorneys’ fees and costs reasonably incurred) arising out of or in connection with the following:
(i) fraud or intentional misrepresentation by any Borrower Party in connection with the Loan;
(ii) the gross negligence or willful misconduct of any Borrower Party;
(iii) any litigation or other legal proceeding related to the Debt filed by any Borrower Party or any other action of any Borrower Party 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 other Loan Documents; provided, however, that Borrower shall have no liability under this clause (iii) in the event that such Borrower Party asserts any defense or otherwise exercises any of its rights in good faith, including, without limitation, by means of, or in connection with, the filing, pursuit or maintenance by such Borrower Party of any litigation, proceeding, action or claim in good faith;
(iv) (A) waste to the Property caused by the intentional acts or intentional omissions of any Borrower Party and/or (B) the removal or disposal of any portion of the Property by any Borrower Party or its Affiliates after an Event of Default;
(v) the misapplication, misappropriation or conversion by any Borrower Party of (A) any insurance proceeds paid by reason of any loss, damage or destruction to the PropertyProperty (or any portion thereof), (B) any Awards or other amounts received in connection with the Condemnation of all or a portion of the Property, (C) any Rents following an Event of Default or Rents, if any, (D) any Tenant security deposits or Rents collected in advance, if any, (E) any other monetary collateral for the Loan (including, without limitation, any Reserve Funds and/or any portion thereof disbursed to (or at the direction of) Borrower), or (F) any Net Liquidation Proceeds After Debt Service or any distributions or other payments made in respect of any part of the Properties (or any portion thereof), the Mezzanine A Collateral (or any portion thereof) or the Collateral (or any portion thereof);
(vi) any act of arson by any Borrower Party or of which any Borrower Party has knowledge;
(vii) failure to pay Taxes, charges for labor or materials or other charges that can create liens on any portion of the Property in accordance with the terms and provisions hereofhereof (except (1) to the extent that Mortgage Borrower does not have sufficient revenue from the Properties to make such payment, (2) to the extent that sums sufficient to pay such amounts have been deposited in escrow with Mortgage Lender pursuant to the terms of Sections 8.1, 8.2, 8.3, 8.6 or 8.8 of the Mortgage Loan Agreement, as applicable and Mortgage Lender has not made such sums available to Mortgage Borrower or (3) to the extent that Mortgage Borrower is contesting (or causing Mortgage Borrower to contest) such charges in accordance with the terms and conditions of Section 4.5 hereof (with respect to Taxes) and in accordance with the terms and conditions of Section 4.16 hereof (with respect to Work Charges and/or other trade payables));
(viiivii) failure to pay Insurance Premiums, to maintain the Policies in full force and effect and/or to provide Lender evidence of the same, in each case, as expressly provided hereinherein (except (1) to the extent that Mortgage Borrower does not have sufficient revenue from the Properties to make such payment or (2) to the extent that sums sufficient to pay such amounts have been deposited in escrow with Mortgage Lender pursuant to the terms of Section 8.6 of the Mortgage Loan Agreement and Mortgage Lender has not made such sums available to Mortgage Borrower);
(ixviii) any security deposits, advance deposits or any other deposits collected with respect to the Property which are not delivered to Mortgage Lender upon a foreclosure of the 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;
(xix) any tax on the making and/or recording of the Security Instrument, the Note or any of the other Loan Documents or any transfer or similar taxes (whether due upon the making of the same or upon Lender’s exercise of its remedies under the Loan Documents)same, but excluding any income, franchise or other similar taxes;
(xix) any violation or breach of any applicable law mandating the forfeiture or seizure or forfeiture of the Property, Property (or any portion thereof, or Borrower’s thereof and/or interest therein);
(xi) any material violation or breach by Mortgage Borrower with respect to any representation, resulting warranty or covenant contained in Article 5 of the Mortgage Loan Agreement (except with respect to Mortgage Borrower or any SPE Component Entity (as defined in the Mortgage Loan Agreement) remaining solvent, maintaining adequate capital or complying with Section 5.1(a)(vii) of the Mortgage Loan Agreement with respect to trade payables or Permitted Equipment Leases (as defined in the Mortgage Loan Agreement) solely (1) to the extent that Mortgage Borrower does not have sufficient revenue from criminal wrongdoing by any Borrower Partythe Properties to make such payment or (2) to the extent that sums sufficient to pay such amounts have been deposited in an escrow for the payment of such amounts with Mortgage Lender pursuant to the terms of Article VIII of the Mortgage Loan Agreement and Mortgage Lender has not made such sums available to Mortgage Borrower);
(xii) (A) the failure of Mortgage Borrower to make any True Up Payment (as defined in the Mortgage Loan Agreement) (except to the extent that Mortgage Borrower does not have sufficient revenue from the Properties to make such payment), (B) the failure of Mezzanine A Borrower to make any True Up Payment (as defined in the Mezzanine A Loan Agreement) (except to the extent that Mezzanine A Borrower does not have sufficient revenue from the Mezzanine A Collateral to make such payment) or (C) the failure of Borrower to make any True Up Payment (except to the extent that Borrower does not have sufficient revenue from the Collateral to make such payment), as applicable;
(xiii) the failure to make purchase or replace (as applicable) any Condemnation Payment and/or any Balancing Payment, to permit on-site inspections of the Property and/or to provide the Required Financial ItemsInterest Rate Cap Agreement or Replacement Interest Rate Cap Agreement (as applicable), in each case, as and when required herein;
(xiii) Intentionally Omittedby the terms hereof;
(xiv) any material violation or breach with respect to any representation, warranty or covenant contained in Article 5 (except with respect to Borrower or any SPE Component Entity remaining solvent or maintaining adequate capital solely to the failure extent that Borrower does not have sufficient revenue from the Properties to make repairs, renewals or replacements (including, without limitation, structural and nonstructural, exterior and interior, ordinary and extraordinary, foreseen and unforeseen) to the Property or any portion thereof (including, without limitation, the Improvements now or at any time hereafter erected on the Property) as and when required pursuant to the terms of the Loan Documents or as and when necessary to maintain the Property in good and safe condition, in a rentable and tenantable state of repair and/or in the condition required pursuant to the terms of the Loan Documents; and/orsuch payments);
(xv) any indemnity obligations violation or breach of Lender Section 11.6 or 11.8 hereof;
(xvi) any Property Document Event shall occur;
(xvii) any material violation or breach by Mezzanine A Borrower with respect to Bank under any representation, warranty or covenant contained in Article 5 of the Restricted Account Mezzanine A Loan Agreement (other than those arising except with respect to Mezzanine A Borrower or any SPE Component Entity (as a direct result defined in the Mezzanine A Loan Agreement) remaining solvent or maintaining adequate capital solely to the extent that Mezzanine A Borrower does not have sufficient revenue from the Properties to make such payments);
(xviii) any violation or breach of Lender’s gross negligence Section 7(a)(ii), Section 7(a)(iii) or willful misconductSection 7(b) of any Subordination of Management Agreement;
(xix) the failure of Borrower or Manager to make required contributions to the CBA Multiemployer Plan (whether or not such failure results in an Event of Default hereunder); and/or
(xx) the failure of Mortgage Borrower, Borrower or Manager to cooperate with Lender and/or its assignees or designees in transitioning to Lender and/or its assignees or designees any liquor licenses with respect to any Individual Property.
(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 Debt or to require that all collateral shall continue to secure all of the Debt owing to Lender in accordance with the Loan Documents, and (B) the Debt shall be fully recourse to Borrower in the event that: :
(i) Borrower fails or fails to cause Mezzanine A Borrower and/or Mortgage Borrower to comply with any Mortgage Loan Cash Management Provisions Mezzanine A Loan Cash Management Provisions and/or the first full monthly payment of principal Waived Cash Management Provisions, as applicable, and interest under the Note is does not paid when due; cure such failure within ten (10) days after written notice thereof, (ii) Borrower fails to comply with any provisions hereof relating to cash management or fails cause Mortgage Borrower to appoint a new property manager upon the request of Lender, when required to do so pursuant to this Agreement or fails to cooperate with any New Manager or fails cause Mortgage Borrower to comply with any limitations on instructing the property manager, each as required by and in accordance with, as applicable, the terms and provisions of, this Agreement, the Assignment of Management Agreement and the Security Instrumentother Loan Documents; (iii) any representation, warranty or covenant contained in Article 5 hereof is violated or Article 6 breached which results in the substantive consolidation of Borrower, Mortgage Borrower or any SPE Component Entity (as defined herein and in the Mortgage Loan Agreement) with any other Person that is a debtor in any proceeding under the Bankruptcy Code or any other Creditors Rights Laws; (iv) a Prohibited Transfer occurs, (v) a Bankruptcy Event occurs; (vi) Section 11.1 hereof is violated or breached; (iv) a Bankruptcy Event occurs; or (vvii) Sections 11.1 the Ground Lease is terminated or 11.6 hereof are violated cancelled or breached the Renewal Deadline occurs and Lender has not received evidence acceptable to Lender of the renewal of the Ground Lease in any material respectaccordance with its terms.
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 Security Instrument or the other Loan Documents by any action or proceeding wherein a money judgment or any deficiency judgment or other judgment establishing personal liability shall be sought against Borrower or any principalofficer, director, officer, employee, beneficiary, shareholder, partner, member, trusteeprincipal, agent, or Affiliate employee of Borrower or any legal representativesdirect or indirect owner of Borrower (provided that the foregoing shall not limit in any manner, successors or assigns the liability of any of the foregoing (collectively, the “Exculpated Parties”Guarantor), except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender to enforce and realize upon its interest under the Note, this Agreement, the Security Instrument and the other Loan Documents, or in the PropertyProperty (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 Property, in the Rents and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Security Instrument and the other Loan Documents, agrees that it shall not xxx sue for, seek or demand any deficiency judgment against Borrower or any of the Exculpated Parties in any such action or proceeding under or by reason of or under or in connection with the Note, this Agreement, the Security Instrument or the other Loan Documents. The provisions of this Section 9.3 shall not, however, (1i) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (2ii) impair the right of Lender to name Borrower as a party defendant in any action or suit for foreclosure and sale under the Security Instrument; (3iii) affect the validity or enforceability of any indemnityguaranty, guaranty indemnity or similar instrument (including, without limitation, indemnities set forth in Article 12 hereof, Section 11.2 hereof, in the Guaranty and the Environmental Indemnity) agreement or undertaking made in connection with the Loan or any of the rights and remedies of Lender thereunder (including, without limitation, Lender’s right to enforce said rights and remedies against Borrower and/or Guarantor (as applicable) personally and without the effect of the exculpatory provisions of this Article 13)thereunder; (4) impair the rights of Lender to (A) obtain the appointment of a receiver and/or (B) enforce its rights and remedies provided in Articles 8 and 9 hereof; (5) impair the enforcement of the assignment of leases and rents contained in the Security Instrument and in any other Loan Documents; (6iv) impair the right of Lender to enforce Section 4.12(e) obtain the appointment of this Agreementa receiver; (7v) impair the enforcement of any assignment of leases contained in the Security Instrument and any other Loan Documents; or (vi) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted by the Security Instrument (if required by applicable law and provided such deficiency judgment is not enforced personally against Borrower or any officer, director, shareholder, partner, member, principal, employee of Borrower or any direct or indirect owner of Borrower (excluding Guarantor under the Guaranty and Environmental Indemnity, as applicable)) or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against the Property; Property (or any portion thereof).
(8) constitute a waiver of b) Nothing contained herein shall in any manner or way release, affect or impair the right of Lender to enforce the liability and obligation of recover from Borrower, by money judgment and Borrower shall be fully and personally liable and subject to legal action, for any actual out-of-pocket loss, cost, expense, damage, claim or otherwise, to the extent of any Loss incurred by Lender other obligation (including reasonable out-of-pocket attorneys’ fees and costs reasonably incurredexpenses and other collection and litigation expenses, but excluding consequential, punitive, special, indirect and exemplary damages or diminutions in value) incurred or suffered by Lender arising out of or in connection with the following:
(i) fraud or intentional misrepresentation by any Borrower Party or Guarantor in connection with the Loan;
(ii) the gross negligence or willful misconduct of any Borrower Partyor Guarantor;
(iii) arson or any litigation or other legal proceeding related intentional material physical waste of the Property, provided, however, that if Borrower does not have sufficient cash flow on a current basis to the Debt filed by prevent waste, any waste shall not be deemed intentional and Borrower Party 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 other Loan Documentsshall have no liability under this clause (iii);
(iv) waste to the Property caused by the intentional acts or intentional omissions of any Borrower Party and/or the removal or disposal of any portion of the Property after by Borrower during the continuance of an Event of Default, unless such removed or disposed portion of the Property is subsequently replaced with property of equal or greater utility or value;
(v) the misapplicationmisappropriation, misappropriation misapplication or conversion by Borrower or Guarantor, or any Borrower Party Affiliate of the foregoing, of (A) any insurance proceeds 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 a Condemnation of all or a portion of the PropertyProperty during the continuance of an Event of Default, (C) any Rents following an Event of Default or other Property income or collateral proceeds, or (D) any Tenant Rents paid more than one month in advance (including security deposits or Rents collected in advancedeposits) during the continuance of an Event of Default;
(vi) any act following the occurrence and during the continuance of arson an Event of Default, the failure to either apply rents or other Property income, collected after such Event of Default, to the ordinary, customary, and necessary expenses of operating the Property or, upon demand, to deliver such rents or other Property income to Lender (or otherwise to the Clearing Account or Cash Management Account, as required by any Borrower Party or of which any Borrower Party has knowledgethis Agreement);
(vii) failure to maintain insurance or to pay Taxestaxes and assessments, or to pay charges for labor or materials or other charges or judgments that can create liens Liens on any portion of the Property in accordance with (unless Lender is escrowing funds therefor and fails to make such payments or has taken possession of the terms Property following an Event of Default, has received all Rents from the Property applicable to the period for which such insurance, taxes or other items are due, and provisions hereofthereafter fails to make such payments), it being acknowledged that if Borrower does not have sufficient cash flow on a current basis to maintain insurance or to pay taxes and assessments or to pay charges for labor or materials or other charges or judgments (unless such charges were incurred following the occurrence and during the continuance of an Event of Default) that create Liens on any portion of the Property, Borrower shall have no liability under this clause (vii);
(viii) failure to pay Insurance Premiums, to maintain the Policies in full force and effect and/or to provide Lender evidence of the same, in each case, as expressly provided herein;
(ix) any security deposits, advance deposits or any other deposits collected with respect to the Property which are not delivered to Lender upon a foreclosure of the Property or action in lieu thereof, except to the extent any such security deposits were (A) applied or returned to Tenants in accordance with the terms and conditions of any of the Leases prior to the occurrence of the Event of Default that gave rise to such foreclosure or action in lieu thereofthereof or (B) previously delivered to Lender to be applied to repay the Loan;
(ix) any voluntary Liens, other than Permitted Encumbrances and Liens described in Sections 9.3(b)(vii) or 9.3(c)(B) hereof;
(x) any tax on the making and/or recording of the Security Instrument, the Note or failure by Borrower to comply with any of the other Loan Documents representations, warranties or any transfer covenants set forth in Sections 4.1.37 or similar taxes (whether due upon the making of the same or upon Lender’s exercise of its remedies under the Loan Documents), but excluding any income, franchise or other similar taxes5.1.19 hereof;
(xi) the seizure or forfeiture of Violations; provided, however, that there shall be no liability pursuant to this clause (xi) with respect to a particular Violation at an Individual Property from and after the Property, or any portion thereof, or Borrower’s interest therein, resulting from criminal wrongdoing by any date that Borrower Partyhas cured such Violation and delivered to Lender an update to the applicable zoning report verifying such Violation has been cured;
(xii) the failure to make any Condemnation Payment and/or any Balancing Payment, to permit on-site inspections of the Property and/or to provide the Required Financial Items, in each case, as and when required herein[intentionally omitted];
(xiii) Intentionally Omittedany failure by Borrower to comply with any representation, warranty or covenant set forth in Section 4.1.30 hereof to the extent such failure is not expressly covered by the full recourse event set forth in Section 9.3(c)(D) below;
(xiv) the failure Borrower fails to make repairsobtain Lenxxx’x prior written consent to any Transfer that is not a Full Recourse Transfer, renewals or replacements (including, without limitation, structural and nonstructural, exterior and interior, ordinary and extraordinary, foreseen and unforeseen) to the Property or any portion thereof (including, without limitation, the Improvements now or at any time hereafter erected on the Property) as and when required pursuant to the terms of the Loan Documents or as and when necessary to maintain the Property in good and safe condition, in a rentable and tenantable state of repair and/or in the condition extent required pursuant to the terms of the Loan Documents; and/or;
(xv) [intentionally omitted];
(xvi) Borrower’s failure to comply with the provisions of Sections 5.1.9 hereof;
(xvii) criminal acts of Borrower or Guarantor, or executives of Borrower or Guarantor, resulting in the seizure, forfeiture or loss of the Property;
(xviii) Borxxxxx, xcting in bad faith, fails to cooperate in transferring any indemnity obligations licenses or permits requested by Lender in connection with any foreclosure of the Property, deed in lieu or other transfer of the Property to Lender or Lenxxx’x designee; or
(xix) 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 Security Instruments or any other Loan Document, (a) 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 and (b) the court in any such action or proceeding determines that Guarantor’s, Borrower’s or such Affiliate’s defense or request for judicial intervention (1) was made by Guarantor, Borrower or such Affiliate with the intent to Bank hinder, delay or otherwise interfere with Lender’s exercise of its remedies (whether at law or granted under the Restricted Account Agreement Loan Documents), or (other than those arising as a direct result of Lender’s gross negligence 2) was made in bad faith by Guarantor, Borrower or willful misconduct)such Affiliate.
(bc) Notwithstanding anything to the contrary in this Agreement, the Note or any of the other Loan Documents, Borrower shall be personally liable for the Debt if (A) Borrower fails to obtain Lenxxx’x prior written consent (to the extent such consent is required pursuant to the terms of the Loan Documents) to any Transfer (other than a Transfer approved by Lender or a Transfer in connection with Lender’s enforcement of its rights and remedies)
(1) that results in a change in Control over Borrower or (2) of any of the Property by deed, bill of sale, installment sales agreement or ground lease (excluding any lease to a Tenant in the ordinary course of business) (a “Full Recourse Transfer”); (B) except for any Permitted Encumbrances and Permitted Indebtedness, Borrower fails to obtain Lenxxx’x prior written consent to any Indebtedness or voluntary mortgage, deed of trust, collateral assignment or similar voluntary Lien (including a PXXX Xxxx) encumbering the Property; provided, however, in no event shall a mechanic’s or materialman’s Lien encumbering the Property apply to this clause (B); (C) Borrower shall at any time hereafter make an assignment for the benefit of its creditors; (D) Borrower fails to comply with any representation, warranty or covenant set forth in Section 4.1.30 hereof, which failure is cited as a factor in the substantive consolidation of Borrower with any other entity in connection with any proceeding under the Bankruptcy Code; (E) Borxxxxx xxmits, in any legal proceeding (other than Borrower admitting or making any truthful statement that it has been advised by counsel is required to be admitted or made under applicable laws, regulations or court orders), its insolvency or inability to pay its debts as they become due, provided that neither Borrower nor Guarantor shall have liability under this clause (E) in connection with the delivery of financial statements or any other filing required to be delivered pursuant to a subpoena or any order entered in a bankruptcy proceeding or required under applicable law in connection with any such petition made by any Person which is not an Affiliate of Borrower; or (F) Borrower files, or consents in writing 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 Guarantor colludes with, or otherwise assists any party in connection with such filing, or solicits or causes to be solicited petitioning creditors for any involuntary petition against Borrower from any party (provided, however, that the failure to defend such an involuntary petition where no meritorious defense exists shall not be deemed “assisting” for purposes hereof).
(d) Nothing herein shall be deemed to have waived constitute a waiver by Lender of any right which Lender may have under Section Sections 506(a), 506(b), 1111(b) or any other provisions provision of the Bankruptcy Code to file a claim for the full amount of the Debt or to require that all collateral shall continue to secure all of the Debt owing Debt.
(e) Notwithstanding anything to the contrary contained herein or in any of the other Loan Documents, Borrower shall not have any liability pursuant to this Section 9.3 if a court of competent jurisdiction issues a final non-appealable judgement that any acts or omissions creating liability hereunder were caused by the fraud, bad faith, willful misconduct or gross negligence of Lender or Servicer.
(f) Notwithstanding anything to the contrary contained in accordance with the Loan Documents, other than with respect to the Guarantor under the Guaranty and (B) the Debt Environmental Indemnity, neither Guarantor, nor any officer, director, shareholder, partner, member, principal, employee of, shall have any personal liability for, nor be fully recourse joined as a party to, any action with respect to Borrower in the event that: (i) the first full monthly payment of principal and interest any sum which is or may be payable under this Agreement or the Note is not paid when due; Loan Documents, or (ii) the performance or discharge of any covenants, obligations or undertakings of Borrower. In addition to the foregoing, in no event will the assets of any officer, director, shareholder, partner, member, principal, employee of Borrower fails or Guarantor be available to comply with satisfy any obligation of Guarantor thereunder.
(g) Notwithstanding the foregoing provisions hereof relating of this Section 9.3 or anything to the contrary in this Agreement or the other Loan Documents, (i) Guarantor shall have no liability under Sections 9.3(b)(ix), (xiii), or (xiv) or Section 9.3(c) for Permitted Equipment Financing or Permitted Trade Payables that constituted Permitted Equipment Financing or Permitted Trade Payables when incurred but, due to insufficient cash management flow at the Property, subsequently breaches the definition of Permitted Equipment Financing or fails to appoint a new property manager upon Permitted Trade Payables by being outstanding for longer than any time period specified in such definitions, or by exceeding the request of Lender, fails to cooperate with any New Manager one percent (1%) or fails to comply with any limitations on instructing the property manager, each as required by and in accordance withtwo percent (2%) cap, as applicable, specified in such definitions, and (ii) Guarantor shall have no liability under any of the terms Loan Documents with respect to liabilities or obligations arising from events, acts, omissions, facts or circumstances first occurring from and provisions ofafter the date that Lender (or any Affiliate, this Agreementdesignee, agent, nominee, successor to or assignee of Lender) takes title to the Assignment Property or the ownership interests in Borrower pursuant to a foreclosure, deed-in-lieu of Management Agreement foreclosure, assignment-in-lieu of foreclosure, other exercise of remedies under the Loan Documents or any other means, and which do not arise as a result of the Security Instrumentacts of Guarantor or any Affiliate thereof; (iii) provided, however, that Guarantor’s liability shall be automatically reinstated upon any representationsuch foreclosure or conveyance being set aside, warranty rescinded or covenant contained in Article 5 or Article 6 hereof is violated or breached; (iv) a Bankruptcy Event occurs; or (v) Sections 11.1 or 11.6 hereof are violated or breached in any material respectinvalidated.
Appears in 1 contract
Exculpation. (a) Subject to the qualifications below, Lender Optionee agrees that it shall not enforce the liability and obligation of Borrower Optionor to perform and observe the obligations contained in the Note, this Agreement, the Security Instrument or the other Loan Documents Agreement by any action or proceeding wherein a against any Optionor Exculpated Party (as hereinafter defined), and shall not sue for, seek or demand any money judgment against any direct or any deficiency judgment or other judgment establishing personal liability shall be sought against Borrower or any principalindirect member, director, officer, employee, beneficiarymanager, shareholder, partner, memberbeneficiary or other owner of beneficial ownership interests in Optionor, trusteeor any director, officer, agent, attorney, employee or Affiliate of Borrower or any legal representatives, successors or assigns trustee of any of the foregoing (each, an “Optionor Exculpated Party” and, collectively, the “Optionor Exculpated Parties”), except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender to enforce and realize upon its interest under the Note, this Agreement, the Security Instrument and the other Loan Documents, or in the 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 Property, in the Rents and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Security Instrument and the other Loan Documents, shall not xxx for, seek or demand any deficiency judgment against Borrower or any of the Exculpated Parties in any such action or proceeding ) under or by reason of or under or in connection with the Note, this Agreement, the Security Instrument or the other Loan Documents. The provisions of this Section 21(a) shall not, however, (1i) constitute a waiver, release or impairment of any obligation evidenced of Optionor hereunder; or secured by any of the Loan Documents; (2ii) impair the right of Lender Optionee to name Borrower Optionor as a party defendant in any action or suit for foreclosure and sale under the Security Instrument; (3) affect the validity or enforceability of any indemnity, guaranty or similar instrument (including, without limitation, indemnities set forth in Article 12 hereof, Section 11.2 hereof, in the Guaranty and the Environmental Indemnity) made in connection with the Loan or any of the rights and remedies of Lender thereunder (including, without limitation, Lender’s right to enforce said rights and remedies against Borrower and/or Guarantor (as applicable) personally and without the effect of the exculpatory provisions of this Article 13); (4) impair the rights of Lender to (A) obtain the appointment of a receiver and/or (B) enforce its rights and remedies provided in Articles 8 and 9 hereof; (5) impair the enforcement of the assignment of leases and rents contained in the Security Instrument and in any other Loan Documents; (6) impair the right of Lender to enforce Section 4.12(e) of this Agreement; .
(7b) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted by the Security Instrument or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against the Property; or (8) constitute a waiver of the right of Lender to Optionor agrees that it shall not enforce the liability and obligation of BorrowerOptionee to perform and observe the obligations contained in this Agreement by any action or proceeding against any Optionee Exculpated Party (as hereinafter defined), by and shall not sue 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 Optionee, or any director, officer, agent, attorney, employee or trustee of any Loss incurred of the foregoing (each, an “Optionee Exculpated Party” and, collectively, the “Optionee Exculpated Parties”) under or 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 21(b) shall not, however, (i) fraud constitute a waiver, release or intentional misrepresentation by impairment of any Borrower Party in connection with the Loan;
obligation of Optionee hereunder; or (ii) impair the gross negligence or willful misconduct right of any Borrower Party;
(iii) any litigation or other legal proceeding related Optionor to the Debt filed by any Borrower Party 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 other Loan Documents;
(iv) waste to the Property caused by the intentional acts or intentional omissions of any Borrower Party and/or the removal or disposal of any portion of the Property after an Event of Default;
(v) the misapplication, misappropriation or conversion by any Borrower Party 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 Rents following an Event of Default or (D) any Tenant security deposits or Rents collected in advance;
(vi) any act of arson by any Borrower Party or of which any Borrower Party has knowledge;
(vii) failure to pay Taxes, charges for labor or materials or other charges that can create liens on any portion of the Property in accordance with the terms and provisions hereof;
(viii) failure to pay Insurance Premiums, to maintain the Policies in full force and effect and/or to provide Lender evidence of the same, in each case, as expressly provided herein;
(ix) any security deposits, advance deposits or any other deposits collected with respect to the Property which are not delivered to Lender upon a foreclosure of the 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;
(x) any tax on the making and/or recording of the Security Instrument, the Note or any of the other Loan Documents or any transfer or similar taxes (whether due upon the making of the same or upon Lender’s exercise of its remedies under the Loan Documents), but excluding any income, franchise or other similar taxes;
(xi) the seizure or forfeiture of the Property, or any portion thereof, or Borrower’s interest therein, resulting from criminal wrongdoing by any Borrower Party;
(xii) the failure to make any Condemnation Payment and/or any Balancing Payment, to permit on-site inspections of the Property and/or to provide the Required Financial Items, in each case, as and when required herein;
(xiii) Intentionally Omitted;
(xiv) the failure to make repairs, renewals or replacements (including, without limitation, structural and nonstructural, exterior and interior, ordinary and extraordinary, foreseen and unforeseen) to the Property or any portion thereof (including, without limitation, the Improvements now or at any time hereafter erected on the Property) as and when required pursuant to the terms of the Loan Documents or as and when necessary to maintain the Property in good and safe condition, in a rentable and tenantable state of repair and/or in the condition required pursuant to the terms of the Loan Documents; and/or
(xv) any indemnity obligations of Lender to Bank under the Restricted Account Agreement (other than those arising name Optionee as a direct result of Lender’s gross negligence party defendant in any action or willful misconduct)suit under this Agreement.
(bc) Notwithstanding anything to The provisions of this Section 21 shall survive the contrary in Closing, the expiration of the Option Period and the termination of 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 Debt or to require that all collateral shall continue to secure all of the Debt owing to Lender in accordance with the Loan Documents, and (B) the Debt shall be fully recourse to Borrower in the event that: (i) the first full monthly payment of principal and interest under the Note is not paid when due; (ii) Borrower fails to comply with any provisions hereof relating to cash management or fails to appoint a new property manager upon the request of Lender, fails to cooperate with any New Manager or fails to comply with any limitations on instructing the property manager, each as required by and in accordance with, as applicable, the terms and provisions of, this Agreement, the Assignment of Management Agreement and the Security Instrument; (iii) any representation, warranty or covenant contained in Article 5 or Article 6 hereof is violated or breached; (iv) a Bankruptcy Event occurs; or (v) Sections 11.1 or 11.6 hereof are violated or breached in any material respect.
Appears in 1 contract
Samples: Mta Project Documents
Exculpation. (a) Subject to Except as otherwise provided herein or in the qualifications belowother Loan Documents, Lender shall not enforce the liability and obligation of Borrower to perform and observe the obligations contained herein or in the Note, this Agreement, the Security Instrument or the other Loan Documents by any action or proceeding wherein a money judgment or any deficiency judgment or other judgment establishing personal liability shall be sought against (1) Borrower (except as set forth in this Section 15.1 and the Environmental Indemnity), (2) Guarantor (except as set forth in the Guaranty and the Environmental Indemnity), (3) any Affiliate of Borrower, (4) any Person owning, directly or indirectly, any legal or beneficial interest in Borrower or any principal, director, officer, employee, beneficiary, shareholder, Affiliate of Borrower or (5) any direct or indirect limited partner, member, principal, officer, beneficiary, trustee, agentshareholder, Affiliate or Affiliate of Borrower or any legal representatives, successors or assigns director of any of the foregoing Persons described in clauses (1) through (5) above (collectively, subject to the exceptions in clauses (i) and (ii) below, the “Exculpated Parties”), except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender to enforce and realize upon its interest under the Note, this Agreement, the Security Instrument Note, the Pledge Agreements and the other Loan Documents, or and the interest in the Property, the Rents, or Collateral and any other collateral given to Lender pursuant to created by this Agreement, the Note, the Pledge Agreements and the other Loan Documents; provided, however, that, except as specifically provided herein, that any judgment in any such action or proceeding shall be enforceable against Borrower Borrower, only to the extent of Borrower’s interest in the Property, in the Rents Collateral and in any other collateral given to Lender, and . Lender, by accepting the Note, this Agreement, the Security Instrument Note, the Pledge Agreements and the other Loan Documents, agrees that it shall not not, except as otherwise provided in this Section 15.1, xxx for, seek or demand any deficiency judgment against Borrower or any of the Exculpated Parties Party in any such action or proceeding proceeding, under or by reason of or under or in connection with the Note, this Agreement, the Security Instrument Note, the Pledge Agreements or the other Loan Documents. The provisions of this Section 15.1 shall not, however, (1i) constitute a waiver, release or impairment of any obligation evidenced or secured by any of this Agreement, the Note, the Pledge Agreements or the other Loan Documents; (2ii) impair the right of Lender to name Borrower or Ashford Keys Senior Operating Lessee as a party defendant in any action or suit for judicial foreclosure and sale under this Agreement and the Security InstrumentPledge Agreements; (3iii) affect the validity or enforceability of any indemnity, guaranty or similar instrument indemnity (including, without limitation, indemnities set forth those contained in Article 12 hereof, Section 11.2 hereof, in the Guaranty 14 of this Agreement and the Environmental Indemnity) ), guaranty, master lease or similar instrument made in connection with this Agreement, the Loan or any of Note, the rights Pledge Agreements and remedies of Lender thereunder (including, without limitation, Lender’s right to enforce said rights and remedies against Borrower and/or Guarantor (as applicable) personally and without the effect of the exculpatory provisions of this Article 13); (4) impair the rights of Lender to (A) obtain the appointment of a receiver and/or (B) enforce its rights and remedies provided in Articles 8 and 9 hereof; (5) impair the enforcement of the assignment of leases and rents contained in the Security Instrument and in any other Loan Documents; (6iv) impair the right of Lender to enforce Section 4.12(e) obtain the appointment of this Agreementa receiver; (7v) constitute a prohibition against Lender to seek a deficiency judgment against Borrower impair the enforcement of the provisions contained in order to fully realize the security granted by the Security Instrument or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against the PropertyPledge Agreements; or (8) constitute a waiver of vi) impair the right of Lender to enforce the liability and obligation of Borrower, by money obtain a deficiency judgment or otherwiseother judgment on the Note against Borrower if necessary to obtain any Net Liquidation Proceeds After Debt Service to which Lender would otherwise be entitled under this Agreement; provided, however, Lender shall only enforce such judgment to the extent of any Loss the Insurance Proceeds and/or Awards.
(b) Notwithstanding the provisions of this Section 15.1 to the contrary, Borrower shall be personally liable to Lender for Losses incurred by Lender (including attorneys’ fees and costs reasonably incurred) arising out of or in connection with the followingdue to:
(i) fraud or intentional misrepresentation by Borrower, Mortgage Borrower, Operating Lessee, Ashford Keys Senior Operating Lessee, Guarantor or any Borrower Party Affiliate of any of the foregoing in connection with the execution and the delivery of this Agreement, the Note, the Pledge Agreements, 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 or during the term of the Loan;
(ii) the gross negligence or willful misconduct of any Borrower an Exculpated Party;
(iii) Remington’s or any litigation Exculpated Party’s misapplication, misappropriation or other legal proceeding related to conversion of Rents received by Mortgage Borrower during the Debt filed by any Borrower Party that delays, opposes, impedes, obstructs, hinders, enjoins or otherwise interferes with or frustrates the efforts continuance of Lender to exercise any rights and remedies available to Lender as provided herein and in the other Loan Documentsan Event of Default;
(iv) waste any Exculpated Party’s misapplication, misappropriation or conversion of tenant security deposits (including the failure to deliver to Mortgage Lender tenant security deposits upon foreclosure or deed in lieu thereof, to the Property caused by extent not applied in accordance with the intentional acts or intentional omissions applicable Leases prior to the occurrence of any Borrower Party and/or the removal or disposal of any portion of the Property after an Event of Default) or Rents collected in advance;
(v) the misapplication, misappropriation or conversion of Insurance Proceeds or Awards by any Borrower Party 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 Rents following an Event of Default or (D) any Tenant security deposits or Rents collected in advanceExculpated Party;
(vi) any act of arson by any Borrower Party Borrower’s or of which any Borrower Party has knowledge;
(vii) Mortgage Borrower’s failure to pay Property Taxes, Insurance Premiums, Other Charges (provided that there shall be no liability hereunder to the extent that (A) sums sufficient to pay such amounts have been deposited in escrow with Lender or Mortgage Lender pursuant to the terms hereof or the Mortgage Loan Agreement and neither Borrower nor Mortgage Borrower has made a claim against such escrowed amounts or otherwise taken action to restrict Lender or Mortgage Lender from applying such sums for the purpose of paying such items) or (B) there is insufficient cash flow from the operation of the Properties to pay such items), charges for labor or materials or other charges that can create liens on any portion Individual Property beyond any applicable notice and cure periods specified herein;
(vii) Borrower’s or Mortgage Borrower’s failure to return or to reimburse Lender for all Personal Property taken from any Individual Property by or on behalf of Borrower, Mortgage Borrower, Ashford Keys Senior Operating Lessee or Operating Lessee and not replaced with Personal Property of the same utility and of the same or greater value;
(viii) material physical waste to any Individual Property caused by the intentional acts or omissions of any Exculpated Party when there is sufficient cash flow from the operation of any Individual Property to avoid such waste from occurring;
(ix) intentionally omitted;
(x) Borrower’s or Mortgage Borrower’s assertion or raising of any defense to a proceeding instituted by Lender (whether judicial or otherwise) for the foreclosure of the Pledge Agreements or the Collateral following an Event of Default caused by Borrower’s failure to timely pay the Monthly Payment Amount or the Debt due on the Maturity Date, which defense is determined by a court of competent jurisdiction to be without merit or brought in bad faith;
(xi) Borrower’s failure to cause Mortgage Borrower to pay to Mortgage Lender each PIP Required Deposit (as defined in the Mortgage Loan Agreement) in accordance with the terms and provisions hereof;
(viii) failure to pay Insurance Premiums, to maintain hereof or the Policies in full force and effect and/or to provide Lender evidence of the same, in each case, as expressly provided herein;
(ix) any security deposits, advance deposits or any other deposits collected with respect to the Property which are not delivered to Lender upon a foreclosure of the 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;
(x) any tax on the making and/or recording of the Security Instrument, the Note or any of the other Mortgage Loan Documents or any transfer or similar taxes (whether due upon the making of the same or upon Lender’s exercise of its remedies under the Loan Documents), but excluding any income, franchise or other similar taxes;
(xi) the seizure or forfeiture of the Property, or any portion thereof, or Borrower’s interest therein, resulting from criminal wrongdoing by any Borrower PartyAgreement;
(xii) the failure breach of any representation, warranty or covenant of (i) Borrower with respect to make itself or any Condemnation Payment and/or SPE Component Entity set forth in Article 6 hereof (other than Section 6.1(a)(xv) and (xviii)) or (ii) any Balancing Payment, Ashford Keys Senior Operating Lessee with respect to permit on-site inspections itself or any Ashford Keys Senior Operating Lessee Principal as set forth in Paragraph 14 of the Property and/or to provide the Required Financial Items, in each case, as Senior Mezzanine Operating Lease Agreement (other than Paragraph 14(h) and when required herein(q) thereof);
(xiii) Intentionally OmittedBorrower’s or Mortgage Borrower’s misappropriation or conversion of Net Liquidation Proceeds After Debt Service or any distributions or other payments with respect thereto in violation of this Agreement;
(xiv) Borrower or Ashford Keys Senior Operating Lessee making a distribution to its direct or indirect legal or beneficial owners after the failure to make repairs, renewals occurrence and during the continuance of an Event of Default in violation of this Agreement or replacements (including, without limitation, structural and nonstructural, exterior and interior, ordinary and extraordinary, foreseen and unforeseen) to the Property or any portion thereof (including, without limitation, the Improvements now or at any time hereafter erected on the Property) as and when required pursuant to the terms of the Loan Documents or as and when necessary to maintain the Property in good and safe condition, in a rentable and tenantable state of repair and/or in the condition required pursuant to the terms of the other Loan Documents; and/oror
(xv) the failure of Mortgage Borrower and/or Operating Lessee to make any indemnity obligations required contributions pursuant to the Collective Bargaining Agreement, whether or not such failure results in an Event of Lender Default hereunder (provided that there shall be no liability hereunder to Bank under the Restricted Account Agreement (other than those arising as a direct result extent that there is insufficient cash flow from the operation of Lender’s gross negligence or willful misconductthe applicable Individual Property to make such required contributions).
(bc) Notwithstanding anything 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 and the contrary Debt shall be fully recourse to Borrower in the event (i) of a breach by any Recourse Entity of any of the covenants set forth in Article 6 hereof or Paragraph 14 of the Senior Mezzanine Operating Lease Agreement, that is cited as a factor in a court’s decision that results in a substantive consolidation (other than a substantive consolidation petitioned for or joined in by Lender) of any Recourse Entity with any other Person (excluding another Borrower or Ashford Keys Senior Operating Lessee) in a proceeding under any Creditors’ Rights Laws, (ii) Borrower or Ashford Keys Senior Operating Lessee incurs any voluntary secured Indebtedness other than the Debt and Permitted Debt (as defined in this Agreement, the Note Mortgage Loan Agreement and the Junior Mezzanine Loan Agreement) without the prior written consent of Lender or except as expressly permitted in this Agreement, the Mortgage Loan Agreement or the Junior Mezzanine Loan Agreement, (iii) Mortgage Borrower or Operating Lessee incurs any Indebtedness other than the Debt and Permitted Debt (as defined in the Mortgage Loan Agreement) (excluding Indebtedness relating to trade payables incurred in the ordinary course of business, mechanic’s or other similar liens, such as statutory liens, judgment liens or lis pendens) without the prior written consent of Mortgage Lender or except as expressly permitted in the Mortgage Loan Agreement, (iv) of the occurrence of a Prohibited Transfer, excluding a foreclosure or deed in lieu of the Properties, a foreclosure of the Collateral or assignment-in-lieu of the Collateral or a foreclosure of the Junior Mezzanine Collateral or an assignment-in-lieu of the Junior Mezzanine Collateral, (v) the Properties or the Collateral or any part thereof shall become an asset in a bankruptcy or insolvency proceeding initiated by any Recourse Entity, Guarantor or any Affiliate, officer, director, or representative which Controls, directly or indirectly, any Recourse Entity or Guarantor files, or joins in the filing of, an involuntary petition against any Recourse Entity under any Creditors Rights Laws, or solicits or causes to be solicited petitioning creditors or colludes with petitioning creditors for the filing of any involuntary petition against any Recourse Entity from any Person under any Creditors Rights Laws; (vi) any Recourse Entity files an answer consenting to or otherwise acquiescing in or joining in any involuntary petition filed against it, by any other Person under any Creditors Rights Laws, or solicits or causes to be solicited petitioning creditors for any involuntary petition from any Person; (vii) other than with the written consent of Lender, any Affiliate, officer, director, or representative which Controls any Recourse Entity consents to or acquiesces in or joins in an application for the appointment of a custodian, receiver, trustee, or examiner for any Recourse Entity or any portion of the Loan Documents, Properties or the Collateral; (Aviii) Lender [intentionally omitted] or (ix) [intentionally omitted].
(d) Nothing herein shall not be deemed to have waived be a waiver of 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 Debt indebtedness secured by the Pledge Agreements or to require that all collateral shall continue to secure all of the Debt indebtedness owing to Lender in accordance with this Agreement, the Note, the Pledge Agreements or the other Loan Documents.
(e) Notwithstanding anything to the contrary in this Section 15.1, and (B) the Debt shall be fully recourse to Borrower in the event that: (i) Borrower and Guarantor shall have no liability under this Section 15.1 to the extent such liability solely arises (1) as a result of any exercise of remedies, foreclosure, deed-in-lieu of foreclosure or assignment-in-lieu of foreclosure by Lender, Mortgage Lender or Junior Mezzanine Lender, (2) as a result of an act or omission of Lender or a third-party purchaser or any Affiliate or subsidiary of any of the foregoing (including Mortgage Borrower) following Lender or such third-party taking title to the Collateral pursuant to a foreclosure, assignment-in-lieu of foreclosure or otherwise with respect to the Collateral, (3) as a result of an act or omission of Junior Mezzanine Lender or a third-party purchaser or any Affiliate or subsidiary of any of the foregoing (including Borrower and Mortgage Borrower) following Junior Mezzanine Lender or such third-party purchaser or any Affiliate or subsidiary of any of the foregoing (including Borrower and Mortgage Borrower) taking title to the Collateral (as defined in the Junior Mezzanine Loan Agreement) pursuant to a foreclosure or an assignment-in-lieu of foreclosure or otherwise with respect to the Collateral (as defined in the Junior Mezzanine Loan Agreement), or (4) as a result of an act or an omission of the Mortgage Lender or a third party purchaser or any Affiliate thereof following a foreclosure, deed-in-lieu of foreclosure or otherwise with respect to the Properties; unless in each case, such act or omission was caused by Borrower, Guarantor or any of their respective Affiliates (but only prior to such Exculpated Party becoming an Affiliate of Lender, Mortgage Lender or Junior Mezzanine Lender or any purchaser at any foreclosure of the Loan, the Mortgage Loan or the Junior Mezzanine Loan) or such acts or omissions are the proximate result of acts, events, conditions, or circumstances that existed prior to the date of such foreclosure, deed in lieu of foreclosure or assignment in lieu of foreclosure, whether or not discovered prior or subsequent to the date of such foreclosure, deed in lieu of foreclosure or assignment in lieu of foreclosure, provided, however, Borrower and Guarantor will bear the burden of proof to show that an event triggering liability of Borrower or Guarantor under this Section 15.1 first full monthly payment occurred after such foreclosure, deed in lieu of principal foreclosure or assignment in lieu of foreclosure, was not the proximate result of events that first occurred prior to such foreclosure, deed in lieu of foreclosure or assignment in lieu of foreclosure and interest under was not caused by any Exculpated Party (but only prior to such Exculpated Party becoming an Affiliate of Lender, Mortgage Lender or Junior Mezzanine Lender or any purchaser at any foreclosure of the Note is not paid when dueLoan, the Mortgage Loan or the Junior Mezzanine Loan) or their respective Affiliates; (ii) Borrower fails and Guarantor shall have no liability under Section 15.1(b) to comply with the extent such liability solely arises after (A) Lender or a third-party has taken title to the Collateral pursuant to a foreclosure, assignment-in-lieu of foreclosure or otherwise; (B) Junior Mezzanine Lender or a third party has taken title to the Collateral (as determined in the Junior Mezzanine Loan Agreement) pursuant to a foreclosure, assignment-in-lieu of foreclosure or otherwise, or (C) Mortgage Lender or a third party has taken title to the Properties pursuant to a foreclosure, deed-in-lieu of foreclosure or otherwise; and (iii) no Operating Lessee shall have any provisions hereof relating liability under this Section 15.1, the Guaranty, or the Environmental Indemnity, except to cash management the extent that such liability arises as a result of any act or fails omission of such Operating Lessee (but only prior to appoint a new property manager upon the request such Operating Lessee becoming an Affiliate of Lender, fails to cooperate with Mortgage Lender or Junior Mezzanine Lender or any New Manager or fails to comply with purchaser at any limitations on instructing foreclosure of the property manager, each as required by and in accordance with, as applicableLoan, the terms and provisions ofMortgage Loan or the Junior Mezzanine Loan), provided, however, such Operating Lessee will bear the burden of proof to show that an event triggering liability of Operating Lessee under this AgreementSection 15.1 was not caused by Operating Lessee (but only prior to such Operating Lessee becoming an Affiliate of Lender, Mortgage Lender or Junior Mezzanine Lender or any purchaser at any foreclosure of the Loan, the Assignment of Management Agreement and Mortgage Loan or the Security Instrument; (iii) any representation, warranty or covenant contained in Article 5 or Article 6 hereof is violated or breached; (iv) a Bankruptcy Event occurs; or (v) Sections 11.1 or 11.6 hereof are violated or breached in any material respectJunior Mezzanine Loan).
Appears in 1 contract
Samples: Senior Mezzanine Loan Agreement (Ashford Hospitality Trust Inc)
Exculpation. (a) Subject to Except as otherwise provided herein or in the qualifications belowother Loan Documents, Lender shall not enforce the liability and obligation of Borrower to perform and observe the obligations contained herein or in the Note, this Agreement, the Security Instrument or the other Loan Documents by any action or proceeding wherein a money judgment or any deficiency judgment or other judgment establishing personal liability shall be sought against (1) Borrower (except as set forth in this Section 15.1 and the Environmental Indemnity), (2) Guarantor (except as set forth in the Guaranty and the Environmental Indemnity), (3) any Affiliate of Borrower, (4) any Person owning, directly or indirectly, any legal or beneficial interest in Borrower or any principal, director, officer, employee, beneficiary, shareholder, Affiliate of Borrower or (5) any direct or indirect limited partner, member, principal, officer, beneficiary, trustee, agentshareholder, Affiliate or Affiliate of Borrower or any legal representatives, successors or assigns director of any of the foregoing Persons described in clauses (1) through (5) above (collectively, subject to the exceptions in clauses (i) and (ii) below, the “Exculpated Parties”), except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender to enforce and realize upon its interest under the Note, this Agreement, the Security Instrument Note, the Mortgages and the other Loan Documents, or and the interest in the PropertyProperties, the Rents, or Rents and any other collateral given to Lender pursuant to created by this Agreement, the Note, the Mortgages and the other Loan Documents; provided, however, that, except as specifically provided herein, that any judgment in any such action or proceeding shall be enforceable against Borrower Borrower, only to the extent of Borrower’s interest in the PropertyProperties, in the Rents and in any other collateral given to Lender, and . Lender, by accepting the Note, this Agreement, the Security Instrument Note, the Mortgages and the other Loan Documents, agrees that it shall not not, except as otherwise provided in this Section 15.1, xxx for, seek or demand any deficiency judgment against Borrower or any of the Exculpated Parties Party in any such action or proceeding proceeding, under or by reason of or under or in connection with the Note, this Agreement, the Security Instrument Note, the Mortgages or the other Loan Documents. The provisions of this Section 15.1 shall not, however, (1i) constitute a waiver, release or impairment of any obligation evidenced or secured by any of this Agreement, the Note, the Mortgages or the other Loan Documents; (2ii) impair the right of Lender to name Borrower or Operating Lessee as a party defendant in any action or suit for judicial foreclosure and sale under this Agreement and the Security InstrumentMortgages; (3iii) affect the validity or enforceability of any indemnity, guaranty or similar instrument indemnity (including, without limitation, indemnities set forth those contained in Article 12 hereof, Section 11.2 hereof, in the Guaranty 14 of this Agreement and the Environmental Indemnity) ), guaranty, master lease or similar instrument made in connection with this Agreement, the Note, the Mortgages and the other Loan or any of the rights and remedies of Lender thereunder (including, without limitation, Lender’s right to enforce said rights and remedies against Borrower and/or Guarantor (as applicable) personally and without the effect of the exculpatory provisions of this Article 13)Documents; (4iv) impair the rights right of Lender to (A) obtain the appointment of a receiver and/or (B) enforce its rights and remedies provided in Articles 8 and 9 hereofreceiver; (5v) impair the enforcement of the assignment of leases and rents provisions contained in the Security Instrument and in any other Loan DocumentsMortgages; or (6vi) impair the right of Lender to enforce Section 4.12(e) of obtain a deficiency judgment or other 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; (7) constitute a prohibition against provided, however, Lender to seek a deficiency shall only enforce such judgment against Borrower in order to fully realize the security granted by the Security Instrument or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against the Property; or (8) constitute a waiver of the right of Lender to enforce the liability and obligation of Borrower, by money judgment or otherwise, to the extent of any Loss the Insurance Proceeds and/or Awards.
(b) Notwithstanding the provisions of this Section 15.1 to the contrary, Borrower shall be personally liable to Lender for Losses incurred by Lender (including attorneys’ fees and costs reasonably incurred) arising out of or in connection with the followingdue to:
(i) fraud or intentional misrepresentation by Borrower, Operating Lessee, Guarantor or any Borrower Party Affiliate of any of the foregoing in connection with the execution and the delivery of this Agreement, the Note, the Mortgages, 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 or during the term of the Loan;
(ii) the gross negligence or willful misconduct of any Borrower an Exculpated Party;
(iii) Remington’s or any litigation Exculpated Party’s misapplication, misappropriation or other legal proceeding related to conversion of Rents received by Borrower during the Debt filed by any Borrower Party that delays, opposes, impedes, obstructs, hinders, enjoins or otherwise interferes with or frustrates the efforts continuance of Lender to exercise any rights and remedies available to Lender as provided herein and in the other Loan Documentsan Event of Default;
(iv) waste any Exculpated Party’s misapplication, misappropriation or conversion of tenant security deposits (including the failure to deliver to Lender tenant security deposits upon foreclosure or deed in lieu thereof, to the Property caused by extent not applied in accordance with the intentional acts or intentional omissions applicable Leases prior to the occurrence of any Borrower Party and/or the removal or disposal of any portion of the Property after an Event of Default) or Rents collected in advance;
(v) the misapplication, misappropriation or conversion of Insurance Proceeds or Awards by any Borrower Party 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 Rents following an Event of Default or (D) any Tenant security deposits or Rents collected in advanceExculpated Party;
(vi) any act of arson by any Borrower Party or of which any Borrower Party has knowledge;
(vii) Borrower’s failure to pay Property Taxes, Insurance Premiums, Other Charges (provided that there shall be no liability hereunder to the extent that (A) sums sufficient to pay such amounts have been deposited in escrow with Lender pursuant to the terms hereof and Borrower has not made a claim against such escrowed amounts or otherwise taken action to restrict Lender from applying such sums for the purpose of paying such items) or (B) there is insufficient cash flow from the operation of the Properties to pay such items), charges for labor or materials or other charges that can create liens on any portion Individual Property beyond any applicable notice and cure periods specified herein;
(vii) Borrower’s failure to return or to reimburse Lender for all Personal Property taken from any Individual Property by or on behalf of Borrower or Operating Lessee and not replaced with Personal Property of the same utility and of the same or greater value;
(viii) material physical waste to any Individual Property caused by the intentional acts or omissions of any Exculpated Party when there is sufficient cash flow from the operation of any Individual Property to avoid such waste from occurring;
(ix) intentionally omitted;
(x) Borrower’s assertion or raising of any defense to a proceeding instituted by Lender (whether judicial or otherwise) for the foreclosure of the Mortgages following an Event of Default caused by Borrower’s failure to timely pay the Monthly Payment Amount or the Debt due on the Maturity Date, which defense is determined by a court of competent jurisdiction to be without merit or brought in bad faith;
(xi) Borrower’s failure to pay to Lender each PIP Required Deposit in accordance with the terms and provisions hereof;
(viii) failure to pay Insurance Premiums, to maintain the Policies in full force and effect and/or to provide Lender evidence of the same, in each case, as expressly provided herein;
(ix) any security deposits, advance deposits or any other deposits collected with respect to the Property which are not delivered to Lender upon a foreclosure of the 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;
(x) any tax on the making and/or recording of the Security Instrument, the Note or any of the other Loan Documents or any transfer or similar taxes (whether due upon the making of the same or upon Lender’s exercise of its remedies under the Loan Documents), but excluding any income, franchise or other similar taxes;
(xi) the seizure or forfeiture of the Property, or any portion thereof, or Borrower’s interest therein, resulting from criminal wrongdoing by any Borrower Party;
(xii) the failure breach of any representation, warranty or covenant of (i) any Borrower with respect to make itself or any Condemnation Payment and/or SPE Component Entity set forth in Article 6 hereof (other than Section 6.1(a)(xv) and (xviii)) or (ii) any Balancing Payment, Operating Lessee with respect to permit on-site inspections itself or any Operating Lessee Principal as set forth in Paragraph 15 of the Property and/or to provide the Required Financial Items, in each case, as Operating Lease Subordination Agreement (other than Paragraph 15(h) and when required herein(q) thereof);
(xiiiA) Intentionally Omitted;if without the prior written consent of Lender, Borrower or Operating Lessee votes for, or permits any Condominium Board to effectuate (but only to the extent that the relevant Condominium Documents give Borrower or Operating Lessee authority to prevent the same), any material modification or amendment to any of the terms or provisions of such Condominium Documents so as to decrease the value of the applicable Individual Property in any material respect (including but not limited to any modification or amendment that decreases Borrower’s or Operating Lessee’s voting rights and control with respect to such Condominium Board); (B) if Borrower votes or elects to have any Individual Property be withdrawn from a Condominium regime established by the Condominium Act in connection with any condemnation, any casualty or otherwise, without Lender’s written consent, which consent shall not be unreasonably withheld, delayed or conditioned; or (C) if Borrower or Operating Lessee votes or elects to have any Condominium be terminated without Lender’s written consent; or
(xiv) the failure to make repairs, renewals or replacements (including, without limitation, structural and nonstructural, exterior and interior, ordinary and extraordinary, foreseen and unforeseen) with respect to the Individual Property commonly referred to as Sheraton San Diego Mission Valley, following the occurrence of a Casualty or Condemnation, any portion thereof shortfall (including, without limitation, the Improvements now or at any time hereafter erected on the Propertywhich shortfall shall be reasonably determined by Lender) as and when required pursuant to the terms of the Loan Documents or as and when necessary to maintain the Property in good and safe condition, in a rentable and tenantable state of repair and/or in the condition required pursuant to the terms of the Loan Documents; and/or
(xv) any indemnity obligations of Lender to Bank under the Restricted Account Agreement (other than those arising as a direct result of Lender’s gross negligence or willful misconduct).
(b) Notwithstanding anything to the contrary in this Agreement, the Note or any of the Loan Documents, between (A) Lender shall not be deemed the sum of any Net Proceeds and any insurance proceeds referred to have waived any right which Lender may have under in Section 506(a), 506(b), 1111(b8.1(a)(iii) or any other provisions of the Bankruptcy Code to file a claim for the full amount of the Debt or to require that all collateral shall continue to secure all of the Debt owing to Lender in accordance with the Loan Documents, and (B) the Allocated Loan Amount of such Individual Property, but only solely due to the fact, if applicable, that the complete Restoration of such Individual Property is not permitted by applicable law due to any legal nonconforming status of such Individual Property.
(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 and the Debt shall be fully recourse to Borrower in the event that: (i) of a breach by Borrower, any SPE Component Entity, Operating Lessee or any Operating Lessee Principal of any of the first full monthly payment covenants set forth in Article 6 hereof or Paragraph 15 of principal and interest the Operating Lease Subordination Agreement, as applicable, that is cited as a factor in a court’s decision that results in a substantive consolidation (other than a substantive consolidation petitioned for or joined in by Lender) of Borrower or Operating Lessee with any other Person (excluding another Borrower or Operating Lessee) in a proceeding under the Note is not paid when due; any Creditors’ Rights Laws, (ii) Borrower fails to comply with or Operating Lessee incurs any provisions hereof voluntary secured Indebtedness other than the Debt and Permitted Debt (excluding Indebtedness relating to cash management trade payables incurred in the ordinary course of business, mechanic’s or fails to appoint a new property manager upon other similar liens, such as statutory liens, judgment liens or lis pendens) without the request prior written consent of Lender, fails to cooperate with any New Manager Lender or fails to comply with any limitations on instructing the property manager, each except as required by and expressly permitted in accordance with, as applicable, the terms and provisions of, this Agreement, the Assignment of Management Agreement and the Security Instrument; (iii) any representationof the occurrence of a Prohibited Transfer (excluding a mortgage foreclosure or deed-in-lieu of foreclosure); provided, warranty however, Borrower’s liability pursuant to this Section 15.1(c)(iii) resulting from a Prohibited Transfer under Section 7.2(b)(vii) or covenant contained in Article 5 or Article 6 hereof is violated or breached; (iv) a Bankruptcy Event occurs; or (v) Sections 11.1 or 11.6 hereof are violated or breached in any material respect.Section
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 Security Instrument Mortgage or the other Loan Documents by any action or proceeding wherein a money judgment or any deficiency judgment or other judgment establishing personal liability shall be sought against Borrower or any principal, director, officer, employee, beneficiary, shareholder, partner, member, trustee, agent, or Affiliate of Borrower or any legal representatives, successors or assigns of Borrower or its Affiliate or any principals, directors, officers, employees, beneficiaries, shareholders, partners, members, trustees, agents, or Affiliates of any of the foregoing (collectively, but specifically excluding Guarantor to the extent of Guarantor’s liability under the Environmental Indemnity, the Guaranty, any Alterations Deficiency Guaranty or any other guaranty provided in connection with the Loan, the “Exculpated Parties”), except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender to enforce and realize upon its interest under the Note, this Agreement, the Security Instrument Mortgage and the other Loan Documents, or in the Property, the Rents, 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 Property, in the Rents and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Security Instrument Mortgage and the other Loan Documents, shall not xxx for, seek or demand any deficiency judgment against Borrower or any of the Exculpated Parties Party in any such action or proceeding under or by reason of or under or in connection with the Note, this Agreement, the Security Instrument Mortgage or the other Loan Documents. The provisions of this Section 10.1 shall not, however, (1a) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (2b) impair the right of Lender to name Borrower as a party defendant in any action or suit for foreclosure and sale under the Security InstrumentMortgage; (3c) affect the validity or enforceability of any indemnityof the Loan Documents, guaranty or similar instrument (including, without limitation, indemnities set forth in Article 12 hereof, Section 11.2 hereof, in the Guaranty and the Environmental Indemnity) or any other guaranty made in connection with the Loan or any of the rights and remedies of Lender thereunder (including, without limitation, Lender’s right to enforce said rights and remedies against Borrower and/or Guarantor (as applicable) personally and without the effect of the exculpatory provisions of this Article 13)thereunder; (4) impair the rights of Lender to (A) obtain the appointment of a receiver and/or (B) enforce its rights and remedies provided in Articles 8 and 9 hereof; (5) impair the enforcement of the assignment of leases and rents contained in the Security Instrument and in any other Loan Documents; (6d) impair the right of Lender to enforce Section 4.12(e) obtain the appointment of this Agreementa receiver; (7e) impair 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 Security Instrument Mortgage or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against the Property; or (8) h) 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 Loss loss, damage, cost, expense, liability, claim or other obligation reasonably incurred by Lender (including out-of-pocket attorneys’ fees and costs reasonably incurredincurred but excluding any consequential, special or punitive damages) arising out of or in connection with the following:following (all such liability and obligation of Borrower for any or all of the following being referred to herein as “Borrower’s Recourse Liabilities”):
(i) fraud fraudulent acts, willful misconduct or material intentional misrepresentation by Borrower or any Affiliate of Borrower Party in connection with the Loan;
(ii) the gross negligence or willful misconduct breach by Borrower of any Borrower Partyrepresentation, warranty, covenant or indemnification provision in the Environmental Indemnity;
(iii) the intentional misappropriation of any litigation Rents, security deposits or other legal proceeding related income (including, without limitation, the proceeds of any letters of credit held in lieu of a security deposit) by Borrower or any Affiliate of Borrower, except to the Debt filed by any Borrower Party that delays, opposes, impedes, obstructs, hinders, enjoins extent such amounts are applied to the payment of the Obligations or to the payment of operating expenses or Capital Expenditures or otherwise interferes applied in accordance with or frustrates the efforts terms of Lender to exercise any rights and remedies available to Lender as provided herein and in the other Loan Documents;
(iv) any intentional material physical waste to the Property caused by the intentional acts or intentional omissions of any Borrower Party and/or the removal or disposal of any portion of the Property after an Event by Borrower or any Affiliate of DefaultBorrower;
(v) the misapplication, misappropriation commission of any criminal act by Borrower or conversion any Affiliate of Borrower which results in the forfeiture of the Property;
(vi) the intentional misapplication by Borrower or any Affiliate of Borrower Party of (A) any insurance proceeds Insurance Proceeds actually received by Borrower or any Affiliate of Borrower and not paid by reason of any loss, damage to Lender or destruction otherwise applied as required pursuant to the Propertyterms of this Agreement, (B) any Awards or other amounts received in connection with the Condemnation of all or a portion of the Property, (C) Property actually received by Borrower or any Rents following an Event Affiliate of Default Borrower and not paid to Lender or (D) any Tenant security deposits or Rents collected in advance;
(vi) any act otherwise applied as required pursuant to the terms of arson by any Borrower Party or of which any Borrower Party has knowledgethis Agreement;
(vii) failure to pay Taxes, charges for labor all or materials or other charges that can create liens on any portion of the Property being encumbered by a Lien voluntarily granted by Borrower in accordance with violation of the terms and provisions hereofLoan Documents;
(viii) failure to pay Insurance Premiums, to maintain the Policies voluntary incurrence by Borrower of any Indebtedness for borrowed money in full force and effect and/or to provide Lender evidence violation of the same, in each case, as expressly provided hereinprovisions of this Agreement or any other Loan Document (other than Permitted Encumbrances and Permitted Indebtedness);
(ix) the failure by Borrower to deliver to Lender any security deposits, advance deposits or any other deposits collected by Borrower or any Affiliated Manager with respect to the Property which are not delivered to Lender upon a foreclosure of the Property by Lender or any action in lieu thereof, thereof under the Loan Documents (except to the extent any that such security deposits were applied in accordance with the terms and conditions applicable lease or other governing document or Borrower did not have the legal right, because of any a bankruptcy, receivership or similar judicial proceeding, to direct disbursement of the Leases prior to the occurrence of the Event of Default that gave rise to such foreclosure or action in lieu thereof;deposits); and/or
(x) any tax on the making and/or recording voluntary Transfer of the Security Instrument, the Note all or any material portion of the other Loan Documents or any transfer or similar taxes (whether due upon the making of the same or upon Lender’s exercise of its remedies under the Loan Documents), but excluding any income, franchise or other similar taxes;
(xi) the seizure or forfeiture of the Property, or any portion thereof, or Borrower’s interest therein, resulting from criminal wrongdoing by any Borrower Party;
(xii) the failure to make any Condemnation Payment and/or any Balancing Payment, to permit on-site inspections of the Property and/or to provide the Required Financial Items, in each case, as and when required herein;
(xiii) Intentionally Omitted;
(xiv) the failure to make repairs, renewals or replacements (including, without limitation, structural and nonstructural, exterior and interior, ordinary and extraordinary, foreseen and unforeseen) to the Property or any portion thereof (including, without limitation, the Improvements now direct or at indirect interest therein or any time hereafter erected on the Property) as and when required pursuant to the terms Transfer of the Loan Documents any direct or as and when necessary to maintain the Property indirect interest in good and safe conditionBorrower, in a rentable and tenantable state of repair and/or either case, in the condition required pursuant to the terms violation of the Loan Documents; and/or
(xv) any indemnity obligations of Lender to Bank under the Restricted Account Agreement (other than those arising as a direct result of Lender’s gross negligence or willful misconduct).
(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 Debt Obligations or to require that all collateral shall continue to secure all of the Debt Obligations owing to Lender in accordance with the Loan Documents, and (B) the Debt Obligations shall be fully recourse to Borrower in the event that: that any of the following occur (each, a “Springing Recourse Event”): (i) a breach of the first full monthly payment covenants set forth in Schedule V hereof (other than those single purpose entity covenants that relate to solvency or adequacy of principal capital) that results in a substantive consolidation of the assets and interest liabilities of Borrower with any other Person in connection with a proceeding under the Note is not paid when dueBankruptcy Code or under federal, state or foreign insolvency law (other than on motion or pleading seeking a substantive consolidation brought or actively supported by Lender); (ii) Borrower fails or any Affiliate, officer, director or representative which controls Borrower consents to comply or files a voluntary petition with respect to Borrower under the Bankruptcy Code or any provisions hereof relating to cash management other Federal or fails to appoint a new property manager upon the request of Lender, fails to cooperate with any New Manager state bankruptcy or fails to comply with any limitations on instructing the property manager, each as required by and in accordance with, as applicable, the terms and provisions of, this Agreement, the Assignment of Management Agreement and the Security Instrumentinsolvency law; (iii) Borrower files an application for the appointment of a receiver, trustee or examiner for Borrower or any representationportion of the Property, warranty except at the request of or covenant contained in Article 5 or Article 6 hereof is violated or breached; with the consent of Lender, (iv) a the filing of an involuntary petition against Borrower under the Bankruptcy Event occursCode or any other Federal or state bankruptcy or insolvency law by any other Person in which Guarantor or an Affiliate of Guarantor colludes with and/or Guarantor or an Affiliate of Guarantor solicits or causes to be solicited petitioning creditors for any involuntary petition against Borrower by any Person; (v) Borrower files an answer consenting to, or joining in, any involuntary petition filed against it by any other Person under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; or (vvi) Sections 11.1 Borrower makes a general assignment for the benefit of creditors or 11.6 hereof are violated admits, in writing or breached in any material respectlegal proceeding, its insolvency or inability to pay its debts as they become due, which admission is used as evidence of Borrower’s insolvency in connection with an involuntary petition under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law by a Person other than Lender (except for (A) any admissions that Borrower believes in good faith are truthful when made and (B) any such admission to Lender or any servicer of the Loan that Borrower cannot pay its operating expenses (including Debt Service payments due in respect of the Loan) or that Borrower cannot refinance the Loan on the Maturity Date). Notwithstanding anything to the contrary contained herein, Borrower shall not have any liability hereunder (A) for or as a result of any unpaid obligation, lien or encumbrance (such as, without limitation, an obligation, lien or encumbrance for unpaid real estate taxes) resulting from insufficient cash flow at the Property or any Transfer resulting from any such unpaid obligation or Lien, except to the extent that such lack of cash flow arises from the misappropriation or conversion of revenue with respect to the Property, or (B) with respect to any acts, events or circumstances first arising after (1) the date on which Lender or a Person that is not an Affiliate of Borrower or Guarantor acquires title to the Property, whether through foreclosure, private power of sale, the acceptance of a deed-in-lieu of foreclosure or otherwise, except with respect to acts taken by Borrower, Guarantor or any Affiliate of the foregoing on or after such date or (2) the date on which a receiver, trustee, liquidator or conservator, other than any such Person appointed at the request of Borrower, Guarantor or any Affiliate of the foregoing, takes control of the Property, except with respect to acts taken by Borrower, Guarantor or any Affiliate of the foregoing prior to or on or after such date, and further provided that the appointment of a receiver, trustee, liquidator or conservator shall not diminish, reduce or terminate Borrower’s or Guarantor’s liability pursuant to the Environmental Indemnity, or (C) until such time that any notice and cure periods set forth in this Agreement or the other Loan Documents applicable to the action, event or circumstance from which such liability would arise, have expired.
Appears in 1 contract
Exculpation. (a) Subject Notwithstanding anything in the Loan Documents to the contrary, but subject to the qualifications below, Xxxxxx and Borrower agree that:
(i) Borrower shall be liable upon the Debt and for the other obligations arising under the Loan Documents to the full extent (but only to the extent) of Borrower’s interest in the Property; provided, however, that in the event (A) of fraud, willful misconduct or material misrepresentation by Borrower, its general partners, if any, its members, if any, its principals, if any, or by any Guarantor in connection with the loan evidenced by this Note, (B) of a breach or default under Section 4.3 or Article 8 of the Security Instrument, or (C) the Property or any part thereof becomes an asset in a voluntary bankruptcy or insolvency proceeding, the limitation on recourse set forth in this Subsection 10(a) will be null and void and completely inapplicable, and this Note shall be with full recourse to Borrower.
(ii) If an Event of Default occurs and is continuing, Lender shall not enforce the liability and obligation of Borrower to perform and observe the obligations contained in the Note, this Agreement, Note or the Security Instrument or the other Loan Documents by any action or proceeding wherein a money judgment or any deficiency judgment or other judgment establishing personal liability shall be sought against Borrower or any principal, director, officer, employee, beneficiary, shareholder, partner, member, trustee, agent, or Affiliate of Borrower or any legal representatives, successors or assigns of any of the foregoing (collectively, the “Exculpated Parties”)Borrower, except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender to enforce and realize upon its the Security Instrument or any of the Other Loan Documents and the interest in the Property, the Rents and any other collateral for which a lien or security interest has been granted in favor of Lender under the Note, this Agreement, the Security Instrument and the other Loan Documents, or in the Property, the Rents, or any other collateral given to Lender pursuant to 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 BorrowerXxxxxxxx’s interest in the Property, in the Rents and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, for which a lien or security interest has been granted in favor of Lender under the Security Instrument and the other Loan Documents. Xxxxxx, by accepting this Note and the Security Instrument, agrees that it shall not xxx not, except as otherwise herein provided (and only to the extent herein provided), sue for, seek or demand any deficiency judgment against Borrower or any of the Exculpated Parties in any such action or proceeding proceeding, under or by reason of or under or in connection with the this Note, this Agreement, the Other Loan Documents or the Security Instrument or the other Loan Documents. Instrument.
(iii) The provisions of this Section Subsection 10(a) shall not, however, not (1A) constitute a waiver, release or impairment of any obligation evidenced or secured by any of this Note, the Other Loan DocumentsDocuments or the Security Instrument; (2B) impair the right of Lender to name Borrower as a party defendant in any action or suit for judicial foreclosure and sale under the Security Instrument; (3C) affect the validity or enforceability of any indemnity, guaranty guaranty, master lease or similar instrument (including, without limitation, indemnities set forth in Article 12 hereof, Section 11.2 hereof, in the Guaranty and the Environmental Indemnity) made in connection with this Note, the Security Instrument, or the Other Loan or any of the rights and remedies of Lender thereunder (including, without limitation, Lender’s right to enforce said rights and remedies against Borrower and/or Guarantor (as applicable) personally and without the effect of the exculpatory provisions of this Article 13)Documents; (4D) impair the rights right of Lender to (A) obtain the appointment of a receiver and/or (B) enforce its rights and remedies provided in Articles 8 and 9 hereofreceiver; (5E) impair the enforcement of the assignment of leases and rents contained Assignment executed in the Security Instrument and in any other Loan Documentsconnection herewith; (6F) impair the right of Lender to enforce Section 4.12(e) the provisions of this Agreement; (7) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted by Article 11 of the Security Instrument or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against the PropertyInstrument; or (8) constitute a waiver of G) impair the right of Lender to enforce the liability and obligation of Borrower, by money obtain a deficiency judgment or otherwisejudgment on this Note against Borrower if necessary to obtain any insurance proceeds or condemnation awards to which Xxxxxx would otherwise be entitled under the Security Instrument; provided, to however, Lender shall only enforce such judgment against the extent of any Loss incurred by Lender (including attorneys’ fees and costs reasonably incurred) arising out of or in connection with the following:
(i) fraud or intentional misrepresentation by any Borrower Party in connection with the Loan;
(ii) the gross negligence or willful misconduct of any Borrower Party;
(iii) any litigation or other legal proceeding related to the Debt filed by any Borrower Party 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 other Loan Documents;insurance proceeds and/or condemnation awards.
(iv) waste Notwithstanding the provisions of this Article to the Property caused by contrary, Borrower shall be personally liable to Lender for the intentional acts or intentional omissions of any Borrower Party and/or Losses (as defined under the removal or disposal of any portion of the Property after an Event of Default;
(vGuaranty) the misapplication, misappropriation or conversion by any Borrower Party of Lender incurs due to: (A) any insurance proceeds paid the misapplication or misappropriation of Rents by reason of any loss, damage Borrower or destruction to the Property, Guarantor; (B) any Awards the misapplication or other amounts received in connection with the Condemnation misappropriation of all insurance proceeds or a portion of the Property, condemnation awards by Borrower or Guarantor; (C) any Rents following an Event Borrower’s failure to return or to reimburse Lender for all Personal Property taken from the Property by or on behalf of Default Borrower and not replaced with Personal Property of substantially the same utility and of substantially the same or greater value; (D) any Tenant security deposits act of intentional waste or Rents collected in advance;
arson by Xxxxxxxx, any principal, general partner or member thereof or by any Guarantor; (viE) any act fees or commissions paid by Borrower to any principal, affiliate, general partner or member of arson by Borrower or any Borrower Party Guarantor in violation of the terms of this Note, the Security Instrument or of which any Borrower Party has knowledge;
the Other Loan Documents; (viiF) Borrower’s failure to pay Taxes, charges for labor or materials or other charges that can create liens on any portion of the Property in accordance comply with the terms and environmental indemnification provisions hereof;
(viii) failure to pay Insurance Premiums, to maintain the Policies in full force and effect and/or to provide Lender evidence of the same, in each case, as expressly provided herein;
(ix) any security deposits, advance deposits or any other deposits collected with respect to the Property which are not delivered to Lender upon a foreclosure of the 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;
(x) any tax on the making and/or recording Article 11 of the Security Instrument, the Note ; or (G) any breach of the other Loan Documents or any transfer or similar taxes (whether due upon the making of the same or upon Lender’s exercise of its remedies under the Loan Documents), but excluding any income, franchise or other similar taxes;
(xi) the seizure or forfeiture of the Property, or any portion thereof, or Borrower’s interest therein, resulting from criminal wrongdoing by any Borrower Party;
(xii) the failure to make any Condemnation Payment and/or any Balancing Payment, to permit on-site inspections of the Property and/or to provide the Required Financial Items, in each case, as and when required herein;
(xiii) Intentionally Omitted;
(xiv) the failure to make repairs, renewals or replacements (including, without limitation, structural and nonstructural, exterior and interior, ordinary and extraordinary, foreseen and unforeseen) to the Property or any portion thereof (including, without limitation, the Improvements now or at any time hereafter erected on the Property) as and when required pursuant to the terms of the Loan Documents or as and when necessary to maintain the Property in good and safe condition, in a rentable and tenantable state of repair and/or in the condition required pursuant to the terms of the Loan Documents; and/or
(xv) any indemnity obligations of Lender to Bank under the Restricted Account Agreement (other than those arising as a direct result of Lender’s gross negligence or willful misconduct)Environmental Indemnity.
(b) Notwithstanding anything to the contrary in this Agreement, the Note or any of the Loan Documents, (A) Lender Nothing herein shall not be deemed to have waived be a waiver of any right which Lender may have under Section Sections 506(a), 506(b), 1111(b111l (b) or any other provisions of the Bankruptcy Code to file a claim for the full amount of the Debt or to require that all collateral shall continue to secure all of the Debt Debt, owing to Lender in accordance with this Note, the Security Instrument and the Other Loan Documents, and (B) the Debt shall be fully recourse to Borrower in the event that: (i) the first full monthly payment of principal and interest under the Note is not paid when due; (ii) Borrower fails to comply with any provisions hereof relating to cash management or fails to appoint a new property manager upon the request of Lender, fails to cooperate with any New Manager or fails to comply with any limitations on instructing the property manager, each as required by and in accordance with, as applicable, the terms and provisions of, this Agreement, the Assignment of Management Agreement and the Security Instrument; (iii) any representation, warranty or covenant contained in Article 5 or Article 6 hereof is violated or breached; (iv) a Bankruptcy Event occurs; or (v) Sections 11.1 or 11.6 hereof are violated or breached in any material respect.
Appears in 1 contract
Samples: Loan Agreement (Inland American Real Estate Trust, Inc.)
Exculpation. (a) Subject to Except as otherwise provided herein, in the qualifications belowSecurity Instrument or in the Other Security Documents, Lender shall not enforce the liability and obligation of Borrower to perform and observe the obligations contained in the this Note, this Agreement, the Security Instrument or the other Loan Other Security Documents by any action or proceeding wherein a money judgment or any deficiency judgment or other judgment establishing personal liability shall be sought against Borrower or any principal, director, officer, employee, beneficiary, shareholder, partner, member, trustee, agent, or Affiliate of Borrower or any legal representatives, successors or assigns of any of the foregoing (collectively, the “Exculpated Parties”)Borrower, except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender to enforce and realize upon its interest under the this Note, the Security Instrument, the Other Security Documents, and the interest in the Property, the Rents (as defined in the Security Instrument) and any other collateral given to Lender created by this AgreementNote, the Security Instrument and the other Loan Documents, or in the Property, the Rents, or any other collateral given to Lender pursuant to 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 only to the extent of Borrower’s 's interest in the Property, in the Rents and in any other collateral given to Lender. Lendxx, xx accepting this Note and Lender, by accepting the Note, this Agreement, the Security Instrument and the other Loan DocumentsInstrument, agrees that it shall not xxx not, except as otherwise provided in this Article 14, sue for, seek or demand any deficiency judgment against Borrower or any of the Exculpated Parties in any such action or proceeding proceeding, under or by reason of or under or in connection with the this Note, this Agreement, the Other Security Documents or the Security Instrument or the other Loan DocumentsInstrument. The provisions of this Section shall not, however, (1i) constitute a waiver, release or impairment of any obligation evidenced or secured by any of this Note, the Loan DocumentsOther Security Documents or the Security Instrument; (2ii) impair the right of Lender to name Borrower as a party defendant in any action or suit for judicial foreclosure and sale under the Security Instrument; (3iii) affect the validity or enforceability of any indemnity, guaranty or similar instrument indemnity (including, without limitation, indemnities set forth in Article 12 hereof, Section 11.2 hereof, the Environmental Indemnity (as defined in the Guaranty and the Environmental Indemnity) made in connection with the Loan or any of the rights and remedies of Lender thereunder Security Instrument)), guaranty (including, without limitation, Lender’s right to enforce said rights and remedies against the Guaranty of Recourse Obligations of Borrower and/or Guarantor (dated as applicable) personally and without the effect of the exculpatory provisions of date hereof given to Lender by FelCor Lodging Trust Incorporated and FelCor Lodging Limited Partnership, master lease or similar instrument made in connection with this Article 13)Note, the Security Instrument, or the Other Security Documents; (4iv) impair the rights right of Lender to (A) obtain the appointment of a receiver and/or (B) enforce its rights and remedies provided in Articles 8 and 9 hereofreceiver; (5v) impair the enforcement of the assignment Assignment of leases Leases and rents contained Rents executed in the Security Instrument and in any other Loan Documentsconnection herewith; (6vi) impair the right of Lender to enforce the provisions of Section 4.12(e) 13.2 of this Agreement; (7) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted by the Security Instrument or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against the PropertyInstrument; or (8) constitute a waiver of vii) 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 condemnation awards to which Lendxx xxxld otherwise be entitled under the Security Instrument; provided however, Lender shall only enforce such judgment to the extent of any Loss incurred by the insurance proceeds and/or condemnation awards.
(b) Notwithstanding the provisions of this Article 14 to the contrary, Borrower shall be personally liable to Lender for the Losses (including attorneys’ fees and costs reasonably incurredas defined in the Security Instrument) arising out of or in connection with the following:
it incurs due to: (i) fraud or intentional misrepresentation by Borrower or any Borrower Party other person or entity in connection with the Loan;
(ii) execution and the gross negligence delivery of this Note, the Security Instrument or willful misconduct of any Borrower Party;
(iii) any litigation or other legal proceeding related to the Debt filed by any Borrower Party 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 other Loan Other Security Documents;
(iv) waste to the Property caused by the intentional acts or intentional omissions of any Borrower Party and/or the removal or disposal of any portion of the Property after an Event of Default;
(v) the misapplication, misappropriation or conversion by any Borrower Party 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 Rents following an Event of Default or (D) any Tenant security deposits or Rents collected in advance;
(vi) any act of arson by any Borrower Party or of which any Borrower Party has knowledge;
(vii) failure to pay Taxes, charges for labor or materials or other charges that can create liens on any portion of the Property in accordance with the terms and provisions hereof;
(viii) failure to pay Insurance Premiums, to maintain the Policies in full force and effect and/or to provide Lender evidence of the same, in each case, as expressly provided herein;
(ix) any security deposits, advance deposits or any other deposits collected with respect to the Property which are not delivered to Lender upon a foreclosure of the 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;
(x) any tax on the making and/or recording of the Security Instrument, the Note or any of the other Loan Documents or any transfer or similar taxes (whether due upon the making of the same or upon Lender’s exercise of its remedies under the Loan Documents), but excluding any income, franchise or other similar taxes;
(xi) the seizure or forfeiture of the Property, or any portion thereof, or Borrower’s interest therein, resulting from criminal wrongdoing by any Borrower Party;
(xii) the failure to make any Condemnation Payment and/or any Balancing Payment, to permit on-site inspections of the Property and/or to provide the Required Financial Items, in each case, as and when required herein;
(xiii) Intentionally Omitted;
(xiv) the failure to make repairs, renewals or replacements (including, without limitation, structural and nonstructural, exterior and interior, ordinary and extraordinary, foreseen and unforeseen) to the Property or any portion thereof (including, without limitation, the Improvements now or at any time hereafter erected on the Property) as and when required pursuant to the terms of the Loan Documents or as and when necessary to maintain the Property in good and safe condition, in a rentable and tenantable state of repair and/or in the condition required pursuant to the terms of the Loan Documents; and/or
(xv) any indemnity obligations of Lender to Bank under the Restricted Account Agreement (other than those arising as a direct result of Lender’s gross negligence or willful misconduct).
(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 Debt or to require that all collateral shall continue to secure all of the Debt owing to Lender in accordance with the Loan Documents, and (B) the Debt shall be fully recourse to Borrower in the event that: (i) the first full monthly payment of principal and interest under the Note is not paid when due; (ii) Borrower fails to comply with any provisions hereof relating to cash management or fails to appoint a new property manager upon the request of Lender, fails to cooperate with any New Manager or fails to comply with any limitations on instructing the property manager, each as required by and in accordance with, as applicable, the terms and provisions of, this Agreement, the Assignment of Management Agreement and the Security Instrument; (iii) any representation, warranty or covenant contained in Article 5 or Article 6 hereof is violated or breached; (iv) a Bankruptcy Event occurs; or (v) Sections 11.1 or 11.6 hereof are violated or breached in any material respect.
Appears in 1 contract
Exculpation. (a) Subject Notwithstanding anything to the qualifications belowcontrary contained in this Note, the Security Instrument or any Other Security Document (but subject to the provisions of subsections (b), (c) and (d) of this Article 11), Lender shall not enforce the liability and obligation of Borrower to perform and observe the obligations contained in the Note, this Agreement, Note or the Security Instrument or the other Loan Documents by any action or proceeding wherein a money judgment or any deficiency judgment or other judgment establishing any personal liability shall be sought against Borrower or any principal, director, officer, employee, beneficiary, shareholder, partner, member, trustee, agent, agent or Affiliate affiliate of Borrower or any person owning, directly or indirectly, any legal representativesor beneficial interest in Borrower, or any successors or assigns of any of the foregoing (collectively, the “Exculpated Parties”), except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender to enforce and realize upon its interest under the this Note, this Agreement, the Security Instrument Instrument, the Other Security Documents, and the other Loan Documents, or interest in the Property, the Rents, or Rents (as defined in the Security Instrument) and any other collateral given to Lender pursuant to the Loan Documentssecure this Note; provided, however, thatsubject to the provisions of subsections (b), except as specifically provided herein(c) and (d) of this Article 11, that any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent of BorrowerXxxxxxxx’s interest in the Property, in the Rents and in any other collateral given to Lender, and LenderLender to secure this Note. Xxxxxx, by accepting the Note, this Agreement, Note and the Security Instrument and the other Loan DocumentsInstrument, agrees that it shall not xxx not, except as otherwise provided in this Article 11, sue for, seek or demand any deficiency judgment against Borrower or any of the Exculpated Parties Parties, in any such action or proceeding proceeding, under or by reason of or under or in connection with the this Note, this Agreement, the Security Instrument or the other Loan Other Security Documents. The provisions of this Section Article 11 shall not, however, (1i) constitute a waiver, release or impairment of any obligation evidenced or secured by any of this Note, the Loan DocumentsSecurity Instrument or the Other Security Documents delivered to Lender; (2ii) impair the right of Lender to name Borrower as a party defendant in any action or suit for judicial foreclosure and sale under the Security Instrument; (3iii) affect the validity or enforceability of any indemnity, guaranty guaranty, master lease or similar instrument (including, without limitation, indemnities set forth in Article 12 hereof, Section 11.2 hereof, in the Guaranty and the Environmental Indemnity) made in connection with this Note, the Loan Security Instrument, or any of the rights and remedies of Lender thereunder (including, without limitation, Lender’s right to enforce said rights and remedies against Borrower and/or Guarantor (as applicable) personally and without the effect of the exculpatory provisions of this Article 13)Other Security Documents; (4iv) impair the rights right of Lender to (A) obtain the appointment of a receiver and/or (B) enforce its rights and remedies provided in Articles 8 and 9 hereofreceiver; (5v) impair the enforcement of the assignment Assignment of leases Leases and rents contained Rents executed in the Security Instrument and in any other Loan Documentsconnection herewith; (6vi) impair the right of Lender to enforce the provisions of Section 4.12(e12.2 of the Security Instrument or of Section 3.12(e) of this Agreementthe Security Instrument; or (7vii) constitute a prohibition against impair the right of Lender to seek obtain a deficiency judgment or other judgment on the Note against Borrower in order if necessary to fully realize the security granted by the Security Instrument or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against the Property; or .
(8) constitute a waiver b) Notwithstanding the provisions of the right of Lender to enforce the liability and obligation of Borrower, by money judgment or otherwise, this Article II to the extent of any Loss incurred by contrary, Borrower shall be personally liable to Lender for the Losses (including attorneys’ fees and costs reasonably incurredas defined in the Security Instrument) arising out of or in connection with the following:
Lender incurs due to: (i) fraud or intentional misrepresentation by Borrower or any Borrower Party of the Exculpated Parties in connection with the Loan;
; (ii) the gross negligence or willful misconduct of any Borrower Party;
Borrower; (iii) any litigation or other legal proceeding related to the Debt filed by any Borrower Party 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 other Loan Documents;
(iv) waste to the Property caused by the intentional acts or intentional omissions of any Borrower Party and/or the removal or disposal of any portion of the Property after an Event of Default;; (iv) Borrower’s misapplication, misappropriation or conversion of Rents received by Borrower after the occurrence of an Event of Default; (v) Borrower’s misapplication, misappropriation or conversion of tenant security deposits or Rents collected more than one
(v1) month in advance which are not delivered to Lender for application to the Loan; (vi) the misapplication, misappropriation or conversion by any Borrower Party of (A) any insurance proceeds paid by reason of any loss, damage or destruction to condemnation awards; (vii) Personal Property (as defined in the Property, (BSecurity Instrument) any Awards or other amounts received in connection with the Condemnation of all or a portion of the Property, Borrower taken from the Property by or on behalf of Borrower or any of the Exculpated Parties and not replaced with Personal Property of the same utility and of the same or greater value; (C) any Rents following an Event of Default or (D) any Tenant security deposits or Rents collected in advance;
(viviii) any act of arson by Borrower or any of the Exculpated Parties; (ix) any fees or commissions paid by Borrower after the occurrence of an Event of Default to any Exculpated Party in violation of the terms of this Note, the Security Instrument or of which any Borrower Party has knowledge;
the Other Security Documents; (viix) failure to pay Taxes, charges for labor or materials or other charges that can create liens on any portion of the Property in accordance with the terms and provisions hereof;
Property; (viii) failure to pay Insurance Premiums, to maintain the Policies in full force and effect and/or to provide Lender evidence of the same, in each case, as expressly provided herein;
(ixxi) any security deposits, advance deposits or any other deposits collected under leases with respect to the Property which are not being delivered to Lender upon a foreclosure of the 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 applicable Leases (as defined in the Security Instrument) prior to the occurrence of the Event of Default that gave rise to such foreclosure or action in lieu thereof;
(x) any tax on the making and/or recording of the Security Instrument, the Note or any of the other Loan Documents or any transfer or similar taxes (whether due upon the making of the same or upon Lender’s exercise of its remedies under the Loan Documents), but excluding any income, franchise or other similar taxes;
(xi) the seizure or forfeiture of the Property, or any portion thereof, or Borrower’s interest therein, resulting from criminal wrongdoing by any Borrower Party;
; (xii) the any failure to make any Condemnation Payment and/or any Balancing Payment, by Borrower to permit on-site inspections of the Property as required by the Security Instrument and/or to provide the Required Financial Items, in each case, as and when required herein;
Other Security Documents; (xiii) Intentionally Omitted;
(xiv) any failure of Borrower to appoint a new property manager upon the failure to make repairs, renewals or replacements (including, without limitation, structural and nonstructural, exterior and interior, ordinary and extraordinary, foreseen and unforeseen) to the Property or any portion thereof (including, without limitation, the Improvements now or at any time hereafter erected on the Property) request of Lender as and when required pursuant to by the terms of the Loan Documents Security Instrument and/or the Other Security Documents; (xiv) Borrower’s material breach of, or as failure to comply with, the representations, warranties and when necessary to maintain the Property covenants contained in good and safe conditionArticles 5.8(b), in a rentable and tenantable state of repair 5.19 and/or in the condition required pursuant to the terms 12 of the Loan DocumentsSecurity Instrument; and/or
(xv) Borrower’s failure to provide financial information to Lender as required by Section 3.12 of the Security Instrument; and/or (xvi) any indemnity obligations failure by Borrower to comply with any provisions of Lender to Bank under Section 4.2 (e), (f), (g), (i), (j), (k), (m), (n), (o), (p), (q), (r), (s), (t), (u), (v), (w), (x), (y), (z), (aa), (bb), (cc), (dd), (ee), (ff), (gg), (hh), or (ii) of the Restricted Account Agreement (other than those arising as a direct result of Lender’s gross negligence or willful misconduct)Security Instrument.
(bc) Notwithstanding anything to the contrary in this Agreementforegoing, the agreement of Lender not to pursue recourse liability against Borrower as set forth in subsection (a) above as to Borrower 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: (1) the first full monthly payment of principal and interest under this Note is not paid when due; (ii) Borrower fails to comply with any provision of Section 4.2 (a), (b), (c), (d), (h) and (aa) of the Security Instrument; (iii) Borrower defaults under Article 8 of the Security Instrument; (iv) Borrower files a voluntary petition under the U.S. Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (v) an affiliate, officer, director or representative which controls Borrower, directly or indirectly, files, or joins in the filing of, an involuntary petition against Borrower under the U.S. 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 or entity; (vi) Borrower files an answer consenting to or otherwise acquiescing in or joining in any involuntary petition filed against it, by any other person or entity under the U.S. 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 or entity; (vii) any affiliate, officer, director or representative which controls Borrower 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 Loan DocumentsProperty; or
(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.
(Ad) Lender Nothing herein shall not be deemed to have waived be a waiver of 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 Debt indebtedness secured by the Security Instrument or to require that all collateral shall continue to secure all of the Debt indebtedness owing to Lender in accordance with the Loan Documents, and (B) the Debt shall be fully recourse to Borrower in the event that: (i) the first full monthly payment of principal and interest under the Note is not paid when due; (ii) Borrower fails to comply with any provisions hereof relating to cash management or fails to appoint a new property manager upon the request of Lender, fails to cooperate with any New Manager or fails to comply with any limitations on instructing the property manager, each as required by and in accordance with, as applicablethis Note, the terms and provisions of, this Agreement, the Assignment of Management Agreement Security Instrument and the Other Security Instrument; (iii) any representation, warranty or covenant contained in Article 5 or Article 6 hereof is violated or breached; (iv) a Bankruptcy Event occurs; or (v) Sections 11.1 or 11.6 hereof are violated or breached in any material respectDocuments.
Appears in 1 contract
Samples: Promissory Note (AmREIT, Inc.)
Exculpation. (a) Subject to Except as otherwise provided herein or in the qualifications belowother Loan Documents, Lender shall not enforce the liability and obligation of Borrower to perform and observe the obligations contained herein or in the Note, this Agreement, the Security Instrument or the other Loan Documents by any action or proceeding wherein a money judgment or any deficiency judgment or other judgment establishing personal liability shall be sought against (1) Borrower (except as set forth in this Section 15.1 and the Environmental Indemnity), (2) Guarantor (except as set forth in the Guaranty and the Environmental Indemnity), (3) any Affiliate of Borrower, (4) any Person owning, directly or indirectly, any legal or beneficial interest in Borrower or any principal, director, officer, employee, beneficiary, shareholder, Affiliate of Borrower or (5) any direct or indirect limited partner, member, principal, officer, beneficiary, trustee, agentshareholder, Affiliate or Affiliate of Borrower or any legal representatives, successors or assigns director of any of the foregoing Persons described in clauses (1) through (5) above (collectively, subject to the exceptions in clauses (i) and (ii) below, the “Exculpated Parties”), except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender to enforce and realize upon its interest under the Note, this Agreement, the Security Instrument Note, the Pledge Agreements and the other Loan Documents, or and the interest in the Property, the Rents, or Collateral and any other collateral given to Lender pursuant to created by this Agreement, the Note, the Pledge Agreements and the other Loan Documents; provided, however, that, except as specifically provided herein, that any judgment in any such action or proceeding shall be enforceable against Borrower Borrower, only to the extent of Borrower’s interest in the Property, in the Rents Collateral and in any other collateral given to Lender, and . Lender, by accepting the Note, this Agreement, the Security Instrument Note, the Pledge Agreements and the other Loan Documents, agrees that it shall not not, except as otherwise provided in this Section 15.1, xxx for, seek or demand any deficiency judgment against Borrower or any of the Exculpated Parties Party in any such action or proceeding proceeding, under or by reason of or under or in connection with the Note, this Agreement, the Security Instrument Note, the Pledge Agreements or the other Loan Documents. The provisions of this Section 15.1 shall not, however, (1i) constitute a waiver, release or impairment of any obligation evidenced or secured by any of this Agreement, the Note, the Pledge Agreements or the other Loan Documents; (2ii) impair the right of Lender to name Borrower or Ashford Keys Senior Operating Lessee as a party defendant in any action or suit for judicial foreclosure and sale under this Agreement and the Security InstrumentPledge Agreements; (3iii) affect the validity or enforceability of any indemnity, guaranty or similar instrument indemnity (including, without limitation, indemnities set forth those contained in Article 12 hereof, Section 11.2 hereof, in the Guaranty 14 of this Agreement and the Environmental Indemnity) ), guaranty, master lease or similar instrument made in connection with this Agreement, the Loan or any of Note, the rights Pledge Agreements and remedies of Lender thereunder (including, without limitation, Lender’s right to enforce said rights and remedies against Borrower and/or Guarantor (as applicable) personally and without the effect of the exculpatory provisions of this Article 13); (4) impair the rights of Lender to (A) obtain the appointment of a receiver and/or (B) enforce its rights and remedies provided in Articles 8 and 9 hereof; (5) impair the enforcement of the assignment of leases and rents contained in the Security Instrument and in any other Loan Documents; (6iv) impair the right of Lender to enforce Section 4.12(e) obtain the appointment of this Agreementa receiver; (7v) constitute a prohibition against Lender to seek a deficiency judgment against Borrower impair the enforcement of the provisions contained in order to fully realize the security granted by the Security Instrument or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against the PropertyPledge Agreements; or (8) constitute a waiver of vi) impair the right of Lender to enforce the liability and obligation of Borrower, by money obtain a deficiency judgment or otherwiseother judgment on the Note against Borrower if necessary to obtain any Net Liquidation Proceeds After Debt Service to which Lender would otherwise be entitled under this Agreement; provided, however, Lender shall only enforce such judgment to the extent of any Loss the Insurance Proceeds and/or Awards.
(b) Notwithstanding the provisions of this Section 15.1 to the contrary, Borrower shall be personally liable to Lender for Losses incurred by Lender (including attorneys’ fees and costs reasonably incurred) arising out of or in connection with the followingdue to:
(i) fraud or intentional misrepresentation by Borrower, Mortgage Borrower, Operating Lessee, Ashford Keys Senior Operating Lessee, Guarantor or any Borrower Party Affiliate of any of the foregoing in connection with the execution and the delivery of this Agreement, the Note, the Pledge Agreements, 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 or during the term of the Loan;
(ii) the gross negligence or willful misconduct of any Borrower an Exculpated Party;
(iii) Remington’s or any litigation Exculpated Party’s misapplication, misappropriation or other legal proceeding related to conversion of Rents received by Mortgage Borrower during the Debt filed by any Borrower Party that delays, opposes, impedes, obstructs, hinders, enjoins or otherwise interferes with or frustrates the efforts continuance of Lender to exercise any rights and remedies available to Lender as provided herein and in the other Loan Documentsan Event of Default;
(iv) waste any Exculpated Party’s misapplication, misappropriation or conversion of tenant security deposits (including the failure to deliver to Mortgage Lender tenant security deposits upon foreclosure or deed in lieu thereof, to the Property caused by extent not applied in accordance with the intentional acts or intentional omissions applicable Leases prior to the occurrence of any Borrower Party and/or the removal or disposal of any portion of the Property after an Event of Default) or Rents collected in advance;
(v) the misapplication, misappropriation or conversion of Insurance Proceeds or Awards by any Borrower Party 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 Rents following an Event of Default or (D) any Tenant security deposits or Rents collected in advanceExculpated Party;
(vi) any act of arson by any Borrower Party Borrower’s or of which any Borrower Party has knowledge;
(vii) Mortgage Borrower’s failure to pay Property Taxes, Insurance Premiums, Other Charges (provided that there shall be no liability hereunder to the extent that (A) sums sufficient to pay such amounts have been deposited in escrow with Lender or Mortgage Lender pursuant to the terms hereof or the Mortgage Loan Agreement and neither Borrower nor Mortgage Borrower has made a claim against such escrowed amounts or otherwise taken action to restrict Lender or Mortgage Lender from applying such sums for the purpose of paying such items) or (B) there is insufficient cash flow from the operation of the Properties to pay such items), charges for labor or materials or other charges that can create liens on any portion Individual Property beyond any applicable notice and cure periods specified herein;
(vii) Borrower’s or Mortgage Borrower’s failure to return or to reimburse Lender for all Personal Property taken from any Individual Property by or on behalf of Borrower, Mortgage Borrower, Ashford Keys Senior Operating Lessee or Operating Lessee and not replaced with Personal Property of the same utility and of the same or greater value;
(viii) material physical waste to any Individual Property caused by the intentional acts or omissions of any Exculpated Party when there is sufficient cash flow from the operation of any Individual Property to avoid such waste from occurring;
(ix) intentionally omitted;
(x) Borrower’s or Mortgage Borrower’s assertion or raising of any defense to a proceeding instituted by Lender (whether judicial or otherwise) for the foreclosure of the Pledge Agreements or the Collateral following an Event of Default caused by Borrower’s failure to timely pay the Monthly Payment Amount or the Debt due on the Maturity Date, which defense is determined by a court of competent jurisdiction to be without merit or brought in bad faith;
(xi) Borrower’s failure to cause Mortgage Borrower to pay to Mortgage Lender each PIP Required Deposit (as defined in the Mortgage Loan Agreement) in accordance with the terms and provisions hereof;
(viii) failure to pay Insurance Premiums, to maintain hereof or the Policies in full force and effect and/or to provide Lender evidence of the same, in each case, as expressly provided herein;
(ix) any security deposits, advance deposits or any other deposits collected with respect to the Property which are not delivered to Lender upon a foreclosure of the 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;
(x) any tax on the making and/or recording of the Security Instrument, the Note or any of the other Mortgage Loan Documents or any transfer or similar taxes (whether due upon the making of the same or upon Lender’s exercise of its remedies under the Loan Documents), but excluding any income, franchise or other similar taxes;
(xi) the seizure or forfeiture of the Property, or any portion thereof, or Borrower’s interest therein, resulting from criminal wrongdoing by any Borrower PartyAgreement;
(xii) the failure breach of any representation, warranty or covenant of (i) Borrower with respect to make itself or any Condemnation Payment and/or SPE Component Entity set forth in Article 6 hereof (other than Section 6.1(a)(xv) and (xviii)) or (ii) any Balancing Payment, Ashford Keys Senior Operating Lessee with respect to permit on-site inspections itself or any Ashford Keys Senior Operating Lessee Principal as set forth in Paragraph 14 of the Property and/or to provide the Required Financial Items, in each case, as Senior Mezzanine Operating Lease Agreement (other than Paragraph 14(h) and when required herein(q) thereof);
(xiii) Intentionally OmittedBorrower’s or Mortgage Borrower’s misappropriation or conversion of Net Liquidation Proceeds After Debt Service or any distributions or other payments with respect thereto in violation of this Agreement;
(xiv) Borrower or Ashford Keys Senior Operating Lessee making a distribution to its direct or indirect legal or beneficial owners after the failure occurrence and during the continuance of an Event of Default in violation of this Agreement or the other Loan Documents; or
(A) if without the prior written consent of Lender, Borrower, Mortgage Borrower or Operating Lessee votes for, or permits the Condominium Board to make repairseffectuate (but only to the extent that the relevant Condominium Documents give Mortgage Borrower or Operating Lessee authority to prevent the same), renewals any material modification or replacements amendment to any of the terms or provisions of the Condominium Documents so as to decrease the value of the applicable Individual Property in any material respect (includingincluding but not limited to any modification or amendment that decreases Mortgage Borrower’s or Operating Lessee’s voting rights and control with respect to the Condominium Board); (B) if Mortgage Borrower votes or elects to have any Individual Property be withdrawn from the Condominium regime established by the Condominium Act in connection with any condemnation, any casualty or otherwise, without limitationLender’s written consent, structural which consent shall not be unreasonably withheld, delayed or conditioned; or (C) if Mortgage Borrower or Operating Lessee votes or elects to have the Condominium be terminated without Lender’s written consent.
(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 nonstructuralshall be of no further force and effect and the Debt shall be fully recourse to Borrower in the event (i) of a breach by any Recourse Entity of any of the covenants set forth in Article 6 hereof or Paragraph 14 of the Senior Mezzanine Operating Lease Agreement, exterior that is cited as a factor in a court’s decision that results in a substantive consolidation (other than a substantive consolidation petitioned for or joined in by Lender) of any Recourse Entity with any other Person (excluding another Borrower or Ashford Keys Senior Operating Lessee) in a proceeding under any Creditors’ Rights Laws, (ii) Borrower or Ashford Keys Senior Operating Lessee incurs any voluntary secured Indebtedness other than the Debt and interiorPermitted Debt (as defined in this Agreement and the Mortgage Loan Agreement) without the prior written consent of Lender or except as expressly permitted in this Agreement or the Mortgage Loan Agreement, (iii) Mortgage Borrower or Operating Lessee incurs any Indebtedness other than the Debt and Permitted Debt (as defined in the Mortgage Loan Agreement) (excluding Indebtedness relating to trade payables incurred in the ordinary and extraordinarycourse of business, foreseen and unforeseenmechanic’s or other similar liens, such as statutory liens, judgment liens or lis pendens) without the prior written consent of Mortgage Lender or except as expressly permitted in the Mortgage Loan Agreement, (iv) of the occurrence of a Prohibited Transfer (provided, however, Borrower’s liability pursuant to this Section 15.1(c)(iv) resulting from a Prohibited Transfer under Section 7.2(b)(vii) or Section 7.2(b)(viii) shall be limited to the Property Release Price attributable to the applicable Individual Property), excluding a foreclosure or deed in lieu of the Properties, a foreclosure of the Collateral or assignment-in-lieu of the Collateral, (v) the Properties or the Collateral or any part thereof shall become an asset in a bankruptcy or insolvency proceeding initiated by any Recourse Entity, Guarantor or any Affiliate, officer, director, or representative which Controls, directly or indirectly, any Recourse Entity or Guarantor files, or joins in the filing of, an involuntary petition against any Recourse Entity under any Creditors Rights Laws, or solicits or causes to be solicited petitioning creditors or colludes with petitioning creditors for the filing of any involuntary petition against any Recourse Entity from any Person under any Creditors Rights Laws; (vi) any Recourse Entity files an answer consenting to or otherwise acquiescing in or joining in any involuntary petition filed against it, by any other Person under any Creditors Rights Laws, or solicits or causes to be solicited petitioning creditors for any involuntary petition from any Person; (vii) other than with the written consent of Lender, any Affiliate, officer, director, or representative which Controls any Recourse Entity consents to or acquiesces in or joins in an application for the appointment of a custodian, receiver, trustee, or examiner for any Recourse Entity or any portion thereof (including, without limitation, the Improvements now or at any time hereafter erected on the Property) as and when required pursuant to the terms of the Loan Documents Properties or as and when necessary to maintain the Property in good and safe condition, in a rentable and tenantable state of repair and/or in the condition required pursuant to the terms of the Loan DocumentsCollateral; and/or
(xvviii) any indemnity obligations of Lender to Bank under the Restricted Account Agreement [intentionally omitted] or (other than those arising as a direct result of Lender’s gross negligence or willful misconduct)ix) [intentionally omitted].
(bd) Notwithstanding anything to the contrary in this Agreement, the Note or any of the Loan Documents, (A) Lender Nothing herein shall not be deemed to have waived be a waiver of 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 Debt indebtedness secured by the Pledge Agreements or to require that all collateral shall continue to secure all of the Debt indebtedness owing to Lender in accordance with this Agreement, the Note, the Pledge Agreements or the other Loan Documents.
(e) Notwithstanding anything to the contrary in this Section 15.1, and (B) the Debt shall be fully recourse to Borrower in the event that: (i) Borrower and Guarantor shall have no liability under this Section 15.1 to the extent such liability solely arises (1) as a result of any exercise of remedies, foreclosure, deed-in-lieu of foreclosure or assignment-in-lieu of foreclosure by Lender or Mortgage Lender, (2) as a result of an act or omission of Lender or a third-party purchaser or any Affiliate or subsidiary of any of the foregoing (including Mortgage Borrower) following Lender or such third-party taking title to the Collateral pursuant to a foreclosure, assignment-in-lieu of foreclosure or otherwise with respect to the Collateral, (3) [intentionally omitted], or (4) as a result of an act or an omission of the Mortgage Lender or a third party purchaser or any Affiliate thereof following a foreclosure, deed-in-lieu of foreclosure or otherwise with respect to the Properties; unless in each case, such act or omission was caused by Borrower, Guarantor or any of their respective Affiliates (but only prior to such Exculpated Party becoming an Affiliate of Lender, Mortgage Lender or any purchaser at any foreclosure of the Loan or the Mortgage Loan) or such acts or omissions are the proximate result of acts, events, conditions, or circumstances that existed prior to the date of such foreclosure, deed in lieu of foreclosure or assignment in lieu of foreclosure, whether or not discovered prior or subsequent to the date of such foreclosure, deed in lieu of foreclosure or assignment in lieu of foreclosure, provided, however, Borrower and Guarantor will bear the burden of proof to show that an event triggering liability of Borrower or Guarantor under this Section 15.1 first full monthly payment occurred after such foreclosure, deed in lieu of principal foreclosure or assignment in lieu of foreclosure, was not the proximate result of events that first occurred prior to such foreclosure, deed in lieu of foreclosure or assignment in lieu of foreclosure and interest under was not caused by any Exculpated Party (but only prior to such Exculpated Party becoming an Affiliate of Lender, Mortgage Lender or any purchaser at any foreclosure of the Note is not paid when dueLoan or the Mortgage Loan) or their respective Affiliates; (ii) Borrower fails and Guarantor shall have no liability under Section 15.1(b) to comply with the extent such liability solely arises after (A) Lender or a third-party has taken title to the Collateral pursuant to a foreclosure, assignment-in-lieu of foreclosure or otherwise; (B) [intentionally omitted], or (C) Mortgage Lender or a third party has taken title to the Properties pursuant to a foreclosure, deed-in-lieu of foreclosure or otherwise; and (iii) no Operating Lessee shall have any provisions hereof relating liability under this Section 15.1, the Guaranty, or the Environmental Indemnity, except to cash management the extent that such liability arises as a result of any act or fails omission of such Operating Lessee (but only prior to appoint a new property manager upon the request such Operating Lessee becoming an Affiliate of Lender, fails Mortgage Lender or any purchaser at any foreclosure of the Loan or the Mortgage Loan), provided, however, such Operating Lessee will bear the burden of proof to cooperate with show that an event triggering liability of Operating Lessee under this Section 15.1 was not caused by Operating Lessee (but only prior to such Operating Lessee becoming an Affiliate of Lender, Mortgage Lender or any New Manager purchaser at any foreclosure of the Loan or fails to comply with any limitations on instructing the property manager, each as required by and in accordance with, as applicable, the terms and provisions of, this Agreement, the Assignment of Management Agreement and the Security Instrument; (iii) any representation, warranty or covenant contained in Article 5 or Article 6 hereof is violated or breached; (iv) a Bankruptcy Event occurs; or (v) Sections 11.1 or 11.6 hereof are violated or breached in any material respectMortgage Loan).
Appears in 1 contract
Samples: Senior Mezzanine Loan Agreement (Ashford Hospitality Trust Inc)
Exculpation. Paragraph 10 of the Note and Paragraph 10 of the Future Advance Note provide as follows:
(a) Subject Notwithstanding anything in the Loan Documents to the contrary, but subject to the qualifications below, Lender and Borrower agree that:
(i) Borrower shall be liable upon the Debt and for the other obligations arising under the Loan Documents to the full extent (but only to the extent) of the security therefor; provided, however, that in the event (A) of fraud, willful misconduct or material misrepresentation by Borrower, its general partners, if any, its members, if any, its principals, its affiliates, its agents or its employees or by any Guarantor or any Indemnitor in connection with the loan evidenced by this Note, (B) of Borrower's breach or default under Sections 4.3 or 8.2 of the Security Instrument, or (C) the Property or any part thereof becomes an asset in a voluntary bankruptcy or insolvency proceeding, the limitation on recourse set forth in this Subsection 10(a) will be null and void and completely inapplicable, and this Note shall be with full recourse to Borrower.
(ii) If a default occurs in the timely and proper payment of all or any part of the Debt, Lender shall not enforce the liability and obligation of Borrower to perform and observe the obligations contained in the Note, this Agreement, Note or the Security Instrument or the other Loan Documents by any action or proceeding wherein a money judgment or any deficiency judgment or other judgment establishing personal liability shall be sought against Borrower or any principal, director, officer, employee, beneficiary, shareholder, partner, member, trustee, agent, or Affiliate of Borrower or any legal representatives, successors or assigns of any of the foregoing (collectively, the “Exculpated Parties”)Borrower, except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender to enforce and realize upon its interest under the Note, this AgreementSecurity Instrument, the Security Instrument Other Loan Documents and the other Loan Documents, or interest in the Property, the Rents, or Rents and any other collateral given to Lender pursuant to created by the Security Instrument 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 Property, in the Rents and in any other collateral given to Lender, and . Lender, by accepting the Note, this Agreement, Note and the Security Instrument and the other Loan DocumentsInstrument, agrees that it shall not xxx fornot, except as otherwise herein provided, sue xxx, seek or demand any deficiency judgment against Borrower or any of the Exculpated Parties in any such action or proceeding proceeding, under or by reason of or under or in connection with the this Note, this Agreement, the Other Loan Documents or the Security Instrument or the other Loan Documents. Instrument.
(iii) The provisions of this Section Subsection 10(a) shall not, however, not (1A) constitute a waiver, release or impairment of any obligation evidenced or secured by any of this Note, the Other Loan DocumentsDocuments or the Security Instrument; (2B) impair the right of Lender to name Borrower as a party defendant in any action or suit for judicial foreclosure and sale under the Security Instrument; (3C) affect the validity or enforceability of any indemnity, guaranty guaranty, master lease or similar instrument (including, without limitation, indemnities set forth in Article 12 hereof, Section 11.2 hereof, in the Guaranty and the Environmental Indemnity) made in connection with this Note, the Security Instrument, or the Other Loan or any of the rights and remedies of Lender thereunder (including, without limitation, Lender’s right to enforce said rights and remedies against Borrower and/or Guarantor (as applicable) personally and without the effect of the exculpatory provisions of this Article 13)Documents; (4D) impair the rights right of Lender to (A) obtain the appointment of a receiver and/or (B) enforce its rights and remedies provided in Articles 8 and 9 hereofreceiver; (5E) impair the enforcement of the assignment of leases and rents contained Assignment executed in the Security Instrument and in any other Loan Documentsconnection herewith; (6F) impair the right of Lender to enforce Section 4.12(e) the provisions of this Agreement; (7) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted by Article 11 of the Security Instrument or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against the PropertyInstrument; or (8) constitute a waiver of G) impair the right of Lender to enforce the liability and obligation of Borrower, by money obtain a deficiency judgment or otherwisejudgment on this Note against Borrower if necessary to obtain any insurance proceeds or condemnation awards to which Lender would otherwise be entitled under the Security Instrument; provided, to however, Lender shall only enforce such judgment against the extent of any Loss incurred by Lender (including attorneys’ fees and costs reasonably incurred) arising out of or in connection with the following:
(i) fraud or intentional misrepresentation by any Borrower Party in connection with the Loan;
(ii) the gross negligence or willful misconduct of any Borrower Party;
(iii) any litigation or other legal proceeding related to the Debt filed by any Borrower Party 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 other Loan Documents;insurance proceeds and/or condemnation awards.
(iv) waste Notwithstanding the provisions of this Article to the Property caused by contrary, Borrower shall be personally liable to Lender for the intentional acts or intentional omissions of any Borrower Party and/or the removal or disposal of any portion of the Property after an Event of Default;
(v) the misapplication, misappropriation or conversion by any Borrower Party of Losses it incurs due to: (A) any insurance proceeds paid by reason the misapplication or misappropriation of any loss, damage or destruction to the Property, Rents; (B) any Awards the misapplication or other amounts received in connection with the Condemnation misappropriation of all insurance proceeds or a portion of the Property, condemnation awards; (C) any Rents following an Event Borrower's failure to return or to reimburse Lender for all Personal Property taken from the Property by or on behalf of Default Borrower and not replaced with Personal Property of the same utility and of the same or greater value; (D) any Tenant security deposits act of actual waste or Rents collected in advance;
arson by Borrower, any principal, affiliate, general partner or member thereof or by any Indemnitor or any Guarantor; (viE) any act fees or commissions paid by Borrower to any principal, affiliate, general partner or member of arson by Borrower, any Borrower Party Indemnitor or any Guarantor in violation of which any Borrower Party has knowledge;
the terms of this Note, the Security Instrument or the Other Loan Documents; (viiF) Borrower's failure to pay Taxes, charges for labor or materials or other charges that can create liens on any portion of the Property in accordance comply with the terms and provisions hereof;
(viii) failure to pay Insurance Premiums, to maintain the Policies in full force and effect and/or to provide Lender evidence of the same, in each case, as expressly provided herein;
(ix) any security deposits, advance deposits or any other deposits collected with respect to the Property which are not delivered to Lender upon a foreclosure of the 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;
(x) any tax on the making and/or recording Section 11.2 of the Security Instrument, the Note ; or (G) any breach of the other Loan Documents or any transfer or similar taxes (whether due upon the making of the same or upon Lender’s exercise of its remedies under the Loan Documents), but excluding any income, franchise or other similar taxes;
(xi) the seizure or forfeiture of the Property, or any portion thereof, or Borrower’s interest therein, resulting from criminal wrongdoing by any Borrower Party;
(xii) the failure to make any Condemnation Payment and/or any Balancing Payment, to permit on-site inspections of the Property and/or to provide the Required Financial Items, in each case, as and when required herein;
(xiii) Intentionally Omitted;
(xiv) the failure to make repairs, renewals or replacements (including, without limitation, structural and nonstructural, exterior and interior, ordinary and extraordinary, foreseen and unforeseen) to the Property or any portion thereof (including, without limitation, the Improvements now or at any time hereafter erected on the Property) as and when required pursuant to the terms of the Loan Documents or as and when necessary to maintain the Property in good and safe condition, in a rentable and tenantable state of repair and/or in the condition required pursuant to the terms of the Loan Documents; and/or
(xv) any indemnity obligations of Lender to Bank under the Restricted Account Agreement (other than those arising as a direct result of Lender’s gross negligence or willful misconduct)Environmental Indemnity.
(b) Notwithstanding anything to the contrary in this Agreement, the Note or any of the Loan Documents, (A) Lender Nothing herein shall not be deemed to have waived be a waiver of any right which Lender may have under Section Sections 506(a), 506(b), 1111(b) or any other provisions of the Bankruptcy Code to file a claim for the full amount of the Debt or to require that all collateral shall continue to secure all of the Debt Debt, owing to Lender in accordance with this Note, the Security Instrument and the Other Loan Documents, and (B) the Debt shall be fully recourse to Borrower in the event that: (i) the first full monthly payment of principal and interest under the Note is not paid when due; (ii) Borrower fails to comply with any provisions hereof relating to cash management or fails to appoint a new property manager upon the request of Lender, fails to cooperate with any New Manager or fails to comply with any limitations on instructing the property manager, each as required by and in accordance with, as applicable, the terms and provisions of, this Agreement, the Assignment of Management Agreement and the Security Instrument; (iii) any representation, warranty or covenant contained in Article 5 or Article 6 hereof is violated or breached; (iv) a Bankruptcy Event occurs; or (v) Sections 11.1 or 11.6 hereof are violated or breached in any material respect.
Appears in 1 contract
Samples: Open End Mortgage and Security Agreement (First Union Real Estate Equity & Mortgage Investments)
Exculpation. (a) Subject to the qualifications below, Lender shall not enforce the liability and obligation of Borrower to perform and observe the obligations contained in the Note, this Agreement, the Security Instrument Mortgage or the other Loan Documents by any action or proceeding wherein a money judgment or any deficiency judgment or other judgment establishing personal liability shall be sought against Borrower or any principal, director, officer, employee, beneficiary, shareholder, partner, member, trustee, agent, or Affiliate affiliate of Borrower or any immediate family member, legal representatives, successors or assigns of any of the foregoing (collectively, the collectively “Exculpated Parties”), except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender to enforce and realize upon its interest under the Note, this Agreement, the Security Instrument Mortgage and the other Loan Documents, or in the 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 Property, in the Rents and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Security Instrument Mortgage and the other Loan Documents, shall not xxx for, seek or demand any deficiency judgment against Borrower or any of the Exculpated Parties Parties, in any such action or proceeding under or by reason of or under or in connection with the Note, this Agreement, the Security Instrument Mortgage or the other Loan Documents. The provisions of this Section 11.22 shall not, however, (1a) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (2b) impair the right of Lender to name Borrower as a party defendant in any action or suit for foreclosure and sale of the Property under the Security InstrumentMortgage; (3c) affect the validity or enforceability of any indemnity, guaranty guaranty, or similar instrument (including, without limitation, indemnities set forth in Article 12 hereof, Section 11.2 hereof, in the Guaranty and the Environmental Indemnity) made in connection with the Loan or any of the rights and remedies of Lender thereunder (including, without limitation, Lender’s right to enforce said rights and remedies against Borrower and/or Guarantor (as applicable) personally and without the effect of the exculpatory provisions of this Article 13)thereunder; (4d) impair the rights right of Lender to (A) obtain the appointment of a receiver and/or (B) enforce its rights and remedies provided in Articles 8 and 9 hereofreceiver; (5e) impair the enforcement of the assignment Assignment of leases and rents contained in the Security Instrument and in any other Loan DocumentsLeases; (6f) impair the right of Lender to enforce Section 4.12(e) the provisions of this Agreementthe Guaranty or the Environmental Indemnity; (7g) constitute a prohibition against Lender to seek a deficiency judgment against Borrower solely in order to fully realize on any security given by Borrower in connection with the security granted by the Security Instrument Loan or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against the Propertysuch security; or (8) h) 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 Loss actual Losses incurred by Lender (including out-of-pocket attorneys’ fees and costs reasonably incurred) arising out of or in connection with the following:
(ia) fraud or intentional misrepresentation by any Borrower Party in connection with the Loan;
(iib) the gross negligence or willful misconduct of any by Borrower Partyin connection with the Loan;
(iiic) the breach (beyond any litigation applicable grace, notice and/or cure periods) of any representation, warranty, covenant or indemnification provision in the Environmental Indemnity or in any other legal proceeding related to the Debt filed by Loan Document concerning environmental laws, hazardous substances and/or asbestos and any Borrower Party that delays, opposes, impedes, obstructs, hinders, enjoins or otherwise interferes with or frustrates the efforts indemnification of Lender to exercise with respect thereto in any rights and remedies available to Lender as provided herein and in the other Loan Documentssuch document;
(ivd) waste to the Property caused by the intentional acts or intentional omissions of any Borrower Party and/or the removal or disposal of any portion of the Property after or Improvements in violation of the Loan Documents by Borrower during the continuance of an Event of DefaultDefault unless replaced by items of equal value or unless due to obsolescence;
(ve) any intentional physical waste of the Property by Borrower, provided that it shall not be deemed intentional physical waste if the gross revenue generated from the Property after taking into account all payments to be made under the Loan Documents is insufficient to pay amounts to prevent such waste;
(f) the misapplicationforfeiture by Borrower of the Property, misappropriation or conversion any portion thereof, because of the conduct of criminal activity by any Borrower Party Related Party;
(g) except to the extent of funds deposited with Lender in the Insurance Reserve Account, failure of Borrower to (A) obtain and maintain the Policies required to be obtained and maintained in accordance with the provisions of the Loan Documents, and/or (B) pay when due any and all Insurance Premiums required to be paid in connection therewith until such time as Borrower is no longer the owner of all or any portion of the Property, but in all cases solely to the extent the Property is generating sufficient income to pay the same and such income is made available to Borrower for the payment of same;
(A) except to the extent of funds deposited with Lender in the Tax Reserve Account, failure by Borrower to pay when due any and all Taxes and Other Charges, but in all cases solely to the extent the Property is generating sufficient income to pay the same and such income is made available to Borrower for the payment of same, and (B) failure by Borrower to make the $673,589.00 deposit into the Tax Reserve Account on the first Monthly Payment Date;
(i) the misappropriation of or by Borrower of: (A) any insurance proceeds Net Proceeds paid by reason of any loss, damage or destruction to the Property, (B) any Awards or other amounts received in connection with the a Condemnation of all or a portion of the Property, (C) any Rents following or Gross Revenue of any nature in violation of the Loan Documents or during the continuance of an Event of Default or Default, (D) any Tenant security deposits or Rents collected in advance;
(vi) any act of arson by any Borrower Party or of which any Borrower Party has knowledge;
(vii) failure to pay Taxes, charges for labor or materials or other charges that can create liens on any portion of the Property in accordance with the terms and provisions hereof;
(viii) failure to pay Insurance Premiums, to maintain the Policies in full force and effect and/or to provide Lender evidence of the same, in each case, as expressly provided herein;
(ix) any security deposits, advance deposits or any other deposits collected with respect to the Property which are not delivered to Lender upon a foreclosure of the 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 provisions of the Leases prior Loan Documents, (E) any disbursements of Reserve Funds or any funds held by or on behalf of Borrower by Lender under the Loan Documents, or (F) any other funds due to the occurrence any Person or to Lender by Borrower in violation of the Event of Default that gave rise to such foreclosure or action in lieu thereofLoan Documents;
(xj) failure by Borrower to pay charges for labor or materials or other charges that can create Liens on any portion of the Property; provided, however, that there shall be no liability under this clause (j), to the extent (1) cash flow from the Property received by Borrower after paying other expenses of the Property and Debt Service is insufficient to satisfy such charges, or (2) if such cash flow is sufficient, Lender does not permit the use of such cash flow for such purpose;
(k) Borrower fails to obtain Lender’s prior written consent to any Indebtedness or Lien encumbering the Property or any indirect interest (of any form of ownership) in the Property or Borrower (other than Permitted Indebtedness) if such Lien was filed by, or such filing was affirmatively approved or acquiesced to by, a Borrower Related Party; or
(l) any tax on the making and/or recording material breach by Borrower of the Security Instrument, the Note covenants contained in this Agreement or any of the other Loan Documents or any transfer or similar taxes (whether due upon the making of the same or upon Lender’s exercise of its remedies under the Loan Documents), but excluding any income, franchise or other similar taxes;
(xi) the seizure or forfeiture of the Property, or any portion thereof, or Borrower’s interest therein, resulting from criminal wrongdoing by any Borrower Party;
(xii) the failure to make any Condemnation Payment and/or any Balancing Payment, to permit on-site inspections of the Property and/or to provide the Required Financial Items, in each case, as and when required herein;
(xiii) Intentionally Omitted;
(xiv) the failure to make repairs, renewals or replacements (including, without limitation, structural and nonstructural, exterior and interior, ordinary and extraordinary, foreseen and unforeseen) relating to the Property or any portion thereof (including, without limitation, the Improvements now or at any time hereafter erected on the Property) as and when required pursuant to the terms of the Loan Documents or as and when necessary to maintain the Property in good and safe condition, in requirement that Borrower shall be a rentable and tenantable state of repair and/or in the condition required pursuant to the terms of the Loan Documents; and/or
(xv) any indemnity obligations of Lender to Bank under the Restricted Account Agreement (other than those arising as a direct result of Lender’s gross negligence or willful misconduct).
(b) Special Purpose Bankruptcy Remote Entity. 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 Debt or to require that all collateral shall continue to secure all of the Debt owing to Lender in accordance with the Loan Documents, and (B) the Debt shall be fully recourse to Borrower in the event that: that (each, a “Springing Recourse Event”):
(i) the first full monthly payment of principal and interest Borrower files a voluntary petition under the Note is not paid when due; Bankruptcy Code or any other Federal or state bankruptcy or insolvency law;
(ii) any Borrower fails Related Party solicits or causes to comply be solicited petitioning creditors for the filing by any Person(s) of any involuntary petition against Borrower under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law;
(iii) an involuntary petition is filed against Borrower under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law by any Person in which any Borrower Related Party colludes with any provisions hereof relating to cash management or fails to appoint a new property manager upon otherwise assists such Person;
(iv) unless at the request or otherwise with the consent of Lender or its Affiliate, any Borrower Related Party files an answer consenting to, or otherwise acquiescing in, or joining in, any involuntary petition filed against Borrower by any other Person under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law;
(v) unless at the request or otherwise with the consent of Lender or its Affiliate, any Borrower Related Party consents to, or acquiesces in, or joins in, an application for the appointment of a custodian, receiver, trustee or examiner for Borrower or any portion of the Property or colludes with or otherwise assists any Person in filing such an application;
(vi) unless at the request or otherwise with the consent of Lender or its Affiliate, Borrower makes an assignment for the benefit of creditors, or admitting in any legal proceeding, its insolvency or inability to pay its debts as they become due (provided, that if Borrower is required by applicable law to admit the same in a legal proceeding and Borrower is in fact insolvent, then such admission, in and of itself, shall not be a Full Recourse Event);
(vii) other than a Permitted Transfer, the occurrence, without the prior written consent of Lender, fails of any Transfer;
(viii) the breach of any covenant contained herein relating to cooperate the requirement that Borrower and SPC Party shall each be a Special Purpose Entity if Borrower or SPC Party, as a result thereof, is subsequently substantively consolidated with any New Manager other Person; or
(ix) any Borrower Related Party interferes with or fails to comply hinders the prosecution of any enforcement action or exercise of rights or remedies by Lender under any Loan Document, or 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 limitations on instructing security for the property managerLoan (other than those actions taken, each as required or those defenses that are raised, by and any Borrower Related Party in accordance with, as applicable, the terms and provisions of, this Agreement, the Assignment of Management Agreement and the Security Instrument; (iii) any representation, warranty or covenant contained in Article 5 or Article 6 hereof is violated or breached; (iv) a Bankruptcy Event occurs; or (v) Sections 11.1 or 11.6 hereof good faith that are violated or breached in any material respectnot frivolous.
Appears in 1 contract
Samples: Loan Agreement (Pacific Oak Strategic Opportunity REIT II, Inc.)
Exculpation. (a) Subject to Except as otherwise provided herein or in the qualifications belowother Loan Documents, Lender shall not enforce the liability and obligation of Borrower to perform and observe the obligations contained herein or in the Note, this Agreement, the Security Instrument or the other Loan Documents by any action or proceeding wherein a money judgment or any deficiency judgment or other judgment establishing personal liability shall be sought against (1) Borrower (except as set forth in this
Section 15.1 and the Environmental Indemnity), (2) Guarantor (except as set forth in the Guaranty and the Environmental Indemnity), (3) any Affiliate of Borrower, (4) any Person owning, directly or indirectly, any legal or beneficial interest in Borrower or any principal, director, officer, employee, beneficiary, shareholder, Affiliate of Borrower or (5) any direct or indirect limited partner, member, principal, officer, beneficiary, trustee, agentshareholder, Affiliate or Affiliate of Borrower or any legal representatives, successors or assigns director of any of the foregoing Persons described in clauses (1) through (5) above (collectively, subject to the exceptions in clauses (i) and (ii) below, the “Exculpated Parties”), except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender to enforce and realize upon its interest under the Note, this Agreement, the Security Instrument Note, the Mortgages and the other Loan Documents, or and the interest in the PropertyProperties, the Rents, or Rents and any other collateral given to Lender pursuant to created by this Agreement, the Note, the Mortgages and the other Loan Documents; provided, however, that, except as specifically provided herein, that any judgment in any such action or proceeding shall be enforceable against Borrower Borrower, only to the extent of Borrower’s interest in the PropertyProperties, in the Rents and in any other collateral given to Lender, and . Lender, by accepting the Note, this Agreement, the Security Instrument Note, the Mortgages and the other Loan Documents, agrees that it shall not not, except as otherwise provided in this Section 15.1, xxx for, seek or demand any deficiency judgment against Borrower or any of the Exculpated Parties Party in any such action or proceeding proceeding, under or by reason of or under or in connection with the Note, this Agreement, the Security Instrument Note, the Mortgages or the other Loan Documents. The provisions of this Section 15.1 shall not, however, (1i) constitute a waiver, release or impairment of any obligation evidenced or secured by any of this Agreement, the Note, the Mortgages or the other Loan Documents; (2ii) impair the right of Lender to name Borrower or Operating Lessee as a party defendant in any action or suit for judicial foreclosure and sale under this Agreement and the Security InstrumentMortgages; (3iii) affect the validity or enforceability of any indemnity, guaranty or similar instrument indemnity (including, without limitation, indemnities set forth those contained in Article 12 hereof, Section 11.2 hereof, in the Guaranty 14 of this Agreement and the Environmental Indemnity) ), guaranty, master lease or similar instrument made in connection with this Agreement, the Note, the Mortgages and the other Loan or any of the rights and remedies of Lender thereunder (including, without limitation, Lender’s right to enforce said rights and remedies against Borrower and/or Guarantor (as applicable) personally and without the effect of the exculpatory provisions of this Article 13)Documents; (4iv) impair the rights right of Lender to (A) obtain the appointment of a receiver and/or (B) enforce its rights and remedies provided in Articles 8 and 9 hereofreceiver; (5v) impair the enforcement of the assignment of leases and rents provisions contained in the Security Instrument and in any other Loan DocumentsMortgages; or (6vi) impair the right of Lender to enforce Section 4.12(e) of obtain a deficiency judgment or other 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; (7) constitute a prohibition against provided, however, Lender to seek a deficiency shall only enforce such judgment against Borrower in order to fully realize the security granted by the Security Instrument or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against the Property; or (8) constitute a waiver of the right of Lender to enforce the liability and obligation of Borrower, by money judgment or otherwise, to the extent of any Loss the Insurance Proceeds and/or Awards.
(b) Notwithstanding the provisions of this Section 15.1 to the contrary, Borrower shall be personally liable to Lender for Losses incurred by Lender (including attorneys’ fees and costs reasonably incurred) arising out of or in connection with the followingdue to:
(i) fraud or intentional misrepresentation by Borrower, Operating Lessee, Guarantor or any Borrower Party Affiliate of any of the foregoing in connection with the execution and the delivery of this Agreement, the Note, the Mortgages, 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 or during the term of the Loan;
(ii) the gross negligence or willful misconduct of any Borrower an Exculpated Party;
(iii) Remington’s or any litigation Exculpated Party’s misapplication, misappropriation or other legal proceeding related to conversion of Rents received by Borrower during the Debt filed by any Borrower Party that delays, opposes, impedes, obstructs, hinders, enjoins or otherwise interferes with or frustrates the efforts continuance of Lender to exercise any rights and remedies available to Lender as provided herein and in the other Loan Documentsan Event of Default;
(iv) waste any Exculpated Party’s misapplication, misappropriation or conversion of tenant security deposits (including the failure to deliver to Lender tenant security deposits upon foreclosure or deed in lieu thereof, to the Property caused by extent not applied in accordance with the intentional acts or intentional omissions applicable Leases prior to the occurrence of any Borrower Party and/or the removal or disposal of any portion of the Property after an Event of Default) or Rents collected in advance;
(v) the misapplication, misappropriation or conversion of Insurance Proceeds or Awards by any Borrower Party 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 Rents following an Event of Default or (D) any Tenant security deposits or Rents collected in advanceExculpated Party;
(vi) any act of arson by any Borrower Party or of which any Borrower Party has knowledge;
(vii) Borrower’s failure to pay Property Taxes, Insurance Premiums, Other Charges (provided that there shall be no liability hereunder to the extent that (A) sums sufficient to pay such amounts have been deposited in escrow with Lender pursuant to the terms hereof and Borrower has not made a claim against such escrowed amounts or otherwise taken action to restrict Lender from applying such sums for the purpose of paying such items) or (B) there is insufficient cash flow from the operation of the Properties to pay such items), charges for labor or materials or other charges that can create liens on any portion Individual Property beyond any applicable notice and cure periods specified herein;
(vii) Borrower’s failure to return or to reimburse Lender for all Personal Property taken from any Individual Property by or on behalf of Borrower or Operating Lessee and not replaced with Personal Property of the same utility and of the same or greater value;
(viii) material physical waste to any Individual Property caused by the intentional acts or omissions of any Exculpated Party when there is sufficient cash flow from the operation of any Individual Property to avoid such waste from occurring;
(ix) intentionally omitted;
(x) Borrower’s assertion or raising of any defense to a proceeding instituted by Lender (whether judicial or otherwise) for the foreclosure of the Mortgages following an Event of Default caused by Borrower’s failure to timely pay the Monthly Payment Amount or the Debt due on the Maturity Date, which defense is determined by a court of competent jurisdiction to be without merit or brought in bad faith;
(xi) Borrower’s failure to pay to Lender each PIP Required Deposit in accordance with the terms and provisions hereof;
(viii) failure to pay Insurance Premiums, to maintain the Policies in full force and effect and/or to provide Lender evidence of the same, in each case, as expressly provided herein;
(ix) any security deposits, advance deposits or any other deposits collected with respect to the Property which are not delivered to Lender upon a foreclosure of the 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;
(x) any tax on the making and/or recording of the Security Instrument, the Note or any of the other Loan Documents or any transfer or similar taxes (whether due upon the making of the same or upon Lender’s exercise of its remedies under the Loan Documents), but excluding any income, franchise or other similar taxes;
(xi) the seizure or forfeiture of the Property, or any portion thereof, or Borrower’s interest therein, resulting from criminal wrongdoing by any Borrower Party;
(xii) the failure to make any Condemnation Payment and/or any Balancing Payment, to permit on-site inspections breach of the Property and/or to provide the Required Financial Items, in each case, as and when required herein;
(xiii) Intentionally Omitted;
(xiv) the failure to make repairs, renewals or replacements (including, without limitation, structural and nonstructural, exterior and interior, ordinary and extraordinary, foreseen and unforeseen) to the Property or any portion thereof (including, without limitation, the Improvements now or at any time hereafter erected on the Property) as and when required pursuant to the terms of the Loan Documents or as and when necessary to maintain the Property in good and safe condition, in a rentable and tenantable state of repair and/or in the condition required pursuant to the terms of the Loan Documents; and/or
(xv) any indemnity obligations of Lender to Bank under the Restricted Account Agreement (other than those arising as a direct result of Lender’s gross negligence or willful misconduct).
(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 Debt or to require that all collateral shall continue to secure all of the Debt owing to Lender in accordance with the Loan Documents, and (B) the Debt shall be fully recourse to Borrower in the event that: (i) the first full monthly payment of principal and interest under the Note is not paid when due; (ii) Borrower fails to comply with any provisions hereof relating to cash management or fails to appoint a new property manager upon the request of Lender, fails to cooperate with any New Manager or fails to comply with any limitations on instructing the property manager, each as required by and in accordance with, as applicable, the terms and provisions of, this Agreement, the Assignment of Management Agreement and the Security Instrument; (iii) any representation, warranty or covenant contained of (i) any Borrower with respect to itself or any SPE Component Entity set forth in Article 5 or Article 6 hereof is violated or breached; (ivother than Section 6.1(a)(xv) a Bankruptcy Event occurs; and (xviii)) or (vii) Sections 11.1 any Operating Lessee with respect to itself or 11.6 hereof are violated or breached any Operating Lessee Principal as set forth in any material respect.Paragraph 15 of the Operating Lease Subordination Agreement (other than Paragraph 15(h) and (q) thereof); or
Appears in 1 contract
Exculpation. (a) Subject to the qualifications below, Lender Agent shall not enforce the liability and obligation of Borrower or Security Guarantor to perform and observe the obligations contained in the Note, this Agreement, the Debenture, the Security Instrument or the other Loan Documents by any action or proceeding wherein a money judgment or any deficiency judgment or other judgment establishing personal liability shall be sought against any Borrower Party, any Affiliate of any Borrower Party, Sponsor, or any principal, director, officer, employee, beneficiary, shareholder, partner, member, trustee, agent, or Affiliate of Borrower any of the foregoing (but specifically excluding Guarantor to the extent Guarantor becomes liable for the same under the Recourse Guaranty) or any legal representatives, successors or assigns of any of the foregoing (collectively, the “Exculpated Parties”), except that Lender Agent may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender Agent to enforce and realize upon its interest under the Note, this Agreement, the Security Instrument Instrument, the Debenture, and the other Loan Documents, or in the Property, the Rents, or any other collateral given to Lender 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 or Security Guarantor only to the extent of Borrower’s or Security Guarantor’s interest in the Property, in the Rents and in any other collateral given to LenderAgent, and Agent (on behalf of Lender), by accepting the Note, this Agreement, the Security Instrument Instrument, the Debenture, and the other Loan Documents, shall not xxx for, seek or demand any deficiency judgment against Borrower Borrower, Security Guarantor, or any of the Exculpated Parties Parties, in any such action or proceeding under or by reason of or under or in connection with the Note, this Agreement, the Security Instrument Instrument, the Debenture, or the other Loan Documents. The provisions of this Section shall not, however, (1a) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (2b) impair the right of Agent or Lender to name Borrower and/or Security Guarantor as a party defendant in any action or suit for foreclosure and sale under the Security InstrumentInstrument or the Debenture; (3c) affect the validity or enforceability of any indemnity, guaranty guaranty, or similar instrument (including, without limitation, indemnities set forth in Article 12 hereof, Section 11.2 hereof, in the Guaranty and the Environmental Indemnity) made in connection with the Loan or any of the rights and remedies of Agent or Lender thereunder (including, without limitation, Lender’s right to enforce said rights and remedies against Borrower and/or Guarantor (as applicable) personally and without the effect of the exculpatory provisions of this Article 13)thereunder; (4d) impair the rights right of Agent or Lender to (A) obtain the appointment of a receiver and/or (B) enforce its rights and remedies provided in Articles 8 and 9 hereofreceiver; (5e) impair the enforcement of the assignment of leases and rents contained in the Security Instrument and in any other Loan Documents; (6f) impair the right of Agent or Lender to enforce the provisions of the Environmental Indemnity or of Section 4.12(e4.1.6(h) of this Agreementhereof; (7g) constitute a prohibition against Agent or Lender to seek a deficiency judgment against Borrower and/or Security Guarantor in order to fully realize on any security given by Borrower and/or Security Guarantor in connection with the security granted by the Security Instrument Loan or to commence any other appropriate action or proceeding in order for Agent or Lender to exercise its remedies against the Propertysuch security; or (8) h) constitute a waiver of the right of Agent or Lender to enforce the liability and obligation of BorrowerBorrower and/or Security Guarantor, by money judgment or otherwise, to the extent of any Loss Losses incurred by Agent or Lender (including reasonable third-party attorneys’ fees and costs reasonably incurred) arising out of or in connection with any of the following:
(i) fraud or intentional willful misrepresentation by any Borrower Party or Sponsor in connection with the LoanLoan or the Property;
(ii) the gross negligence or willful misconduct of any Borrower PartyParty or Sponsor in connection with the Loan or the Property;
(iii) the breach of any litigation or other legal proceeding related to the Debt filed by any Borrower Party that delaysindemnification obligations of Borrower, opposes, impedes, obstructs, hinders, enjoins or otherwise interferes with or frustrates the efforts of Lender to exercise any rights Security Guarantor and remedies available to Lender as provided herein and Guarantor in the Environmental Indemnity or in any other Loan DocumentsDocument;
(iv) waste to the Property (or any portion thereof) caused by the intentional acts or intentional omissions of any Borrower Party and/or or Sponsor, or the removal or disposal of any portion of the Property after an Event of Default;
(v) the misapplication, misappropriation or conversion by any Borrower Party or Sponsor of any of the following, to the extent actually received by any Borrower Party or Sponsor: (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 (D) any Tenant security deposits or Rents collected in advance;
(vi) any Personal Property taken from the Property by or at the direction of any Borrower Party or Sponsor and not replaced with Personal Property of the same utility and of the same of greater value, unless (A) such taken Personal Property is obsolete or otherwise has no material benefit to the use, operation, or value of the Property or (B) such actions were expressly permitted by the Loan Documents;
(vii) any act of arson by any Borrower Party or of which any Borrower Party has knowledgeSponsor;
(viiviii) any fees or commissions paid by Borrower or Security Guarantor or on behalf of Borrower or Security Guarantor after the occurrence of an Event of Default to any Exculpated Party in violation of the terms of the Note, this Agreement, the Security Instrument, the Debenture, or the other Loan Documents;
(ix) failure to (A) pay any charges for labor or materials relating to the Outstanding Work Costs in accordance with the terms and provisions thereof, that can create Liens on any portion of the Property, or (B) pay Taxes, charges for labor or materials materials, or other charges that can create liens Liens on any portion of the Property and/or the failure to pay Insurance Premiums or to maintain the Policies in accordance with the terms hereof; unless, with respect to any Taxes or charges referred to in clause (B) hereof, (1) funds to pay such Taxes or charges were, at the time in question, available in the applicable Reserve Funds and provisions hereofAgent was obligated, but failed, to pay (or make such funds available to pay) such charges or (2) the Operating Income 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 and such charges and liabilities were incurred by Borrower as permitted pursuant to the Loan Documents;
(viii) failure to pay Insurance Premiums, to maintain the Policies in full force and effect and/or to provide Lender evidence of the same, in each case, as expressly provided herein;
(ixx) any security deposits, advance deposits or any other deposits collected with respect to the any Individual Property which are not delivered to Lender Agent upon a foreclosure of the 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;
(xxi) any tax on the making failure by Borrower and/or recording Security Guarantor to permit on-site inspections of the Security Instrument, the Note or any of Individual Property as required by this Agreement and/or the other Loan Documents Documents;
(xii) any failure of Borrower or Security Guarantor terminates any Franchise Agreement or Management Agreement and fails to appoint a replacement Manager or Franchisor in accordance with the terms of this Agreement; except to the extent Borrower or Security Guarantor proposes a Qualified Manager or Qualified Franchisor, as applicable, and Agent or Lender does not consent or unreasonably delays its consent to such Qualified Manager or Qualified Franchisor;
(xiii) if Borrower of Security Guarantor shall fail to indemnify any Lender Indemnitee from and against any and all Losses imposed upon or incurred by or asserted against any Lender Indemnitee and directly or indirectly arising out of or in any way relating to any tax, fee, or charge on the recording, and/or registering of any Security Instrument or any transfer other Loan Document that is required to be filed, registered or similar taxes (whether due upon the making of the same or upon Lender’s exercise of its remedies under recorded in accordance with the Loan Documents), but excluding any income, franchise or other similar taxes;
(xixiv) the occurrence of any event due to political action and/or instability with respect to any Individual Property, to the extent any Losses arising out of such political action and/or instability would typically be covered by a political risk insurance policy, if the same were commercially available, which policy provides for typical coverage over (1) expropriatory acts of any Governmental Authority, (2) currency inconvertibility and non-transfer, (3) political violence, and (4) war and civil war;
(xv) the seizure or forfeiture of the any Individual Property, or any portion thereof, or Borrower’s or Security Guarantor’s interest therein, resulting from criminal wrongdoing by any Borrower PartyParty or Sponsor;
(xiixvi) Borrower or Security Guarantor fails to comply with the failure to make any Condemnation Payment and/or any Balancing Payment, to permit on-site inspections terms of Section 4.1.24 hereof following the Property and/or to provide occurrence and during the Required Financial Items, in each case, as and when required hereincontinuance of an Event of Default;
(xiiixvii) Intentionally OmittedOther than as set forth in clause (iii) of the paragraph below, Borrower or Security Guarantor fails to comply with any provision of Section 3.1.24 hereof or Pledgor or Pledgee fails to comply with any provision of Section 5(h) of the Pledge Agreement;
(xivxviii) Borrower or Security Guarantor terminates or otherwise cancels the failure to make repairs, renewals or replacements (including, without limitation, structural and nonstructural, exterior and interior, ordinary and extraordinary, foreseen and unforeseen) to the Property or any portion thereof (including, without limitation, the Improvements now or at any time hereafter erected on the Property) as and when required pursuant to the terms Franchise Agreement in violation of the Loan Documents or as and when necessary to maintain the Property in good and safe condition, in a rentable and tenantable state of repair and/or in the condition required pursuant to the terms of the Loan Documentsthis Agreement; and/or
(xvxix) any indemnity obligations Borrower’s or Security Guarantor’s use of Lender to Bank under the Restricted Account Agreement (proceeds of the Loan other than those arising as a direct result of Lender’s gross negligence or willful misconduct).
(b) in the manner and for the purposes set forth in Section 2.1.4 hereof. Notwithstanding anything to the contrary in this Agreement, the Note or any of the Loan Documents, (A) Agent and 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 Debt or to require that all collateral shall continue to secure all of the Debt owing to Lender in accordance with the Loan Documents, and (B) the Debt shall be fully recourse to Borrower and Security Guarantor in the event that: (i) the first full monthly payment of principal and interest under the Note is not paid when dueintentionally omitted; (ii) Subject to the terms and provisions set forth in Section 8.2 hereof, Borrower or Security Guarantor fails to comply with the provisions of Section 4.2.1 hereof and Article 8 hereof; (iii) Borrower or Security Guarantor fails to comply with any provisions provision of Section 3.1.24 hereof relating to cash management or fails to appoint a new property manager upon the request of Lender, fails to cooperate with any New Manager Pledgor or Pledgee fails to comply with any limitations on instructing provision of Section 5(h) of the property manager, each as required by and in accordance with, as applicable, the terms and provisions of, this Pledge Agreement, the Assignment in any case that results in a substantive consolidation of Management Agreement and the Security Instrument; (iii) any representation, warranty or covenant contained in Article 5 or Article 6 hereof is violated or breachedRestricted Party with any other Person; (iv) a Bankruptcy Event occursintentionally omitted; or (v) Sections 11.1 Borrower, Security Guarantor, or 11.6 hereof are violated any SPC Party files a voluntary petition under the Bankruptcy code or breached any other Federal or state bankruptcy or insolvency law; (vi) an Affiliate, officer, director, or representative which Controls, directly or indirectly, Borrower, Security Guarantor, or any SPC Party, files, or joins in the filing of, an involuntary petition against Borrower, Security Guarantor, or any SPC Party under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law, or solicits or causes to be solicited petitioning creditors for any involuntary petition against Borrower, Security Guarantor, or any SPC Party from any Person; (vii) Borrower, Security Guarantor, or any SPC Party files an answer consenting to or otherwise affirmatively acquiescing in or joining in any material respectinvoluntary petition filed against it, by any other Person (other than Lender, Agent, or any Lender Indemnitees) 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 Borrower, Security Guarantor, or any SPC Party consents to or affirmatively acquiesces in or joins in an application for the appointment of a custodian, receiver, trustee, or examiner for Borrower, Security Guarantor, or any SPC Party or any portion of the Property; (ix) Borrower, Security Guarantor, or any SPC Party 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; (x) [intentionally omitted], (xi) in the event of any federal or state bankruptcy or insolvency proceeding involving the Guarantor or its Affiliates, if Borrower, Security Guarantor, or any Restricted Party contests or opposes any motion made by Agent or any Lender to obtain relief from the automatic stay or seeks to reinstate the automatic stay, if any, imposed in connection with such bankruptcy or insolvency proceeding; (xii) Borrower, Security Guarantor, or any Restricted Party accepts from any Guarantor or Guarantor solicits or provides any debtor-in-possession financing to Borrower in the event Borrower, Security Guarantor, or any Restricted Party is the subject of a bankruptcy or insolvency proceeding; (xiii) intentionally omitted; (xiv) Borrower, Security Guarantor, Guarantor, or any Borrower Party is finally judicially determined to have improperly and in bad faith to have taken any action of any kind or nature whatsoever, directly or indirectly, to delay, oppose, impede, obstruct, hinder, enjoin, otherwise interfere with the exercise by Agent of any and all of its and Lender’s rights and remedies against Borrower, Security Guarantor, Guarantor, any Borrower Party, and/or the Property, or any other rights or remedies of Agent or Lender with respect to the Loan, the Loan Documents or this Agreement. The obligations and liabilities of Borrower and Security Guarantor under this Section 11.22 shall fully survive indefinitely notwithstanding any termination, satisfaction, assignment, entry of a judgment of foreclosure, exercise of any power of sale, or delivery of a deed in lieu of foreclosure of the Security Instrument.
Appears in 1 contract
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, Master Lessee or Borrower Principal, as applicable, to perform and observe the obligations contained herein or in the Note, this Agreement, the Security Instrument or the other Loan Documents by any action or proceeding wherein a money judgment or any deficiency judgment or other judgment establishing personal liability shall be sought against Borrower, Borrower Principal, Master Lessee or any principalof Borrower’s, director, officer, employee, beneficiary, shareholder, partner, member, trustee, agentBorrower Principal’s, or Affiliate of Borrower Master Lessee’s partners or any legal representatives, successors or assigns of any of the foregoing (collectively, the “Exculpated Parties”)members, except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender to enforce and realize upon its interest under the Note, this Agreement, the Security Instrument Note, the Mortgage and the other Loan Documents, or and the interest in the any Individual Property, the Rents, or 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, Master Lessee or Borrower Principal, as applicable, only to the extent of Borrower’s, Master Lessee’s or Borrower Principal’s interest in the related Individual Property, in the Rents and in any other collateral given to Lender, and not otherwise. Lender, by accepting the Note, this Agreement, the Security Instrument 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, Master Lessee, Borrower Principal or any of the Exculpated Parties Borrower’s, Master Lessee’s, or Borrower Principal’s partners or members in any such action or proceeding proceeding, under or by reason of or under or in connection with the Note, this Agreement, the Security Instrument Note, the Mortgage or the other Loan Documents. The provisions of this Section 15.1 shall not, however, (1i) 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; (2ii) impair the right of Lender to name Borrower, Master Lessee or Borrower Principal as a party defendant in any action or suit for judicial foreclosure and sale under this Agreement and the Security InstrumentMortgage; (3iii) affect the validity or enforceability of any indemnity, guaranty or similar instrument indemnity (including, without limitation, indemnities set forth those contained in Section 12,6 and Article 12 hereof14 of this Agreement), Section 11.2 hereofguaranty, in the Guaranty and the Environmental Indemnity) 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 thereunder (including, without limitation, Lender’s right to enforce said rights and remedies against Borrower and/or Guarantor (as applicable) personally and without the effect of the exculpatory provisions of this Article 13)Documents; (4iv) impair the rights right of Lender to (A) obtain the appointment of a receiver and/or (B) enforce its rights and remedies provided in Articles 8 and 9 hereofreceiver; (5v) impair the enforcement of the assignment of leases and rents provisions contained in the Security Instrument and in any other Loan DocumentsMortgage; or (6vi) impair the right of Lender to enforce Section 4.12(e) of obtain a deficiency judgment or other judgment on the Note against Borrower, Master Lessee or Borrower Principal if necessary to obtain any Insurance Proceeds or Awards to which Lender would otherwise be entitled under this Agreement; (7) constitute a prohibition against provided however, Lender to seek a deficiency shall only enforce such judgment against Borrower in order to fully realize the security granted by the Security Instrument or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against the Property; or (8) constitute a waiver of the right of Lender to enforce the liability and obligation of Borrower, by money judgment or otherwise, to the extent of any Loss incurred by the Insurance Proceeds and/or Awards.
(b) Notwithstanding the provisions of this Section 15.1 to the contrary, Borrower, Borrower Principal, and Master Lessee 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, Borrower Principal or any other Affiliate of Borrower Party 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 or during the term of the Loan;
(ii) Borrower’s or Master Lessee’s misapplication or misappropriation of Rents received by Borrower after the gross negligence or willful misconduct occurrence and during the continuance of any Borrower Party;
(iii) any litigation or other legal proceeding related to the Debt filed by any Borrower Party 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 other Loan Documents;
(iv) waste to the Property caused by the intentional acts or intentional omissions of any Borrower Party and/or the removal or disposal of any portion of the Property after an Event of Default;
(viii) the misapplication, Borrower’s or Master Lessee’s misapplication or misappropriation or conversion by any Borrower Party 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 Rents following an Event of Default or (D) any Tenant tenant security deposits or Rents collected in advance;
(viiv) the misapplication or the misappropriation of Insurance Proceeds or Awards by Borrower, Borrower Principal, Master Lessee or any act Affiliate of arson by any Borrower, Borrower Party Principal or of which any Borrower Party has knowledgeMaster Lessee;
(viiv) Borrower’s failure to pay (or to cause to be paid) Taxes, 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 hereof and there exists no impediment to Lender’s utilization thereof or (B) there is insufficient cash flow from the operation of any Individual Property), charges for labor or materials or other charges that can create liens on any portion Individual Property beyond any applicable notice and cure periods specified herein;
(vi) intentionally reserved;
(vii) any act of the Property in accordance with the terms and provisions hereofactual waste or arson by Borrower, any principal, Affiliate, member or general partner thereof, by Borrower Principal, any principal, Affiliate, member or general partner thereof, or by Master Lessee, any principal, Affiliate, member or general partner thereof;
(viii) Borrower’s failure following the occurrence and during the continuance of any Event of Default to pay Insurance Premiums, deliver (or to maintain the Policies in full force cause to be delivered) to Lender upon demand all Rents and effect and/or books and records relating to provide Lender evidence of the same, in each case, as expressly provided herein;any Individual Property.
(ix) any security depositsgross negligence or willful misconduct by Borrower, advance deposits Borrower Principal, Master Lessee, or any other deposits collected with respect to Affiliate of Borrower, Borrower Principal or Master Lessee, which adversely affects the Property which are not delivered to Lender upon a foreclosure of the 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 thereofProperty;
(x) any tax on the making and/or recording Master Lessee’s cause of the Security Instrument, the Note termination or any attempted termination of the other Loan Documents Management Agreement or any transfer or similar taxes (whether due upon the making replacement of the same or upon Manager without Lender’s exercise of its remedies under the Loan Documents), but excluding any income, franchise or other similar taxesprior written consent;
(xi) any DST’s failure to comply with the seizure or forfeiture Securities Act and all applicable state securities laws and regulations in connection with the solicitation, offering and sale of the Property, or beneficial interests in any portion thereof, or Borrower’s interest therein, resulting from criminal wrongdoing by any Borrower PartyDST;
(xii) the any DST’s failure to make any Condemnation Payment and/or any Balancing Payment, to permit on-site inspections comply with all (or violation of any) applicable laws and regulations of the Property and/or State of Delaware as the same pertain to provide the Required Financial Items, in each case, such DST’s existence as and when required hereina Delaware statutory trust;
(xiii) Intentionally OmittedBorrower’s cause of the termination or attempted termination of the Master Lease or replacement of the Master Lessee, each without Lender’s prior written consent;
(xiv) the Borrower’s or Master Lessee’s failure to make repairs, renewals or replacements (including, without limitation, structural and nonstructural, exterior and interior, ordinary and extraordinary, foreseen and unforeseen) to renew the Property or any portion thereof (including, without limitation, the Improvements now or at any time hereafter erected on the Property) as and when required pursuant to the terms term of the Loan Documents or as and when necessary to maintain Master Lease beyond the Property in good and safe condition, in a rentable and tenantable state of repair and/or in the condition required pursuant to the terms Maturity Date of the Loan Documents; and/orNote;
(xv) Borrower’s failure to cause the Forced Conversion to occur after Lender has sent a Forced Conversion Notice to Borrower; or
(xvi) any indemnity obligations adverse tax consequences to any Beneficial Owner resulting from the dissolution or conversion of Lender to Bank under the Restricted Account Agreement (other than those arising as a direct result of Lender’s gross negligence or willful misconduct)any DST.
(bc) Notwithstanding anything to the contrary in this Agreementforegoing, the Note 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 and the Debt immediately shall become fully recourse to Borrower, Borrower Principal and Master Lessee, on a joint and several basis in the event (i) of a breach by Borrower, Borrower Principal or Master Lessee of any of the Loan Documentscovenants set forth in Article 6 hereof (except for Section 6.l(xv) and Section 6.1(xviii)), to the extent that such breach is (A) material and (B) is not cured within fifteen (15) days of the earlier to occur of notice from Lender or Borrower’s knowledge of such breach, (ii) of a breach of any of the covenants set forth in Article 7 hereof, (iii) any Individual Property or any part thereof shall become an asset in a voluntary bankruptcy or insolvency proceeding of Borrower, (iv) Borrower, Borrower Principal or any Affiliate, officer, director, or representative which controls, directly or indirectly, Borrower or Borrower Principal files, or joins in the filing of, an involuntary petition against Borrower under any Creditors Rights Laws, or solicits or causes to be solicited petitioning creditors for any involuntary petition against Borrower from any Person which results in the entry of any order for any such relief which shall not have been vacated, discharged, or stayed or bonded pending appeal within ninety (90) days from the entry thereof; (v) Borrower files an answer consenting to or otherwise acquiescing in or joining in any involuntary petition filed against it, by any other Person under any Creditors Rights Laws, or solicits or causes to be solicited petitioning creditors for any involuntary petition from any Person; or (vi) any Affiliate, officer, director, or representative which controls Borrower consents to or colludes with creditors in or joins in an application for the appointment of a custodian, receiver, trustee, or examiner for Borrower or any portion of any Individual Property.
(d) Nothing herein shall be deemed to have waived be a waiver of 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 Debt indebtedness secured by the Mortgage or to require that all collateral shall continue to secure all of the Debt indebtedness owing to Lender in accordance with the Loan Documents, and (B) the Debt shall be fully recourse to Borrower in the event that: (i) the first full monthly payment of principal and interest under the Note is not paid when due; (ii) Borrower fails to comply with any provisions hereof relating to cash management or fails to appoint a new property manager upon the request of Lender, fails to cooperate with any New Manager or fails to comply with any limitations on instructing the property manager, each as required by and in accordance with, as applicable, the terms and provisions of, this Agreement, the Assignment Note, the Mortgage or the other Loan Documents.
(e) Subject to the terms of Management Agreement Section 12.6, upon payment in foil of the Loan, Borrower Principal shall be relieved of its obligations under this Article 15.
(f) Notwithstanding the foregoing, in no event shall Xxxxxx & Xxxxxx Management, Inc. be personally liable for Losses resulting from the occurrences described in Section 15.1(b)(xi), Section 15.1(b)(xii). Section 15.1(b)(xv), and the Security Instrument; (iii) any representationSection 15.1(b)(xvi), warranty or covenant contained in Article 5 or Article 6 hereof is violated or breached; (iv) a Bankruptcy Event occurs; or (v) Sections 11.1 or 11.6 hereof are violated or breached in any material respectabove.
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 Except as otherwise specifically provided in the NotePlan, this Agreementno Exculpated Party shall have or incur liability for and each Exculpated Party is hereby released and exculpated from any Cause of Action for any claim related to any act or omission in connection with, relating to, or arising out of, the Security Instrument or Chapter 11 Cases, the other Loan Documents by any action or proceeding wherein a money judgment or any deficiency judgment or other judgment establishing personal liability shall be sought against Borrower or any principalformulation, directorpreparation, officerdissemination, employeesolicitation, beneficiarynegotiation, shareholder, partner, member, trustee, agentfiling, or Affiliate of Borrower or any legal representatives, successors or assigns of any termination of the foregoing (collectivelyRestructuring Support Agreement and related prepetition transactions, the “Exculpated Parties”), except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender to enforce and realize upon its interest under the Note, this AgreementDisclosure Statement, the Security Instrument and the other Loan Documents, or in the PropertyPlan, the RentsPlan Supplement, or any Restructuring Transaction, contract, instrument, release, or other collateral given to Lender pursuant to agreement or document (including any legal opinion requested by any Entity regarding any transaction, contract, instrument, document or other agreement contemplated by the Loan Documents; provided, however, that, except as specifically provided herein, Plan or the reliance by any judgment Released Party on the Plan or the Confirmation Order in any lieu of such action legal opinion) created or proceeding shall be enforceable against Borrower only to the extent of Borrower’s interest in the Property, in the Rents and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Security Instrument and the other Loan Documents, shall not xxx for, seek or demand any deficiency judgment against Borrower or any of the Exculpated Parties in any such action or proceeding under or by reason of or under or entered into in connection with the Note, this Restructuring Support Agreement, the Security Instrument Disclosure Statement, the Plan, the Plan Supplement, the Chapter 11 Cases, the filing of the Chapter 11 Cases, the pursuit of Confirmation, the pursuit of Consummation, the administration and implementation of the Plan, including the issuance or distribution of Securities pursuant to the Plan, or the other Loan Documents. The provisions distribution of this Section shall not, however, (1) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (2) impair the right of Lender to name Borrower as a party defendant in any action or suit for foreclosure and sale property under the Security Instrument; (3) affect the validity or enforceability of any indemnity, guaranty or similar instrument (including, without limitation, indemnities set forth in Article 12 hereof, Section 11.2 hereof, in the Guaranty and the Environmental Indemnity) made in connection with the Loan or any of the rights and remedies of Lender thereunder (including, without limitation, Lender’s right to enforce said rights and remedies against Borrower and/or Guarantor (as applicable) personally and without the effect of the exculpatory provisions of this Article 13); (4) impair the rights of Lender to (A) obtain the appointment of a receiver and/or (B) enforce its rights and remedies provided in Articles 8 and 9 hereof; (5) impair the enforcement of the assignment of leases and rents contained in the Security Instrument and in any other Loan Documents; (6) impair the right of Lender to enforce Section 4.12(e) of this Agreement; (7) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted by the Security Instrument or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against the Property; or (8) constitute a waiver of the right of Lender to enforce the liability and obligation of Borrower, by money judgment or otherwise, to the extent of any Loss incurred by Lender (including attorneys’ fees and costs reasonably incurred) arising out of or in connection with the following:
(i) fraud or intentional misrepresentation by any Borrower Party in connection with the Loan;
(ii) the gross negligence or willful misconduct of any Borrower Party;
(iii) any litigation or other legal proceeding related to the Debt filed by any Borrower Party 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 other Loan Documents;
(iv) waste to the Property caused by the intentional acts or intentional omissions of any Borrower Party and/or the removal or disposal of any portion of the Property after an Event of Default;
(v) the misapplication, misappropriation or conversion by any Borrower Party 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 Rents following an Event of Default or (D) any Tenant security deposits or Rents collected in advance;
(vi) any act of arson by any Borrower Party or of which any Borrower Party has knowledge;
(vii) failure to pay Taxes, charges for labor or materials or other charges that can create liens on any portion of the Property in accordance with the terms and provisions hereof;
(viii) failure to pay Insurance Premiums, to maintain the Policies in full force and effect and/or to provide Lender evidence of the same, in each case, as expressly provided herein;
(ix) any security deposits, advance deposits Plan or any other deposits collected related agreement, or upon any other related act or omission, transaction, agreement, event, or other occurrence taking place on or before the Effective Date, except for claims related to any act or omission that is determined in a Final Order by a court of competent jurisdiction to have constituted actual fraud, willful misconduct, or gross negligence, but in all respects such Entities shall be entitled to reasonably rely upon the advice of counsel with respect to the Property which are not delivered to Lender upon a foreclosure of the Property or action in lieu thereof, except to the extent any such security deposits were applied in accordance with the terms their duties 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;
(x) any tax on the making and/or recording of the Security Instrument, the Note or any of the other Loan Documents or any transfer or similar taxes (whether due upon the making of the same or upon Lender’s exercise of its remedies under the Loan Documents), but excluding any income, franchise or other similar taxes;
(xi) the seizure or forfeiture of the Property, or any portion thereof, or Borrower’s interest therein, resulting from criminal wrongdoing by any Borrower Party;
(xii) the failure to make any Condemnation Payment and/or any Balancing Payment, to permit on-site inspections of the Property and/or to provide the Required Financial Items, in each case, as and when required herein;
(xiii) Intentionally Omitted;
(xiv) the failure to make repairs, renewals or replacements (including, without limitation, structural and nonstructural, exterior and interior, ordinary and extraordinary, foreseen and unforeseen) to the Property or any portion thereof (including, without limitation, the Improvements now or at any time hereafter erected on the Property) as and when required responsibilities pursuant to the terms of the Loan Documents or as and when necessary to maintain the Property in good and safe condition, in a rentable and tenantable state of repair and/or in the condition required pursuant to the terms of the Loan Documents; and/or
(xv) any indemnity obligations of Lender to Bank under the Restricted Account Agreement (other than those arising as a direct result of Lender’s gross negligence or willful misconduct).
(b) Notwithstanding anything to the contrary in this Agreement, the Note or any of the Loan Documents, (A) Lender Plan. The Exculpated Parties shall not be deemed to have waived participated in good faith and in compliance with the applicable laws with regard to the solicitation of votes and distribution of consideration pursuant to the Plan and, therefore, are not, and on account of such distributions shall not be, liable at any right which Lender may have under Section 506(a)time for the violation of any applicable law, 506(b)rule, 1111(b) or any other provisions regulation governing the solicitation of acceptances or rejections of the Bankruptcy Code Plan or distributions made pursuant to file a claim for the full amount of the Debt or to require that all collateral shall continue to secure all of the Debt owing to Lender in accordance with the Loan Documents, and (B) the Debt shall be fully recourse to Borrower in the event that: (i) the first full monthly payment of principal and interest under the Note is not paid when due; (ii) Borrower fails to comply with any provisions hereof relating to cash management or fails to appoint a new property manager upon the request of Lender, fails to cooperate with any New Manager or fails to comply with any limitations on instructing the property manager, each as required by and in accordance with, as applicable, the terms and provisions of, this Agreement, the Assignment of Management Agreement and the Security Instrument; (iii) any representation, warranty or covenant contained in Article 5 or Article 6 hereof is violated or breached; (iv) a Bankruptcy Event occurs; or (v) Sections 11.1 or 11.6 hereof are violated or breached in any material respectPlan.
Appears in 1 contract
Samples: Restructuring Support Agreement (Jones Energy, Inc.)