Exculpation. Buyer agrees that it does not have and will not have any claims or causes of action against any disclosed or undisclosed officer, director, employee, trustee, shareholder, partner, member, principal, parent, subsidiary or other affiliate of Seller, including, without limitation, Tishman Speyer Properties, L.P. and Goldman, Sachs & Co., or ▇▇▇ ▇▇fic▇▇, ▇irector, employee, trustee, shareholder, member, partner or principal of any such parent, subsidiary or other affiliate (collectively, "Seller's Affiliates"), arising out of with this Agreement or the transactions contemplated hereby. Buyer agrees to look solely to Seller and its assets for the satisfaction of any liability or obligation arising under this Agreement or the transactions contemplated hereby, or for the performance of any of the covenants, warranties or other agreements contained herein, and further agrees not to sue or otherwise seek to e▇▇▇rce any personal obligation against any of Seller's Affiliates with respect to any matters arising out of this Agreement or the transactions contemplated hereby. The provisions of this Section 10.10, however, shall not apply to Tishman Speyer/Travelers Real Estate Venture, L.P. and Whitehall Street Real Estate Limited Partnership IX (collectively, the "Members") to the extent of the amount any of the Members has received from the proceeds of the transactions which is the subject of this Agreement, if the remaining funds available to Seller to satisfy the obligations of the Seller pursuant to this Agreement or the transactions contemplated hereby are not at least equal to Five Million Dollars ($5,000,000) or such lower amount of liability or potential liability as the Seller may have under such agreements. The provisions of this Section 10.10 shall survive the termination of this Agreement and the Closing. This Section 10.10 will not apply to the parties to the Parking Easement or the Development Indemnity Agreement to the extent such claim or cause of action relates solely to the Parking Easement Agreement or the Development Indemnity Agreement, as applicable.
Appears in 1 contract
Exculpation. Buyer Notwithstanding any other provision of this Lease to the contrary, Tenant hereby waives all claims against and releases Landlord and its trustees, members, principals, beneficiaries, partners, officers, directors, employees, Holders and agents from all claims for any injury to or death of persons, damage to property or loss of profits or revenue in any manner related to (a) any Force Majeure Event, (b) acts of third parties, (c) the bursting or leaking of any tank, water closet, drain or other pipe, and (d) the inadequacy or failure of any security or protective services, personnel or equipment; provided, however, that the foregoing shall not preclude Tenant from seeking recovery from any third party responsible for such damage or injury. Tenant acknowledges that from time to time throughout the Term, construction work may be performed in and about the Building and the Property by Landlord, contractors of Landlord, or other tenants or their contractors, and that such construction work may result in noise and disruption to Tenant’s business. Landlord shall use commercially reasonable efforts to the extent consistent with practice of the owners of Comparable Buildings, to minimize noise and disruption to Tenant’s business, including but not limited to restricting construction work to times outside Building Service Hours where such practice is consistent with the generally prevailing standards of owners of similar first class office buildings in the vicinity of the Building. In addition to and without limiting the foregoing waiver, but without waiving any claims resulting from Landlord’s failure to use commercially reasonable efforts to minimize noise and disruption to Tenant’s business, Tenant agrees that it does Landlord shall not have be liable for, and will not have Tenant expressly waives and releases Landlord, Landlord’s employees, agents or representatives, from any claims and all loss, cost, damage or causes of action against any disclosed or undisclosed officerliability, director, employee, trustee, shareholder, partner, member, principal, parent, subsidiary or other affiliate of Seller, including, including without limitation, Tishman Speyer Propertiesany and all consequential damages or interruption or loss of business, L.P. and Goldman, Sachs & Co.income or profits, or ▇▇▇ ▇▇fic▇▇claims of actual or constructive eviction or for abatement of rental, ▇irector, employee, trustee, shareholder, member, partner arising or principal alleged to be arising as a result of any such parent, subsidiary or other affiliate (collectively, "Seller's Affiliates"), arising out of with this Agreement or the transactions contemplated hereby. Buyer agrees to look solely to Seller and its assets for the satisfaction of any liability or obligation arising under this Agreement or the transactions contemplated hereby, or for the performance of any of the covenants, warranties or other agreements contained herein, and further agrees not to sue or otherwise seek to e▇▇▇rce any personal obligation against any of Seller's Affiliates with respect to any matters arising out of this Agreement or the transactions contemplated hereby. The provisions of this Section 10.10, however, shall not apply to Tishman Speyer/Travelers Real Estate Venture, L.P. and Whitehall Street Real Estate Limited Partnership IX (collectively, the "Members") to the extent of the amount any of the Members has received from the proceeds of the transactions which is the subject of this Agreement, if the remaining funds available to Seller to satisfy the obligations of the Seller pursuant to this Agreement or the transactions contemplated hereby are not at least equal to Five Million Dollars ($5,000,000) or such lower amount of liability or potential liability as the Seller may have under such agreements. The provisions of this Section 10.10 shall survive the termination of this Agreement and the Closing. This Section 10.10 will not apply to the parties to the Parking Easement or the Development Indemnity Agreement to the extent such claim or cause of action relates solely to the Parking Easement Agreement or the Development Indemnity Agreement, as applicableconstruction activity.
Appears in 1 contract
Sources: Office Lease Agreement (On24 Inc)
Exculpation. Buyer agrees that it does not have Except for claims directly attributable to the active gross negligence of Lessor as evidenced by a final judgment by a court of competent jurisdiction after the expiration of all applicable appeal periods, Lessee, as a material part of the consideration to Lessor, hereby assumes all risk of damage to the Premises, injury and will not have death to persons and all claims of any other nature resulting from Lessee’s use of all or any part of the Premises, and, notwithstanding the negligence or breach of this Lease by Lessor or its agents, Lessee hereby waives all claims in respect thereof against Lessor, Lessor’s property manager, any other occupant or causes tenant of action against the Project or any disclosed other person, to the extent permitted by law. Neither Lessor nor its agents or undisclosed officeremployees shall be liable for loss of or damage to any property of Lessee by theft or otherwise. Neither Lessor nor its employees or agents shall be liable for any defects in the Premises, director, employee, trustee, shareholder, partner, member, principal, parent, subsidiary nor shall Lessor be liable for the negligence or other affiliate of Sellermisconduct, including, without limitationbut not limited to, Tishman Speyer Propertiescriminal acts, L.P. and Goldman, Sachs & Co., or ▇▇▇ ▇▇fic▇▇, ▇irector, employee, trustee, shareholder, member, partner or principal of any such parent, subsidiary by maintenance or other affiliate (collectivelypersonnel or contractors serving the Premises or third parties. All property of Lessee kept or stored on the Premises shall be so kept or stored at the risk of Lessee only, "Seller's Affiliates")and Lessee shall indemnify, defend and hold Lessor harmless for, from and against, and shall be responsible for, any claims arising out of with this Agreement or damage to the transactions contemplated herebysame, including subrogation claims by Lessee’s insurance carriers. Buyer agrees to look solely to Seller and its assets for the satisfaction of any liability or obligation arising under this Agreement or the transactions contemplated hereby, or for the performance of any None of the covenantsevents or conditions set forth in this Paragraph or in Paragraph 8.8 of the Form Lease shall be deemed a constructive or actual eviction or result in a termination of the Lease Agreement, warranties or other agreements contained herein, and further agrees not to sue or otherwise seek to e▇▇▇rce any personal obligation against any of Seller's Affiliates with respect nor shall Lessee be entitled to any matters arising out abatement or reduction of this Agreement or the transactions contemplated hereby. The provisions of this Section 10.10, however, shall not apply to Tishman Speyer/Travelers Real Estate Venture, L.P. and Whitehall Street Real Estate Limited Partnership IX (collectively, the "Members") to the extent of the amount any of the Members has received from the proceeds of the transactions which is the subject of this Agreement, if the remaining funds available to Seller to satisfy the obligations of the Seller pursuant to this Agreement or the transactions contemplated hereby are not at least equal to Five Million Dollars ($5,000,000) or such lower amount of liability or potential liability as the Seller may have under such agreements. The provisions of this Section 10.10 shall survive the termination of this Agreement and the Closing. This Section 10.10 will not apply to the parties to the Parking Easement or the Development Indemnity Agreement to the extent such claim or cause of action relates solely to the Parking Easement Agreement or the Development Indemnity Agreement, as applicableRent by reason thereof.
Appears in 1 contract
Sources: Standard Industrial/Commercial Single Tenant Lease Net (Supreme Industries Inc)
Exculpation. Buyer agrees that it does (a) Subject to the qualifications below, Lender shall not have enforce the liability and will not have 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 claims action or causes of action proceeding wherein a money judgment shall be sought against Borrower or any disclosed or undisclosed officer, director, employee, trustee, shareholder, partner, member, principal, parentemployee of Borrower or any direct or indirect owner of Borrower (provided that the foregoing shall not limit in any manner, subsidiary the liability of any Guarantor), except that Lender may bring a foreclosure action, an action for specific performance or any other affiliate of Sellerappropriate action or proceeding to enable Lender to enforce and realize upon its interest under the Note, includingthis Agreement, without limitation, Tishman Speyer Properties, L.P. the Security Instrument and Goldman, Sachs & Co.the other Loan Documents, or ▇▇▇ ▇▇fic▇▇in the Property (or any portion thereof), ▇irectorthe Rents, employeeor any other collateral given to Lender pursuant to the Loan Documents; provided, trusteehowever, shareholderthat, memberexcept as specifically provided herein, partner or principal of any judgment in any such parentaction or proceeding shall be enforceable against Borrower only to the extent of Borrower’s interest in the Property, subsidiary 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 sue for, seek or other affiliate (collectivelydemand any deficiency judgment against Borrower in any such action or proceeding under or by reason of or under or in connection with the Note, "Seller's Affiliates")this Agreement, arising out of with this Agreement the Security Instrument or the transactions contemplated hereby. Buyer agrees to look solely to Seller and its assets for the satisfaction of any liability or obligation arising under this Agreement or the transactions contemplated hereby, or for the performance of any of the covenants, warranties or other agreements contained herein, and further agrees not to sue or otherwise seek to e▇▇▇rce any personal obligation against any of Seller's Affiliates with respect to any matters arising out of this Agreement or the transactions contemplated herebyLoan Documents. The provisions of this Section 10.109.3 shall not, however, (i) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (ii) 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; (iii) affect the validity or enforceability of any guaranty, indemnity or similar agreement or undertaking made in connection with the Loan or any of the rights and remedies of Lender thereunder; (iv) impair the right of Lender to obtain the appointment of a receiver; (v) 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 (or any portion thereof).
(b) Nothing contained herein shall in any manner or way release, affect or impair the right of Lender to recover from Borrower, 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 other obligation (including reasonable out-of-pocket attorneys’ fees and expenses 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 Borrower or Guarantor in connection with the Loan;
(ii) the gross negligence or willful misconduct of Borrower or Guarantor;
(iii) arson or any intentional material physical waste of the Property, provided, however, that if Borrower does not have sufficient cash flow on a current basis to prevent waste, any waste shall not apply be deemed intentional and Borrower shall have no liability under this clause (iii);
(iv) the removal or disposal of any portion of the Property 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 misappropriation, misapplication or conversion by Borrower or Guarantor, or any Affiliate of the foregoing, of (A) any Insurance Proceeds paid by reason of any loss, damage or destruction to Tishman Speyer/Travelers Real Estate Venturethe Property, L.P. (B) any Awards received in connection with a Condemnation of all or a portion of the Property during the continuance of an Event of Default, (C) any Rents or other Property income or collateral proceeds, or (D) any Rents paid more than one month in advance (including security deposits) during the continuance of an Event of Default;
(vi) following the occurrence and Whitehall Street Real Estate Limited Partnership IX (collectivelyduring the continuance of an Event of Default, the "Members"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 this Agreement);
(vii) failure to maintain insurance or to pay taxes and assessments, or to pay charges for labor or materials or other charges or judgments that can create Liens on any portion of the Property (unless Lender is escrowing funds therefor and fails to make such payments or has taken possession of the Property following an Event of Default, has received all Rents from the Property applicable to the period for which such insurance, taxes or other items are due, and thereafter fails to make such payments), it being acknowledged that if Borrower does not have sufficient cash flow on a current basis to maintain insurance or to pay taxes and assessments or to pay charges for labor or materials or other charges or judgments (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) 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 the amount any of the Members has received from Leases prior to the proceeds occurrence of the transactions which Event of Default that gave rise to such foreclosure or action in lieu thereof 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 failure by Borrower to comply with any of the representations, warranties or covenants set forth in Sections 4.1.37 or 5.1.19 hereof;
(xi) the 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 date that Borrower has cured such Violation and delivered to Lender an update to the applicable zoning report verifying such Violation has been cured;
(xii) [intentionally omitted];
(xiii) any 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 subject full recourse event set forth in Section 9.3(c)(D) below;
(xiv) Borrower fails to obtain Len▇▇▇’▇ prior written consent to any Transfer that is not a Full Recourse Transfer, to the extent required pursuant to the terms of the Loan Documents;
(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) Bor▇▇▇▇▇, ▇cting in bad faith, fails to cooperate in transferring any 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 Len▇▇▇’▇ 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 hinder, delay or otherwise interfere with Lender’s exercise of its remedies (whether at law or granted under the Loan Documents), or (2) was made in bad faith by Guarantor, Borrower or such Affiliate.
(c) Notwithstanding anything to the contrary in this Agreement, if the remaining funds available to Seller to satisfy the obligations Note or any of the Seller other Loan Documents, Borrower shall be personally liable for the Debt if (A) Borrower fails to obtain Len▇▇▇’▇ 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 Len▇▇▇’▇ prior written consent to any Indebtedness or voluntary mortgage, deed of trust, collateral assignment or similar voluntary Lien (including a P▇▇▇ ▇▇▇▇) 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) Bor▇▇▇▇▇ ▇▇mits, 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 constitute a waiver by Lender of any right Lender may have under Sections 506(a), 506(b), 1111(b) or any other 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.
(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 the Loan Documents, other than with respect to the Guarantor under the Guaranty and the Environmental Indemnity, neither Guarantor, nor any officer, director, shareholder, partner, member, principal, employee of, shall have any personal liability for, nor be joined as a party to, any action with respect to (i) the payment of any sum which is or may be payable under this Agreement or the transactions contemplated hereby are not at least equal Loan Documents, or (ii) the performance or discharge of any covenants, obligations or undertakings of Borrower. In addition to Five Million Dollars the foregoing, in no event will the assets of any officer, director, shareholder, partner, member, principal, employee of Borrower or Guarantor be available to satisfy any obligation of Guarantor thereunder.
($5,000,000g) or such lower amount of liability or potential liability as Notwithstanding the Seller may have under such agreements. The foregoing provisions of this Section 10.10 shall survive the termination of this Agreement and the Closing. This Section 10.10 will not apply 9.3 or anything to the parties to the Parking Easement or the Development Indemnity Agreement to the extent such claim or cause of action relates solely to the Parking Easement contrary in this Agreement or the Development Indemnity Agreementother 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 flow at the Property, subsequently breaches the definition of Permitted Equipment Financing or Permitted Trade Payables by being outstanding for longer than any time period specified in such definitions, or by exceeding the one percent (1%) or two percent (2%) cap, as applicable, specified in such definitions, and (ii) Guarantor shall have no liability under any of the Loan Documents with respect to liabilities or obligations arising from events, acts, omissions, facts or circumstances first occurring from and after the date that Lender (or any Affiliate, designee, agent, nominee, successor to or assignee of Lender) takes title to the Property or the ownership interests in Borrower pursuant to a foreclosure, deed-in-lieu of 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 acts of Guarantor or any Affiliate thereof; provided, however, that Guarantor’s liability shall be automatically reinstated upon any such foreclosure or conveyance being set aside, rescinded or invalidated.
Appears in 1 contract
Exculpation. Buyer (a) Optionee agrees that it does shall not have enforce the liability and will not have obligation of Optionor to perform and observe the obligations contained in this Agreement by any claims action or causes of action proceeding against any disclosed Optionor Exculpated Party (as hereinafter defined), and shall not s▇▇ for, seek or undisclosed officerdemand any money judgment against any direct or indirect member, director, employee, trusteemanager, shareholder, partner, member, principal, parent, subsidiary beneficiary or other affiliate owner of Seller, including, without limitation, Tishman Speyer Properties, L.P. and Goldman, Sachs & Co.beneficial ownership interests in Optionor, or ▇▇▇ ▇▇fic▇▇any director, ▇irectorofficer, employeeagent, trusteeattorney, shareholder, member, partner employee or principal of any such parent, subsidiary or other affiliate (collectively, "Seller's Affiliates"), arising out of with this Agreement or the transactions contemplated hereby. Buyer agrees to look solely to Seller and its assets for the satisfaction of any liability or obligation arising under this Agreement or the transactions contemplated hereby, or for the performance trustee of any of the covenantsforegoing (each, warranties an “Optionor Exculpated Party” and, collectively, the “Optionor Exculpated Parties”) under or other agreements contained herein, and further agrees not to sue by reason of or otherwise seek to e▇▇▇rce any personal obligation against any of Seller's Affiliates in connection with respect to any matters arising out of this Agreement or the transactions contemplated herebyAgreement. The provisions of this Section 10.1021(a) shall not, however, (i) constitute a waiver, release or impairment of any obligation of Optionor hereunder; or (ii) impair the right of Optionee to name Optionor as a party defendant in any action or suit under this Agreement.
(b) Optionor agrees that it shall not apply enforce the liability and obligation of Optionee to Tishman Speyer/Travelers Real Estate Ventureperform and observe the obligations contained in this Agreement by any action or proceeding against any Optionee Exculpated Party (as hereinafter defined), L.P. and Whitehall Street Real Estate Limited Partnership IX shall not s▇▇ for, seek or demand any money judgment against any direct or indirect member, manager, shareholder, partner, beneficiary or other owner of beneficial ownership interests in Optionee, or any director, officer, agent, attorney, employee or trustee of any of the foregoing (each, an “Optionee Exculpated Party” and, collectively, the "Members"“Optionee Exculpated Parties”) to the extent under or by reason of the amount any of the Members has received from the proceeds of the transactions which is the subject of or in connection with this Agreement, if the remaining funds available to Seller to satisfy the obligations of the Seller pursuant to this Agreement or the transactions contemplated hereby are not at least equal to Five Million Dollars ($5,000,000) or such lower amount of liability or potential liability as the Seller may have under such agreements. The provisions of this Section 10.10 21(b) shall not, however, (i) constitute a waiver, release or impairment of any obligation of Optionee hereunder; or (ii) impair the right of Optionor to name Optionee as a party defendant in any action or suit under this Agreement.
(c) The provisions of this Section 21 shall survive the Closing, the expiration of the Option Period and the termination of this Agreement and the Closing. This Section 10.10 will not apply to the parties to the Parking Easement or the Development Indemnity Agreement to the extent such claim or cause of action relates solely to the Parking Easement Agreement or the Development Indemnity Agreement, as applicable.
Appears in 1 contract
Exculpation. Buyer agrees that it does Except as otherwise provided herein or in the other Loan Documents, Lender shall not have enforce the liability and will not have obligation of Borrower to perform and observe the obligations contained herein or in the other Loan Documents by any claims action or causes proceeding wherein a money judgment shall be sought against (1) Borrower (except as set forth in this Section 15.1 and the Environmental Indemnity), (2) Guarantor (except as set forth in the Guaranty, the PIP Guaranty and the Environmental Indemnity), (3) any Affiliate of action against Borrower, (4) any disclosed Person owning, directly or undisclosed officerindirectly, director, employee, trustee, shareholder, any legal or beneficial interest in Borrower or any Affiliate of Borrower or (5) any direct or indirect limited partner, member, principal, parentofficer, subsidiary beneficiary, trustee, advisor, employee, agent, shareholder, Affiliate or director of any Persons described in clauses (1) through (5) above (collectively, subject to the exceptions in clauses (i) and (ii) below, the “Exculpated Parties”), except that Lender may bring a foreclosure action, action for specific performance or other affiliate of Sellerappropriate action or proceeding to enable Lender to enforce and realize upon this Agreement, includingthe Note, without limitationthe Mortgages and the other Loan Documents, Tishman Speyer and the interest in the Properties, L.P. the Rents and Goldmanany other collateral given to Lender created by this Agreement, Sachs & Co.the Note, the Mortgages and the other Loan Documents; provided, however, that any judgment in any such action or proceeding shall be enforceable against Borrower, only to the extent of Borrower’s interest in the Properties, in the Rents and in any other collateral given to Lender. Lender, by accepting this Agreement, the Note, the Mortgages and the other Loan Documents, agrees that it shall not, except as otherwise provided in this Section 15.1, ▇▇▇ ▇▇fic▇▇for, ▇irector, employee, trustee, shareholder, member, partner seek or principal of demand any deficiency judgment against any Exculpated Party in any such parentaction or proceeding, subsidiary under or other affiliate (collectively, "Seller's Affiliates"), arising out by reason of or under or in connection with this Agreement Agreement, the Note, the Mortgages or the transactions contemplated hereby. Buyer agrees to look solely to Seller and its assets for the satisfaction of any liability or obligation arising under this Agreement or the transactions contemplated hereby, or for the performance of any of the covenants, warranties or other agreements contained herein, and further agrees not to sue or otherwise seek to e▇▇▇rce any personal obligation against any of Seller's Affiliates with respect to any matters arising out of this Agreement or the transactions contemplated herebyLoan Documents. The provisions of this Section 10.1015.1 shall not, however, shall not apply to Tishman Speyer/Travelers Real Estate Venture(i) constitute a waiver, L.P. and Whitehall Street Real Estate Limited Partnership IX (collectively, the "Members") to the extent release or impairment of the amount any of the Members has received from the proceeds of the transactions which is the subject of obligation evidenced or secured by this Agreement, if the remaining funds available Note, the Mortgages or the other Loan Documents; (ii) impair the right of Lender to Seller to satisfy the obligations of the Seller pursuant to name (A) Borrower or Operating Lessee as a party defendant in any action or suit for judicial foreclosure and sale under this Agreement and the Mortgages or (B) HHSD as a party defendant in any action or suit for foreclosure and sale under the transactions contemplated hereby are not at least equal to Five Million Dollars Operating Lease Pledge Agreement; ($5,000,000iii) affect the validity or such lower amount enforceability of liability or potential liability as the Seller may have under such agreements. The provisions of this Section 10.10 shall survive the termination any indemnity (including, without limitation, those contained in Article 14 of this Agreement and the Closing. This Section 10.10 will not apply to the parties to the Parking Easement Environmental Indemnity), guaranty, master lease or the Development Indemnity Agreement to the extent such claim or cause of action relates solely to the Parking Easement Agreement or the Development Indemnity similar instrument made in connection with this Agreement, as applicable.the Note, the Mortgages and the other Loan Documents; (iv) impair the right of Lender to obtain the appointment of a receiver; (v) impair the enforcement of the assignment of leases provisions contained in the Mortgages; or (vi) impair the right of Lender to obtain a deficiency judgment or other judgment on the Note against Borrower if necessary to obtain any Insurance Proceeds or Awards to which Lender
Appears in 1 contract
Exculpation. Buyer agrees that it does not have Notwithstanding anything contained herein to the contrary, no Indemnified Party shall be liable to Borrower or any other Person for Indemnified Amounts awarded against or incurred by Borrower, its Affiliates, and will not have any claims or causes of action against any disclosed or undisclosed officerall successors, directortransferees, employeeparticipants and assigns, trusteeand all officers, shareholderdirectors, partnershareholders, membercontrolling persons, principal, parent, subsidiary or other affiliate of Seller, including, without limitation, Tishman Speyer Properties, L.P. employees and Goldman, Sachs & Co., or ▇▇▇ ▇▇fic▇▇, ▇irector, employee, trustee, shareholder, member, partner or principal agents of any such parent, subsidiary or other affiliate of the foregoing (collectively, each a "Seller's AffiliatesBorrower Party"), arising out of with this Agreement or relating to the transactions contemplated hereby. Buyer agrees to look solely to Seller and its assets for Transaction Documents, the satisfaction funding of any liability Loan, except for its or obligation arising under this Agreement their own gross negligence or the transactions contemplated hereby, willful misconduct in performing or for the performance of any of the covenants, warranties failing to perform its or other agreements contained herein, and further agrees not to sue their own obligations hereunder or otherwise seek to e▇▇▇rce any personal obligation against any of Seller's Affiliates with respect to any matters arising out of this Agreement or the transactions contemplated herebythereunder. The provisions of this Section 10.10In no event, however, shall not apply to Tishman Speyer/Travelers Real Estate Venture, L.P. and Whitehall Street Real Estate Limited Partnership IX the Indemnified Parties be liable:
(collectively, the "Members"a) for Indemnified Amounts awarded against or incurred by any Borrower Party arising out of or relating to the Transaction Documents, existing at the time the first of such Indemnified Amounts arose; or (b) for any indirect, special, punitive, exemplary or consequential damages arising out of or relating to the Transaction Documents. THE FOREGOING EXCULPATION SHALL EXTEND TO EACH INDEMNIFIED PARTY NOTWITHSTANDING THE SOLE OR CONCURRENT NEGLIGENCE OF EVERY KIND OR CHARACTER WHATSOEVER, WHETHER ACTIVE OR PASSIVE, WHETHER AN AFFIRMATIVE ACT OR AN OMISSION, INCLUDING ALL TYPES OF NEGLIGENT CONDUCT IDENTIFIED IN THE RESTATEMENT (SECOND) OF TORTS OF ONE OR MORE OF THE PERSONS SO EXCULPATED OR BY REASON OF STRICT LIABILITY IMPOSED WITHOUT FAULT ON ANY ONE OR MORE OF SUCH PERSONS. To the extent that an arbitrator chosen in accordance with Section 9.11 shall have determined that any Indemnified Party committed an act of gross negligence or wilful misconduct, this contractual exculpation shall continue but shall only extend to the portion of the amount any claim that is deemed to have occurred by reason of events other than the Members has received from the proceeds gross negligence or wilful misconduct of the transactions which is the subject of this Agreement, if the remaining funds available to Seller to satisfy the obligations of the Seller pursuant to this Agreement or the transactions contemplated hereby are not at least equal to Five Million Dollars ($5,000,000) or such lower amount of liability or potential liability as the Seller may have under such agreements. The provisions of this Section 10.10 shall survive the termination of this Agreement and the Closing. This Section 10.10 will not apply to the parties to the Parking Easement or the Development Indemnity Agreement to the extent such claim or cause of action relates solely to the Parking Easement Agreement or the Development Indemnity Agreement, as applicableIndemnified Party.
Appears in 1 contract
Sources: Health Care Receivables Loan and Security Agreement (Oak Tree Medical Systems Inc)
Exculpation. Buyer agrees that it does Subject to the qualifications below, Lender shall not have enforce the liability and will not have obligation of Borrowers to perform and observe the obligations contained in the Note, this Agreement, the Security Instrument or the other Loan Documents by any claims action or causes of action proceeding wherein a money judgment or any deficiency judgment or other judgment establishing personal liability shall be sought against Borrowers or any disclosed or undisclosed officerprincipal, director, officer, employee, trusteebeneficiary, shareholder, partner, member, principaltrustee, parent, subsidiary or other affiliate of Seller, including, without limitation, Tishman Speyer Properties, L.P. and Goldman, Sachs & Co.agent, or ▇▇▇ ▇▇fic▇▇Affiliate of Borrowers (but specifically excluding Guarantor) or any legal representatives, ▇irector, employee, trustee, shareholder, member, partner successors or principal of any such parent, subsidiary or other affiliate (collectively, "Seller's Affiliates"), arising out of with this Agreement or the transactions contemplated hereby. Buyer agrees to look solely to Seller and its assets for the satisfaction of any liability or obligation arising under this Agreement or the transactions contemplated hereby, or for the performance assigns of any of the covenantsforegoing (collectively, warranties the “Exculpated Parties”), except that Lender may bring a foreclosure action, an action for specific performance or any other agreements contained 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 Borrowers only to the extent of such Borrower’s interest in the Property, in the Rents and further agrees 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 to sue or otherwise seek to e▇▇▇rce ▇ for, seek or demand any personal obligation deficiency judgment against Borrowers or any of Seller's Affiliates the Exculpated Parties in any such action or proceeding under or by reason of or under or in connection with respect to any matters arising out of the Note, this Agreement Agreement, the Security Instrument or the transactions contemplated herebyother Loan Documents. The provisions of this Section 10.10shall not, however, shall not apply (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 Tishman Speyer/Travelers Real Estate Venturename 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, L.P. and Whitehall Street Real Estate Limited Partnership IX guaranty or similar instrument (collectivelyincluding, without limitation, the "Members"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 right of Lender to obtain the appointment of a receiver; (5) impair the enforcement of the assignment of leases and rents contained in the Security Instrument; (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 the amount any Losses incurred by Lender (including attorneys’ fees and costs reasonably incurred) arising out of or in connection with any of the Members has received from the proceeds of the transactions which is the subject of this Agreement, if the remaining funds available to Seller to satisfy the obligations of the Seller pursuant to this Agreement or the transactions contemplated hereby are not at least equal to Five Million Dollars ($5,000,000) or such lower amount of liability or potential liability as the Seller may have under such agreements. The provisions of this Section 10.10 shall survive the termination of this Agreement and the Closing. This Section 10.10 will not apply to the parties to the Parking Easement or the Development Indemnity Agreement to the extent such claim or cause of action relates solely to the Parking Easement Agreement or the Development Indemnity Agreement, as applicable.following:
Appears in 1 contract
Exculpation. Buyer agrees 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 Mortgage or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against the Borrower or any direct or indirect members, partners or shareholders of Borrower or the employees, agents, directors or officers of Borrower or its Affiliates, except that it does not have and will not have any claims or causes of Lender may bring an action against Borrower, including a foreclosure action, an action for specific performance or any disclosed other appropriate action or undisclosed officerproceeding to enable Lender to enforce and realize upon its interest under the Note, directorthis Agreement, employee, trustee, shareholder, partner, member, principal, parent, subsidiary or the Mortgage and the other affiliate of Seller, including, without limitation, Tishman Speyer Properties, L.P. and Goldman, Sachs & Co.Loan Documents, or in the Property, the Business Income, or any other collateral given to Lender pursuant to the Loan Documents 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 Business Income in any other collateral given to Lender or any other assets of Borrower, and Lender, by accepting the Note, this Agreement, the Mortgage and the other Loan Documents, shall not ▇▇▇ ▇▇fic▇▇for, ▇irectorseek or demand any deficiency judgment or any other monetary payment against Borrower or the direct or indirect members, employeepartners or shareholders of Borrower or the employees, trusteeagents, shareholder, member, partner directors or principal officers of Borrower or its Affiliates in any such parentaction or proceeding under or by reason of or under or in connection with the Note, subsidiary or other affiliate (collectivelythis Agreement, "Seller's Affiliates"), arising out of with this Agreement the Mortgage or the transactions contemplated hereby. Buyer agrees to look solely to Seller and its assets for the satisfaction of any liability or obligation arising under this Agreement or the transactions contemplated hereby, or for the performance of any of the covenants, warranties or other agreements contained herein, and further agrees not to sue or otherwise seek to e▇▇▇rce any personal obligation against any of Seller's Affiliates with respect to any matters arising out of this Agreement or the transactions contemplated herebyLoan Documents. The provisions of this Section 10.10shall not, however: (a) constitute a waiver, shall not apply release or impairment of any obligation evidenced or secured by any of the Loan Documents; (b) impair the right of Lender to Tishman Speyer/Travelers Real Estate Venturename Borrower as a party defendant in any action or suit for foreclosure and sale under the Mortgage; (c) affect the validity or enforceability of any guaranty or indemnity made in connection with the Loan (including, L.P. and Whitehall Street Real Estate Limited Partnership IX (collectivelywithout limitation, the "Members"Guaranty) or any of the rights and remedies of Lender thereunder; (d) impair the right of Lender to obtain the appointment of a receiver; (e) 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 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 or any other assets of Borrower).
(a) Nothing contained in this Section 11.22 shall limit the rights of Lender to proceed against Borrower for any of the following (or against Guarantor under the Guaranty, on the additional terms and conditions thereof and subject to any limitations set forth herein or therein):
(i) to enforce any Leases entered into by Borrower or its Affiliates as Tenant;
(ii) to recover damages for fraud, material misrepresentation, material breach of warranty or intentional physical waste;
(iii) to recover any Condemnation Proceeds or Insurance Proceeds or other similar funds which have been misappropriated by Borrower or which, under the terms of the Loan Documents, should have been paid to Lender;
(iv) to recover (A) any 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 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 amount any representations set forth in Section 3.1.8 to be true or Borrower’s failure to comply with the provisions of the Members has received from the proceeds of the transactions which is the subject Sections 4.2.11 of this Agreement; and
(x) to recover damages, if the remaining funds available to Seller to satisfy the obligations of the Seller pursuant to this Agreement costs and expenses arising from, or the transactions contemplated hereby are not at least equal to Five Million Dollars ($5,000,000) in connection with, any Lien arising from a written instrument executed by any Borrower or any Affiliate thereof expressly creating such lower amount of liability or potential liability as the Seller may have under such agreements. The provisions of this Section 10.10 shall survive the termination of this Agreement and the Closing. This Section 10.10 will not apply to the parties to the Parking Easement or the Development Indemnity Agreement Lien, to the extent such Lien is prohibited under this Agreement.
(b) Notwithstanding the foregoing, the 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 (which consent may be withheld in Lender’s sole discretion).
(c) 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 waive any rights which Lender would have under any provisions of Title 11 of the Bankruptcy Code to file a claim for the full amount of the Debt or cause to require that the Property shall continue to secure all of action relates solely to the Parking Easement Agreement or the Development Indemnity Agreement, as applicableDebt.
Appears in 1 contract
Exculpation. Buyer 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 this Agreement, the Note or any of the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against any of the Borrower Parties or any other Person, except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender to enforce and realize upon the Property, the Rents or any other collateral given to Lender pursuant to this Agreement and the other Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against the Borrower Parties only to the extent of their interest in the Property, the Rents and in any other collateral given to Lender, and Lender, by accepting this Agreement, the Note and the other Loan Documents, agrees that it does shall not have and will not have any claims or causes of action against any disclosed or undisclosed officer, director, employee, trustee, shareholder, partner, member, principal, parent, subsidiary or other affiliate of Seller, including, without limitation, Tishman Speyer Properties, L.P. and Goldman, Sachs & Co., or ▇s▇▇ ▇▇fic▇▇for, ▇irector, employee, trustee, shareholder, member, partner seek or principal of demand any such parent, subsidiary or other affiliate (collectively, "Seller's Affiliates"), arising out of with this Agreement or the transactions contemplated hereby. Buyer agrees to look solely to Seller and its assets for the satisfaction of any liability or obligation arising under this Agreement or the transactions contemplated hereby, or for the performance of deficiency judgment against any of the covenantsBorrower Parties or any other Person in any such action or proceeding under or by reason of or in connection with this Agreement, warranties the Note or other agreements contained herein, and further agrees not to sue or otherwise seek to e▇▇▇rce any personal obligation against any of Seller's Affiliates with respect to any matters arising out of this Agreement or the transactions contemplated herebyother Loan Documents. The provisions of this Section 10.10paragraph shall not, however, shall not apply to Tishman Speyer/Travelers Real Estate Venture(i) constitute a waiver, L.P. and Whitehall Street Real Estate Limited Partnership IX (collectivelyrelease or impairment of any obligation evidenced or secured by this Agreement, the "Members"Note or any of the other Loan Documents; (ii) impair the right of Lender to name any of the Borrower Parties, as a party defendant in any action or suit for foreclosure and sale under the Mortgage; (iii) affect the validity or enforceability of any guaranty made in connection with the Loan or any rights and remedies of Lender thereunder; (iv) impair the right of Lender to obtain the appointment of a receiver; (v) impair the enforcement of the Assignment of Leases and Rents; or (vi) constitute a waiver of the right of Lender to enforce the liability and obligation of Borrower (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, 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 amount following:
(a) fraud or intentional misrepresentation by Borrower or Guarantor in connection with the Loan;
(b) intentional physical waste of the Property (including, but not limited to, waste due to gross negligence) by Borrower or 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 or any affiliate thereof;
(c) the material breach of any representation, warranty, covenant or indemnification provision in the Environmental Indemnity or in this Agreement concerning Environmental Laws, Hazardous Substances or Asbestos;
(d) the removal or disposal by Borrower or any affiliate thereof of any portion of the Property after an Event of Default 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;
(e) the misapplication or conversion by Borrower or any affiliate thereof of (i) any insurance proceeds paid by reason of any loss, damage or destruction to the Property, (ii) any awards or other amounts received in connection with the condemnation of all or a portion of the Property, (iii) any Rents following an Event of Default or (iv) any Rents paid more than one (1) month in advance;
(f) failure to pay 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 herewith or such taxes or charges have been delivered to Lender in accordance with Section 3.3 hereof or Borrower has complied with Section 5.2 hereof; and
(g) any security deposits collected by Borrower or any affiliate thereof 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 Members has received from Leases prior to the proceeds occurrence of the transactions which is the subject Event of this AgreementDefault that gave rise to such foreclosure or action in lieu thereof.
(1) if any petition for bankruptcy, if the remaining funds available to Seller to satisfy the obligations of the Seller reorganization or arrangement pursuant to this Agreement federal bankruptcy law, or the transactions contemplated hereby any similar federal or state law, shall be filed by Borrower or Guarantor, or (2) if 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 found 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 Borrower or Guarantor, or (3) if Borrower or Guarantor are not at least equal found, pursuant to Five Million Dollars 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 Borrower or Guarantor or ($5,000,000F) or such lower amount an Event of liability or potential liability as the Seller may Default described in Section 8.1(s) hereof shall have under such agreements. The provisions of this Section 10.10 shall survive the termination of this Agreement and the Closing. This Section 10.10 will not apply to the parties to the Parking Easement or the Development Indemnity Agreement to the extent such claim or cause of action relates solely to the Parking Easement Agreement or the Development Indemnity Agreement, as applicableoccurred.
Appears in 1 contract
Exculpation. Buyer agrees that it does Subject to the qualifications below, Agent shall not have enforce the liability and will not have 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 claims action or causes of action proceeding wherein a money judgment or any deficiency judgment or other judgment establishing personal liability shall be sought against any disclosed Borrower Party, any Affiliate of any Borrower Party, Sponsor, or undisclosed officerany principal, director, officer, employee, trusteebeneficiary, shareholder, partner, member, principaltrustee, parent, subsidiary or other affiliate of Seller, including, without limitation, Tishman Speyer Properties, L.P. and Goldman, Sachs & Co.agent, or ▇▇▇ ▇▇fic▇▇, ▇irector, employee, trustee, shareholder, member, partner or principal of any such parent, subsidiary or other affiliate (collectively, "Seller's Affiliates"), arising out of with this Agreement or the transactions contemplated hereby. Buyer agrees to look solely to Seller and its assets for the satisfaction of any liability or obligation arising under this Agreement or the transactions contemplated hereby, or for the performance Affiliate of any of the covenantsforegoing (but specifically excluding Guarantor to the extent Guarantor becomes liable for the same under the Recourse Guaranty) or any legal representatives, warranties successors or assigns of any of the foregoing (collectively, the “Exculpated Parties”), except that Agent may bring a foreclosure action, an action for specific performance or any other agreements contained appropriate action or proceeding to enable Agent to enforce and realize upon its interest under the Note, this Agreement, the Security Instrument, the Debenture, and the other Loan Documents, or in the Property, the Rents, or any other collateral given to 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 further agrees in any other collateral given to Agent, and Agent (on behalf of Lender), by accepting the Note, this Agreement, the Security Instrument, the Debenture, and the other Loan Documents, shall not to sue or otherwise seek to e▇▇▇rce ▇ for, seek or demand any personal obligation deficiency judgment against Borrower, Security Guarantor, or any of Seller's Affiliates the Exculpated Parties, in any such action or proceeding under or by reason of or under or in connection with respect to any matters arising out of the Note, this Agreement Agreement, the Security Instrument, the Debenture, or the transactions contemplated herebyother Loan Documents. The provisions of this Section 10.10shall not, however, shall not apply (a) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (b) impair the right of Agent or Lender to Tishman Speyer/Travelers Real Estate Venturename Borrower and/or Security Guarantor as a party defendant in any action or suit for foreclosure and sale under the Security Instrument or the Debenture; (c) affect the validity or enforceability of any indemnity, L.P. guaranty, or similar instrument made in connection with the Loan or any of the rights and Whitehall Street Real Estate Limited Partnership IX remedies of Agent or Lender thereunder; (collectivelyd) impair the right of Agent or Lender to obtain the appointment of a receiver; (e) impair the enforcement of the assignment of leases and rents contained in the Loan Documents; (f) impair the right of Agent or Lender to enforce the provisions of the Environmental Indemnity or of Section 4.1.6(h) hereof; (g) 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 Loan or to commence any other appropriate action or proceeding in order for Agent or Lender to exercise its remedies against such security; or (h) constitute a waiver of the right of Agent or Lender to enforce the liability and obligation of Borrower and/or Security Guarantor, the "Members") by money judgment or otherwise, to the extent of the amount any 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 Members following:
(i) fraud or willful misrepresentation by any Borrower Party or Sponsor in connection with the Loan or the Property;
(ii) the gross negligence or willful misconduct of any Borrower Party or Sponsor in connection with the Loan or the Property;
(iii) the breach of any indemnification obligations of Borrower, Security Guarantor and Guarantor in the Environmental Indemnity or in any other Loan Document;
(iv) waste to the Property (or any portion thereof) caused by intentional acts or intentional omissions of any Borrower Party 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 Sponsor;
(viii) 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, or other charges that can create 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 Agent 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;
(x) any security deposits, advance deposits or any other deposits collected with respect to any Individual Property which are not delivered to Agent upon a foreclosure of 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;
(xi) any failure by Borrower and/or Security Guarantor to permit on-site inspections of any Individual Property as required by this Agreement and/or the other Loan 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 other Loan Document that is required to be filed, registered or recorded in accordance with the Loan Documents;
(xiv) 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 any Individual Property, or any portion thereof, or Borrower’s or Security Guarantor’s interest therein, resulting from criminal wrongdoing by any Borrower Party or Sponsor;
(xvi) Borrower or Security Guarantor fails to comply with the terms of Section 4.1.24 hereof following the occurrence and during the continuance of an Event of Default;
(xvii) Other 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;
(xviii) Borrower or Security Guarantor terminates or otherwise cancels the Franchise Agreement in violation of this Agreement; and/or
(xix) Borrower’s or Security Guarantor’s use of the proceeds of the transactions Loan other than 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) intentionally 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 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, in any case that results in a substantive consolidation of any Restricted Party with any other Person; (iv) intentionally omitted; (v) Borrower, Security Guarantor, or any SPC Party files a voluntary petition under the Bankruptcy code or any other Federal or state bankruptcy or insolvency law; (vi) an Affiliate, officer, director, or representative which Controls, directly or indirectly, 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 involuntary 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, if the remaining funds available to Seller to satisfy the obligations 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 Seller pursuant to this Agreement or the transactions contemplated hereby are not at least equal to Five Million Dollars ($5,000,000) or such lower amount of liability or potential liability as the Seller may have under such agreements. The provisions of this Section 10.10 shall survive the termination of this Agreement and the Closing. This Section 10.10 will not apply to the parties to the Parking Easement or the Development Indemnity Agreement to the extent such claim or cause of action relates solely to the Parking Easement Agreement or the Development Indemnity Agreement, as applicableSecurity Instrument.
Appears in 1 contract
Exculpation. Buyer agrees that it does not have and will not have Anything contained herein, in the Note or in any claims other Loan Document to the contrary notwithstanding (except as set forth in the balance of this Section or causes in the Mezzanine Loan Environmental Indemnity), no recourse shall be had for the payment of action the principal or interest on the Note or for any other portion of the Debt hereunder or under the other Loan Documents against (i) any disclosed Affiliate, parent company, trustee or undisclosed advisor of any Borrower or owner of a direct or indirect Beneficial or equitable interest in a Borrower or Sponsor, any member in any Borrower, or any partner, shareholder or member therein (other than against Sponsor pursuant to the Mezzanine Loan Sponsor Indemnity Agreement); (ii) any legal representative, heir, estate, successor or assign of any thereof; (iii) any corporation (or any officer, director, employeeemployee or shareholder thereof), trusteeindividual or entity to which any ownership interest in any Borrower shall have been transferred; (iv) any purchaser of any asset of any Borrower; or (v) any other Person (except Borrowers), shareholder, partner, member, principal, parent, subsidiary for any deficiency or other affiliate sum owing with respect to the Note or the Debt. It is understood that the Note and the Debt (except as set forth in the balance of Sellerthis Section 12.24 and in the Mezzanine Loan Environmental Indemnity) may not be enforced against any Person described in clauses (i) through (v) above (other than against Sponsor pursuant to the Mezzanine Loan Sponsor Indemnity Agreement as set forth in clause (i) above) and Lender agrees not to ▇▇▇ or bring any legal action or proceeding against any such Person in such respect. Notwithstanding the foregoing, the foregoing shall not (a) prevent recourse to the Borrowers or the assets of any Borrower, or enforcement of the Pledge or other instrument or document by which Borrowers are bound pursuant to the Loan Documents; (b) estop Lender from instituting or prosecuting a legal action or proceeding or otherwise making a claim against any Borrower or Property Owner as a result of any of the following or against the Person or Persons committing any of the following: (i) fraud or intentional misrepresentation by any Borrower in connection with the Loan or by any Property Owner in connection with the Senior Loan, (ii) the misappropriation by any Borrower, any Property Owner, any Operating Lessee or any Affiliate of Borrower or Property Owner or Operating Lessee of any Proceeds, any Rents and any security deposits, (iii) the breach of any representation, warranty, covenant or indemnification provision in the Mezzanine Loan Environmental Indemnity, (iv) any breach of Section 6.1(i), (v) any loss, damage, cost or expense incurred by or on behalf of Lender by reason of all or any part of the Properties, the Ownership Interests, the Mezzanine Loan Deposit Account, the Mezzanine Loan Holding Account Current Debt Service Account or the Interest Rate Cap Agreement being encumbered by a Lien (other than pursuant to the Loan Documents in favor of Lender) in violation of the Loan Documents, (vi) physical damage to any Property from intentional waste committed by any Borrower, any Property Owner or Operating Lessee or any Affiliate of any Borrower or Property Owner or Operating Lessee, (vii) any loss, damage, cost or expense incurred by or on behalf of Lender by reason of the failure of any Borrower to comply with any of the provisions of Article XIV hereof, (viii) any and all liabilities, obligations, losses, damages, costs and expenses (including, without limitation, Tishman Speyer Propertiesreasonable attorneys’ fees, L.P. causes of action, suits, claims, demands and Goldman, Sachs & Co., or ▇▇▇ ▇▇fic▇▇, ▇irector, employee, trustee, shareholder, member, partner or principal adjustments of any such parentnature or description whatsoever) which may at any time be imposed upon, subsidiary incurred by or other affiliate awarded against Lender, in the event (collectively, "Seller's Affiliates"), and arising out of with this Agreement such circumstances) that (x) any Borrower or any Property Owner should raise any defense, counterclaim and/or allegation in any foreclosure action by Lender relative to the transactions contemplated hereby. Buyer agrees to look solely to Seller and its assets for Ownership Interests, the satisfaction Mezzanine Loan Deposit Account, the Mezzanine Loan Holding Account, the Current Debt Service Reserve Account or assignment of any liability Borrower’s rights to the Interest Rate Cap Agreement (including the right to receive any proceeds derived therefore) or obligation arising under this Agreement any part thereof which is found by a court to have been raised by any Borrower or the transactions contemplated herebyany Property Owner in bad faith or to be wholly without basis in fact or law, or for (y) an involuntary case is commenced against any Borrower or any Property Owner under the performance Bankruptcy Code with the collusion of any of the covenantsBorrower, warranties any Property Owner, Sponsor or other agreements contained herein, and further agrees not to sue or otherwise seek to e▇▇▇rce any personal obligation against any of Seller's their Affiliates or (z) an order for relief is entered with respect to any matters arising out Borrower or any Property Owner or Operating Lessee under the Bankruptcy Code through the actions of this Agreement any Borrower, any Property Owner or any Operating Lessee, Sponsor or any of their Affiliates or (ix) any loss, damage, cost or expense incurred by or on behalf of Lender (including, by (i) any successor and or assign of Lender or (ii) any nominee, designee or purchaser of any portion of the transactions contemplated herebyLoan or Ownership Interests in connection with a foreclosure or deed in lieu of foreclosure transaction) by reason of the failure of any Borrower or Property Owner to complete and pay for the work set forth on attached Exhibit D at the Properties; or (xi) attorney’s fees, costs and expenses incurred by Lender, its agents or any servicer of the Loan in connection with any successful suit by Lender to enforce the terms of the Loan Documents; or (c) estop Lender from enforcing its rights under the indemnity agreement being executed concurrently herewith by the Sponsor in favor of the Lender, for losses caused by any of the foregoing items set forth in section (b) above. The provisions Borrowers hereby agree that notwithstanding any provision to the contrary herein or in any other Loan Document, to the extent otherwise permitted by law, its obligations pursuant to clause (b)(x) of this Section 10.10, however, shall not apply survive the full repayment of the Loan and/or the passage of title to Tishman Speyer/Travelers Real Estate Venture, L.P. and Whitehall Street Real Estate Limited Partnership IX (collectivelyall or any portion of the Ownership Interests to Lender. Notwithstanding the foregoing, the "Members") to total liability of any Borrower under this Agreement, the extent of Note, the amount Pledge or any of the Members has received other Loan Documents shall not:
(i) at any time during the period from the proceeds Closing Date to a date one year and a day after the Closing Date exceed the sum of (A) the Allocated Loan Amount for the Ownership Interest or Ownership Interests as being owned by such Borrower plus (B) such Borrower’s Net Worth on the date hereof, less (C) $1,000, and
(ii) at any time after the period referred to in clause (i) above exceed the sum of (A) the Allocated Loan Amount for the Ownership Interests as being owned by such Borrower plus (B) the greater of such Borrower’s Net Worth on the date hereof and such Borrower’s Net Worth on the date such determination is being made (it being understood that for purposes of determining such Borrower’s Net Worth on any date subsequent to the date that is one year and a day after the Closing Date, such Borrower’s liabilities shall only include liabilities that are permitted under the terms of the transactions which is the subject of this AgreementLoan Documents), if the remaining funds available to Seller to satisfy the obligations of the Seller pursuant to this Agreement or the transactions contemplated hereby are not at least equal to Five Million Dollars less (C) $5,000,000) or such lower amount of liability or potential liability as the Seller may have under such agreements. The provisions of this Section 10.10 shall survive the termination of this Agreement and the Closing. This Section 10.10 will not apply to the parties to the Parking Easement or the Development Indemnity Agreement to the extent such claim or cause of action relates solely to the Parking Easement Agreement or the Development Indemnity Agreement, as applicable1,000.
Appears in 1 contract
Sources: Mezzanine Loan Agreement (Strategic Hotel Capital Inc)
Exculpation. Buyer agrees that it does (a) Notwithstanding anything to the contrary herein or in any of the other Loan Documents but subject to the qualifications below, Lender shall not have enforce the liability and will not have 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 claims action or causes of action proceeding wherein a money judgment or any deficiency judgment or other judgment establishing personal liability shall be sought against Borrower or any disclosed or undisclosed officerprincipal, director, officer, employee, trusteebeneficiary, shareholder, partner, member, principal, parent, subsidiary or other affiliate of Seller, including, without limitation, Tishman Speyer Properties, L.P. and Goldman, Sachs & Co., or ▇▇▇ ▇▇fic▇▇, ▇irector, employeemanager, trustee, shareholder, member, partner or principal of any such parent, subsidiary or other affiliate (collectively, "Seller's Affiliates"), arising out of with this Agreement or the transactions contemplated hereby. Buyer agrees to look solely to Seller and its assets for the satisfaction of any liability or obligation arising under this Agreement or the transactions contemplated herebyagent, or for Affiliate of Borrower (but specifically excluding Guarantor subject to the performance terms of the Guaranty) or any legal representatives, successors or assigns of any of the covenantsforegoing (collectively, warranties the “Exculpated Parties”), except that Lender may bring a foreclosure action, an action for specific performance or any other agreements contained 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 further agrees 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 to sue or otherwise seek to e▇▇▇rce ▇ for, seek or demand any personal obligation deficiency judgment against Borrower or any of Seller's Affiliates the Exculpated Parties in any such action or proceeding under or by reason of or under or in connection with respect to any matters arising out of the Note, this Agreement Agreement, the Security Instrument or the transactions contemplated herebyother Loan Documents. The provisions of this Section 10.10shall not, however, shall not apply (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 Tishman Speyer/Travelers Real Estate Venturename 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 separate written indemnity or guaranty (including, L.P. and Whitehall Street Real Estate Limited Partnership IX (collectivelywithout limitation, the "Members"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 in such separate written indemnity or guaranty and without the effect of the exculpatory provisions of this Article 13); (4) impair the right of Lender to obtain the appointment of a receiver; (5) impair the enforcement of the assignment of leases and rents contained in the Security Instrument; (6) intentionally omitted; (7) constitute a prohibition against Lender seeking a deficiency judgment against Borrower in order to fully realize the security granted by the Security Instrument (but not to impose personal liability upon Borrower contrary to this Section 13.1) 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 Losses incurred by Lender (including attorneys' fees and costs reasonably incurred) directly arising out of or caused by the amount following:
(i) fraud or willful misrepresentation by Borrower, any SPE Component Entity, any of the Members Exculpated Parties or Guarantor in connection with the Loan;
(ii) the gross negligence or willful misconduct of Borrower, any SPE Component Entity, any of the Exculpated Parties or Guarantor;
(iii) material physical waste to the Property (or any portion thereof) caused by the intentional acts or intentional omissions of Borrower, any SPE Component Entity, any of the Exculpated Parties or Guarantor;
(iv) the removal or disposal of any portion of the Property by Borrower, any SPE Component Entity, any of the Exculpated Parties or Guarantor after an Event of Default unless replaced with property of similar utility and of equal or better value than the portion of the Property so removed or disposed of, as determined by Lender in its reasonable judgment;
(v) the misapplication, misappropriation or conversion by Borrower of (A) any insurance proceeds paid by reason of any Casualty to the Property (or any portion thereof), or (B) any Awards or other amounts received in connection with the Condemnation of all or a portion of the Property, which such proceeds or Award are received by Borrower and not applied as required hereunder or under the other Loan Documents;
(vi) the misapplication, misappropriation or conversion by Borrower of any Rents during the continuance of an Event of Default, which are received by Borrower and not applied by Borrower to the payment of either (i) normal and necessary Operating Expenses or (ii) the Debt;
(vii) failure by Borrower to pay, or cause to be paid, prior to delinquency any Taxes or Other Charges if non-payment of the same would create liens senior to the lien of the Security Instrument on all or any portion of the Property, but only to the extent the Property generates sufficient revenue for the immediately preceding twelve (12) month period (or, if applicable, such shorter period that Borrower has received owned each the Property) to pay the same;
(viii) the failure of Borrower to deliver any security deposits, advance deposits or any other deposits collected with respect to the Property to Lender, upon a foreclosure of the Property (or any portion thereof) or action in lieu thereof, except to the extent any such security deposits were applied in accordance with the terms and conditions of any of the Leases prior to the occurrence of the Event of Default that gave rise to such foreclosure or action in lieu thereof;
(ix) the material breach of any representation, warranty, covenant or indemnification provision in the Environmental Indemnity, this Agreement or in the Security Instrument concerning environmental laws, hazardous substances and asbestos and any indemnification of Lender with respect thereto in either document;
(x) Borrower's failure to comply with the indemnification obligations in Sections 11.2 and 12.3 hereof;
(xi) the breach of any material representation, warranty or covenant contained in Article 5 hereof;
(xii) the seizure or forfeiture of the Property, or any portion thereof, or Borrower's interest therein, resulting from criminal wrongdoing by Borrower or Guarantor;
(xiii) Borrower's failure to cause any tenant of the Property to obtain a certificate of occupancy in accordance with the requirements of the applicable Lease;
(xiv) Borrower's failure to cause the cure of the Autozone Violation;
(xv) Borrower's failure to maintain flood insurance for the Property with a deductible of not more than $25,000; provided, however, Borrower's liability under this clause (xv) shall be limited to the amount of the deductible under the flood insurance policy; and/or
(xvi) Borrower's failure to maintain the Environmental Insurance Policy.
(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 files a voluntary petition under the Bankruptcy Code or any other Creditors Rights Laws; (ii) an Affiliate, officer, director, or representative which Controls, directly or indirectly, Borrower 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; (iii) 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 against it; (iv) 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 custodian, receiver, trustee, or examiner for Borrower or any SPE Component Entity or any portion of the Property (other than a receiver requested by Lender in connection with enforcement of its rights under the Loan Documents); (v) Borrower or any SPE Component Entity 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; (vi) [Intentionally omitted]; (vii) Borrower or any SPE Component Entity (or any Restricted Party) contests or opposes any motion made by Lender to obtain relief from the proceeds automatic stay or seeks to reinstate the automatic stay in the event of any federal or state bankruptcy or insolvency proceeding involving the transactions which Guarantor or its Affiliates; (viii) Borrower (or any Restricted Party) accepts from any Guarantor or Guarantor solicits or provides any debtor-in-possession financing to Borrower in the event Borrower (or any Restricted Party) is the subject of this Agreement, if the remaining funds available to Seller to satisfy the obligations of the Seller pursuant to this Agreement a bankruptcy or the transactions contemplated hereby are not at least equal to Five Million Dollars insolvency proceeding; or ($5,000,000ix) any covenant contained in Article 6 hereof is violated or such lower amount of liability or potential liability as the Seller may have under such agreements. The provisions of this Section 10.10 shall survive the termination of this Agreement and the Closing. This Section 10.10 will not apply to the parties to the Parking Easement or the Development Indemnity Agreement to the extent such claim or cause of action relates solely to the Parking Easement Agreement or the Development Indemnity Agreement, as applicablebreached.
Appears in 1 contract
Sources: Loan Agreement (Cole Credit Property Trust Iv, Inc.)
Exculpation. Buyer agrees that it does (a) Subject to the qualifications below, Lender shall not have enforce the liability and will not have obligation of Borrower to perform and observe the obligations contained in the Note, this Agreement, the Pledge Agreement or the other Loan Documents by any claims action or causes of action proceeding wherein a money judgment or any deficiency judgment or other judgment establishing personal liability shall be sought against Borrower, any disclosed other Borrower Party, or undisclosed officerany principal, director, officer, employee, trusteebeneficiary, shareholder, partner, member, principaltrustee, parent, subsidiary or other affiliate of Seller, including, without limitation, Tishman Speyer Properties, L.P. and Goldman, Sachs & Co.agent, or ▇▇▇ ▇▇fic▇▇Affiliate of Borrower or any other Borrower Party or any legal representatives, ▇irector, employee, trustee, shareholder, member, partner successors or principal of any such parent, subsidiary or other affiliate (collectively, "Seller's Affiliates"), arising out of with this Agreement or the transactions contemplated hereby. Buyer agrees to look solely to Seller and its assets for the satisfaction of any liability or obligation arising under this Agreement or the transactions contemplated hereby, or for the performance assigns of any of the covenantsforegoing (collectively, warranties the “Exculpated Parties”), except that Lender may bring a foreclosure action, an action for specific performance or any other agreements contained appropriate action or proceeding to enable Lender to enforce and realize upon its interest under the Note, this Agreement, the Pledge Agreement and the other Loan Documents, or in the Property, the Mezzanine A Collateral, the 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 Mezzanine A Collateral, in the Collateral and further agrees in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Pledge Agreement and the other Loan Documents, shall not to sue for, seek or otherwise seek to e▇▇▇rce demand any personal obligation deficiency judgment against Borrower or any of Seller's Affiliates the Exculpated Parties in any such action or proceeding under or by reason of or under or in connection with respect to any matters arising out of the Note, this Agreement, the Pledge Agreement or the transactions contemplated herebyother Loan Documents. The provisions of this Section 10.10shall not, however, shall not apply (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 Tishman Speyer/Travelers Real Estate Venturename Borrower as a party defendant in any action or suit for foreclosure and sale under the Pledge Agreement; (3) affect the validity or enforceability of any indemnity, L.P. guaranty or similar instrument (including, without limitation, indemnities set forth in Article 12 hereof, Section 11.2 hereof, in the Guaranty and Whitehall Street Real Estate Limited Partnership IX the Environmental Indemnity) made in connection with the Loan or any of the rights and remedies of Lender thereunder (collectivelyincluding, without limitation, ▇▇▇▇▇▇’s right to enforce said rights and remedies against ▇▇▇▇▇▇▇▇ 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 Pledge Agreement or 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 Pledge Agreement or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against the Property (or any portion thereof), the "Members"Mezzanine A Collateral (or any portion thereof) and/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 actually incurred by ▇▇▇▇▇▇ (including reasonable attorneys’ fees and costs reasonably incurred) arising out of or in connection with the amount following:
(i) fraud or intentional material misrepresentation by ▇▇▇▇▇▇▇▇, Mortgage Borrower, Mezzanine A Borrower, any SPE Component Entity, any Mortgage SPE Component Entity, any Mezzanine A 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 Members has received foregoing (each, a “Recourse Party”) in connection with the Loan;
(ii) willful misconduct of any Recourse Party in connection with the Loan;
(iii) the breach of any indemnification provision in the Loan Documents, the Mezzanine A Loan Documents or the Mortgage Loan Documents concerning environmental laws, hazardous substances and asbestos and any indemnification of Lender with respect thereto;
(iv) material physical waste to any Property caused by the intentional acts of any Recourse Party, but only to the extent there is sufficient cash flow from the proceeds Properties to prevent such physical waste and such cash flow is made available by (x) Mortgage Lender for the purpose of preventing such physical waste from the applicable Mortgage Loan Reserve Accounts after all conditions to such release had been met to the extent sums sufficient to pay or perform such liability have been deposited with Mortgage Lender in accordance with the terms of the transactions which is Mortgage Loan Agreement, (y) Mezzanine A Lender for the subject purpose of preventing such physical waste from accounts (if any) under the Mezzanine A Loan Agreement after all conditions to such release had been met to the extent sums sufficient to pay or perform such liability have been deposited with Mezzanine A Lender in accordance with the terms of the Mezzanine A Loan Agreement or (z) Lender for the purpose of preventing such physical waste from Accounts (if any) after all conditions to such release had been met to the extent sums sufficient to pay or perform such liability have been deposited with Lender in accordance with the terms of this Agreement;
(v) the 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 a Recourse Party in contravention of the Loan Documents: (A) any insurance proceeds received by Borrower by reason of any Casualty, (B) any Awards or other amounts received by Borrower from a governmental authority in connection with a Condemnation of all or a portion of the Property, (C) any revenues generated by the Properties, (E) any proceeds received by Mortgage Borrower, Mezzanine A Borrower or Borrower under any owner’s title insurance policy, (F) any distributions or other payments made in violation of this Agreement, if or (G) Net Liquidation Proceeds After Debt Service;
(vii) any Security Deposits, advance deposits or any other deposits collected with respect to any Property which are not delivered to Lender upon a foreclosure of such Property or action in lieu thereof, except to the remaining funds extent any such Security Deposits were delivered to Mortgage Lender in accordance with the Mortgage Loan Agreement and/or applied in accordance with the terms and conditions of any of the applicable Lease;
(viii) any litigation or other legal proceeding related to the Loan filed by a Recourse Party with the effect of delaying, opposing, impeding, obstructing, hindering, enjoining or otherwise interfering with the efforts of ▇▇▇▇▇▇ to exercise any rights and remedies available to Seller to satisfy Lender during the obligations continuance of an Event of Default; provided, however, that there shall be no liability hereunder on account of, and the Seller foregoing shall not restrict, ▇▇▇▇▇▇▇▇’s or Guarantor’s right to, dispute, in good faith, whether the relevant Event of Default shall have occurred or whether an action taken by Lender pursuant to 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 ▇▇▇▇▇▇;
(ix) Borrower fails to obtain ▇▇▇▇▇▇’s prior written consent to any additional indebtedness or voluntary lien encumbering any Property, the Mezzanine A Collateral or the Collateral and not permitted by the Loan Documents;
(x) Intentionally omitted;
(xi) intentionally omitted;
(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 Mortgage Borrower without ▇▇▇▇▇▇’s prior written consent other than in connection with Mortgage Borrower acquiring the fee estate from the applicable PILOT Lessor or as otherwise expressly permitted under this Agreement or (B) Mortgage Borrower’s or the transactions contemplated hereby are applicable Tenant’s failure to comply with or Mortgage Borrower’s or the applicable Tenant’s breach of any PILOT Lease and/or PILOT Document that results in (x) a reduction of any tax abatement and/or mandatory repayment of any past or current tax abatement under such PILOT Lease and/or PILOT Document, as applicable, (y) termination of such PILOT Lease and/or PILOT Document, as applicable, and the benefits thereunder in favor of Mortgage Borrower or Tenant or (z) a default by such Mortgage Borrower under the applicable Lease for such PILOT Property (and, in any such case, Losses shall include lost rental income); provided, that, in each case, the liability with respect to this Section 13.1(a)(xii) shall not at least equal exceed the Allocated Loan Amount of the applicable PILOT Property;
(xiii) other than as set forth in Section 13.1(b)(v), a breach by Borrower of any covenant of Article 5 of this Agreement (excluding any provision requiring Borrower to Five Million Dollars remain solvent, maintain adequate capital or pay its debts as they come due);
($5,000,000xiv) or such lower amount of any liability or potential liability as obligation of Borrower, Mezzanine A Borrower or Mortgage Borrower relating to the Seller Previously-Owned Property;
(xv) incurrence of liens encumbering any Property, the Mezzanine A Collateral, the Collateral or the direct or indirect interests in Borrower, Mezzanine A Borrower or Mortgage Borrower;
(xvi) any Borrower Party enters into Material Agreements in violation of this Agreement;
(xvii) unsecured indebtedness and indemnification obligations of Mortgage Borrower or Mezzanine A Borrower, in each instance, in contravention of the Loan Documents;
(xviii) if any Affiliate of Borrower purchases all or any part of the Mortgage Loan;
(xix) any obligation of Borrower, Mezzanine A Borrower or Mortgage Borrower (a) to indemnify any Person that, immediately prior to any acquisition of title to the Collateral pursuant to a UCC foreclosure sale, a UCC strict foreclosure, an assignment in lieu of foreclosure or other enforcement action under the Loan Documents (collectively, an “Equity Collateral Enforcement Action”) was an Affiliate of Borrower, Mezzanine A Borrower or Mortgage Borrower, or (b) to pay any amounts due under any contract or agreement between Borrower, Mezzanine A Borrower or Mortgage Borrower, on the one hand, and any Person that, immediately prior to an Equity Collateral Enforcement Action, was an Affiliate of Borrower, Mezzanine A Borrower or Mortgage Borrower, on the other hand; and/or (c) to pay legal fees to any legal counsel engaged by ▇▇▇▇▇▇▇▇, Mezzanine A Borrower or Mortgage Borrower or any Affiliate of Borrower, Mezzanine A Borrower or Mortgage Borrower prior to the date of the consummation of an Equity Collateral Enforcement Action; and/or
(xx) any breach of any representation, warranty or covenant contained in Section 10 of the Pledge 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 such agreements. The Section 506(a), 506(b), 1111(b) or any other provisions of this Section 10.10 the Bankruptcy Code to file a claim for the full amount of the Debt or to require that all collateral shall survive continue to secure all of the termination 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 filing of, a petition against Borrower under the 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 this Agreement and a custodian, receiver, trustee, or examiner for Borrower (other than with the Closing. This Section 10.10 will not apply prior written consent of Lender), (iv) Borrower makes an assignment for the benefit of creditors (other than to Lender in connection with the Loan or with the prior written consent of ▇▇▇▇▇▇), provided, that, with respect to the parties Mortgage Loan and Mezzanine A Loan only, (x) the exercise of remedies under the Mortgage Loan, the Mezzanine A Loan or the Loan shall not by itself trigger recourse liability to Borrower or Guarantor, and (y) Guarantor shall not have liability for matters first arising after a foreclosure or assignment-in-lieu of foreclosure of the Mortgage Loan, the Mezzanine A Loan or the Loan or for actions taken by Mortgage Lender, Mezzanine A Lender or by Lender pursuant to the Parking Easement exercise of any voting proxy or similar rights to exercise control over the Mezzanine A Collateral or the Development Indemnity Agreement Collateral, except, in each case, to the extent such claim or cause of action relates solely due to the Parking Easement Agreement actions of Guarantor or its Affiliates; (v) there is a breach of any provision of Article 5 (Single Purpose Entity Covenants) hereof or the Development Indemnity Agreementseparateness covenants contained in the Borrower’s or SPE Component Entity’s organizational documents (excluding, in each case, any provision requiring 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, Mezzanine A Borrower or Mortgage Borrower with any other Person; provided that the motion or pleading seeking substantive consolidation was not brought or supported by Lender and, as applicablea 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 obtain Lender’s prior consent to (a) the transfer or conveyance of all or any portion of any Property, the Mezzanine A Collateral or the Collateral, (b) the transfer of any direct or indirect equity interests in Mortgage Borrower, any Mortgage SPE Component Entity, any Mezzanine A Borrower, any Mezzanine A SPE Component Entity, Borrower or any SPE Component Entity, or (c) the granting of any security interest in the direct equity interests in any Mortgage Borrower, any Mortgage SPE Component Entity, any Mezzanine A Borrower or any Mezzanine A SPE Component Entity, in each case in violation of the Loan Documents, or (vii) violation of covenants regarding opting into Article 8 of the UCC.
Appears in 1 contract
Sources: Mezzanine Loan Agreement (Industrial Logistics Properties Trust)
Exculpation. Buyer agrees Subject to the qualifications below, Agent shall not enforce the liability and obligation of Borrower to perform and observe the obligations contained in the Loan Documents by any action or proceeding wherein a money judgment of more than $10,000,000 of outstanding Obligations shall be sought against Borrower, except that it does Lender may bring an action for specific performance or any other appropriate action or proceeding to enable Agent to enforce and realize upon its interest and rights to the Collateral securing the Loan; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding in excess of $10,000,000 shall be enforceable against Borrower only to the extent of Borrower’s interest in the Collateral given to Agent, and Agent shall not have and will not have any claims or causes of action against any disclosed or undisclosed officer, director, employee, trustee, shareholder, partner, member, principal, parent, subsidiary or other affiliate of Seller, including, without limitation, Tishman Speyer Properties, L.P. and Goldman, Sachs & Co., or ▇▇▇ ▇▇fic▇▇for, ▇irector, employee, trustee, shareholder, member, partner seek or principal of demand any deficiency judgment against Borrower in any such parent, subsidiary action or other affiliate (collectively, "Seller's Affiliates"), arising out proceeding under or by reason of or under or in connection with this Agreement or the transactions contemplated hereby. Buyer agrees to look solely to Seller and its assets for the satisfaction of any liability or obligation arising under this Agreement or the transactions contemplated hereby, or for the performance of any of the covenants, warranties or other agreements contained herein, and further agrees not to sue or otherwise seek to e▇▇▇rce any personal obligation against any of Seller's Affiliates with respect to any matters arising out of this Agreement or the transactions contemplated herebyLoan Document. The provisions of this Section 10.1013.13 shall not, however, shall not apply (a) constitute a waiver, release or impairment of any obligation evidenced or secured by any Loan Document; (b) affect the validity or enforceability of any of the Loan Documents or any of the rights and remedies of Agent thereunder; (c) constitute a prohibition against Lender to Tishman Speyer/Travelers Real Estate Venturecommence any other appropriate action or proceeding in order for Lender to fully realize the security granted by the Collateral; or (d) constitute a waiver of the right of Lender to enforce the liability and obligation of Borrower, L.P. and Whitehall Street Real Estate Limited Partnership IX (collectivelyby money judgment or otherwise, the "Members") to the extent of any actual, out-of-pocket 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 amount following:
(i) any willful or intentional misrepresentation or gross negligence by Borrower in connection with the Loan;
(ii) any acts of fraud, misappropriation of funds or theft by Borrower;
(iii) any unauthorized, consensual and intentional transfer, assignment, sale or encumbrance of any Collateral under the Loan caused by the acts or omissions of Borrower, other than as permitted under the Loan Documents;
(iv) any material damage, destruction or waste to any Collateral or the Resort caused by the acts or omissions of Borrower, its agents or employees;
(v) the removal or disposal by, or at the direction of Borrower, of any portion of the Collateral, other than as permitted under the Loan Documents;
(vi) any failure by Borrower to pay taxes, assessments, or other charges affecting the Resort or any Collateral as may be required by Borrower pursuant to the Loan Agreement;
(vii) any failure by Borrower to maintain insurance as required by Borrower pursuant to the Loan Agreement; and/or
(viii) the misapplication or conversion by Borrower of (A) any insurance proceeds received by Borrower which are paid by reason of any loss, damage or destruction to the Collateral, or (B) any awards or other amounts received by Borrower in connection with the condemnation of all or a portion of the Resort in violation of the Loan Documents, in each of the foregoing clauses (A) and (B) only to the extent of proceeds received or misapplied by Borrower; Notwithstanding anything to the contrary in this Amendment or any of the Members has received from the proceeds of the transactions Loan Documents, (A) Agent shall not be deemed to have waived any right which is the subject of this Agreement, if the remaining funds available to Seller to satisfy the obligations of the Seller pursuant to this Agreement or the transactions contemplated hereby are not at least equal to Five Million Dollars ($5,000,000) or such lower amount of liability or potential liability as the Seller Agent may have under such agreements. The Section 506(a), 506(b), 1111(b) or any other provisions of this Section 10.10 the Bankruptcy Code to file a claim for the full amount of the Obligations or to require that all collateral shall survive continue to secure all of the termination Obligations in accordance with the Loan Documents, and (B) Agent’s agreement not to pursue personal liability of this Agreement Borrower as set forth above SHALL BECOME NULL AND VOID and shall be of no further force and effect, and the Closing. This Section 10.10 will not apply Obligations shall be fully recourse to Borrower in the parties event that one or more of the following occurs:
(i) Borrower files a voluntary petition under any Debtor Relief Law or consents to any such filing, or commences a proceeding for the Parking Easement appointment of a receiver, trustee, liquidator or conservator of Borrower or of the whole or any substantial part of the Collateral or the Development Indemnity Agreement to the extent such claim or cause of action relates solely to the Parking Easement Agreement Resort or the Development Indemnity Agreementwhole or any substantial part of Borrower’s assets;
(ii) an officer, director, representative or Person which controls, directly or indirectly, Borrower, files, or joins in the filing of, an involuntary petition against Borrower under the Bankruptcy Code or any other federal or state bankruptcy or insolvency law, or solicits or causes to be solicited petitioning creditors for any involuntary petition against Borrower from any Person;
(iii) Borrower 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, or solicits or causes to be solicited petitioning creditors for any involuntary petition from any Person;
(iv) in any case or proceeding under the Bankruptcy Code or in any other judicial proceeding, Borrower makes application to a court to (A) declare that all or any portion of the lien of Agent or the Obligations of Borrower to pay principal and interest as applicablespecified in the Loan Documents be rescinded, set aside, or determined to be void or unenforceable, or (B) modify any of the terms of any of the Loan Documents without Agent’s consent;
(v) the voluntary dissolution or liquidation of the Borrower;
(vi) Borrower or any of its Affiliates asserts any claim, defense or offset against Agent that Borrower has waived or agreed not to assert.
Appears in 1 contract
Sources: Loan and Security Agreement (Bluegreen Vacations Corp)
Exculpation. Buyer (a) Subject to the qualifications set forth in this Section 9.3, Lender shall not enforce the liability and obligation of Borrower or Operating Lessee to perform and observe the obligations contained in the Note, this Agreement, the Mortgage or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against Borrower or Operating Lessee, except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender to enforce and realize upon its interest under the Note, this Agreement, the Mortgage and the other Loan Documents, or in the Property, the IP 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 or Operating Lessee only to the extent of Borrower’s or Operating Lessee’s interest in the Property, in the Rents, in the IP Collateral and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Mortgage and the other Loan Documents, agrees that it does shall not have ▇▇▇ for, seek or demand any deficiency judgment against Borrower in any such action or proceeding under or by reason of or under or in connection with the Note, this Agreement, the Mortgage or the other Loan Documents. The provisions of this Section shall not, however, (i) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (ii) impair the right of Lender to name Borrower or Operating Lessee as a party defendant in any action or suit for foreclosure and will not have sale under the Mortgage or the IP Security Agreement; (iii) affect the validity or enforceability of or any claims guaranty made in connection with the Loan or causes any of the rights and remedies of Lender thereunder; (iv) impair the right of Lender to obtain the appointment of a receiver; (v) impair the enforcement of any assignment of leases contained in the Mortgage; or (vi) constitute a prohibition against Lender to seek a deficiency judgment against Borrower or Operating Lessee in order to fully realize the security granted by the Mortgage or the IP Security Agreement or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against the Property or IP Collateral;
(b) Nothing contained herein shall in any disclosed manner or undisclosed officerway release, directoraffect or impair any right of Lender to enforce the liability and obligation of Borrower or Operating Lessee, employeeby money judgment or otherwise, trusteeto the extent of any loss, shareholderdamage, partnercost, memberexpense, principalliability, parent, subsidiary claim or other affiliate obligation to the extent actually incurred by Lender (including reasonable attorneys’ fees and costs reasonably incurred) arising out of Selleror incurred in connection with the following on the part of Guarantor, Borrower, Operating Lessee or any Affiliated Manager until such time, if any, as a Transfer resulting from, the exercise of Lender’s rights under the Loan Documents, any Mezzanine Lender’s rights under any Mezzanine Loan Documents or the consummation of any remedial or enforcement action by the Lender or any holder of any Mezzanine Loan of the collateral for the Loan or any Mezzanine Loan, including, without limitation, Tishman Speyer Propertiesany foreclosure, L.P. deed-in-lieu or assignment in lieu of foreclosure and Goldmanthe exercise of any rights of Lender or Mezzanine Lender under the Mortgage, Sachs & Co.the IP Security Agreement or any Pledge Agreement, including, without limitation, any right to vote any pledged securities or any right to replace officers and directors of any Person (collectively, a “Foreclosure”), that in each case results in Borrower, any Mezzanine Borrower, Operating Lessee or any Affiliated Manager, as applicable not being under the Control of Guarantor:
(i) fraud or intentional misrepresentation by Borrower or Operating Lessee in connection with the Loan;
(ii) willful misconduct of Borrower, Operating Lessee or Guarantor that results in physical damage or waste to the Property;
(iii) the removal or disposal, by, or ▇▇▇ ▇▇fic▇▇on behalf of Borrower, ▇irectorOperating Lessee or Guarantor, employeeof any portion of the Property or IP Collateral during the continuance of an Event of Default;
(iv) the misappropriation or conversion by Borrower or Operating Lessee of (A) any Insurance Proceeds paid by reason of any Casualty, (B) any Awards received in connection with a Condemnation of all or a portion of the Property, (C) any Rents following an Event of Default, or (D) any Rents paid more than one month in advance;
(v) a material breach of any representation, warranty or covenant set forth in Section 4.1.30(e) or Section 5.1.28 hereof, including without limitation, if Borrower incurs Indebtedness other than Permitted Debt in violation of Section 5.1.28(b);
(vi) intentionally omitted; and
(vii) if Borrower fails to obtain Lender’s prior written consent to any Sale, Pledge or Transfer of the Property or the IP Collateral or a Transfer of the ownership interests in Borrower, in each case as required by Section 5.2.10 hereof, and in each case, excluding Permitted Transfers, Permitted Encumbrances and any other Lien expressly permitted under the Loan Documents. For the avoidance of doubt, a Transfer resulting from a Foreclosure shall not be a Transfer in violation of Section 5.2.10 hereof.
(c) Notwithstanding anything to the contrary in this Agreement, the Note or any of the Loan Documents, (I) Lender shall not be deemed to have waived any right which Lender may have under Section 506(a), 506(b), 1111(b) or any other provisions of the Bankruptcy Code to file a claim for the full amount of the Debt secured by the Mortgage or to require that all collateral shall continue to secure all of the Debt owing to Lender in accordance with the Loan Documents, and (II) the Debt shall be fully recourse to Borrower in the event of: (A) Borrower, Operating Lessee or Operating Lessee GP filing a voluntary petition under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (B) the filing of an involuntary petition against Borrower, Operating Lessee or Operating Lessee GP under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law in which Borrower, Operating Lessee or Operating Lessee GP colludes with, or otherwise assists such Person, or solicits or causes to be solicited petitioning creditors for any involuntary petition against Borrower, Operating Lessee or Operating Lessee GP from any Person; (C) Borrower, Operating Lessee or Operating Lessee GP filing an answer consenting to or otherwise acquiescing in or joining in any involuntary petition filed against it, by any other Person under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law or (D) Borrower, Operating Lessee or Operating Lessee GP consenting to or acquiescing in or joining in an application for the appointment of a custodian, receiver, trustee, shareholderor examiner for Borrower, member, partner Operating Lessee or principal Operating Lessee GP or any portion of any such parent, subsidiary or other affiliate (collectively, "Seller's Affiliates"), arising out of with this Agreement the Property or the transactions contemplated hereby. Buyer agrees IP Collateral.
(d) From and after a Permitted Assumption, the Debt shall be fully recourse to look solely Borrower and Guarantor (or any substitute guarantor pursuant to Seller and its assets Section 5.2.10(e)(xi)) hereof for Borrower’s failure to obtain Lender’s prior written consent to any Sale or Pledge of the satisfaction of any liability or obligation arising under this Agreement IP Collateral or the transactions contemplated hereby, Property or for the performance of any a Transfer of the covenantsownership interests in any Restricted Party as required by Section 5.2.10 hereof and excluding Permitted Transfers, warranties or Permitted Encumbrances and any other agreements contained hereinLien expressly permitted under the Loan Documents. For the avoidance of doubt, and further agrees not to sue or otherwise seek to e▇▇▇rce any personal obligation against any of Seller's Affiliates with respect to any matters arising out of this Agreement or the transactions contemplated hereby. The provisions of this Section 10.10, however, a Transfer resulting from a Foreclosure shall not apply to Tishman Speyer/Travelers Real Estate Venture, L.P. and Whitehall Street Real Estate Limited Partnership IX (collectively, the "Members") to the extent be a Transfer in violation of the amount any of the Members has received from the proceeds of the transactions which is the subject of this Agreement, if the remaining funds available to Seller to satisfy the obligations of the Seller pursuant to this Agreement or the transactions contemplated hereby are not at least equal to Five Million Dollars ($5,000,000) or such lower amount of liability or potential liability as the Seller may have under such agreements. The provisions of this Section 10.10 shall survive the termination of this Agreement and the Closing. This Section 10.10 will not apply to the parties to the Parking Easement or the Development Indemnity Agreement to the extent such claim or cause of action relates solely to the Parking Easement Agreement or the Development Indemnity Agreement, as applicable.5.2.10 hereof;
Appears in 1 contract
Exculpation. Buyer agrees that it does not Effective as of the Effective Date, the Exculpated Parties shall neither have and will not have nor incur any liability to any Person or Entity for any claims or causes Causes of action against Action or for any disclosed act taken or undisclosed officer, director, employee, trustee, shareholder, partner, member, principal, parent, subsidiary omitted to be taken on or other affiliate of Seller, including, without limitation, Tishman Speyer Properties, L.P. after the Petition Date and Goldman, Sachs & Co.prior to or on the Effective Date in connection with, or ▇▇▇ ▇▇fic▇▇related to, ▇irectorthe administration of the Chapter 11 Cases, employeecommencement of the Chapter 11 Cases, trusteepursuit of Confirmation and consummation of this Plan, shareholdermaking Distributions, memberthe Disclosure Statement, partner the Sale Process, the Sale Order, or principal the solicitation of votes for, or Confirmation of, this Plan; the occurrence of the Effective Date; the administration of this Plan or the property to be distributed under this Plan; the issuance of securities under or in connection with this Plan; the purchase, sale, or rescission of the purchase or sale of any such parent, subsidiary asset or other affiliate (collectively, "Seller's Affiliates"), arising out security of with this Agreement the Debtors; or the transactions contemplated hereby. Buyer agrees to look solely to Seller and its assets for the satisfaction of any liability or obligation arising under this Agreement or the transactions contemplated hereby, or for the performance documentation in furtherance of any of the covenantsforegoing, warranties including but not limited to the Restructuring Support Agreement; or any other agreements contained hereinpostpetition act taken or omitted to be taken in connection with or in contemplation of the restructuring of the Debtors, and further agrees not to sue the approval of the Disclosure Statement or otherwise seek to e▇▇▇rce any personal obligation against any of Seller's Affiliates with respect to any matters arising out Confirmation or consummation of this Agreement or Plan; provided, however, that the transactions contemplated hereby. The foregoing provisions of this Section 10.10, however, exculpation shall not apply operate to Tishman Speyer/Travelers Real Estate Venturewaive or release: (i) any Causes of Action arising from willful misconduct, L.P. and Whitehall Street Real Estate Limited Partnership IX (collectivelyactual fraud, the "Members") to the extent or gross negligence of such applicable Exculpated Party as determined by Final Order of the amount Bankruptcy Court or any other court of competent jurisdiction; and/or (ii) the Members has received from rights of any Person or Entity to enforce this Plan and the proceeds of the transactions which is the subject of contracts, instruments, releases, indentures, and other agreements and documents delivered under or in connection with this Agreement, if the remaining funds available to Seller to satisfy the obligations of the Seller Plan or assumed pursuant to this Agreement Plan or Final Order of the Bankruptcy Court; provided, further, that each Exculpated Party shall be entitled to rely upon the advice of counsel concerning its respective duties pursuant to, or in connection with, the above referenced documents, actions or inactions. The foregoing exculpation shall be effective as of the Effective Date without further notice to or order of the Bankruptcy Court, act or action under applicable law, regulation, order, or rule or the transactions contemplated hereby are not at least equal vote, consent, authorization or approval of any Person. Notwithstanding the foregoing, nothing in this Article IX.D shall or shall be deemed to Five Million Dollars ($5,000,000) prohibit the Debtors or such lower amount the Reorganized Debtors from asserting and enforcing any claims, obligations, suits, judgments, demands, debts, rights, Causes of liability Action or potential liability as the Seller liabilities they may have under such agreementsagainst any Person that is based upon an alleged breach of a confidentiality or non-compete obligation owed to the Debtors or the Reorganized Debtors, in each case unless otherwise expressly provided for in this Plan. The provisions of this Section 10.10 shall survive the termination of this Agreement Exculpation will be in addition to, and the Closing. This Section 10.10 will not apply to the parties to the Parking Easement in limitation of, all other releases, indemnities, exculpations, and any other applicable law or the Development Indemnity Agreement to the extent rules protecting such claim or cause of action relates solely to the Parking Easement Agreement or the Development Indemnity Agreement, as applicableExculpated Parties from liability.
Appears in 1 contract
Sources: Restructuring Support Agreement (Starry Group Holdings, Inc.)
Exculpation. Buyer agrees that it does not Except as otherwise specifically provided in the Plan, no Exculpated Party shall have or incur, and will not have each Exculpated Party is released and exculpated from any claims Cause of Action for any claim related to any act or causes omission in connection with, relating to, or arising out of, the Chapter 11 Cases, the formulation, preparation, dissemination, negotiation, or filing of action against the RSA and related prepetition transactions, the Disclosure Statement, the Plan, or any disclosed or undisclosed officerRestructuring Transaction, directorcontract, employeeinstrument, trustee, shareholder, partner, member, principal, parent, subsidiary release or other affiliate agreement or document created or entered into in connection with the Disclosure Statement or the Plan, the filing of Sellerthe Chapter 11 Cases, includingthe pursuit of Confirmation, without limitationthe pursuit of Consummation, Tishman Speyer Propertiesthe administration and implementation of the Plan, L.P. and Goldman, Sachs & Co.including the issuance of securities pursuant to the Plan, or ▇▇▇ ▇▇fic▇▇the distribution of property under the Plan or any other related agreement, ▇irectorexcept for claims related to any act or omission that is determined in a final order to have constituted actual fraud or gross negligence, employee, trustee, shareholder, member, partner or principal but in all respects such Entities shall be entitled to reasonably rely upon the advice of any such parent, subsidiary or other affiliate (collectively, "Seller's Affiliates"), arising out of with this Agreement or the transactions contemplated hereby. Buyer agrees to look solely to Seller and its assets for the satisfaction of any liability or obligation arising under this Agreement or the transactions contemplated hereby, or for the performance of any of the covenants, warranties or other agreements contained herein, and further agrees not to sue or otherwise seek to e▇▇▇rce any personal obligation against any of Seller's Affiliates counsel with respect to any matters arising out of this Agreement or their duties and responsibilities pursuant to the transactions contemplated herebyPlan. The provisions Exculpated Parties have, and upon completion of this Section 10.10the Plan shall be deemed to have, howeverparticipated 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 apply to Tishman Speyer/Travelers Real Estate Venturebe, L.P. and Whitehall Street Real Estate Limited Partnership IX (collectivelyliable at any time for the violation of any applicable law, rule, or regulation governing the "Members") solicitation of acceptances or rejections of the Plan or such distributions made pursuant to the extent Plan. EXHIBIT B Transfer Agreement PROVISION FOR TRANSFER AGREEMENT The undersigned (“Transferee”) (a) hereby acknowledges that it has read and understands the Restructuring Support Agreement, dated as of (the “Agreement”),1 by and among the Company Parties and each of the amount any Consenting Stakeholders party thereto, (b) desires to acquire the Claims described below (the “Transferred Claims”) from one of the Members has received from Consenting Stakeholders (the proceeds “Transferor”), and (c) hereby irrevocably agrees to be bound by the terms and conditions of the transactions which is the subject of this Agreement, if the remaining funds available to Seller to satisfy the obligations of the Seller pursuant to this Agreement or the transactions contemplated hereby are not at least equal to Five Million Dollars ($5,000,000) or such lower amount of liability or potential liability as the Seller may have under such agreements. The provisions of this Section 10.10 shall survive the termination of this Agreement and the Closing. This Section 10.10 will not apply to the parties to the Parking Easement or the Development Indemnity Agreement to the same extent such claim or cause of action relates solely the Transferor was thereby bound with respect to the Parking Easement Agreement or Transferred Claims, and shall be deemed a “Consenting Stakeholder” and a [“Consenting Creditor”] / [“Consenting Sponsor”] under the Development Indemnity terms of the Agreement. The Transferee hereby specifically and irrevocably agrees (i) to be bound by the terms and conditions of the Agreement, to the same extent applicable to the Transferred Claims, (ii) to be bound by the vote of the Transferor if cast prior to the effectiveness of the transfer of the Transferred Claims, except as applicable.otherwise provided in the Agreement, and (iii) that each of the Parties shall be an express third-party beneficiary of this Provision for Transfer Agreement and shall have the same recourse against the Transferee under the Agreement as such Party would have had against the Transferor with respect to the Transferred Claims. Date Executed: , Print name of Transferee Name: Title: Address: Attention: Telephone: Facsimile:
Appears in 1 contract
Sources: Restructuring Support Agreement
Exculpation. Buyer agrees that it does Except as otherwise provided herein or in the other Loan Documents, Lender shall not have enforce the liability and will not have obligation of Borrower to perform and observe the obligations contained herein or in the other Loan Documents by any claims action or causes proceeding wherein a money judgment shall be sought against (1) Borrower (except as set forth in this Section 15.1 and the Environmental Indemnity), (2) Guarantor (except as set forth in the Guaranty, the PIP Guaranty and the Environmental Indemnity), (3) any Affiliate of action against Borrower, Mortgage Borrower, Mezzanine B Borrower, Mezzanine C Borrower or Mezzanine A Borrower, (4) any disclosed Person owning, directly or undisclosed officerindirectly, director, employee, trustee, shareholder, any legal or beneficial interest in Borrower or any Affiliate of Borrower or (5) any direct or indirect limited partner, member, principal, parentofficer, subsidiary beneficiary, trustee, advisor, employee, agent, shareholder, Affiliate or director of any Persons described in clauses (1) through (5) above (collectively, subject to the exceptions in clauses (i) and (ii) below, the “Exculpated Parties”), except that Lender may bring a foreclosure action, action for specific performance or other affiliate appropriate action or proceeding to enable Lender to enforce and realize upon this Agreement, the Note, the Pledge Agreement and the other Loan Documents, and the interest in the Collateral and any other collateral given to Lender created by this Agreement, the Note, the Pledge Agreement and the other Loan Documents; provided, however, that any judgment in any such action or proceeding shall be enforceable against Borrower, only to the extent of SellerBorrower’s interest in the Collateral and in any other collateral given to Lender. Lender, includingby accepting this Agreement, without limitationthe Note, Tishman Speyer Propertiesthe Pledge Agreement and the other Loan Documents, L.P. and Goldmanagrees that it shall not, Sachs & Co.except as otherwise provided in this Section 15.1, or ▇▇▇ ▇▇fic▇▇for, ▇irector, employee, trustee, shareholder, member, partner seek or principal of demand any deficiency judgment against any Exculpated Party in any such parentaction or proceeding, subsidiary under or other affiliate (collectively, "Seller's Affiliates"), arising out by reason of or under or in connection with this Agreement, the Note, the Pledge Agreement or the transactions contemplated hereby. Buyer agrees to look solely to Seller and its assets for the satisfaction of any liability or obligation arising under this Agreement or the transactions contemplated hereby, or for the performance of any of the covenants, warranties or other agreements contained herein, and further agrees not to sue or otherwise seek to e▇▇▇rce any personal obligation against any of Seller's Affiliates with respect to any matters arising out of this Agreement or the transactions contemplated herebyLoan Documents. The provisions of this Section 10.1015.1 shall not, however, shall not apply to Tishman Speyer/Travelers Real Estate Venture(i) constitute a waiver, L.P. and Whitehall Street Real Estate Limited Partnership IX (collectivelyrelease or impairment of any obligation evidenced or secured by this Agreement, the "Members"Note, the Pledge Agreement or the other Loan Documents; (ii) impair the right of Lender to name Borrower or Additional Pledgor as a party defendant in any action or suit for foreclosure and sale under this Agreement and the Pledge Agreement; (iii) affect the validity or enforceability of any indemnity (including, without limitation, those contained in Article 14 of this Agreement and the Environmental Indemnity), guaranty, master ▇▇▇▇▇▇▇▇.▇.▇▇▇▇▇▇▇▇ lease or similar instrument made in connection with this Agreement, the Note, the Pledge Agreement and the other Loan Documents; (iv) impair the right of Lender to obtain the appointment of a receiver; (v) impair the enforcement of the provisions contained in the Pledge Agreement; or (vi) impair the right of Lender to obtain a deficiency judgment or other 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 the amount any of the Members has received from the proceeds of the transactions which is the subject of this Agreement, if the remaining funds available to Seller to satisfy the obligations of the Seller pursuant to this Agreement or the transactions contemplated hereby are not at least equal to Five Million Dollars ($5,000,000) or such lower amount of liability or potential liability as the Seller may have under such agreements. The provisions of this Section 10.10 shall survive the termination of this Agreement and the Closing. This Section 10.10 will not apply to the parties to the Parking Easement or the Development Indemnity Agreement to the extent such claim or cause of action relates solely to the Parking Easement Agreement or the Development Indemnity Agreement, as applicableInsurance Proceeds and/or Awards.
Appears in 1 contract
Sources: Mezzanine Loan Agreement (Ashford Hospitality Trust Inc)
Exculpation. Buyer agrees that it does Subject to the qualifications below, Lender shall not have enforce the liability and will not have obligation of Borrower to perform and observe the obligations contained in the Loan Documents by any claims action or causes proceeding wherein a money judgment shall be sought against Borrower, Operating Tenant, Guarantor, any Affiliate of action against Borrower, Operating Tenant or Guarantor, any disclosed Person owning, directly or undisclosed indirectly, any legal or beneficial ownership interest in Borrower, Guarantor or Operating Tenant, or any director, officer, directormember, employee, trusteepartner, shareholder, partner, member, principal, parent, subsidiary employee or other affiliate of Seller, including, without limitation, Tishman Speyer Properties, L.P. and Goldman, Sachs & Co., or ▇▇▇ ▇▇fic▇▇, ▇irector, employee, trustee, shareholder, member, partner or principal of any such parent, subsidiary or other affiliate (collectively, "Seller's Affiliates"), arising out of with this Agreement or the transactions contemplated hereby. Buyer agrees to look solely to Seller and its assets for the satisfaction of any liability or obligation arising under this Agreement or the transactions contemplated hereby, or for the performance agent of any of the covenantsforegoing, warranties except that Lender may bring a foreclosure action, an action for specific performance or any other agreements contained appropriate action or proceeding to enable Lender to enforce and realize upon its interest and rights under the 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 further agrees in any other collateral given to Lender, and Lender shall not to sue or otherwise seek to e▇▇▇rce ▇ for, seek or demand any personal obligation deficiency judgment against Borrower in any such action or proceeding under or by reason of Seller's Affiliates or under or in connection with respect to any matters arising out of this Agreement or the transactions contemplated herebyLoan Document. The provisions of this Section 10.10shall not, however, shall not apply (i) constitute a waiver, release or impairment of any obligation evidenced or secured by any Loan Document; (ii) impair the right of Lender to Tishman Speyer/Travelers Real Estate Venturename Borrower as a party defendant in any action or suit for foreclosure and sale under the Mortgage; (iii) affect the validity or enforceability of any of the Loan Documents or any guaranty made in connection with the Loan or any of the rights and remedies of Lender thereunder; (iv) impair the right of Lender to obtain the appointment of a receiver; (v) impair the enforcement of the Assignment of Leases; (vi) constitute a prohibition against Lender to commence any other appropriate action or proceeding in order for Lender to fully realize the security granted by the Mortgage or to exercise its remedies against the Property; or (vii) constitute a waiver of the right of Lender to enforce the liability and obligation of Borrower, L.P. and Whitehall Street Real Estate Limited Partnership IX (collectivelyby money judgment or otherwise, the "Members") to the extent of any loss, damage, cost, expense, liability, claim or other obligation incurred by Lender (including attorneys’ fees and costs reasonably incurred) arising out of or in connection with the amount following (all such liability and obligation of Borrower for any or all of the following being referred to herein as “Borrower’s Recourse Liabilities”):
(a) fraud or intentional misrepresentation by Borrower, Operating Tenant, Sole Borrower Member, Sole OT Member or Guarantor in connection with obtaining the Loan;
(b) physical waste of the Property or any portion thereof by or on behalf of Borrower, Operating Tenant, Sole Borrower Member, Sole OT Member or Guarantor, or during the continuance of an Event of Default the removal or disposal of any portion of the Property by or on behalf of Borrower, Operating Tenant, Sole Borrower Member, Sole OT Member or Guarantor;
(c) any Proceeds paid by reason of any Insured Casualty or any Award received in connection with a Condemnation or other sums or payments attributable to the Property not applied in accordance with the provisions of the Loan Documents (except to the extent that Borrower and Operating Tenant did not have the legal right, because of a bankruptcy, receivership or similar judicial proceeding, to direct disbursement of such sums or payments);
(d) all Rents of the Property received or collected by or on behalf of the Borrower or Operating Tenant during the continuance of an Event of Default and not applied to payment of Principal and interest due under the Note, and/or to the payment of actual and reasonable operating expenses of the Property, as they become due or payable (except to the extent that such application of such funds is prevented by bankruptcy, receivership, or similar judicial proceeding in which Borrower or Operating Tenant is legally prevented from directing the disbursement of such sums);
(e) misappropriation of tenant security deposits and Rents collected in advance, including the failure to deliver such amounts to Lender upon foreclosure or a deed in lieu thereof, except to the extent that the same were applied in accordance with the provisions of the applicable Lease prior to the date of such foreclosure or deed in lieu thereof;
(f) the failure to pay Taxes, provided Borrower shall not be liable to the extent funds to pay such amounts are available in the Deposit Account;
(g) the breach of any representation, warranty, covenant or indemnification in any Loan Document concerning Environmental Laws or Hazardous Substances, including Sections 4.21 and 5.8, and clauses (viii) through (xi) of Section 5.30;
(h) a breach of the covenants set forth in Section 5.13 (other than a breach of any of the Members has received from covenants described in clauses (ix)(D), (x) and (xxi) set forth in the proceeds definition of “Special Purpose Bankruptcy Remote Entity” on Schedule 5); or
(i) an involuntary Transfer other than a Permitted Transfer shall have occurred. Notwithstanding anything to the transactions which is the subject of this Agreement, if the remaining funds available to Seller to satisfy the obligations of the Seller pursuant to contrary in this Agreement or any of the transactions contemplated hereby are Loan Documents, (A) Lender shall not at least equal be deemed to Five Million Dollars ($5,000,000) or such lower amount of liability or potential liability as the Seller have waived any right which Lender may have under such agreements. The Section 506(a), 506(b), 1111(b) or any other provisions of this Section 10.10 the U.S. Bankruptcy Code to file a claim for the full amount of the Debt or to require that all collateral shall survive continue to secure all of the termination Debt in accordance with the Loan Documents, and (B) Lender’s agreement not to pursue personal liability of this Agreement Borrower as set forth above SHALL BECOME NULL AND VOID and shall be of no further force and effect, and the Closing. This Section 10.10 will not apply Debt shall be fully recourse to Borrower in the event that one or more of the following occurs (each, a “Springing Recourse Event”):
(i) a voluntary Transfer other than a Permitted Transfer shall have occurred (other than with respect to the parties entering into of Leases, easements, restrictive covenants, licenses or occupancy agreements not permitted pursuant to the Parking Easement terms of the Loan Documents); or
(ii) a breach of the covenants set forth in Section 5.13, other than the covenants set forth in clauses (ix)(D), (x) and (xxi) in the definition of “Special Purpose Bankruptcy Remote Entity” on Schedule 5 (provided, however, with respect to a breach of any of the covenants described in clauses (xi) - (xx), clause (xxiv), clause (xxvi), clause (xxvii), clause (xxix) and clause (xxxii) set forth in the definition of “Special Purpose Bankruptcy Remote Entity” on Schedule 5, and clause (ii) in the definition of “Single Member Bankruptcy Remote LLC” on Schedule 5, the foregoing recourse shall only be triggered if in connection with a pending bankruptcy proceeding a court of competent jurisdiction has ordered the substantive consolidation of the assets and liabilities of either Borrower or Operating Tenant with any other Person; or
(iii) the Development Indemnity Agreement occurrence of any condition or event described in either Section 8.1(f)(i) (with respect to the extent Borrower or Operating Tenant only) or Section 8.1(g) (with respect to Borrower or Operating Tenant only) and, with respect to such claim condition or event described in Section 8.1(g), either Borrower, Operating Tenant, Sole Borrower Member, Sole OT Member, Guarantor or any Person owning an interest (directly or indirectly) in Borrower, Operating Tenant, Sole Borrower Member, Sole OT Member or Guarantor (other than shareholders of Guarantor so long as Guarantor is a public company) knowingly aids, solicits, supports, or otherwise cooperates or colludes to cause of action relates solely such condition or event or knowingly fails to the Parking Easement Agreement contest such condition or the Development Indemnity Agreement, as applicableevent.
Appears in 1 contract
Sources: Loan Agreement (Behringer Harvard Opportunity REIT II, Inc.)
Exculpation. Buyer agrees that it does not have The GUC Trust Administrator Parties shall be and will not have hereby are exculpated by all Persons, including holders of General Unsecured Claims, Units and Residual Wind-Down Claims relating to the Residual Wind-Down Assets and other parties-in-interest, from any claims or and all claims, causes of action against and other assertions of liability arising out of the discharge of their respective powers and duties conferred by the Plan, the Confirmation Order, this Trust Agreement or any disclosed Order of the Bankruptcy Court entered pursuant to or undisclosed officer, director, employee, trustee, shareholder, partner, member, principal, parent, subsidiary or other affiliate in furtherance of Seller, including, without limitation, Tishman Speyer Properties, L.P. and Goldman, Sachs & Co.the Plan, or applicable law or otherwise, except for actions or omissions to act that are determined by Final Order of the Bankruptcy Court to have arisen out of the willful misconduct, gross negligence, bad faith, self-dealing, or ultra ▇▇▇▇▇ ▇▇fic▇▇, ▇irector, employee, trustee, shareholder, member, partner or principal acts of any such parent, subsidiary GUC Trust Administrator Party. No holder of a General Unsecured Claim or other affiliate (collectively, "Seller's Affiliates"), arising out of with this Agreement party-in-interest will have or the transactions contemplated hereby. Buyer agrees be permitted to look solely to Seller and its assets for the satisfaction of pursue any liability or obligation arising under this Agreement or the transactions contemplated hereby, or for the performance of any of the covenants, warranties or other agreements contained herein, and further agrees not to sue or otherwise seek to e▇▇▇rce any personal obligation against any of Seller's Affiliates with respect to any matters arising out of this Agreement or the transactions contemplated hereby. The provisions of this Section 10.10, however, shall not apply to Tishman Speyer/Travelers Real Estate Venture, L.P. and Whitehall Street Real Estate Limited Partnership IX (collectively, the "Members") to the extent of the amount any of the Members has received from the proceeds of the transactions which is the subject of this Agreement, if the remaining funds available to Seller to satisfy the obligations of the Seller pursuant to this Agreement or the transactions contemplated hereby are not at least equal to Five Million Dollars ($5,000,000) or such lower amount of liability or potential liability as the Seller may have under such agreements. The provisions of this Section 10.10 shall survive the termination of this Agreement and the Closing. This Section 10.10 will not apply to the parties to the Parking Easement or the Development Indemnity Agreement to the extent such claim or cause of action relates solely against the GUC Trust Administrator Parties or the GUC Trust, for making payments and distributions in accordance with the Plan, the Confirmation Order or the this Trust Agreement or for implementing the provisions thereof. Any action taken or omitted to be taken with the express approval of the Bankruptcy Court or the GUC Trust Monitor will conclusively be deemed not to constitute willful misconduct, gross negligence, bad faith, self-dealing, or ultra ▇▇▇▇▇ acts; provided, however, that notwithstanding any provision herein to the Parking Easement Agreement contrary, the GUC Trust Administrator shall not be obligated to comply with a direction of the GUC Trust Monitor, whether or not express, which would result in a change to the Development Indemnity distribution provisions of the Plan, the Confirmation Order or this Trust Agreement, as applicable.
Appears in 1 contract
Sources: Trust Agreement
Exculpation. Buyer agrees that it does (a) Subject to the qualifications below, Lender shall not have enforce the liability and will not have obligation of Borrower to perform and observe the obligations contained in the Note, this Agreement, the Pledge Agreement or the other Loan Documents by any claims action or causes of action proceeding wherein a money judgment or any deficiency judgment or other judgment establishing personal liability shall be sought against Borrower, any disclosed other Borrower Party, or undisclosed officerany principal, director, officer, employee, trusteebeneficiary, shareholder, partner, member, principaltrustee, parent, subsidiary or other affiliate of Seller, including, without limitation, Tishman Speyer Properties, L.P. and Goldman, Sachs & Co.agent, or ▇▇▇ ▇▇fic▇▇Affiliate of Borrower or any other Borrower Party or any legal representatives, ▇irector, employee, trustee, shareholder, member, partner successors or principal of any such parent, subsidiary or other affiliate (collectively, "Seller's Affiliates"), arising out of with this Agreement or the transactions contemplated hereby. Buyer agrees to look solely to Seller and its assets for the satisfaction of any liability or obligation arising under this Agreement or the transactions contemplated hereby, or for the performance assigns of any of the covenantsforegoing (collectively, warranties the “Exculpated Parties”), except that Lender may bring a foreclosure action, an action for specific performance or any other agreements contained appropriate action or proceeding to enable Lender to enforce and realize upon its interest under the Note, this Agreement, the Pledge Agreement and the other Loan Documents, or in the Property, the 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 Collateral and further agrees in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Pledge Agreement and the other Loan Documents, shall not to sue for, seek or otherwise seek to e▇▇▇rce demand any personal obligation deficiency judgment against Borrower or any of Seller's Affiliates the Exculpated Parties in any such action or proceeding under or by reason of or under or in connection with respect to any matters arising out of the Note, this Agreement, the Pledge Agreement or the transactions contemplated herebyother Loan Documents. The provisions of this Section 10.10shall not, however, shall not apply (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 Tishman Speyer/Travelers Real Estate Venturename Borrower as a party defendant in any action or suit for foreclosure and sale under the Pledge Agreement; (3) affect the validity or enforceability of any indemnity, L.P. guaranty or similar instrument (including, without limitation, indemnities set forth in Article 12 hereof, Section 11.2 hereof, in the Guaranty and Whitehall Street Real Estate Limited Partnership IX the Environmental Indemnity) made in connection with the Loan or any of the rights and remedies of Lender thereunder (collectivelyincluding, without limitation, ▇▇▇▇▇▇’s right to enforce said rights and remedies against ▇▇▇▇▇▇▇▇ and/or Guarantor (as applicable) personally and without the "Members"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 Pledge Agreement or 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 Pledge Agreement or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against the Property (or any portion thereof) and/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 actually incurred by Lender (including reasonable attorneys’ fees and costs reasonably incurred) arising out of or in connection with the amount following:
(i) fraud or intentional material misrepresentation by ▇▇▇▇▇▇▇▇, Mortgage Borrower, Mezzanine B Borrower, any SPE Component Entity, any Mortgage SPE Component Entity, any Mezzanine B 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 Members has received foregoing (each, a “Recourse Party”) in connection with the Loan;
(ii) willful misconduct of any Recourse Party in connection with the Loan;
(iii) the breach of any indemnification provision in the Loan Documents or the Mortgage Loan Documents concerning environmental laws, hazardous substances and asbestos and any indemnification of Lender with respect thereto;
(iv) material physical waste to any Property caused by the intentional acts of any Recourse Party, but only to the extent there is sufficient cash flow from the proceeds Properties to prevent such physical waste and such cash flow is made available by (x) Mortgage Lender for the purpose of preventing such physical waste from the applicable Mortgage Loan Reserve Accounts after all conditions to such release had been met to the extent sums sufficient to pay or perform such liability have been deposited with Mortgage Lender in accordance with the terms of the transactions which is Mortgage Loan Agreement or (y) Lender for the subject purpose of preventing such physical waste from Accounts (if any) after all conditions to such release had been met to the extent sums sufficient to pay or perform such liability have been deposited with Lender in accordance with the terms of this Agreement;
(v) the 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 a Recourse Party in contravention of the Loan Documents: (A) any insurance proceeds received by Borrower by reason of any Casualty, (B) any Awards or other amounts received by Borrower from a governmental authority in connection with a Condemnation of all or a portion of the Property, (C) any revenues generated by the Properties, (E) any proceeds received by Mortgage Borrower or Borrower under any owner’s title insurance policy, (F) any distributions or other payments made in violation of this Agreement, if or (G) Net Liquidation Proceeds After Debt Service;
(vii) any Security Deposits, advance deposits or any other deposits collected with respect to any Property which are not delivered to Lender upon a foreclosure of such Property or action in lieu thereof, except to the remaining funds extent any such Security Deposits were delivered to Mortgage Lender in accordance with the Mortgage Loan Agreement and/or applied in accordance with the terms and conditions of any of the applicable Lease;
(viii) any litigation or other legal proceeding related to the Loan filed by a Recourse Party with the effect of delaying, opposing, impeding, obstructing, hindering, enjoining or otherwise interfering with the efforts of ▇▇▇▇▇▇ to exercise any rights and remedies available to Seller to satisfy Lender during the obligations continuance of an Event of Default; provided, however, that there shall be no liability hereunder on account of, and the Seller foregoing shall not restrict, ▇▇▇▇▇▇▇▇’s or Guarantor’s right to, dispute, in good faith, whether the relevant Event of Default shall have occurred or whether an action taken by Lender pursuant to 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 ▇▇▇▇▇▇;
(ix) Borrower fails to obtain ▇▇▇▇▇▇’s prior written consent to any additional indebtedness or voluntary lien encumbering any Property, the Collateral and not permitted by the Loan Documents;
(x) Intentionally omitted;
(xi) intentionally omitted;
(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 Mortgage Borrower without ▇▇▇▇▇▇’s prior written consent other than in connection with Mortgage Borrower acquiring the fee estate from the applicable PILOT Lessor or as otherwise expressly permitted under this Agreement or (B) Mortgage Borrower’s or the transactions contemplated hereby are applicable Tenant’s failure to comply with or Mortgage Borrower’s or the applicable Tenant’s breach of any PILOT Lease and/or PILOT Document that results in (x) a reduction of any tax abatement and/or mandatory repayment of any past or current tax abatement under such PILOT Lease and/or PILOT Document, as applicable, (y) termination of such PILOT Lease and/or PILOT Document, as applicable, and the benefits thereunder in favor of Mortgage Borrower or Tenant or (z) a default by such Mortgage Borrower under the applicable Lease for such PILOT Property (and, in any such case, Losses shall include lost rental income); provided, that, in each case, the liability with respect to this Section 13.1(a)(xii) shall not at least equal exceed the Allocated Loan Amount of the applicable PILOT Property;
(xiii) other 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 Borrower to Five Million Dollars remain solvent, maintain adequate capital or pay its debts as they come due);
($5,000,000xiv) or such lower amount of any liability or potential liability as obligation of Borrower or Mortgage Borrower relating to the Seller Previously-Owned Property;
(xv) incurrence of liens encumbering any Property, the Collateral or the direct or indirect interests in Borrower or Mortgage Borrower;
(xvi) any Borrower Party enters into Material Agreements in violation of this Agreement;
(xvii) unsecured indebtedness and indemnification obligations of Mortgage Borrower, in each instance, in contravention of the Loan Documents;
(xviii) if any Affiliate of Borrower purchases all or any part of the Mortgage Loan;
(xix) any obligation of Borrower or Mortgage Borrower (a) to indemnify any Person that, immediately prior to any acquisition of title to the Collateral pursuant to a UCC foreclosure sale, a UCC strict foreclosure, an assignment in lieu of foreclosure or other enforcement action under the Loan Documents (collectively, an “Equity Collateral Enforcement Action”) was an Affiliate of Borrower or Mortgage Borrower, or (b) to pay any amounts due under any contract or agreement between Borrower or Mortgage Borrower, on the one hand, and any Person that, immediately prior to an Equity Collateral Enforcement Action, was an Affiliate of Borrower or Mortgage Borrower, on the other hand; and/or (c) to pay legal fees to any legal counsel engaged by Borrower or Mortgage Borrower or any Affiliate of Borrower or Mortgage Borrower prior to the date of the consummation of an Equity Collateral Enforcement Action; and/or
(xx) any breach of any representation, warranty or covenant contained in Section 10 of the Pledge 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 such agreements. The Section 506(a), 506(b), 1111(b) or any other provisions of this Section 10.10 the Bankruptcy Code to file a claim for the full amount of the Debt or to require that all collateral shall survive continue to secure all of the termination 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 filing of, a petition against Borrower under the 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 this Agreement and a custodian, receiver, trustee, or examiner for ▇▇▇▇▇▇▇▇ (other than with the Closing. This Section 10.10 will not apply prior written consent of Lender), (iv) Borrower 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), provided, that, with respect to the parties Mortgage Loan only, (x) the exercise of remedies under the Mortgage Loan or the Loan shall not by itself trigger recourse liability to Borrower or Guarantor, and (y) Guarantor shall not have liability for matters first arising after a foreclosure or assignment-in-lieu of foreclosure of the Mortgage Loan or the Loan or for actions taken by Mortgage Lender or by Lender pursuant to the Parking Easement exercise of any voting proxy or similar rights to exercise control over the Development Indemnity Agreement Collateral, except, in each case, to the extent such claim or cause of action relates solely due to the Parking Easement Agreement actions of Guarantor or its Affiliates; (v) there is a breach of any provision of Article 5 (Single Purpose Entity Covenants) hereof or the Development Indemnity Agreementseparateness covenants contained in the Borrower’s or SPE Component Entity’s organizational documents (excluding, in each case, any provision requiring 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 or Mortgage Borrower with any other Person; provided that the motion or pleading seeking substantive consolidation was not brought or supported by ▇▇▇▇▇▇ and, as applicablea 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 obtain ▇▇▇▇▇▇’s prior consent to (a) the transfer or conveyance of all or any portion of any Property or the Collateral, (b) the transfer of any direct or indirect equity interests in Borrower, any SPE Component Entity, any Mortgage Borrower, any Mortgage SPE Component Entity, or Mezzanine B Borrower, or (c) the granting of any security interest in the direct equity interests in any Mortgage Borrower or any Mortgage SPE Component Entity, in each case in violation of the Loan Documents, or (vii) violation of covenants regarding opting into Article 8 of the UCC.
Appears in 1 contract
Sources: Mezzanine Loan Agreement (Industrial Logistics Properties Trust)
Exculpation. Buyer agrees that it does (a) Subject to the qualifications below, Lender shall not have enforce the liability and will not have 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 claims action or causes of action proceeding wherein a money judgment or any deficiency judgment or other judgment establishing personal liability shall be sought against Borrower, any disclosed other Borrower Party or undisclosed officerany principal, director, officer, employee, trusteebeneficiary, shareholder, partner, member, principaltrustee, parent, subsidiary or other affiliate of Seller, including, without limitation, Tishman Speyer Properties, L.P. and Goldman, Sachs & Co.agent, or ▇▇▇ ▇▇fic▇▇Affiliate of Borrower, ▇irectorany other Borrower Party or any legal representatives, employee, trustee, shareholder, member, partner successors or principal of any such parent, subsidiary or other affiliate (collectively, "Seller's Affiliates"), arising out of with this Agreement or the transactions contemplated hereby. Buyer agrees to look solely to Seller and its assets for the satisfaction of any liability or obligation arising under this Agreement or the transactions contemplated hereby, or for the performance assigns of any of the covenantsforegoing (collectively, warranties the “Exculpated Parties”), except that Lender may bring a foreclosure action, an action for specific performance or any other agreements contained 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 (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 further agrees 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 to sue for, seek or otherwise seek to e▇▇▇rce demand any personal obligation deficiency judgment against Borrower, any other Borrower Party or any of Seller's Affiliates the Exculpated Parties in any such action or proceeding under or by reason of or under or in connection with respect to any matters arising out of the Note, this Agreement Agreement, the Security Instrument or the transactions contemplated herebyother Loan Documents. The provisions of this Section 10.10shall not, however, shall not apply (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 Tishman Speyer/Travelers Real Estate Venturename 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, L.P. guaranty or similar instrument (including , without limitation , indemnities set forth in Article 12 hereof, Section 11.2 hereof, in the Environmental Indemnity and Whitehall Street Real Estate Limited Partnership IX in the Guaranty) made in connection with the Loan or any of the rights and remedies of Lender thereunder (collectivelyincluding , without limitation, ▇▇▇▇▇▇’s right to enforce said rights and remedies against ▇▇▇▇▇▇▇▇ personally and without the "Members"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 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 Collateral 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 ▇▇▇▇▇▇ (including attorneys’ fees and costs reasonably incurred) arising out of or in connection with the amount following:
(i) fraud or intentional material misrepresentation by any Borrower Party or any of their respective Affiliates in connection with the Members has received Loan;
(ii) willful misconduct any Borrower Party 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 in which any Borrower Party or their respective Affiliates files or raises a defense that intentionally interferes with ▇▇▇▇▇▇ exercising any rights and remedies available to Lender as provided in under this Agreement and the other Loan Documents only to the extent a court of competent jurisdiction, in a final non-appealable decision, finds the applicable defenses were not raised in good faith by Borrower;
(iv) intentional physical waste to any Individual Property caused by the intentional acts or 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 proceeds 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 transactions which is property by any Borrower Party or any of their respective Affiliates after an event of default other than in the subject ordinary course of this Agreement, if owning and managing the remaining funds available to Seller to satisfy the obligations of the Seller pursuant to this Agreement Properties or the transactions contemplated hereby are not at least equal to Five Million Dollars ($5,000,000) or such lower amount of liability or potential liability as the Seller may have under such agreements. The provisions of this Section 10.10 shall survive the termination otherwise in violation of this Agreement and the Closing. This Section 10.10 will not apply other Loan Documents);
(v) misappropriation by any Borrower Party or any of their respective Affiliates of (A) any insurance proceeds with respect to the parties Properties, (B) any Awards or other amounts received in connection with any Condemnation of all or any portion of any Individual Property, or (C) any Rents (provided that, in each case there shall be no liability under this subsection to the Parking Easement extent that the turnover of such funds is prohibited by any applicable law or court order);
(vi) Borrower’s failure to pay (or cause to be paid) real property taxes or other charges due in connection with the Properties that results in liens on any portion of any Individual Property in accordance with the terms and provisions of this Agreement and the other Loan Documents (other than if 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 ▇▇▇▇▇▇ failed to pay same and ▇▇▇▇▇▇’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);
(vii) Borrower’s failure to pay Insurance Premiums or the Development Indemnity Agreement amount of any deductible following a Casualty, Condemnation or other insurance claim, to maintain the Policies in full force and effect, in each case, as expressly provided herein (provided, however, that there shall be no personal liability under this subsection for the aforementioned failures to the extent that, in each case, (A) the Properties generated insufficient revenue in the immediately preceding six (6) month period to pay the Insurance Premiums in question or (B) sufficient sums had been reserved hereunder for the express purpose of paying the Insurance Premiums in question and Lender failed to pay same and ▇▇▇▇▇▇’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);
(viii) any security deposits, advance deposits or any other deposits collected by any Borrower Party or any of their respective Affiliates in connection with the Properties which are not delivered to Lender upon request upon a foreclosure or action in lieu thereof except to the extent such claim amounts have been previously applied by Borrower in accordance with this Agreement and the other Loan Documents, the existing leases or cause of action relates solely in accordance with a court order (provided that, in each case there shall be no liability under this subsection to the Parking Easement extent that the failure to tum over such funds is prohibited by any applicable law or court order);
(ix) the seizure or forfeiture of any Individual Property resulting from criminal wrongdoing by any Borrower Party or (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) failure to comply with the terms and provisions of Article 15 hereof;
(xiii) Borrower’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 ▇▇▇▇▇▇’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 pay all Condominium Charges prior to the same becoming delinquent (provided 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 ▇▇▇▇▇▇’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 the Collateral in violation of the Loan Documents (other than liens being contested in good faith in accordance with the terms and provisions 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 Debt Yield with respect to all Properties other than the related Individual Property which is at least the greater of (x) 13.0% and (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 the Debt in the 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 Section 7.1(a)(i) hereof;
(xxv) any purchase option of any Tenant under any Lease; and/or
(xxvi) 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 mortgage other than 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), 111l(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 of: (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 substantive consolidation of 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 which court cites such breach or violation as a material factor in ordering the substantive consolidation of the assets and liabilities of Borrower and/or SPE Component Entity with the assets and liabilities of the Bankrupt Person; (ii) any violation or breach of Article 6 hereof caused by (1) any voluntary transfer of the Collateral or fee simple title to all or any portion of the Property (other than with Lender’s prior written consent or as expressly permitted by this Agreement or the Development Indemnity other Loan Documents) or (2) any sale or pledge of the ownership interests in any Restricted Party in violation of the terms of the Loan Documents, which, in the case of any sale or pledge described in this clause (2) remains uncured for a period of ten (10) days following Borrower’s obtaining knowledge of such violation (or Borrower’s receipt of notice from Lender of such violation); (iii) a Bankruptcy Event with occurs, or (iv) the incurrence of any voluntary debt secured by all or any portion of any Individual Property or other Collateral or any direct or indirect interests in Borrower, except Indebtedness and liens (including, liens being contested in good faith in accordance with the terms and provisions of this Agreement, as applicable) expressly permitted pursuant to this Agreement.
Appears in 1 contract
Sources: Loan Agreement (SITE Centers Corp.)
Exculpation. Buyer agrees that it does (a) Notwithstanding anything to the contrary herein or in any of the other Loan Documents but subject to the qualifications below, Lender shall not have enforce the liability and will not have obligation of Borrower to perform and observe the obligations contained in the Note, this Agreement, any claims Security Instrument or causes 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 disclosed or undisclosed officerprincipal, director, officer, employee, trusteebeneficiary, shareholder, partner, member, principalmanager, parenttrustee, subsidiary agent, or Affiliate of Borrower (but specifically excluding Guarantor subject to the terms of the Guaranty) 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 affiliate appropriate action or proceeding to enable Lender to enforce and realize upon its interest under the Note, this Agreement, each 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 SellerBorrower’s interest in the Property, in the Rents and in any other Collateral given to Lender, and Lender, by accepting the Note, this Agreement, each Security Instrument and the other Loan Documents, agrees that it shall not ▇▇▇ for, seek or demand any deficiency judgment against Borrower or any of the Exculpated Parties in any such action or proceeding under or by reason of or under or in connection with the Note, this Agreement, any Security Instrument or the other Loan Documents. The provisions of this Section 11.3 shall not, however, (a) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (b) impair the right of Lender to name Borrower as a party defendant in any action or suit for foreclosure and sale under any Security Instrument; (c) affect the validity or enforceability of any of the Loan Documents or any guaranty or indemnity (including, without limitation, the Guaranty and the Environmental Indemnity) or similar instrument made in connection with the Loan or any of the rights and remedies of Lender thereunder; (d) impair the right of Lender to obtain the appointment of a receiver; (e) impair the enforcement of any Assignment of Leases; (f) impair the right of Lender to enforce the Environmental Indemnity; (g) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the Collateral granted by any of the Loan Documents, including, without limitation, Tishman Speyer Properties, L.P. and Goldman, Sachs & Co.by any Security Instrument, or ▇▇▇ ▇▇fic▇▇by any Assignment of Leases, ▇irectoror by this Agreement (including with respect to the Accounts Collateral) or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against the Collateral (but not to impose personal liability upon Borrower contrary to this Section 11.3); or (h) constitute a waiver of the right of Lender to enforce the liability and obligation of Borrower, employeeby money judgment or otherwise, trustee, shareholder, member, partner or principal to the extent of any such parentloss, subsidiary damage, cost, expense, liability, claim or other affiliate obligation incurred by Lender (collectively, "Seller's Affiliates"), including attorneys’ fees and costs reasonably incurred) arising out of or in connection with the following:
(i) in connection with the Loan or the Property (including, without limitation, any Lease, or the execution and delivery of this Agreement, the Note, any Security Instrument, or the other Loan Documents or at any time during the term of the Loan) Borrower, SPC Party, any Guarantor, any Affiliate of any of the foregoing, or any of their respective agents or representatives, engages in any action constituting fraud, willful misrepresentation or willful misconduct;
(ii) Borrower, SPC Party, any Guarantor, or any Affiliate or Borrower, SPC Party or Guarantor, or any of their respective agents or representatives, misappropriates or misapplies (based on limitations contained in the Loan Documents) any (A) Insurance Proceeds, (B) Awards or other amounts received in connection with the Condemnation of all or a portion of the Property, (C) Rents, or (D) funds disbursed by Lender from the Reserve Funds;
(iii) criminal acts of Borrower, SPC Party, any Guarantor, any Affiliate of Borrower, SPC Party or any Guarantor, or any of their respective agents or representatives resulting in the seizure, forfeiture or loss of the Property;
(iv) Borrower’s failure to pay Taxes or Other Charges prior to delinquency in accordance with the terms of this Agreement except to the extent that (A) sums sufficient to pay such amounts have been deposited into escrow with Lender and such amounts are deemed paid pursuant to Section 3.7 hereof; or (B) the Property has not generated over the immediately preceding twelve (12) months sufficient revenue to pay the same; or (C) Borrower or any tenant is contesting Taxes or Other Charges in accordance with the terms of Section 5.2 hereof;
(v) Borrower’s failure to (A) obtain and maintain (or cause the applicable tenant to obtain and maintain) the Policies in accordance with Section 7.1 hereof, or (B) pay Insurance Premiums prior to delinquency except to the extent that (i) sums sufficient to pay Insurance Premiums have been deposited into escrow with Lender and Insurance Premiums are deemed paid pursuant to Section 3.7 hereof; or (ii) the Property has not generated over the immediately preceding twelve (12) months sufficient revenue to pay Insurance Premiums;
(vi) Borrower’s failure to pay charges for labor or materials or other charges that can create Liens on the Property, in accordance with the terms of this Agreement, to the extent such Liens are not bonded over, discharged or contested in accordance with this Agreement or the transactions contemplated hereby. Buyer agrees to look solely to Seller and its assets for other Loan Documents;
(vii) the satisfaction removal or disposal of any liability portion of the Personal Property by Borrower, SPC Party, any Guarantor, any Affiliate of Borrower, SPC Party or obligation arising under this Agreement any Guarantor, after an Event of Default without replacing such Personal Property with Personal Property of the same utility and of the same or the transactions contemplated herebygreater value;
(viii) any intentional act of physical waste or arson by Borrower, or for the performance SPC Party, any Guarantor, any Affiliate of any of the covenants, warranties foregoing or other agreements contained herein, and further agrees not to sue or otherwise seek to e▇▇▇rce any personal obligation against any of Seller's Affiliates their respective agents or representatives with respect to the Property;
(ix) any matters arising out fees or commissions being paid by Borrower to SPC Party, any Guarantor or any Affiliate of Borrower, SPC Party or any Guarantor in violation of the terms of this Agreement Agreement;
(x) the breach of any representation, warranty, covenant or indemnification provision in the transactions contemplated hereby. 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;
(xi) Borrower’s, SPC Party’s or any Guarantor’s intentional failure to comply with the terms and provisions of this Section 10.1011.1 or Borrower’s, SPC Party’s or any Guarantor’s failure to comply with the indemnification provisions set forth in Section 11.2 hereof;
(xii) [intentionally omitted];
(xiii) Borrower or SPC Party violates or breaches any of the terms and conditions of Section 8.1 hereof (provided, however, it shall not apply to Tishman Speyer/Travelers Real Estate Venture, L.P. and Whitehall Street Real Estate Limited Partnership IX (collectively, the "Members") to the extent be deemed a violation of the amount any of the Members has received from the proceeds of the transactions which is the subject of this Agreement, if the remaining funds available to Seller to satisfy the obligations of the Seller pursuant to this Agreement or the transactions contemplated hereby are not at least equal to Five Million Dollars ($5,000,000) or such lower amount of liability or potential liability as the Seller may have under such agreements. The provisions of this Section 10.10 shall survive the termination of this Agreement and the Closing. This Section 10.10 will not apply to the parties to the Parking Easement or the Development Indemnity Agreement to the extent such claim or cause of action relates solely to the Parking Easement Agreement or the Development Indemnity Agreement, as applicable.8.1(d)
Appears in 1 contract
Sources: Loan Agreement (Cole Credit Property Trust Iv, Inc.)
Exculpation. Buyer agrees that it does (a) Subject to the qualifications below, Lender shall not have enforce the liability and will not have 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 claims action or causes of action against proceeding wherein a money judgment or any disclosed or undisclosed officer, director, employee, trustee, shareholder, partner, member, principal, parent, subsidiary deficiency judgment or other affiliate judgment establishing personal liability shall be sought against Borrower, any of Sellerits Affiliates and/or any of their respective principals, includingdirectors, without limitationofficers, Tishman Speyer Propertiesemployees, L.P. and Goldmanbeneficiaries, Sachs & Co.shareholders, partners, members, trustees, agents, or ▇▇▇ ▇▇fic▇▇any legal representatives, ▇irector, employee, trustee, shareholder, member, partner successors or principal of any such parent, subsidiary or other affiliate (collectively, "Seller's Affiliates"), arising out of with this Agreement or the transactions contemplated hereby. Buyer agrees to look solely to Seller and its assets for the satisfaction of any liability or obligation arising under this Agreement or the transactions contemplated hereby, or for the performance assigns of any of the covenantsforegoing (collectively, warranties the “Exculpated Parties”), except that Lender may bring a foreclosure action, an action for specific performance or any other agreements contained appropriate action or proceeding to enable Lender to enforce and realize upon its interest under the Note, this Agreement, the Security Instruments and the other Loan Documents, or in any Individual Property (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 Properties, in the Rents and further agrees in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Security Instruments and the other Loan Documents, shall not to sue for, seek or otherwise seek to e▇▇▇rce demand any personal obligation deficiency judgment against Borrower or any of Seller's Affiliates the Exculpated Parties in any such action or proceeding under or by reason of or under or in connection with respect to any matters arising out of the Note, this Agreement Agreement, the Security Instruments or the transactions contemplated herebyother Loan Documents. The provisions of this Section 10.10shall 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 any 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, L▇▇▇▇▇’s right to enforce said rights and remedies against B▇▇▇▇▇▇▇ 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 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 or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against 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 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 (including, without limitation, 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);
(iii) physical waste to any Individual Property (or any portion thereof) caused by the intentional acts or intentional omissions of any Borrower Party and/or the removal or disposal by a Borrower Party or its Affiliates of any portion of any Individual Property during the continuance of an Event of Default;
(iv) the misapplication, misappropriation or conversion by any Borrower Party of (A) any insurance proceeds paid by reason of any loss, damage or destruction to any Individual Property (or any portion thereof), (B) any Awards or other amounts received in connection with the Condemnation of all or a portion of any Individual Property, (C) any Rents, (D) any Security Deposits or Rents collected in 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);
(v) 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; provided, however, Borrower shall have no liability under this subsection (v) 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 apply available from the Properties to Tishman Speyer/Travelers Real Estate Venturepay such amounts; provided, L.P. and Whitehall Street Real Estate Limited Partnership IX that, in no instance shall Borrower be released from any liability pursuant to this clause (collectively, the "Members"v) 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;
(vi) failure to pay Insurance Premiums, to maintain the Policies in full force and effect and/or to provide Lender evidence of the amount same, in each case, as expressly provided herein; provided, however, Borrower shall have no liability under this subsection (vi) if 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 such insufficiency of cash flow arises from the intentional misappropriation or conversion of Rent by any Borrower Party;
(vii) any Security Deposits which are not delivered to Lender within the timeframe required hereunder except to the extent any such Security Deposits were applied in accordance with the terms and conditions of any of the Members has received from Leases prior to the proceeds occurrence of the transactions which is applicable Event of Default. For purposes of clarification, for a Security Deposit to be deemed “delivered to Lender” in connection with the subject foregoing, the same must be in the form of this Agreement, if cash or in a letter of credit solely in L▇▇▇▇▇’s name;
(viii) any violation or breach by any Borrower Party of any applicable law mandating the remaining funds available forfeiture or seizure of any Individual Property (or any portion thereof and/or interest therein);
(ix) the failure to Seller to satisfy the make any REMIC Payment as and when required herein;
(x) any indemnity obligations of Lender to Bank under the Seller pursuant Restricted Account Agreement;
(xi) Borrower fails to this Agreement comply with the Cash Management Provision or fails to comply with any limitations on instructing the transactions contemplated hereby are not at least equal to Five Million Dollars ($5,000,000) or such lower amount of liability or potential liability property manager, each as required by and in accordance with, as applicable, the Seller may have under such agreements. The terms and provisions of this Section 10.10 shall survive the termination of of, this Agreement and the Closing. This other Loan Documents;
(xii) without limiting Section 10.10 will not apply 13.1(b)(ii) below, any violation or breach of any representation, warranty or covenants contained in Article 5;
(xiii) without limiting Section 13.1(b)(iii) below, any violation or breach of any representation, warranty or covenants contained in Article 6;
(xiv) any failure of Lender to be paid the Release Price for the Individual Property known as One Ally Center upon a total Condemnation of such Individual Property; and/or
(xv) (1) any (A) material amendment or modification or (B) termination or cancellation of any Leased Fee Lease by Borrower, in each case without Lender’s consent, which consent is to be given or withheld in accordance with the terms of Section 4.14 hereof or (2) any termination or cancellation of any Leased Fee Lease due to a default by Borrower thereunder.
(b) Notwithstanding anything to the parties 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 Parking Easement 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 Development Indemnity Agreement 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) any representation, warranty or covenant contained in Article 5 is violation or breached which results in the substantive consolidation of Borrower or any SPE Component with any other Person; (iii) 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 any voluntary act that causes a change (directly or indirectly) in the ownership of any Borrower and/or any SPE Component Entity to the extent such claim ownership change required Lender’s consent under this Agreement; (iv) a Bankruptcy Event occurs; or cause (v) the Ground Lease is terminated, cancelled or otherwise ceases to exist or is rejected in a proceeding under the Bankruptcy Code and/or any Creditors Rights Laws (provided, however, that liability for breach of action relates solely this clause (v) shall be limited to the Parking Easement Agreement or Release Price of such Individual Property subject to the Development Indemnity AgreementGround Lease together with L▇▇▇▇▇’s fees, as applicablecosts and expenses in connection therewith (including L▇▇▇▇▇’s reasonable attorneys’ fees and expenses) and (II) Borrower shall have no liability with respect to a rejection of the Ground Lease by a ground lessor in a proceeding of the ground lessor under the Bankruptcy Code and/or any Creditors Rights Laws to the extent that (x) Borrower retains its rights under such Ground Lease and (y) Lender’s first priority lien in the leasehold estate created by such Ground Lease (subject only to Permitted Encumbrances) is unimpaired.
Appears in 1 contract
Sources: Loan Agreement (Istar Inc.)
Exculpation. Buyer Subject to the qualifications below, Lender shall not enforce the liability and obligation of Borrower to perform and observe the obligations contained in the Loan Documents against Borrower or any of its officers, directors, employees, partners, members or shareholders ("Borrower's Constituents"), by any action or proceeding wherein a money judgment shall be sought, 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 security interests under the Loan Documents, or in the Properties, the Rents or any other collateral given by or on behalf of Borrower to Lender pursuant to the Loan Documents; provided, however, that, except as specifically provided in this Section 10.1, any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower's interest in the Properties, in the Rents and in any other collateral given by or on behalf of Borrower to Lender, and Lender agrees that it does shall not have and will not have any claims or causes of action against any disclosed or undisclosed officer, director, employee, trustee, shareholder, partner, member, principal, parent, subsidiary or other affiliate of Seller, including, without limitation, Tishman Speyer Properties, L.P. and Goldman, Sachs & Co., or ▇▇▇ ▇▇fic▇▇for, ▇irectorseek or demand any deficiency judgment against (i) Borrower, employee, trustee, shareholder, member, partner or principal (ii) the property of any such parent, subsidiary or other affiliate (collectively, "Sellerof Borrower's Affiliates"), arising out of with this Agreement or the transactions contemplated hereby. Buyer agrees to look solely to Seller and its assets for the satisfaction of any liability or obligation arising under this Agreement or the transactions contemplated herebyConstituents, or for (iii) the performance property of any of the covenantsofficers, warranties directors, employees, partners, members or other agreements contained herein, and further agrees not to sue or otherwise seek to e▇▇▇rce any personal obligation against shareholders of any of SellerBorrower's Affiliates Constituents, in any such action or proceeding under or by reason of or under or in connection with respect to any matters arising out of this Agreement or the transactions contemplated herebyLoan Document. The provisions of this Section 10.10section shall not, however, shall not apply (i) constitute a waiver, release or impairment of any obligation evidenced or secured by any Loan Document; (ii) impair the right of Lender to Tishman Speyer/Travelers Real Estate Venturename Borrower as a party defendant in any action or suit for foreclosure and sale under the Mortgages; (iii) affect the validity or enforceability of any guaranty made in connection with the Loan or any of the rights and remedies of Lender thereunder; (iv) impair the right of Lender to obtain the appointment of a receiver; (v) impair the enforcement of the Assignment of Leases as against Borrower's interest in the Properties or the Rents; (vi) constitute a prohibition against Lender to commence any other appropriate action or proceeding in order for Lender to fully realize the security granted by the Mortgages or to exercise its remedies against the Properties; or (vii) constitute a waiver of the right of Lender to enforce the liability and obligation of Borrower, L.P. and Whitehall Street Real Estate Limited Partnership IX (collectivelyby money judgment or otherwise, the "Members") to the extent of any loss, damage, cost, expense, liability, claim or other obligation incurred by Lender (including attorneys' fees and costs reasonably incurred) arising out of or in connection with the following:
(a) fraud or intentional misrepresentation by Borrower or any guarantor in connection with the Loan;
(b) the willful misconduct of Borrower;
(c) the breach of any representation, warranty, covenant or indemnification in any Loan Document concerning Environmental Laws or Hazardous Substances, including Sections 4.1.32 and 5.10, and clauses (viii) through (xi) of Section 5.18;
(d) the removal or disposal of any portion of any Property after an Event of Default, which removal or disposal is prohibited under the Loan Documents;
(e) the misappropriation or conversion by Borrower of (x) any Proceeds paid by reason of any Insured Casualty, (y) any Award received in connection with a Condemnation, or (z) any Rents during the continuance of an Event of Default, which are not deposited into the Deposit Account;
(f) failure to pay charges for labor or materials or other charges that can create Liens on any portion of any Property unless such charges are the subject of a bona fide dispute in which Borrower is contesting the amount or validity thereof;
(g) any security deposits collected with respect to any Property which are not delivered to Lender upon a foreclosure of 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 Members has received from Leases prior to the proceeds occurrence of the transactions which is the subject Event of this Agreement, if the remaining funds available Default that gave rise to Seller to satisfy the obligations such foreclosure or action in lieu thereof;
(h) Borrower's indemnifications of Lender set forth in Sections 9.1.3 and 9.1.4; and
(i) Borrower's indemnification of Lender set forth in Section 24 of each of the Seller pursuant Mortgages. provided, however, that notwithstanding anything to the contrary contained in this clause (vii), Lender agrees that it shall not ▇▇▇ for, seek or demand any judgment against (i) the property of any of Borrower's Constituents, or (ii) the property of any of the officers, directors, employees, partners, members or shareholders of any of Borrower's Constituents, in any such action or proceeding under or by reason of or under or in connection with any Loan Document. Notwithstanding anything to the contrary in this Agreement or any of the transactions contemplated hereby are Loan Documents, Lender shall not at least equal be deemed to Five Million Dollars ($5,000,000) or such lower amount of liability or potential liability as the Seller have waived any right which Lender may have under such agreements. The Section 506(a), 506(b), 1111(b) or any other provisions of this Section 10.10 the U.S. Bankruptcy Code to file a claim for the full amount of the Debt or to require that all collateral shall survive continue to secure all of the termination of this Agreement and Debt in accordance with the Closing. This Section 10.10 will not apply to the parties to the Parking Easement or the Development Indemnity Agreement to the extent such claim or cause of action relates solely to the Parking Easement Agreement or the Development Indemnity Agreement, as applicableLoan Documents.
Appears in 1 contract
Exculpation. Buyer agrees that it does (a) Notwithstanding anything to the contrary herein or in any of the other Loan Documents but subject to the qualifications below, Administrative Agent and Lenders shall not have enforce the liability and will not have 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 claims action or causes of action proceeding wherein a money judgment or any deficiency judgment or other judgment establishing personal liability shall be sought against Borrower or any disclosed or undisclosed officerprincipal, director, officer, employee, trusteebeneficiary, shareholder, partner, member, principaltrustee, parentagent, subsidiary or other affiliate of SellerBorrower (but specifically excluding Guarantor subject to the terms of the Guaranty) or any legal representatives, including, without limitation, Tishman Speyer Properties, L.P. and Goldman, Sachs & Co., successors or ▇▇▇ ▇▇fic▇▇, ▇irector, employee, trustee, shareholder, member, partner or principal of any such parent, subsidiary or other affiliate (collectively, "Seller's Affiliates"), arising out of with this Agreement or the transactions contemplated hereby. Buyer agrees to look solely to Seller and its assets for the satisfaction of any liability or obligation arising under this Agreement or the transactions contemplated hereby, or for the performance assigns of any of the covenantsforegoing (collectively, warranties the “Exculpated Parties”), except that Administrative Agent, on behalf of Lenders, may bring a foreclosure action, an action for specific performance or any other agreements contained appropriate action or proceeding to enable Administrative Agent to enforce and realize upon Lenders’ 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 Administrative Agent, on behalf of Lenders, pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower’s interest in the Property, in the Rents and further agrees in any other collateral given to Lenders and Administrative Agent, on behalf of Lenders, and Administrative Agent and Lenders, by accepting the Note, this Agreement, the Security Instrument and the other Loan Documents, shall not to sue or otherwise seek to e▇▇▇rce ▇ for, seek or demand any personal obligation deficiency judgment against Borrower or any of Seller's Affiliates the Exculpated Parties in any such action or proceeding under or by reason of or under or in connection with respect to any matters arising out of the Note, this Agreement Agreement, the Security Instrument or the transactions contemplated herebyother Loan Documents. The provisions of this Section 10.10shall not, however, shall not apply (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, on behalf of Lenders, to Tishman Speyer/Travelers Real Estate Venturename 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 separate written indemnity or guaranty (including, L.P. and Whitehall Street Real Estate Limited Partnership IX (collectivelywithout limitation, the "Members"Guaranty) made in connection with the Loan or any of the rights and remedies of Administrative Agent and Lenders thereunder (including, without limitation, Lenders’ and Administrative Agent’s right to enforce said rights and remedies against Borrower and/or Guarantor (as applicable) personally in such separate written indemnity or guaranty and without the effect of the exculpatory provisions of this Article 13); (4) impair the right of Administrative Agent, on behalf of Lenders, to obtain the appointment of a receiver; (5) impair the enforcement of the assignment of leases contained in the Security Instrument; (6) [Intentionally omitted]; (7) constitute a prohibition against Administrative Agent, on behalf of Lenders, to seek a deficiency judgment against Borrower in order to fully realize the security granted by the Security Instrument (but not to impose personal liability upon Borrower contrary to this Section 13.1) or to commence any other appropriate action or proceeding in order for Administrative Agent to exercise Lenders’ remedies against the Property; or (8) constitute a waiver of the right of Administrative Agent and Lenders to enforce the liability and obligation of Borrower, by money judgment or otherwise, to the extent of any Losses incurred by Administrative Agent and/or Lenders (including attorneys’ fees and costs reasonably incurred) directly arising out of or caused by the amount following:
(i) fraud or willful misrepresentation by Borrower, any of the Members has Exculpated Parties or Guarantor in connection with the Loan;
(ii) the gross negligence or willful misconduct of Borrower, any of the Exculpated Parties or Guarantor;
(iii) material physical waste to the Property (or any portion thereof) caused by the intentional acts or intentional omissions of Borrower, any of the Exculpated Parties or Guarantor and/or the removal or disposal of any portion of the Property by Borrower, any of the Exculpated Parties or Guarantor after an Event of Default;
(iv) the misapplication, misappropriation or conversion by Borrower of (A) any insurance proceeds paid by reason of any Casualty to the Property (or any portion thereof), or (B) any Awards or other amounts received in connection with the Condemnation of all or a portion of the Property, which such proceeds or Award are received by Borrower and not applied as required hereunder or under the other Loan Documents;
(v) the misapplication, misappropriation or conversion by Borrower of any Rents during the continuance of an Event of Default, which are received by Borrower and not applied by Borrower to the payment of either (i) normal and necessary Operating Expenses or (ii) the Debt;
(vi) failure by Borrower to pay, or cause to be paid, prior to delinquency any Taxes or Other Charges (other than amounts paid to Administrative Agent for Taxes or Other Charges in connection with a Reserve Account hereunder and where Administrative Agent elects not to apply such funds toward the payment of Taxes and Other Charges owed) if non-payment of the same would create liens senior to the lien of the Security Instrument on all or any portion of the Property;
(vii) the failure of Borrower to deliver any security deposits, advance deposits or any other deposits collected with respect to the Property to Administrative Agent, on behalf of Lenders, upon a foreclosure of the Property (or any portion thereof) or action in lieu thereof, except to the extent any such security deposits were applied in accordance with the terms and conditions of any of the Leases prior to the occurrence of the Event of Default that gave rise to such foreclosure or action in lieu thereof;
(viii) the material breach of any representation, warranty, covenant or indemnification provision in the Environmental Indemnity, this Agreement or in the Security Instrument concerning environmental laws, hazardous substances and asbestos and any indemnification of Lender and/or Administrative Agent with respect thereto in either document;
(ix) Borrower’s failure to comply with the indemnification obligations in Section 12.3 hereof;
(x) the breach of any material representation, warranty or covenant contained in Article 5 hereof;
(xi) the seizure or forfeiture of the Property, or any portion thereof, or Borrower’s interest therein, resulting from criminal wrongdoing by Borrower or Guarantor; and/or
(xii) the breach by Borrower of the terms of the Interest Rate Protection Agreement that results in the termination thereof.
(b) Notwithstanding anything to the contrary in this Agreement, the Note or any of the Loan Documents, (A) Administrative Agent and Lenders shall not be deemed to have waived any right which Administrative Agent and 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 Administrative Agent and Lenders in accordance with the Loan Documents, and (B) the Debt shall be fully recourse to Borrower in the event that: (i) Borrower files a voluntary petition under the Bankruptcy Code or any other Creditors Rights Laws; (ii) an Affiliate, officer, director, or representative which Controls, directly or indirectly, Borrower files, or joins in the filing of, an involuntary petition against Borrower under the Bankruptcy Code or any other Creditors Rights Laws, or solicits or causes to be solicited petitioning creditors for any involuntary petition against Borrower from any Person; (iii) Borrower files an answer consenting to or otherwise acquiescing in or joining in any involuntary petition filed against it, by any other Person under the Bankruptcy Code or any other Creditors Rights Laws, or solicits or causes to be solicited petitioning creditors for any involuntary petition against it; (iv) 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 (other than a receiver requested by Administrative Agent in connection with enforcement of its rights under the Loan Documents); (v) 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; (vi) [Intentionally omitted]; (vii) Borrower (or any Restricted Party) contests or opposes any motion made by Administrative Agent or any Lender to obtain relief from the proceeds automatic stay or seeks to reinstate the automatic stay in the event of any federal or state bankruptcy or insolvency proceeding involving the transactions which Guarantor or its Affiliates; (viii) Borrower (or any Restricted Party) accepts from any Guarantor or Guarantor solicits or provides any debtor-in-possession financing to Borrower in the event Borrower (or any Restricted Party) is the subject of this Agreement, if the remaining funds available to Seller to satisfy the obligations of the Seller pursuant to this Agreement a bankruptcy or the transactions contemplated hereby are not at least equal to Five Million Dollars insolvency proceeding; or ($5,000,000ix) any covenant contained in Article 6 hereof is violated or such lower amount of liability or potential liability as the Seller may have under such agreements. The provisions of this Section 10.10 shall survive the termination of this Agreement and the Closing. This Section 10.10 will not apply to the parties to the Parking Easement or the Development Indemnity Agreement to the extent such claim or cause of action relates solely to the Parking Easement Agreement or the Development Indemnity Agreement, as applicablebreached.
Appears in 1 contract
Sources: Loan Agreement (Cole Credit Property Trust III, Inc.)
Exculpation. Buyer agrees that it does (a) Subject to the qualifications below, Lender shall not have enforce the liability and will not have 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 claims action or causes of action proceeding wherein a money judgment or any deficiency judgment or other judgment establishing personal liability shall be sought against Borrower or any disclosed or undisclosed officerprincipal, director, officer, employee, trusteebeneficiary, shareholder, partner, member, principaltrustee, parent, subsidiary or other affiliate of Seller, including, without limitation, Tishman Speyer Properties, L.P. and Goldman, Sachs & Co.agent, or ▇▇▇ ▇▇fic▇▇Affiliate of Borrower (but specifically excluding Guarantor) or any legal representatives, ▇irector, employee, trustee, shareholder, member, partner successors or principal of any such parent, subsidiary or other affiliate (collectively, "Seller's Affiliates"), arising out of with this Agreement or the transactions contemplated hereby. Buyer agrees to look solely to Seller and its assets for the satisfaction of any liability or obligation arising under this Agreement or the transactions contemplated hereby, or for the performance assigns of any of the covenantsforegoing (collectively, warranties the “Exculpated Parties”), except that Lender may bring a foreclosure action, an action for specific performance or any other agreements contained 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 further agrees 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 to sue or otherwise seek to e▇▇▇rce ▇ for, seek or demand any personal obligation deficiency judgment against Borrower or any of Seller's Affiliates the Exculpated Parties in any such action or proceeding under or by reason of or under or in connection with respect to any matters arising out of the Note, this Agreement Agreement, the Security Instrument or the transactions contemplated herebyother Loan Documents. The provisions of this Section 10.10shall not, however, shall not apply (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 Tishman Speyer/Travelers Real Estate Venturename 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, L.P. and Whitehall Street Real Estate Limited Partnership IX guaranty or similar instrument (collectivelyincluding, without limitation, the "Members"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 and/or Guarantor (as applicable) personally and without the effect of the exculpatory provisions of this Article 13); (4) impair the right of Lender to obtain the appointment of a receiver; (5) impair the enforcement of the assignment of leases and rents contained in the Security Instrument; (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 the amount any actual Losses incurred by Lender (including attorneys’ fees and costs reasonably incurred) arising out of or in connection with any of the Members has received from following:
(i) fraud or material intentional misrepresentation by Borrower or Guarantor;
(ii) the proceeds gross negligence or willful misconduct of Borrower or Guarantor or the commission of a criminal act by Borrower or Guarantor, which results in any seizure or forfeiture of the transactions Property, or any portion thereof, or Borrower’s interest therein;
(iii) the breach by Borrower or Guarantor of any representation, warranty, covenant or indemnification provision in the Environmental Indemnity;
(iv) physical waste of the Property caused by the intentional acts or intentional omissions of Borrower or Guarantor; and/or the removal or disposal of any portion of the Property after an Event of Default by Borrower or Guarantor;
(v) the misapplication or conversion, in violation of the terms hereof and the terms of the other Loan Documents, by Borrower or Guarantor of (A) any insurance proceeds paid by reason of any loss, damage or destruction to the Property, or (B) any Awards or other amounts received in connection with the Condemnation of all or a portion of the Property, in each case only to the extent Lender has not taken title to the Property either through a foreclosure or deed-in-lieu thereof;
(vi) all Rents received or collected by or on behalf of Borrower during the continuance of an Event of Default and not applied as required by terms hereof and the terms of the other Loan Documents (except to the extent that such application of such funds is prevented by bankruptcy, receivership, or similar judicial proceeding in which Borrower is legally prevented from directing the subject disbursement of such sums);
(vii) any Security Deposits, advance deposits or any other deposits collected by Borrower (or Manager on their behalf) or any Rents collected in advance with respect to the Property which are not delivered to a receiver appointed by Lender or to Lender after a foreclosure under the Security Instrument;
(viii) Borrower’s breach of, or failure to comply with, the representations, warranties and/or covenants contained in Section 11.2 hereof;
(ix) Borrower fails to appoint a new property manager upon the request of Lender as required by, and in accordance with, the terms and provisions of, this Agreement, the Assignment of Management Agreement and the other Loan Documents or Borrower appoints a new property manager or replaces the property manager other than in accordance with the terms of this Agreement, if the remaining funds available to Seller to satisfy Assignment of Management Agreement and the obligations other Loan Documents;
(x) any involuntary transfer or conveyance by Borrower of its interest in the Property, any voluntary transfer or conveyance of any direct and/or indirect, non-Controlling interest in Borrower or any involuntary transfer or conveyance of any Controlling or non-Controlling, direct and/or indirect interest in Borrower; in each case in violation of the Seller covenants set forth in Article 6 hereof;
(xi) arising out of, in connection with or resulting from (A) any Construction Impact Alterations and/or (B) any claims, suits, actions, proceedings or damages brought by any third party against Lender and/or any property damage to the Remaining Property arising out of, in connection with or resulting from the Construction (provided, however, such recourse obligation shall result in recourse liability hereunder only to the extent that Borrower’s or such other Person’s liability insurance policy does not cover such Loss(es) of Lender);
(xii) Borrower, Guarantor or any of their respective Affiliates or agents (or any other Person acting on their behalf or at the direction of any of the foregoing) leasing any space at the Released Expansion Parcel to the Prohibited Tenant, pursuant to a Lease under which such Tenant takes occupancy of any portion of the Released Expansion Parcel at any time after the completion of the Construction unless Lender has provided its prior written consent thereto; and
(xiii) the granting by Borrower of any voluntary non-monetary Lien against Borrower’s interest in the Property in violation of the covenants contained in the Loan Documents. Notwithstanding anything to the contrary in this Agreement Agreement, the Note or any of the transactions contemplated hereby are Loan Documents, (A) Lender shall not at least equal be deemed to Five Million Dollars ($5,000,000) or such lower amount of liability or potential liability as the Seller have waived any right which Lender may have under such agreements. The Section 506(a), 506(b), 1111(b) or any other provisions of this Section 10.10 the Bankruptcy Code to file a claim for the full amount of the Debt or to require that all collateral shall survive continue to secure all of the termination 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 files a voluntary petition under the Bankruptcy Code or any other Creditors Rights Laws; (ii) any Borrower, Guarantor, or any Affiliate, officer, director, or representative of this Agreement and Borrower or Guarantor, files, or joins in the Closing. This Section 10.10 will not apply filing of, an involuntary petition against Borrower under the Bankruptcy Code or any other Creditors Rights Laws, or Borrower, any SPE Component Entity or Guarantor solicits or causes to be solicited petitioning creditors for any involuntary petition against Borrower or any SPE Component Entity from any Person; (iii) 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 parties Bankruptcy Code or any other Creditors Rights Laws, or solicits or causes to be solicited petitioning creditors for any involuntary petition from any Person; (iv) Borrower, Guarantor, or any Affiliate, officer, director, or representative of Borrower, any SPE Component Entity or Guarantor consents to or acquiesces in or joins in an application for the Parking Easement appointment of a custodian, receiver, trustee, or examiner for Borrower, any SPE Component Entity or any portion of the Property (other than an application initiated by Lender); (v) 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, except to extent to prevent a claim of perjury or as required by court order; (vi) Borrower, any SPE Component Entity or Guarantor 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; (vii) any voluntary transfer or conveyance by Borrower of its interest in the Property, any voluntary transfer or conveyance of any direct and/or indirect Controlling interest in Borrower or the Development Indemnity Agreement to granting by Borrower of a mortgage or other voluntary monetary Lien against Borrower’s interest in the extent such claim Property, in each case, in violation of the covenants contained herein or cause in the other Loan Documents; or (viii) the breach of action relates solely to any representation, warranty or covenant contained in Article 5 hereof that results in the Parking Easement Agreement or substantive consolidation of the Development Indemnity Agreement, as applicableassets of Borrower with the assets of another Person.
Appears in 1 contract
Sources: Loan Agreement (Brookfield DTLA Fund Office Trust Investor Inc.)
Exculpation. Buyer agrees that it does (a) Notwithstanding anything to the contrary contained in this Agreement or any of the other Loan Documents, but subject to the qualifications expressly set forth below, Lender shall not have enforce the liability and will not have obligation of Borrower to perform and observe the obligations contained in the Note, this Agreement, the Security Instruments or the other Loan Documents by any claims action or causes of action proceeding wherein a money judgment or any deficiency judgment or other judgment establishing personal liability shall be sought against Borrower or any disclosed or undisclosed officerprincipal, director, officer, employee, trusteebeneficiary, shareholder, partner, member, principal, parent, subsidiary or other affiliate of Seller, including, without limitation, Tishman Speyer Properties, L.P. and Goldman, Sachs & Co., or ▇▇▇ ▇▇fic▇▇, ▇irector, employeemanager, trustee, shareholder, member, partner or principal of any such parent, subsidiary or other affiliate (collectively, "Seller's Affiliates"), arising out of with this Agreement or the transactions contemplated hereby. Buyer agrees to look solely to Seller and its assets for the satisfaction of any liability or obligation arising under this Agreement or the transactions contemplated herebyagent, or for the performance Affiliate of Borrower or any legal representatives, successors or assigns of any of the covenantsforegoing (collectively, warranties the “Exculpated Parties”), except that Lender may bring a foreclosure action, an action for specific performance or any other agreements contained appropriate action or proceeding to enable Lender to enforce and realize upon its interest under the Note, this Agreement, the Security Instruments and the other Loan Documents, or in the Properties, the Rents, or any other collateral given to Lender pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower’s interest in the Properties, in the Rents and further agrees in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Security Instruments and the other Loan Documents, shall not to sue or otherwise seek to e▇▇▇rce ▇ for, seek or demand any personal obligation deficiency judgment against Borrower or any of Seller's Affiliates the Exculpated Parties in any such action or proceeding under or by reason of or under or in connection with respect to any matters arising out of the Note, this Agreement Agreement, the Security Instruments or the transactions contemplated herebyother Loan Documents. The provisions of this Section 10.1013.1(a) shall not, however, shall not apply (1) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents, subject in all respects to Tishman Speyer/Travelers Real Estate Venturethe foregoing limitation of remedies and personal liability; (2) impair the right of Lender to name Borrower as a party defendant in any action or suit for foreclosure and sale under any Security Instrument, L.P. to the extent necessary under applicable law, and Whitehall Street Real Estate Limited Partnership IX for the limited purposes of, effecting such foreclosure;; (collectively3) affect the validity or enforceability of any indemnity or guaranty (including, without limitation, indemnities set forth in Article 12 hereof, Section 11.2 hereof, in the "Members"Guaranty and the Environmental Indemnity) executed by Borrower or Guarantor 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; (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 for the sole and limited purpose, and only to the extent required under applicable law, of realizing upon the security granted by any Security Instrument or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against any Individual 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 amount 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, following an Event of Default, to accelerate the Loan, foreclose upon the Property, seek a receiver or enforce the Guaranty and Environmental Indemnity;
(iv) waste to any Individual 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 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 any Individual Property, (B) any Awards or other amounts received in connection with the Condemnation of all or a portion of any Individual Property, (C) any Rents following an Event of Default or (D) any Tenant security deposits or Rents collected in advance;
(vi) failure to pay Taxes, charges for labor or materials or other charges that can create liens on any portion of any Individual Property in accordance with the terms and provisions hereof;
(vii) 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;
(viii) any security deposits, advance deposits or any other deposits collected with respect to any Individual Property which are not delivered to Lender upon a foreclosure of 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 Members has received Leases prior to the occurrence of the Event of Default that gave rise to such foreclosure or action in lieu thereof;
(ix) any tax on the making and/or recording of any 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;
(x) the seizure or forfeiture of any Individual Property, or any portion thereof, or Borrower’s interest therein, resulting from criminal wrongdoing by any Borrower Party;
(xi) the failure to make any True Up Payment (but only to the extent that the Property generated net operating income for the immediately preceding twelve (12) month period sufficient to pay the same);
(xii) Intentionally omitted;
(xiii) Borrower fails to comply with its obligations to deposit revenues derived from the proceeds Properties into the Restricted Account in accordance with Section 9.2(a) hereof; and for purposes of this subsection (xiii), Losses shall be deemed to mean any funds not so deposited by Borrower into the Restricted Account);
(xiv) any default or breach by Borrower or any SPE Component Entity (if any) of any of the transactions which provisions set forth in Article 5 hereof (other than a default or breach of the terms of Section 5.1(a)(i), (ii), (iii), (iv), (vi), (vii) and (xi) hereof)); or
(xv) Section 11.1 or Section 11.6 hereof is violated or breached.
(b) Notwithstanding anything to the subject of contrary in this Agreement, if the remaining funds available to Seller to satisfy the obligations Note or any of the Seller pursuant Loan Documents, (A) Lender shall not be deemed to this Agreement or the transactions contemplated hereby are not at least equal to Five Million Dollars ($5,000,000) or such lower amount of liability or potential liability as the Seller have waived any right which Lender may have under such agreements. The Section 506(a), 506(b), 1111(b) or any other provisions of this 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) any default or breach by Borrower or any SPE Component Entity (if any) of the provisions of Section 10.10 shall survive the termination of this Agreement and the Closing. This Section 10.10 will not apply to the parties to the Parking Easement 5.1(a)(i), (ii), (iii), (iv), (vi), (vii) or the Development Indemnity Agreement to the extent such claim (xi), (iii) any representation, warranty or cause of action relates solely to the Parking Easement Agreement covenant contained in Article 6 hereof is violated or the Development Indemnity Agreement, as applicablebreached; (iii) a Bankruptcy Event occurs.
Appears in 1 contract
Exculpation. Buyer agrees that it does (a) Subject to the qualifications below, Administrative Agent and Lender shall not have enforce the liability and will not have obligation of B▇▇▇▇▇▇▇ to perform and observe the obligations contained in the Note, this Agreement, the Security Instrument or the other Loan Documents by any claims action or causes of action proceeding wherein a money judgment or any deficiency judgment or other judgment establishing personal liability shall be sought against Borrower or any disclosed or undisclosed officerprincipal, director, officer, employee, trusteebeneficiary, shareholder, partner, member, principaltrustee, parent, subsidiary or other affiliate of Seller, including, without limitation, Tishman Speyer Properties, L.P. and Goldman, Sachs & Co.agent, or ▇▇▇ ▇▇fic▇▇Affiliate of Borrower or any legal representatives, ▇irector, employee, trustee, shareholder, member, partner successors or principal of any such parent, subsidiary or other affiliate (collectively, "Seller's Affiliates"), arising out of with this Agreement or the transactions contemplated hereby. Buyer agrees to look solely to Seller and its assets for the satisfaction of any liability or obligation arising under this Agreement or the transactions contemplated hereby, or for the performance assigns of any of the covenantsforegoing (collectively, warranties the “Exculpated Parties”), except that Administrative Agent may bring a foreclosure action, an action for specific performance or any other agreements contained 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 Property (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 further agrees 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 to sue for, seek or otherwise seek to e▇▇▇rce demand any personal obligation deficiency judgment against Borrower or any of Seller's Affiliates the Exculpated Parties in any such action or proceeding under or by reason of or under or in connection with respect to any matters arising out of the Note, this Agreement Agreement, the Security Instrument or the transactions contemplated herebyother Loan Documents. The provisions of this Section 10.10shall not, however, shall not apply (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 Tishman Speyer/Travelers Real Estate Venturename 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, L.P. guaranty or similar instrument (including, without limitation, indemnities set forth in Article 12 hereof, Section 11.2 hereof, in the Guaranty and Whitehall Street Real Estate Limited Partnership IX the Environmental Indemnity) made in connection with the Loan or any of the rights and remedies of Administrative Agent and Lender thereunder (collectivelyincluding, without limitation, Administrative Agent’s and L▇▇▇▇▇’s right to enforce said rights and remedies against Borrower and/or Guarantor (as applicable) personally and without the "Members"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 Property (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 amount following:
(i) fraud or intentional material misrepresentation by B▇▇▇▇▇▇▇, M▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, any 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 Members has received foregoing (each, a “Recourse Party”) in connection with the Loan;
(ii) willful misconduct of any Recourse Party in connection with the Loan;
(iii) the breach of any indemnification provision in the Loan Documents concerning environmental laws, hazardous substances and asbestos and any indemnification of Administrative Agent and/or Lender with respect thereto;
(iv) material physical waste to any Property caused by the intentional acts of any Recourse Party, but only to the extent there is sufficient cash flow from the proceeds Properties to prevent such physical waste and such cash flow is made available by Administrative Agent for the purpose of preventing such physical waste;
(v) the removal of any property in contravention of the transactions 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 a Recourse Party in contravention of the Loan Documents: (A) any insurance proceeds received by Borrower by reason of any Casualty, (B) any Awards or other amounts received by Borrower from a governmental authority in connection with a Condemnation of all or a portion of the Property or (C) any revenues generated by the Properties;
(vii) any Security Deposits, advance deposits or any other deposits collected with respect to any Property which are not delivered to Administrative Agent upon a foreclosure of such 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 Lease;
(viii) any litigation or other legal proceeding related to the 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 shall have occurred or whether an action taken by Administrative Agent pursuant to 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 subject foreclosure proceeding would be barred, and which does not seek to enjoin the enforcement action by Administrative Agent;
(ix) B▇▇▇▇▇▇▇ fails to obtain Administrative Agent’s prior written consent to any additional indebtedness or voluntary lien encumbering any Property and not permitted by the Loan Documents;
(x) a material breach by Borrower of Section 5.5;
(xi) any voluntary termination, or any voluntary, material modification of any Ground Lease by Borrower without Administrative Agent’s prior written consent other than as expressly permitted under this Agreement; provided, that 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 comply with or Borrower’s or the applicable Tenant’s breach of any PILOT Lease and/or PILOT Document that results in (x) a reduction of any tax abatement and/or mandatory repayment of any past or current tax abatement under such PILOT Lease and/or PILOT Document, 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, in any such case, Losses shall include lost rental income); provided, that, in each case, the liability with respect to this Section 13.1(a)(xii) shall not exceed the Allocated Loan Amount of the applicable PILOT Property;
(xiii) other 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 Condominium Documents are amended, modified, supplemented, terminated, cancelled or otherwise cease to exist without Administrative Agent’s prior written consent;
(xv) any Losses related to title defects with respect to the Hawaii Easement Properties in excess of 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 any Leases for which a tenant estoppel certificate was not delivered on or prior to the Closing Date; and/or
(xvii) any liability or obligation of Borrower relating to the Previously-Owned Property.
(b) Notwithstanding anything to the contrary in this Agreement, if the remaining funds available to Seller to satisfy the obligations Note or any of the Seller pursuant Loan Documents, (A) neither Administrative Agent nor any Lender shall be deemed to this Agreement have waived any right which Administrative Agent or the transactions contemplated hereby are not at least equal to Five Million Dollars ($5,000,000) or such lower amount of liability or potential liability as the Seller Lender may have under such agreements. The 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 filing of, a petition against Borrower under the 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) B▇▇▇▇▇▇▇ 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 obtain Administrative Agent’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,
(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 10.10 13.1(b)(vii) shall survive not exceed the termination Allocated Loan Amount of the Hawaii Individual Property under this Agreement and the Closing. This allocated loan amount of the Hawaii 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,
(viii) B▇▇▇▇▇▇▇ fails to pay to Administrative Agent for the account of Lender any Excess Cash Flow in violation of Section 10.10 will 2.6(b) hereof; provided that liability with respect to this Section 13.1(b)(viii) shall not apply exceed the amount of such Excess Cash Flow required to be paid to Administrative Agent, 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,
(ix) Borrower fails to deliver to Administrative Agent a Title Insurance Policy satisfactory to Administrative Agent with respect to the parties 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, 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 with the provisions of Sections 7.2, 7.3 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 Parking Easement 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 all third-party costs incurred by Administrative Agent or Lender (including attorneys’ fees and costs reasonably incurred) in connection with the Development Indemnity Agreement to the extent such claim or cause collection of action relates solely to the Parking Easement Agreement or the Development Indemnity Agreement, as applicableamounts due hereunder.
Appears in 1 contract
Sources: Loan Agreement (Industrial Logistics Properties Trust)
Exculpation. Buyer agrees that it does not From and after the Effective Date, the Exculpated Fiduciaries and, solely to the extent provided by section 1125(e) of the Bankruptcy Code, the Section 1125(e) Parties, shall neither have and will not have nor incur any claims liability to, or causes be subject to any right of action against by, any disclosed Holder of a Claim or undisclosed officeran Interest, directoror any other party in interest, employeeor any of their respective employees, trusteerepresentatives, shareholderfinancial advisors, partnerattorneys, memberor agents acting in such capacity, principalor Affiliates, parentor any of their successors or assigns, subsidiary 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 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 affiliate act taken or omitted to be taken in connection with or in contemplation of Sellerthe Chapter 11 Case or implementation of this Plan; provided, however, that this Section 9.5 shall not apply to release (x) obligations under this Plan, and obligations under 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 Merger Agreement and the contracts, instruments, releases, agreements, and documents delivered, Reinstated or assumed under this Plan (including, without limitation, Tishman Speyer Propertiesthe Credit Facility (if the Closing of the Alternative Transaction does not occur) and the Intercompany Note, L.P. and Goldman, Sachs & Co., or ▇▇▇ ▇▇fic▇▇, ▇irector, employee, trustee, shareholder, member, partner or principal of any such parent, subsidiary or other affiliate (collectively, "Seller's Affiliates"as applicable), and (y) any Claims or Causes of Action arising out of with this Agreement fraud, willful misconduct or the transactions contemplated herebygross negligence as determined by a Final Order. Buyer agrees to look solely to Seller and its assets for the satisfaction of any liability or obligation arising under this Agreement or the transactions contemplated hereby, or for the performance of any Any of the covenantsExculpated Parties shall be entitled to rely, warranties or other agreements contained hereinin all respects, upon the reasonable and further agrees not to sue or otherwise seek to e▇▇▇rce any personal obligation against any informed advice of Seller's Affiliates counsel with respect to any matters arising out of their duties and responsibilities under this Agreement or the transactions contemplated hereby. The provisions of this Section 10.10, however, shall not apply to Tishman Speyer/Travelers Real Estate Venture, L.P. and Whitehall Street Real Estate Limited Partnership IX (collectively, the "Members") to the extent of the amount any of the Members has received from the proceeds of the transactions which is the subject of this Agreement, if the remaining funds available to Seller to satisfy the obligations of the Seller pursuant to this Agreement or the transactions contemplated hereby are not at least equal to Five Million Dollars ($5,000,000) or such lower amount of liability or potential liability as the Seller may have under such agreements. The provisions of this Section 10.10 shall survive the termination of this Agreement and the Closing. This Section 10.10 will not apply to the parties to the Parking Easement or the Development Indemnity Agreement to the extent such claim or cause of action relates solely to the Parking Easement Agreement or the Development Indemnity Agreement, as applicablePlan.
Appears in 1 contract
Sources: Alternative Plan Sponsor Agreement
Exculpation. Buyer 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 this Agreement, the Note or any of the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against any of the Borrower Parties or any other Person, except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender to enforce and realize upon the Property, the Rents or any other collateral given to Lender pursuant to this Agreement and the other Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against the Borrower Parties only to the extent of their interest in the Property, the Rents and in any other collateral given to Lender, and Lender, by accepting this Agreement, the Note and the other Loan Documents, agrees that it does shall not have and will not have any claims or causes of action against any disclosed or undisclosed officer, director, employee, trustee, shareholder, partner, member, principal, parent, subsidiary or other affiliate of Seller, including, without limitation, Tishman Speyer Properties, L.P. and Goldman, Sachs & Co., or ▇s▇▇ ▇▇fic▇▇for, ▇irector, employee, trustee, shareholder, member, partner seek or principal of demand any such parent, subsidiary or other affiliate (collectively, "Seller's Affiliates"), arising out of with this Agreement or the transactions contemplated hereby. Buyer agrees to look solely to Seller and its assets for the satisfaction of any liability or obligation arising under this Agreement or the transactions contemplated hereby, or for the performance of deficiency judgment against any of the covenantsBorrower Parties or any other Person in any such action or proceeding under or by reason of or in connection with this Agreement, warranties the Note or other agreements contained herein, and further agrees not to sue or otherwise seek to e▇▇▇rce any personal obligation against any of Seller's Affiliates with respect to any matters arising out of this Agreement or the transactions contemplated herebyother Loan Documents. The provisions of this Section 10.10paragraph shall not, however, shall not apply to Tishman Speyer/Travelers Real Estate Venture(i) constitute a waiver, L.P. and Whitehall Street Real Estate Limited Partnership IX (collectivelyrelease or impairment of any obligation evidenced or secured by this Agreement, the "Members"Note or any of the other Loan Documents; (ii) impair the right of Lender to name any of the Borrower Parties, as a party defendant in any action or suit for foreclosure and sale under the Mortgage; (iii) affect the validity or enforceability of any guaranty made in connection with the Loan or any rights and remedies of Lender thereunder; (iv) impair the right of Lender to obtain the appointment of a receiver; (v) impair the enforcement of the Assignment of Leases and Rents; or (vi) constitute a waiver of the right of Lender to enforce the liability and obligation of Borrower (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, 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 amount following:
(a) fraud or intentional misrepresentation by Borrower or Guarantor in connection with the Loan;
(b) intentional physical waste of the Property (including, but not limited to, waste due to gross negligence) by Borrower or 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 or any affiliate thereof;
(c) the material breach of any representation, warranty, covenant or indemnification provision in the Environmental Indemnity or in this Agreement concerning Environmental Laws, Hazardous Substances and Asbestos;
(d) the removal or disposal by Borrower or any affiliate thereof of any portion of the Property after an Event of Default 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;
(e) the misapplication or conversion by Borrower or any affiliate thereof of (i) any insurance proceeds paid by reason of any loss, damage or destruction to the Property, (ii) any awards or other amounts received in connection with the condemnation of all or a portion of the Property, (iii) any Rents following an Event of Default or (iv) any Rents paid more than one (1) month in advance;
(f) failure to pay 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 herewith or such taxes or charges have been delivered to Lender in accordance with Section 3.3 hereof or Borrower has complied with Section 5.2 hereof; and
(g) any security deposits collected by Borrower or any affiliate thereof 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 Members has received from Leases prior to the proceeds occurrence of the transactions Event of Default that gave rise to such foreclosure or action in lieu thereof. Notwithstanding anything to the contrary in any of the Loan Documents (i) Lender shall not be deemed to have waived any right which Lender may have under Section 506(a), 506(b), 1111(b) or any other provisions of the U.S. Bankruptcy Code to file a claim for the full amount of the 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 (ii) the Debt shall 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: (A) the first full Monthly Debt Service Payment Amount (as defined in the Note) under the Note is not paid when due; (B) other than in connection with a default under subsection (x) of the subject definition of Special Purpose Bankruptcy Remote Entity set forth in Schedule 5 hereto, Borrower fails to maintain its status as a Special Purpose Bankruptcy Remote Entity in accordance with the provisions of this AgreementAgreement and such failure results in the substantive consolidation of Borrower with another Person; (C) except as otherwise permitted pursuant to the Loan Documents, if Borrower fails to obtain Lender’s prior written consent to any subordinate financing or other voluntary lien encumbering the remaining funds available Property; (D) except as otherwise permitted pursuant to Seller the Loan Documents, Borrower fails to satisfy the obligations obtain Lender’s prior written consent to any assignment, transfer, or conveyance of the Seller pursuant Property or any interest therein as and to the extent required by this Agreement or the transactions contemplated hereby Mortgage; or (E) (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 Borrower or Guarantor, or (2) if 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 found 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 Borrower or Guarantor, or (3) if Borrower or Guarantor are not at least equal found, pursuant to Five Million Dollars 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 Borrower or Guarantor or ($5,000,000F) or such lower amount an Event of liability or potential liability as the Seller may Default described in Section 8.1(s) hereof shall have under such agreements. The provisions of this Section 10.10 shall survive the termination of this Agreement and the Closing. This Section 10.10 will not apply to the parties to the Parking Easement or the Development Indemnity Agreement to the extent such claim or cause of action relates solely to the Parking Easement Agreement or the Development Indemnity Agreement, as applicableoccurred.
Appears in 1 contract
Exculpation. Buyer agrees that it does not have and will not have Notwithstanding any claims or causes of action against any disclosed or undisclosed officer, director, employee, trustee, shareholder, partner, member, principal, parent, subsidiary or other affiliate of Seller, including, without limitation, Tishman Speyer Properties, L.P. and Goldman, Sachs & Co., or ▇▇▇ ▇▇fic▇▇, ▇irector, employee, trustee, shareholder, member, partner or principal of any such parent, subsidiary or other affiliate (collectively, "Seller's Affiliates"), arising out of with this Agreement or the transactions contemplated hereby. Buyer agrees to look solely to Seller and its assets for the satisfaction of any liability or obligation arising under this Agreement or the transactions contemplated hereby, or for the performance of any of the covenants, warranties or other agreements contained herein, and further agrees not to sue or otherwise seek to e▇▇▇rce any personal obligation against any of Seller's Affiliates with respect to any matters arising out provision of this Agreement or any Loan Document to the transactions contemplated herebycontrary, but subject to the further provisions of this Article X, the Secured Parties shall not enforce the liability and obligation of the Borrowers to perform and observe the obligations contained in the Loan Documents by any action or proceeding wherein a money judgment shall be sought against any Transaction Party or any of their respective officers, directors, managers, shareholders or employees (collectively, the “Exculpated Parties”), except that the Administrative Agent may bring a foreclosure action, action for specific performance or other appropriate action or proceeding to enable the Administrative Agent to enforce and realize upon this Agreement, the other Loan Documents, and the interest in the Collateral; provided, however, that any judgment in any such action or proceeding shall be enforceable only to the extent of the Borrowers’ interests in the Collateral. The Secured Parties agree that they shall not, except as otherwise provided herein or in the Mortgages, s▇▇ for, seek or demand any deficiency judgment against any of the Exculpated Parties in any such action or proceeding, under or by reason of or under or in connection with the Loan Documents. The provisions of this Section 10.1010.01 shall not, however, shall (i) constitute a waiver, release or impairment of any obligation evidenced or secured by the Loan Documents; (ii) impair the right of the Administrative Agent to name any Transaction Party as a party defendant in any action or suit for judicial foreclosure and sale under any Mortgage; (iii) affect the validity or enforceability of any indemnity, guaranty (including the Guaranty), master lease or similar instrument made in connection with the Loan Documents; (iv) impair the right of the Administrative Agent to obtain the appointment of a receiver; (v) impair the enforcement of any Assignment of Leases; (vi) impair the right of the Secured Parties to enforce the provisions of the Mortgages; (vii) exercise of any other remedy set forth in this Agreement or in any other Loan Document which is not apply inconsistent with the terms of this Section 10.01; or (viii) impair the right of the Secured Parties to Tishman Speyer/Travelers Real Estate Ventureobtain a deficiency judgment or other judgment on the Notes against Borrowers if necessary to (A) preserve or enforce its rights and remedies against the Collateral or (B) obtain any insurance proceeds or condemnation awards to which the Secured Parties would otherwise be entitled under the terms of the Loan Documents; provided, L.P. and Whitehall Street Real Estate Limited Partnership IX (collectivelyhowever, the "Members") Secured Parties shall only enforce such judgment to the extent of the amount any of the Members has received from the insurance proceeds of the transactions which is the subject of this Agreement, if the remaining funds available to Seller to satisfy the obligations of the Seller pursuant to this Agreement or the transactions contemplated hereby are not at least equal to Five Million Dollars ($5,000,000) or such lower amount of liability or potential liability as the Seller may have under such agreements. The provisions of this Section 10.10 shall survive the termination of this Agreement and the Closing. This Section 10.10 will not apply to the parties to the Parking Easement or the Development Indemnity Agreement to the extent such claim or cause of action relates solely to the Parking Easement Agreement or the Development Indemnity Agreement, as applicableand/or condemnation awards.
Appears in 1 contract
Sources: Term Loan Agreement (American Realty Capital Hospitality Trust, Inc.)
Exculpation. Buyer agrees that it does (a) Subject to the qualifications below, Lender shall not have enforce the liability and will not have 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 claims action or causes of action proceeding wherein a money judgment shall be sought against Borrower or any disclosed or undisclosed officer, director, employee, trustee, shareholder, partner, member, principal, parentemployee of Borrower or any direct or indirect owner of Borrower (provided that the foregoing shall not limit in any manner, subsidiary the liability of any Guarantor), except that Lender may bring a foreclosure action, an action for specific performance or any other affiliate of Sellerappropriate action or proceeding to enable Lender to enforce and realize upon its interest under the Note, includingthis Agreement, without limitation, Tishman Speyer Properties, L.P. the Security Instrument and Goldman, Sachs & Co.the other Loan Documents, or in the Property (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 ▇▇▇ ▇▇fic▇▇for, ▇irector, employee, trustee, shareholder, member, partner seek or principal of demand any deficiency judgment against Borrower in any such parentaction or proceeding under or by reason of or under or in connection with the Note, subsidiary or other affiliate (collectivelythis Agreement, "Seller's Affiliates"), arising out of with this Agreement the Security Instrument or the transactions contemplated hereby. Buyer agrees to look solely to Seller and its assets for the satisfaction of any liability or obligation arising under this Agreement or the transactions contemplated hereby, or for the performance of any of the covenants, warranties or other agreements contained herein, and further agrees not to sue or otherwise seek to e▇▇▇rce any personal obligation against any of Seller's Affiliates with respect to any matters arising out of this Agreement or the transactions contemplated herebyLoan Documents. The provisions of this Section 10.109.3 shall not, however, (i) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (ii) 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; (iii) affect the validity or enforceability of any guaranty, indemnity or similar agreement or undertaking made in connection with the Loan or any of the rights and remedies of Lender thereunder; (iv) impair the right of Lender to obtain the appointment of a receiver; (v) 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 (or any portion thereof).
(b) Nothing contained herein shall in any manner or way release, affect or impair the right of Lender to recover from Borrower, 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 other obligation (including reasonable out-of-pocket attorneys’ fees and expenses 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 Affiliate of the foregoing;
(ii) the gross negligence or willful misconduct of Borrower or Guarantor, or any Affiliate of the foregoing;
(iii) intentional material physical waste of the Property, provided, however, that if Borrower does not have sufficient cash flow on a current basis to prevent waste, any waste shall not apply be deemed intentional and Borrower shall have no liability under this clause (iii);
(iv) the removal or disposal of any portion of the Property in violation of the terms of the Loan Documents;
(v) the misappropriation or conversion by Borrower or Guarantor, or any Affiliate of the foregoing, of (A) any Insurance Proceeds paid by reason of any loss, damage or destruction to Tishman Speyer/Travelers Real Estate Venturethe Property, L.P. and Whitehall Street Real Estate Limited Partnership IX (collectivelyB) any Awards received in connection with a Condemnation of all or a portion of the Property, (C) any Rents or other Property income or collateral proceeds, or (D) any Rents paid more than one month in advance (including security deposits);
(vi) following the occurrence of an Event of Default, the "Members"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;
(vii) failure to maintain insurance or to pay taxes and assessments, or to pay charges for labor or materials or other charges or judgments that can create Liens on any portion of the Property (unless Lender is escrowing funds therefor and fails to make such payments or has taken possession of the Property following an Event of Default, has received all Rents from the Property applicable to the period for which such insurance, taxes or other items are due, and thereafter fails to make such payments), it being acknowledged that if Borrower does not have sufficient cash flow on a current basis to maintain insurance or to pay taxes and assessments or to pay charges for labor or materials or other charges or judgments that create Liens on any portion of the Property, Borrower shall have no liability under this clause (vii);
(viii) 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 the amount any of the Members has received from Leases prior to the proceeds occurrence of the transactions which is Event of Default that gave rise to such foreclosure or action in lieu thereof or (B) previously delivered to Lender to be applied to repay the subject of this Agreement, if the remaining funds available Loan;
(ix) any failure by Borrower to Seller to satisfy the obligations of the Seller pursuant to this Agreement or the transactions contemplated hereby are not at least equal to Five Million Dollars obtain Lender’s prior written consent ($5,000,000) or such lower amount of liability or potential liability as the Seller may have under such agreements. The provisions of this Section 10.10 shall survive the termination of this Agreement and the Closing. This Section 10.10 will not apply to the parties to the Parking Easement or the Development Indemnity Agreement to the extent such claim or cause of action relates solely consent is required pursuant to the Parking Easement Agreement terms of the Loan Documents) to any modification, amendment or terminations of any Lease;
(x) any failure by Borrower to comply with any of the Development Indemnity representations, warranties or covenants set forth in Sections 4.1.37 or 5.1.19 hereof;
(xi) any failure by Borrower to permit on-site inspections of the Property in accordance with the terms and provisions of the Loan Documents;
(xii) the failure of Borrower to appoint a new Manager at Lender’s request, to the extent Borrower is expressly required to do so pursuant to this Agreement;
(xiii) any failure by Borrower to comply with any representation, warranty or covenant set forth in Section 4.1.30 hereof that does not result, in whole or in part, in the substantive consolidation of the assets and liabilities of Borrower with those of any other Person or entity pursuant to the Bankruptcy Code;
(xiv) Borrower fails to obtain Lender’s prior written consent to any Transfer to the extent required pursuant to the terms of the Loan Documents that is not a Full Recourse Transfer;
(xv) Borrower fails to obtain Lender’s prior written consent, to the extent required pursuant to the terms of the Loan Documents, to any Indebtedness or voluntary Lien encumbering the Property that is not a Full Recourse Lien; or
(xvi) the failure of the AT&T Sprinkler Installation Work to be completed in accordance herewith on or before the applicable AT&T Sprinkler Installation Work Completion Deadlines.
(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 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, ▇▇▇▇ 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 applicablethey 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 constitute a waiver by Lender of any right Lender may have under Sections 506(a), 506(b), 1111(b) or any other 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.
Appears in 1 contract
Exculpation. Buyer agrees that it does not have and will not have Except as may be required by applicable securities laws or other law, neither the Managing Member or any claims Additional Managing Member, any of their respective Affiliates, or causes of action against any disclosed or undisclosed member, officer, director, employeeemployee or shareholder of the Managing Member, trustee, shareholder, partner, member, principal, parent, subsidiary or other affiliate of Seller, including, without limitation, Tishman Speyer Properties, L.P. and Goldman, Sachs & Co.any Additional Managing Member, or ▇▇▇ ▇▇fic▇▇any of their respective Affiliates (individually, ▇irector, employee, trustee, shareholder, member, partner or principal of any such parent, subsidiary or other affiliate (a "Party" and collectively, the "Seller's AffiliatesParties"), arising out shall be liable, responsible or accountable in damages or otherwise to the Fund or any of with this Agreement or the transactions contemplated hereby. Buyer agrees to look solely to Seller and its assets Members for the satisfaction honest mistakes of any liability or obligation arising under this Agreement or the transactions contemplated herebyjudgment, or for losses due to such mistakes or due to the performance negligence, dishonesty or bad faith of any employee, broker or other agent of the covenantsFund, warranties or for any action taken or failure to act in any way related to the Fund or its business or affairs (including but not limited to (i) failure to obtain the lowest negotiated brokerage commission rates or other agreements contained hereintransaction costs, and further agrees not or to sue combine or otherwise seek arrange orders so as to e▇▇▇rce any personal obligation against any of Seller's Affiliates obtain the lowest commission rates or other transaction costs with respect to any matters arising out transaction on behalf of this Agreement the Fund, or failure to recapture, directly or indirectly, any brokerage commissions or other transaction costs for the transactions contemplated herebybenefit of the Fund, or (ii) claims, costs, expenses, damages or losses due to, including but not limited to, the Bankruptcy, insolvency or suspension of normal business activities of any Investee Pool, bank, brokerage firm, custodian or transfer agent holding assets of the Fund, or due to the negligence, dishonesty, bad faith or malfeasance of any investment adviser with whom the Fund invests, either directly or indirectly, any Affiliate of any entity in which the Fund invests, or any employee, broker or other agent of the Fund), if such Party acted in good faith and in a manner it believed to be in, or not opposed to, the interests of the Fund; provided, however, that such Party shall not be relieved of liability in respect of any loss, expense or damage caused by such Party's actual fraud, gross negligence or wanton or willful misconduct. The provisions termination of any pending or threatened action, suit or proceeding by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its equivalent, shall not, in and of itself, create a presumption or otherwise constitute evidence that a Party did not satisfy the standards for exculpation set forth in this Section 7.5. The Managing Member may consult with Legal Counsel and Accountants in respect to the Fund's affairs and shall be fully protected and justified in acting or failing to act in accordance with the written or oral advice or opinion of such Legal Counsel or Accountants, provided that they have been selected with reasonable care, and provided further that the failure to obtain any such advice or opinion shall not be evidence as to whether the Managing Member's actions fall within or outside the scope of this Section 10.10, however, shall not apply to Tishman Speyer/Travelers Real Estate Venture, L.P. and Whitehall Street Real Estate Limited Partnership IX (collectively, the "Members") to the extent of the amount any of the Members has received from the proceeds of the transactions which is the subject of this Agreement, if the remaining funds available to Seller to satisfy the obligations of the Seller pursuant to this Agreement or the transactions contemplated hereby are not at least equal to Five Million Dollars ($5,000,000) or such lower amount of liability or potential liability as the Seller may have under such agreements. The provisions of this Section 10.10 shall survive the termination of this Agreement and the Closing. This Section 10.10 will not apply to the parties to the Parking Easement or the Development Indemnity Agreement to the extent such claim or cause of action relates solely to the Parking Easement Agreement or the Development Indemnity Agreement, as applicable7.5.
Appears in 1 contract
Sources: Limited Liability Company Agreement (Aspen Diversified Fund LLC)
Exculpation. Buyer agrees that it does Subject to the qualifications below, Lender shall not have enforce the liability and will not have obligation of Borrower or Operating Lessee to perform and observe the obligations contained in the Note, this Agreement, the Security Instrument or the other Loan Documents by any claims action or causes of action proceeding wherein a money judgment or any deficiency judgment or other judgment establishing personal liability shall be sought against Borrower, Operating Lessee or any disclosed or undisclosed officerprincipal, director, officer, employee, trusteebeneficiary, shareholder, partner, member, principaltrustee, parentagent, subsidiary or other affiliate of SellerBorrower or Operating Lessee (but specifically excluding Guarantor) or any legal representatives, including, without limitation, Tishman Speyer Properties, L.P. and Goldman, Sachs & Co., successors or ▇▇▇ ▇▇fic▇▇, ▇irector, employee, trustee, shareholder, member, partner or principal of any such parent, subsidiary or other affiliate (collectively, "Seller's Affiliates"), arising out of with this Agreement or the transactions contemplated hereby. Buyer agrees to look solely to Seller and its assets for the satisfaction of any liability or obligation arising under this Agreement or the transactions contemplated hereby, or for the performance assigns of any of the covenantsforegoing (collectively, warranties the “Exculpated Parties”), except that Lender may bring a foreclosure action, an action for specific performance or any other agreements contained 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 and/or Operating Lessee only to the extent of Borrower’s or Operating Lessee’s, as applicable, interest in the Property, in the Rents and further agrees 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 to sue or otherwise seek to e▇▇▇rce ▇ for, seek or demand any personal obligation deficiency judgment against Borrower or Operating Lessee or any of Seller's Affiliates the Exculpated Parties, in any such action or proceeding under or by reason of or under or in connection with respect to any matters arising out of the Note, this Agreement Agreement, the Security Instrument or the transactions contemplated herebyother Loan Documents. The provisions of this Section 10.10shall not, however, shall not apply (a) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (b) impair the right of Lender to Tishman Speyer/Travelers Real Estate Venturename Borrower and/or Operating Lessee as a party defendant in any action or suit for foreclosure and sale under the Security Instrument; (c) affect the validity or enforceability of any indemnity, L.P. guaranty, or similar instrument made in connection with the Loan or any of the rights and Whitehall Street Real Estate Limited Partnership IX remedies of Lender thereunder; (collectivelyd) impair the right of Lender to obtain the appointment of a receiver; (e) impair the enforcement of the assignment of leases and rents contained in the Security Instrument; (f) impair the right of Lender to enforce the provisions of the Environmental Indemnity or of Section 4.1.6(i) hereof; (g) 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 or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against such security; or (h) constitute a waiver of the right of Lender to enforce the liability and obligation of Borrower and/or Operating Lessee, the "Members") by money judgment or otherwise, to the extent of the amount any Losses incurred by Lender (including attorneys’ fees and costs reasonably incurred) arising out of or in connection with any of the Members has following:
(i) fraud or willful misrepresentation by Borrower, Operating Lessee, any of the Exculpated Parties or any Borrower Party in connection with the Loan;
(ii) the gross negligence or willful misconduct of Borrower, Operating Lessee, any of the Exculpated Parties or any Borrower Party in connection with the Loan;
(iii) the breach of any representation, warranty, covenant or indemnification provision in the Environmental Indemnity or in any other Loan Document concerning environmental laws, hazardous substances and asbestos and any indemnification of Lender with respect thereto in any such document;
(iv) waste to the Property (or any portion thereof) caused by intentional acts or intentional omissions of Borrower, Operating Lessee, any Exculpated Party, or any Borrower Party, or the removal or disposal of any portion of the Property after an Event of Default;
(v) the misapplication, misappropriation or conversion by Borrower, Operating Lessee, any of the Exculpated Parties or the Borrower Parties 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 advance;
(vi) any Personal Property taken from the proceeds Property by or on behalf of Borrower, Operating Lessee, any of the transactions which is Exculpated Parties or the subject Borrower Parties, and not replaced with Personal Property of the same utility and of the same or greater value;
(vii) any act of arson by Borrower, Operating Lessee, any of the Exculpated Parties, or any Borrower Parties;
(viii) any fees or commissions paid by Borrower or Operating Lessee, or on behalf of Borrower or Operating Lessee, as applicable, after the occurrence of an Event of Default to any Exculpated Party or any Borrower Party in violation of the terms of the Note, this Agreement, if the remaining funds available Security Instrument or the other Loan Documents;
(ix) failure to Seller to satisfy the obligations pay Taxes, charges for labor or materials, or other charges that can create Liens on any portion of the Seller pursuant Property and/or the failure to pay Insurance Premiums in accordance with the terms hereof;
(x) any security deposits, advance deposits or any other deposits collected with respect to any Individual Property which are not delivered to Lender upon a foreclosure of 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;
(xi) any failure by Borrower and/or Operating Lessee to permit on-site inspections of any Individual Property as required by this Agreement or and/or the transactions contemplated hereby are not at least equal other Loan Documents;
(xii) any failure of Operating Lessee to Five Million Dollars ($5,000,000) or such lower amount appoint a new property manager upon the request of liability or potential liability Lender as required by the Seller may have under such agreements. The provisions of this Section 10.10 shall survive the termination terms of this Agreement and/or the other Loan Documents;
(xiii) Borrower’s and/or Operating Lessee’s breach of, or failure to comply with, the representations, warranties and covenants contained in the Closing. This Franchise Provisions, Section 10.10 will not apply to the parties to the Parking Easement or the Development Indemnity Agreement to the extent such claim or cause of action relates solely to the Parking Easement Agreement or the Development Indemnity Agreement, as applicable4.1.
Appears in 1 contract
Exculpation. Buyer agrees that it does not No Exculpated Party shall have or incur, and will not have each Exculpated Party is hereby released and exculpated from any claims or causes claim, obligation, cause of action against or liability for any disclosed claim in connection with or undisclosed officerarising out of, directorthe administration of the Chapter 11 Cases, employeethe entry into the Plan Support and Lock-Up Agreement, trusteethe Investment Agreement, shareholderthe Exit Loan Agreement, partnerthe DIP Loan Agreement, memberthe Exit Revolver Agreement and related documents and the consummation of the transactions contemplated therein, principal, parent, subsidiary or other affiliate the negotiation and pursuit of Seller, including, without limitation, Tishman Speyer Properties, L.P. and Goldman, Sachs & Co.the Plan, or ▇▇▇ ▇▇fic▇▇the solicitation of votes for, ▇irectoror confirmation of, employeethe Plan, trusteethe funding of the Plan, shareholderthe consummation of the Plan, memberor the administration of the Plan or the property to be distributed under the Plan, partner and the issuance of securities under or principal of any such parent, subsidiary or other affiliate (collectively, "Seller's Affiliates"), arising out of in connection with this Agreement the Plan or the transactions contemplated hereby. Buyer agrees by the foregoing, except for willful misconduct or gross negligence, intentional fraud or criminal conduct, but in all respects such entities shall be entitled to look solely to Seller and its assets for reasonably rely upon the satisfaction advice of any liability or obligation arising under this Agreement or the transactions contemplated hereby, or for the performance of any of the covenants, warranties or other agreements contained herein, and further agrees not to sue or otherwise seek to e▇▇▇rce any personal obligation against any of Seller's Affiliates counsel with respect to any matters arising out of this Agreement or their duties and responsibilities pursuant to the transactions contemplated herebyPlan. The Debtors, the Reorganized Debtors, the DIP Lenders, the DIP Agent, the Prepetition Agent, the Prepetition Lenders, Colony Capital, Purchasers (and each of their respective affiliates, agents, directors, officers, employees, advisors and attorneys) have participated in compliance with the applicable provisions of this Section 10.10the Bankruptcy Code with regard to the solicitation and distribution of the securities pursuant to the Plan, howeverand, therefore, are not, and on account of such distributions shall not apply to Tishman Speyer/Travelers Real Estate Venturebe, L.P. and Whitehall Street Real Estate Limited Partnership IX (collectivelyliable at any time for the violation of any applicable law, rule or regulation governing the "Members") solicitation of acceptances or rejections of the Plan or such distributions made pursuant to the extent Plan, including the issuance of the amount any of the Members has received from the proceeds of the transactions which is the subject of this Agreement, if the remaining funds available to Seller to satisfy the obligations of the Seller pursuant to this Agreement or the transactions contemplated hereby are not at least equal to Five Million Dollars ($5,000,000) or such lower amount of liability or potential liability as the Seller may have under such agreements. The provisions of this Section 10.10 shall survive the termination of this Agreement and the Closing. This Section 10.10 will not apply to the parties to the Parking Easement or the Development Indemnity Agreement to the extent such claim or cause of action relates solely to the Parking Easement Agreement or the Development Indemnity Agreement, as applicablesecurities thereunder.
Appears in 1 contract
Exculpation. Buyer 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, the Security Instrument or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against Borrower or Operating Lessee, except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender to enforce and realize upon its interest under 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, 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, and in any other collateral given to Lender, and Lender, by accepting this Agreement, the Note, the Security Instrument and the other Loan Documents, agrees that it does shall not have ▇▇▇ for, seek or demand any deficiency judgment against Borrower and will not have Operating Lessee in any claims such action or causes proceeding under or by reason of action against or under or in connection with this Agreement, the Note, the Security Instrument or the other Loan Documents. In addition, for the avoidance of doubt, in no event shall the Debt or any disclosed other liabilities or undisclosed officer, director, employee, trustee, shareholder, 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, principaldirector, parentofficer or representative thereof (other than, subsidiary or other affiliate of Sellerin each case, including, without limitation, Tishman Speyer Properties, L.P. and Goldman, Sachs & Co., or ▇▇▇ ▇▇fic▇▇, ▇irector, employee, trustee, shareholder, member, partner or principal of any such parent, subsidiary or other affiliate (collectively, "Seller's Affiliates"the Guarantor), arising out of with this Agreement or the transactions contemplated hereby. Buyer agrees to look solely to Seller and its assets for the satisfaction of any liability or obligation arising under this Agreement or the transactions contemplated hereby, or for the performance of any of the covenants, warranties or other agreements contained herein, and further agrees not to sue or otherwise seek to e▇▇▇rce any personal obligation against any of Seller's Affiliates with respect to any matters arising out of this Agreement or the transactions contemplated hereby. The provisions of this Section 10.1011.22 shall not, however, shall not apply to Tishman Speyer/Travelers Real Estate Venture(a) constitute a waiver, L.P. and Whitehall Street Real Estate Limited Partnership IX (collectivelyrelease or impairment of any obligation evidenced or secured by any of the Loan Documents, the "Members") except to the extent of the amount any of the Members Lender has received from the proceeds of the transactions which is the subject of this Agreement, if the remaining funds available to Seller to satisfy the obligations of the Seller pursuant to this Agreement or the transactions contemplated hereby are not at least equal to Five Million Dollars ($5,000,000) or such lower amount of liability or potential liability as the Seller may have under such agreements. The provisions of expressly waived in this Section 10.10 shall survive 11.22 the termination right to ▇▇▇ Borrower and Operating Lessee for a money judgment; (b) impair the right of this Agreement Lender to name Borrower as a party defendant in any action or suit for foreclosure and sale under the Closing. This Section 10.10 will not apply to the parties to the Parking Easement or the Development Indemnity Agreement to the extent such claim or cause of action relates solely to the Parking Easement Agreement or the Development Indemnity Agreement, as applicable.Security Instrument;
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Exculpation. Buyer agrees that it does not have and will (a) The Administrative Agent shall not have any claims duties or causes obligations except those expressly set forth herein and in the other Loan Documents, and its duties hereunder shall be administrative in nature. Without limiting the generality of action against the foregoing, the Administrative Agent:
(i) shall not be subject to any disclosed or undisclosed officer, director, employee, trustee, shareholder, partner, member, principal, parent, subsidiary fiduciary or other affiliate implied duties, regardless of Sellerwhether an Event of Default or Prepayment Event has occurred and is continuing;
(ii) shall not have any duty to take any discretionary action or exercise any discretionary powers, includingexcept discretionary rights and powers expressly contemplated hereby or by the other Loan Documents that the Administrative Agent is required to exercise as directed in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be expressly provided for herein or in the other Loan Documents); provided that the Administrative Agent shall not be required to take any action that, without limitationin its opinion or the opinion of its counsel, Tishman Speyer Propertiesmay expose the Administrative Agent to liability or that is contrary to any Loan Document or applicable law, L.P. including for the avoidance of doubt any action that may be in violation of the automatic stay under any debtor relief law or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any debtor relief law; and
(iii) shall not, except as expressly set forth herein and Goldmanin the other Loan Documents, Sachs & Co.have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Borrower or any of its Affiliates that is communicated to or obtained by the Person serving as the Administrative Agent or any of its Affiliates in any capacity.
(b) The Administrative Agent shall not be liable for any action taken or not taken by it (i) with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary, or ▇▇▇ ▇▇fic▇▇as the Administrative Agent shall believe in good faith shall be necessary, ▇irectorunder the circumstances as provided in Sections 11.1 and 7.3), employee, trustee, shareholder, member, partner or principal (ii) in the absence of its own gross negligence or willful misconduct as determined by a court of competent jurisdiction by final and nonappealable judgment. The Administrative Agent shall be deemed not to have knowledge of any Event of Default or Prepayment Event unless and until notice describing such parentEvent of Default or Prepayment Event is given to the Administrative Agent in writing by the Borrower or a Lender.
(c) The Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, subsidiary warranty or other affiliate (collectively, "Seller's Affiliates"), arising out of representation made in or in connection WEIL:\98779116\4\64945.0060 with this Agreement or any other Loan Document, (ii) the transactions contemplated hereby. Buyer agrees to look solely to Seller and its assets for the satisfaction contents of any liability certificate, report or obligation arising under this Agreement other document delivered hereunder or the transactions contemplated herebythereunder or in connection herewith or therewith, or for (iii) the performance or observance of any of the covenants, warranties agreements or other agreements contained herein, and further agrees not to sue terms or otherwise seek to e▇▇▇rce any personal obligation against any of Seller's Affiliates with respect to any matters arising out of this Agreement conditions set forth herein or therein or the transactions contemplated hereby. The provisions occurrence of this Section 10.10any Default, however(iv) the validity, shall not apply to Tishman Speyer/Travelers Real Estate Ventureenforceability, L.P. and Whitehall Street Real Estate Limited Partnership IX (collectively, the "Members") to the extent of the amount any of the Members has received from the proceeds of the transactions which is the subject effectiveness or genuineness of this Agreement, if any other Loan Document or any other agreement, instrument or document, or (v) the remaining funds available satisfaction of any condition set forth in Article IV or elsewhere herein, other than to Seller confirm receipt of items expressly required to satisfy the obligations of the Seller pursuant to this Agreement or the transactions contemplated hereby are not at least equal to Five Million Dollars ($5,000,000) or such lower amount of liability or potential liability as the Seller may have under such agreements. The provisions of this Section 10.10 shall survive the termination of this Agreement and the Closing. This Section 10.10 will not apply be delivered to the parties to the Parking Easement or the Development Indemnity Agreement to the extent such claim or cause of action relates solely to the Parking Easement Agreement or the Development Indemnity Agreement, as applicableAdministrative Agent.
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Exculpation. Buyer agrees that it does not have and will not have No Manager, Officer, Member, Affiliate of a Member, any claims of their respective direct or causes indirect officers, directors, equityholders, employees or managers or any liquidating trustee or fiduciary of action against the Company (each a “Covered Person” ) shall be liable to the Company or any disclosed Member under any theory of law, including tort, contract or undisclosed officerotherwise (INCLUDING A COVERED PERSON’S OWN NEGLIGENCE OR GROSS NEGLIGENCE) for any loss, director, employee, trustee, shareholder, partner, member, principal, parent, subsidiary damage or other affiliate of Seller, including, without limitation, Tishman Speyer Properties, L.P. and Goldman, Sachs & Co., or ▇▇▇ ▇▇fic▇▇, ▇irector, employee, trustee, shareholder, member, partner or principal claim incurred by reason of any act or omission by such parent, subsidiary or other affiliate (collectively, "Seller's Affiliates"), arising out of with this Agreement or the transactions contemplated hereby. Buyer agrees to look solely to Seller and its assets for the satisfaction of any liability or obligation arising under this Agreement or the transactions contemplated hereby, or for the performance of any Covered Person in good faith on behalf of the covenants, warranties or other agreements contained herein, Company and further agrees not in a manner reasonably believed to sue or otherwise seek to e▇▇▇rce any personal obligation against any be within the scope of Seller's Affiliates with respect to any matters arising out of this Agreement or the transactions contemplated hereby. The provisions of this Section 10.10, however, shall not apply to Tishman Speyer/Travelers Real Estate Venture, L.P. and Whitehall Street Real Estate Limited Partnership IX (collectively, the "Members") to the extent of the amount any of the Members has received from the proceeds of the transactions which is the subject of authority conferred on such Covered Person by this Agreement, if 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 remaining funds available to Seller to satisfy the obligations records of the Seller pursuant Company and upon such information, opinions, reports or statements presented to this Agreement the Company by any Person as to matters the Covered Person reasonably believes are within such other Person’s professional or expert competence and who has been selected with reasonable care by or on behalf of the transactions contemplated hereby are not at least equal Company, including information, opinions, reports or statements as to Five Million Dollars ($5,000,000) or such lower the value and amount of liability the assets, liabilities, profits, losses or potential liability as the Seller may have under such agreements. The provisions of this Section 10.10 shall survive the termination of this Agreement and the Closing. This Section 10.10 will not apply any other facts pertinent to the parties existence and amount of assets from which distributions to the Parking Easement or the Development Indemnity Agreement to the extent such claim or cause of action relates solely to the Parking Easement Agreement or the Development Indemnity AgreementMembers might properly be paid. IN NO EVENT WILL A COVERED PERSON BE LIABLE TO THE COMPANY OR ANY MEMBER FOR CONSEQUENTIAL, as applicableINDIRECT, 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 (INCLUDING, WITHOUT LIMITATION, THE COVERED PERSON’S OWN NEGLIGENCE OR GROSS NEGLIGENCE), EVEN IF A COVERED PERSON HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
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Exculpation. Buyer For purposes of this Section, the term Tenant Parties (“Tenant Parties”) refers singularly and collectively to Tenant and Tenant’s officers, shareholders, directors, members, partners, agents, employees, and independent contractors, licensees, invitees, beneficiaries, and servants, as well as to all persons and entities claiming through any of these persons or entities. The term Landlord Parties (“Landlord Parties”) refers singularly and collectively to Landlord and its members, partners, officers, directors, licensees, invitees, beneficiaries, agents, servants, employees, and independent contractors as well as to all persons and entities claiming through any of these persons or entities.
(1) To the fullest extent permitted by law, Tenant, on its behalf and on behalf of all Tenant Parties, waives all claims (in law, equity, or otherwise) against Landlord and Landlord Parties arising out of, knowingly and voluntarily assumes the risk of, and agrees that it does not have and will not have neither Landlord nor Landlord Parties shall be liable to Tenant or Tenant Parties for any claims of the following:
(a) Injury to or causes death of action against any disclosed person except resulting from the willful acts or undisclosed officergross negligence of Landlord or Landlord Parties; or
(b) Loss of, director, employee, trustee, shareholder, partner, member, principal, parent, subsidiary injury or other affiliate of Seller, including, without limitation, Tishman Speyer Properties, L.P. and Goldman, Sachs & Co.damage to, or ▇▇▇ ▇▇fic▇▇, ▇irector, employee, trustee, shareholder, member, partner or principal destruction of any such parenttangible or intangible property, subsidiary including the resulting loss of use, economic losses, and consequential or other affiliate resulting damage of any kind from any cause except resulting from the willful acts or gross negligence of Landlord or Landlord Parties.
(collectively, "Seller's Affiliates"), arising out of with this Agreement or the transactions contemplated hereby. Buyer agrees to look solely to Seller and its assets 2) Except for the satisfaction gross negligence or willful acts of any liability Landlord or obligation arising Landlord Parties, neither Landlord nor Landlord Parties shall be liable under this Agreement clause regardless of whether the liability results from any active or the transactions contemplated herebypassive act, or for the performance error, omission, of any of the covenants, warranties Landlord or other agreements contained herein, and further agrees not Landlord Parties; or is based on claims in which liability without fault or strict liability is imposed or sought to sue or otherwise seek to e▇▇▇rce any personal obligation against be imposed on any of Seller's Affiliates with respect to any matters arising out of this Agreement the Landlord or the transactions contemplated hereby. The provisions of this Section 10.10, however, Landlord Parties.
(3) This exculpation clause shall not apply to Tishman Speyer/Travelers Real Estate Venture, L.P. claims against Landlord and Whitehall Street Real Estate Limited Partnership IX (collectively, the "Members") Landlord Parties to the extent that a final judgment of a court of competent jurisdiction establishes that the amount any injury, loss, damage, or destruction was proximately caused by Landlord’s or Landlord Parties’ fraud, willful acts or gross negligence to person or property, or violation of the Members has received from the proceeds of the transactions which is the subject of this Agreement, if the remaining funds available to Seller to satisfy the obligations of the Seller pursuant to this Agreement or the transactions contemplated hereby are not at least equal to Five Million Dollars law.
($5,000,0004) or such lower amount of liability or potential liability as the Seller may have under such agreements. The provisions clauses of this Section 10.10 shall survive the expiration or earlier termination of this Agreement Lease until all claims within the scope of this Section are fully, finally, and absolutely barred by the Closingapplicable statutes of limitations.
(5) Tenant acknowledges that this Section was negotiated with Landlord, that the consideration for it is fair and adequate, and that Tenant had a fair opportunity to negotiate, accept, reject, modify, or alter it.
(6) This exculpation clause may not be interpreted or construed as an attempt by Landlord to be relieved of liability arising out of a nondelegable duty on the part of Landlord. This Section 10.10 will not apply RENEWAL OPTION CONDITIONS: 38. Landlord hereby grants Tenant one (1) option (“Option”) to extend the Term of the Lease for an additional period of five (5) years (“Option Period). In order to exercise the Option, Tenant must notify Landlord in writing at least one hundred eighty (180) days prior to the parties expiration of the then expiring Lease Term. Tenant shall not be entitled to exercise the Option if, at the time of the exercise by Tenant, Tenant is in default beyond any applicable cure period under the Lease or a Default has taken place three (3) or more times during the Lease Term or an event of default has occurred two or more times during the preceding twelve month period (and such events of default have not been cured to the Parking Easement satisfaction of Landlord) or Tenant has assigned this Lease or sublet the Development Indemnity Agreement Premises or any portion thereof without consent of Landlord. During the Option Period all the provisions of the Lease shall remain in full force and effect except that there shall be no additional option period beyond the first option and at the commencement of the Option Period the Base Rent shall be adjusted to be equal to one hundred percent (100%) of the monthly fair market rental value of the Premises (“FMRV”) (based on the highest and best use of the Premises) as mutually determined by Landlord and Tenant as provided herein. In no event shall the Base Rent for the first option be lower than the rent applicable to the extent such claim full last month of the then expiring term. FMRV shall mean the rate being charged to similarly situated tenants for comparable space in similar buildings in the immediate vicinity of the Premises, with similar amenities, and without consideration of any alterations or cause of action relates solely improvements to the Parking Easement Agreement Premises installed or constructed at Tenant’s cost and expense. The annual Base Rent after the Development Indemnity Agreement, as applicablefirst year of the option period will have a five percent (5%) annual increase for each year of the option period.
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Exculpation. Buyer 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 this Agreement, the Note or any of the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against any of the Borrower Parties or any other Person, except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender to enforce and realize upon the Property, the Rents or any other collateral given to Lender pursuant to this Agreement and the other Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against the Borrower Parties only to the extent of their interest in the Property, the Rents and in any other collateral given to Lender, and Lender, by accepting this Agreement, the Note and the other Loan Documents, agrees that it does shall not have and will not have any claims or causes of action against any disclosed or undisclosed officer, director, employee, trustee, shareholder, partner, member, principal, parent, subsidiary or other affiliate of Seller, including, without limitation, Tishman Speyer Properties, L.P. and Goldman, Sachs & Co., or ▇▇▇ ▇▇fic▇▇for, ▇irector, employee, trustee, shareholder, member, partner seek or principal of demand any such parent, subsidiary or other affiliate (collectively, "Seller's Affiliates"), arising out of with this Agreement or the transactions contemplated hereby. Buyer agrees to look solely to Seller and its assets for the satisfaction of any liability or obligation arising under this Agreement or the transactions contemplated hereby, or for the performance of deficiency judgment against any of the covenantsBorrower Parties or any other Person in any such action or proceeding under or by reason of or in connection with this Agreement, warranties the Note or other agreements contained herein, and further agrees not to sue or otherwise seek to e▇▇▇rce any personal obligation against any of Seller's Affiliates with respect to any matters arising out of this Agreement or the transactions contemplated herebyother Loan Documents. The provisions of this Section 10.10paragraph shall not, however, shall not apply to Tishman Speyer/Travelers Real Estate Venture(i) constitute a waiver, L.P. and Whitehall Street Real Estate Limited Partnership IX (collectivelyrelease or impairment of any obligation evidenced or secured by this Agreement, the "Members"Note or any of the other Loan Documents; (ii) impair the right of Lender to name any of the Borrower Parties, as a party defendant in any action or suit for foreclosure and sale under the Mortgage; (iii) affect the validity or enforceability of any guaranty made in connection with the Loan or any rights and remedies of Lender thereunder; (iv) impair the right of Lender to obtain the appointment of a receiver; (v) impair the enforcement of the Assignment of Leases and Rents executed in connection herewith; or (vi) constitute a waiver of the right of Lender to enforce the liability and obligation of Borrower (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, 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 amount following:
(a) fraud or intentional misrepresentation by Borrower or any Guarantor in connection with the Loan;
(b) intentional physical waste of the Members has received from Property (including, but not limited to, waste due to gross negligence) by Borrower or any affiliate thereof; provided, however, such physical waste shall exclude wear and tear to the proceeds Property that occurs in the ordinary course of business of the transactions which is Property by Borrower or any affiliate thereof;
(c) the subject material breach of any representation, warranty, covenant or indemnification provision in that certain Environmental and Hazardous Substance Indemnification Agreement of even date herewith given by Borrower to Lender or in this AgreementAgreement concerning Environmental Laws, if Hazardous Substances and Asbestos;
(d) the remaining funds available to Seller to satisfy the obligations removal or disposal by Borrower or any affiliate thereof of any portion of the Seller pursuant to this Agreement Property after an Event of Default 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;
(e) the transactions contemplated hereby are not at least equal to Five Million Dollars misapplication or conversion by Borrower or any affiliate thereof of
($5,000,000i) any insurance proceeds paid by reason of any loss, damage or such lower amount of liability or potential liability as the Seller may have under such agreements. The provisions of this Section 10.10 shall survive the termination of this Agreement and the Closing. This Section 10.10 will not apply destruction to the parties to Property,
(ii) any awards or other amounts received in connection with the Parking Easement condemnation of all or a portion of the Development Indemnity Agreement to the extent such claim Property, (iii) any Rents following an Event of Default or cause of action relates solely to the Parking Easement Agreement or the Development Indemnity Agreement, as applicable.(iv) any Rents paid more than one month in advance;
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Exculpation. Buyer agrees that it does not have (I) Subject to the qualifications below, neither Agent nor Lenders shall enforce the liability and will not have obligation of Borrower to perform and observe the obligations contained in the Note, this Agreement, the Mortgage or the other Loan Documents by any claims action or causes of action proceeding wherein a money judgment or any deficiency judgment or other judgment establishing personal liability shall be sought against Borrower or any disclosed or undisclosed officerprincipal, director, officer, employee, trusteebeneficiary, shareholder, partner, member, principaltrustee, parentagent, subsidiary 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 Agent may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Agent and Lenders to enforce and realize upon its interest under the Note, this Agreement, the Mortgage and the other Loan Documents, or in the Property, the Rents, or any other collateral given to 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 and in any other collateral given to Agent, and Lenders and Agent, by accepting the Note, this Agreement, the Mortgage and the other Loan Documents, shall not s▇▇ 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 Mortgage or the other Loan Documents. The provisions of this Section shall not, however, (a) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (b) impair the right of Agent or Lenders to name Borrower as a party defendant in any action or suit for foreclosure and sale under the Mortgage; (c) affect the validity or enforceability of any indemnity, guaranty, or similar instrument made in connection with the Loan or any of the rights and remedies of Agent or Lenders thereunder; (d) impair the right of Agent or Lenders to obtain the appointment of a receiver; (e) impair the enforcement of the Assignment of Leases; (f) impair the right of Agent or Lenders to enforce the provisions of the Guaranty or the Environmental Indemnity; (g) constitute a prohibition against 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 Loan or to commence any other appropriate action or proceeding in order for Agent or Lenders to exercise its remedies against such security; or (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 actual Losses incurred by Agent and Lenders (including out-of-pocket attorneys’ fees and costs reasonably incurred) arising out of or in connection with the following (“Loss Liability”):
(i) fraud or intentional misrepresentation by Borrower, Guarantor or any Borrower Party in connection with the Loan;
(ii) the gross negligence or willful misconduct of Borrower, Guarantor or any Borrower Party in connection with the Loan;
(iii) the breach of any representation, warranty, covenant or indemnification provision in the Environmental Indemnity or in any other Loan Document concerning environmental laws, hazardous substances and asbestos and any indemnification of Agent and Lenders with respect thereto in any such document;
(iv) material physical waste to the Property caused by intentional acts or intentional omissions of Borrower, Guarantor or any Borrower Party, other than waste (or alleged waste) to the Property resulting from the insufficiency of cash flow from the Property to prevent such waste and such insufficiency is not a result of misappropriation of Rents by Borrower, Guarantor or any Borrower Party or the removal of any material portion of the Property other than in the ordinary course of business;
(v) subject to Borrower’s right to contest the same as expressly set forth herein, (A) failure to pay Taxes, (B) charges for labor or materials, or other affiliate of Sellercharges that can create Liens, including, without limitation, Tishman Speyer Propertiesmechanics’ or materialmens’ liens, L.P. on any portion of the Property (provided that the foregoing shall not apply to any charges or liens caused by work done by any Tenant at the Property provided that Borrower is using all commercially reasonable efforts under the applicable Lease to cause such Tenant to pay such amounts expeditiously) and/or (C) the failure to pay Insurance Premiums in accordance with the terms hereof; provided that clauses (A) and Goldman, Sachs & Co.(C) shall not apply at any time that (x) there is not sufficient cash flow to pay the same and such insufficiency is not due to misappropriation of the same, or ▇▇▇ ▇▇fic▇▇(y) there are sufficient amounts on reserve to pay such amounts and Agent shall not have made such amounts available to pay the same;
(vi) the misapplication, ▇irectormisappropriation or conversion by Borrower, employee, trustee, shareholder, member, partner or principal any Borrower Parties in contravention of the Loan Documents of (A) any insurance proceeds paid by reason of any such parentloss, subsidiary damage or destruction to the Property, (B) any Awards or other affiliate amounts received in connection with the Condemnation of all or a portion of the Property, (collectivelyC) any Rents paid during the continuance of an Event of Default, "Seller's Affiliates")(D) any Rents collected more than one (1) month in advance of the date the same were due, arising out (E) Rents not applied in accordance with the requirements of with this Agreement the Loan Documents, (F) any amounts disbursed from Reserve Funds, or the transactions contemplated hereby. Buyer agrees to look solely to Seller and its assets for the satisfaction (G) any proceeds of any liability Future Advance;
(vii) any security deposits, advance deposits or obligation arising under this Agreement any other deposits collected with respect to the Property which are not delivered to Agent upon a foreclosure of the Property or action in lieu thereof, except to the transactions contemplated herebyextent any such security deposits, advance deposits or for other deposits were applied in accordance with the performance terms and conditions of any of the covenantsLeases;
(viii) the breach of any representation, warranties warranty or other agreements contained herein, and further agrees not to sue or otherwise seek to e▇▇▇rce any personal obligation against any covenant of Seller's Affiliates Borrower with respect to itself or any matters arising out SPE Party set forth in Section 3.1.24 or Section 3.1.42 hereof (unless such breach is de minimis and promptly cured);
(ix) any litigation or other legal proceeding related to the Loan filed by Borrower, Guarantor or any Borrower Party or any Affiliate of this Agreement Guarantor that is determined by final, non-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 transactions contemplated hereby. The provisions efforts of this Section 10.10Agent and/or Lenders to exercise any rights and remedies available to Agent and/or Lenders;
(x) Borrower’s failure to pay rent, however, shall not apply to Tishman Speyer/Travelers Real Estate Venture, L.P. additional rent or any other amounts due and Whitehall Street Real Estate Limited Partnership IX (collectively, payable under the "Members") Ground Lease to the extent that the revenue from the Property is sufficient to pay such amounts in the order and priority required by the Loan Documents;
(xi) Borrower’s failure to maintain an Interest Rate Protection Agreement in a notional amount equal to the principal amount of the amount Loan then advanced and outstanding;
(xii) Borrower failing to obtain Agent’s prior written consent to any transfer as required by the Loan Documents except a transfer meeting the criteria set forth in clause II(v) below;
(xiii) if any of the Members has received from the proceeds terms, covenants or conditions of the transactions which Reciprocal Easement Agreement shall in any manner be modified, changed, supplemented, altered, or amended without the consent of Agent;
(xiv) Borrower failing to pay any amounts payable pursuant to the Ground Lease and/or the Agreement Concerning Interests in connection with the Ground Lease Put or Ground Lease ROFR;
(xv) the Ground Lease or the Reciprocal Easement Agreement is the subject terminated for any reason, including, without limitation, as a result of this Agreement, if the remaining funds available to Seller to satisfy the obligations a rejection of the Seller pursuant Ground Lease (by any Person) in a bankruptcy proceeding (relating to this Agreement or the transactions contemplated hereby are not at least equal to Five Million Dollars any Person); and/or
($5,000,000xvi) or such lower amount of liability or potential liability as the Seller may have under such agreements. The provisions of this Section 10.10 shall survive the termination of this Agreement and the Closing. This Section 10.10 will not apply to the parties to the Parking Easement or the Development Indemnity Agreement to the extent such claim or cause of action relates solely to the Parking Easement Agreement or the Development Indemnity Agreement, as applicablethere is an Action For Partition brought by any Person.
Appears in 1 contract
Sources: Loan Agreement (Black Creek Diversified Property Fund Inc.)
Exculpation. Buyer agrees that it does (a) Subject to the qualifications below, Lender shall not have enforce the liability and will not have 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 claims action or causes of action proceeding wherein a money judgment or any deficiency judgment or other judgment establishing personal liability shall be sought against Borrower or any disclosed or undisclosed officerprincipal, director, officer, employee, trusteebeneficiary, shareholder, partner, member, principaltrustee, parentagent, subsidiary 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 ▇▇▇ 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 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 13); (4) impair the right of Lender to obtain the appointment of a receiver; (5) impair the enforcement of the assignment of leases and rents contained in the Security Instrument; (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 any Individual 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 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, 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 Party or the commission of a criminal act by Borrower, any SPE Component Entity, Guarantor, Sponsor or any Borrower Party which results in a forfeiture of the Property;
(iii) 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 Default by Borrower, any SPE Component Entity, Guarantor, Sponsor or any Borrower Party;
(iv) the misapplication, misappropriation or conversion by Borrower of (A) any insurance proceeds paid by reason of any loss, damage or destruction to the Property, (B) any Awards or other affiliate amounts received in connection with the Condemnation of Sellerall 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;
(v) failure to pay (or cause to be paid) any 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) the breach of any material representation, warranty, covenant or indemnification provision in the Environmental Indemnity, this Agreement or in the Security Instrument concerning Environmental Laws and Hazardous Substances and any indemnification of Lender with respect thereto in either document;
(vii) any fees or commissions paid by Borrower after the occurrence of an Event of Default to Guarantor, Sponsor and/or any Borrower Party in violation of the terms of the Note, this Agreement, the Security Instrument or the other Loan Documents;
(viii) Borrower’s breach of, or failure to comply with, the representations, warranties and covenants contained in Article 15 of this Agreement and/or the provisions of Sections 12.2 and 12.3 hereof;
(ix) 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 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);
(x) Borrower fails to permit on-site inspections of the Property, fails to provide the Required Financial Items or fails to appoint a new property manager upon the request of Lender, each as required by, and in accordance with the terms and provisions of, this Agreement, the Assignment of Management Agreement and the other Loan Documents or Borrower appoints a new property manager or replaces the property manager other than in accordance with the terms of this Agreement, the Assignment of Management Agreement and the other Loan Documents;
(xi) any litigation or other legal proceeding related to the Debt filed in bad faith by Borrower, any SPE Component Entity, Guarantor, Sponsor 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;
(xii) the seizure or forfeiture of the Property, or any portion thereof, or Borrower’s interest therein, resulting from criminal wrongdoing by Borrower, Guarantor, Sponsor, or any Borrower Party;
(xiii) failure to pay (or cause the payment of) rent, additional rent or any other amounts due and payable under the Ground Lease, including, without limitation, Tishman Speyer Propertiesthe SAF Contribution under the Missouri Ground Lease (as defined in the Missouri Ground Lease);
(xiv) failure to pay (or cause the payment of) all outstanding SAF Contributions, L.P. the outstanding amounts payable under the Bonds, and Goldmanany compensation payable to Trustee or the County (each as defined in the Missouri Ground Lease) upon termination or earlier expiration of the Missouri Ground Lease (including, Sachs & Co.without limitation, prior to a foreclosure or delivery of deed-in-lieu of foreclosure);
(xv) failure to pay (or cause the payment of) an amount equal to the difference between (A) the Allocated Loan Amount for the New Hampshire Property and (B) the sum of (i) the building insurance proceeds estimated to be received from the insurance carrier for the New Hampshire Property and (ii) the proceeds from the sale of the land for the New Hampshire Property (such amount being referred to herein as the “Gap Amount”), in the event that there is a Casualty at the New Hampshire Property;
(xvi) the Condemnation of the Colorado Property whereby the Tenant at the Colorado Property makes a claim for an award pursuant to the terms of its Lease which then reduces an award payable to Colorado Borrower for its fee interest in the Colorado Property; and/or
(xvii) Additional Interest not being paid. 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 representation, warranty or covenant contained in Article 5 or Article 6 or Section 4.14 hereof is violated or breached, provided, however, that any such breach or violation with respect to Article 5 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 Non-Consolidation Opinion to the effect that such failure does not negate/impair the opinion previously delivered to Lender; (ii) Borrower or any SPE Component Entity files a voluntary petition under the Bankruptcy Code or any other Creditors’ Rights Laws; (iii) an Affiliate, officer, director, or ▇▇▇ ▇▇fic▇▇representative which Controls, ▇irectordirectly or indirectly, employeeBorrower 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; (iv) 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; (v) 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 custodian, receiver, trustee, shareholderor examiner for Borrower, memberany SPE Component Entity or any portion of the Property; (vi) Borrower or any SPE Component Entity makes an assignment for the benefit of creditors, partner or principal admits, in writing or in any legal proceeding, its insolvency or inability to pay its debts as they become due; (vii) 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; (viii) 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 such parent, subsidiary federal or other affiliate state bankruptcy or insolvency proceeding involving the Guarantor or its Affiliates; (collectively, "Seller's Affiliates"), arising out of with this Agreement or the transactions contemplated hereby. Buyer agrees ix) Borrower’s failure to look solely to Seller and its assets for the satisfaction of deposit any liability or obligation arising under this Agreement or the transactions contemplated hereby, or for the performance of any of the covenants, warranties or other agreements contained herein, and further agrees not to sue or otherwise seek to e▇▇▇rce any personal obligation against any of Seller's Affiliates with respect to any matters arising out of this Agreement or the transactions contemplated hereby. The provisions of this Section 10.10, however, shall not apply to Tishman Speyer/Travelers Real Estate Venture, L.P. and Whitehall Street Real Estate Limited Partnership IX (collectively, the "Members") springing Reserve Funds deposits pursuant to the extent of the amount any of the Members has received from the proceeds of the transactions which is the subject terms of this Agreement; (x) the Missouri Ground Lease is terminated, if cancelled or otherwise ceases to exist and MO Borrower has not exercised its purchase option pursuant to the remaining funds available to Seller to satisfy the obligations terms of the Seller pursuant Missouri Ground Lease, and/or (xi) the Tennessee Sub-Ground Lease is terminated, cancelled or otherwise ceases to this Agreement or the transactions contemplated hereby are not at least equal to Five Million Dollars ($5,000,000) or such lower amount of liability or potential liability as the Seller may have under such agreements. The provisions of this Section 10.10 shall survive the termination of this Agreement exist and the Closing. This Section 10.10 will Tennessee Prime Lease does not apply to the parties to the Parking Easement or the Development Indemnity Agreement to the extent such claim or cause of action relates solely to the Parking Easement Agreement or the Development Indemnity Agreement, as applicablesimultaneously terminate.
Appears in 1 contract
Sources: Loan Agreement (American Realty Capital Trust III, Inc.)
Exculpation. Buyer agrees The Administrative Agent shall have no duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Administrative Agent shall have no duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the Administrative Agent is required to exercise in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 9.2), and (c) except as expressly set forth in the Loan Documents, the Administrative Agent shall have no duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Borrower or any of its Subsidiaries that is communicated to or obtained by the bank serving as Administrative Agent, or any of its Affiliates in any capacity. The Administrative Agent shall not be liable for any action taken or not taken by it does with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 9.2) or in the absence of its own gross negligence or willful misconduct. The Administrative Agent shall not have and will not be responsible for or have any claims duty to ascertain or causes inquire into (i) any statement, warranty or representation made in or in connection with any Loan Document, (ii) the contents of action against any disclosed or undisclosed officercertificate, director, employee, trustee, shareholder, partner, member, principal, parent, subsidiary report or other affiliate of Sellerdocument delivered thereunder or in connection therewith, including, without limitation, Tishman Speyer Properties, L.P. and Goldman, Sachs & Co., or ▇▇▇ ▇▇fic▇▇, ▇irector, employee, trustee, shareholder, member, partner or principal of any such parent, subsidiary or other affiliate (collectively, "Seller's Affiliates"), arising out of with this Agreement or the transactions contemplated hereby. Buyer agrees to look solely to Seller and its assets for the satisfaction of any liability or obligation arising under this Agreement or the transactions contemplated hereby, or for iii) the performance or observance of any of the covenants, warranties agreements or other agreements contained hereinterms or conditions set forth in any Loan Document, and further agrees not (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to sue or otherwise seek confirm receipt of items expressly required to e▇▇▇rce any personal obligation against any of Seller's Affiliates with respect to any matters arising out of this Agreement or the transactions contemplated hereby. The provisions of this Section 10.10, however, shall not apply to Tishman Speyer/Travelers Real Estate Venture, L.P. and Whitehall Street Real Estate Limited Partnership IX (collectively, the "Members") be delivered to the extent of the amount any of the Members has received from the proceeds of the transactions which is the subject of this Agreement, if the remaining funds available to Seller to satisfy the obligations of the Seller pursuant to this Agreement or the transactions contemplated hereby are not at least equal to Five Million Dollars ($5,000,000) or such lower amount of liability or potential liability as the Seller may have under such agreements. The provisions of this Section 10.10 shall survive the termination of this Agreement and the Closing. This Section 10.10 will not apply to the parties to the Parking Easement or the Development Indemnity Agreement to the extent such claim or cause of action relates solely to the Parking Easement Agreement or the Development Indemnity Agreement, as applicableAdministrative Agent.
Appears in 1 contract
Sources: Credit Agreement (Stewart & Stevenson Services Inc)
Exculpation. Buyer agrees that it does not have (I) Subject to the qualifications below, neither Agent nor Lenders shall enforce the liability and will not have obligation of Borrower to perform and observe the obligations contained in the Note, this Agreement, the Mortgage or the other Loan Documents by any claims action or causes of action proceeding wherein a money judgment or any deficiency judgment or other judgment establishing personal liability shall be sought against Borrower or any disclosed or undisclosed officerprincipal, director, officer, employee, trusteebeneficiary, shareholder, partner, member, principaltrustee, parentagent, subsidiary 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 Agent may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Agent and Lenders to enforce and realize upon its interest under the Note, this Agreement, the Mortgage and the other Loan Documents, or in the Property, the Rents, or any other collateral given to 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 and in any other collateral given to Agent, and Lenders and Agent, by accepting the Note, this Agreement, the Mortgage and the other Loan Documents, shall not ▇▇▇ 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 Mortgage or the other Loan Documents. The provisions of this Section shall not, however, (a) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (b) impair the right of Agent or Lenders to name Borrower as a party defendant in any action or suit for foreclosure and sale under the Mortgage; (c) affect the validity or enforceability of any indemnity, guaranty, or similar instrument made in connection with the Loan or any of the rights and remedies of Agent or Lenders thereunder; (d) impair the right of Agent or Lenders to obtain the appointment of a receiver; (e) impair the enforcement of the Assignment of Leases; (f) impair the right of Agent or Lenders to enforce the provisions of the Guaranty or the Environmental Indemnity; (g) constitute a prohibition against 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 Loan or to commence any other appropriate action or proceeding in order for Agent or Lenders to exercise its remedies against such security; or (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 actual Losses incurred by Agent and Lenders (including out-of-pocket attorneys’ fees and costs reasonably incurred) arising out of or in connection with the following (“Loss Liability”):
(i) fraud or intentional misrepresentation by Borrower, Guarantor or any Borrower Party in connection with the Loan;
(ii) the gross negligence or willful misconduct of Borrower, Guarantor or any Borrower Party in connection with the Loan;
(iii) the breach of any representation, warranty, covenant or indemnification provision in the Environmental Indemnity or in any other Loan Document concerning environmental laws, hazardous substances and asbestos and any indemnification of Agent and Lenders with respect thereto in any such document;
(iv) material physical waste to the Property caused by intentional acts or intentional omissions of Borrower, Guarantor or any Borrower Party, other than waste (or alleged waste) to the Property resulting from the insufficiency of cash flow from the Property to prevent such waste and such insufficiency is not a result of misappropriation of Rents by Borrower, Guarantor or any Borrower Party or the removal of any material portion of the Property other than in the ordinary course of business;
(v) subject to Borrower’s right to contest the same as expressly set forth herein, (A) failure to pay Taxes, (B) charges for labor or materials, or other affiliate of Sellercharges that can create Liens, including, without limitation, Tishman Speyer Propertiesmechanics’ or materialmens’ liens, L.P. and Goldman, Sachs & Co., or ▇▇▇ ▇▇fic▇▇, ▇irector, employee, trustee, shareholder, member, partner or principal of on any such parent, subsidiary or other affiliate (collectively, "Seller's Affiliates"), arising out of with this Agreement or the transactions contemplated hereby. Buyer agrees to look solely to Seller and its assets for the satisfaction of any liability or obligation arising under this Agreement or the transactions contemplated hereby, or for the performance of any portion of the covenants, warranties or other agreements contained herein, and further agrees not to sue or otherwise seek to e▇▇▇rce any personal obligation against any of Seller's Affiliates with respect to any matters arising out of this Agreement or Property (provided that the transactions contemplated hereby. The provisions of this Section 10.10, however, foregoing shall not apply to Tishman Speyer/Travelers Real Estate Ventureany charges or liens caused by work done by any Tenant at the Property provided that Borrower is using all commercially reasonable efforts under the applicable Lease to cause such Tenant to pay such amounts expeditiously) and/or (C) the failure to pay Insurance Premiums in accordance with the terms hereof; provided that clauses (A) and (C) shall not apply at any time that (x) there is not sufficient cash flow to pay the same and such insufficiency is not due to misappropriation of the same, L.P. or (y) there are sufficient amounts on reserve to pay such amounts and Whitehall Street Real Estate Limited Partnership IX Agent shall not have made such amounts available to pay the same;
(collectivelyvi) the misapplication, misappropriation or conversion by Borrower, or any Borrower Parties in contravention of the "Members"Loan Documents of (A) any insurance proceeds paid by reason of any loss, damage or destruction to the extent Property, (B) any Awards or other amounts received in connection with the Condemnation of all or a portion of the amount Property, (C) any Rents paid during the continuance of the Members has received from the proceeds an Event of the transactions which is the subject of this Agreement, if the remaining funds available to Seller to satisfy the obligations of the Seller pursuant to this Agreement or the transactions contemplated hereby are not at least equal to Five Million Dollars ($5,000,000) or such lower amount of liability or potential liability as the Seller may have under such agreements. The provisions of this Section 10.10 shall survive the termination of this Agreement and the Closing. This Section 10.10 will not apply to the parties to the Parking Easement or the Development Indemnity Agreement to the extent such claim or cause of action relates solely to the Parking Easement Agreement or the Development Indemnity Agreement, as applicable.▇▇▇▇▇▇▇,
Appears in 1 contract
Sources: Loan Agreement (Black Creek Diversified Property Fund Inc.)
Exculpation. Buyer agrees Upon the Effective Time, to the extent permitted by law, each Party does for itself and each of its Related Parties that it does not has the power to bind (by such Party’s acts or signature) or over which such Party directly or indirectly exercises control acting in any and all capacities to which they may be entitled, hereby exculpate one another and each other and each of their respective Related Parties from, and agree that each shall have and will not have incur no liability to, nor be subject to any claims right or causes of action against any disclosed by one another for acts, omissions, events or undisclosed officer, director, employee, trustee, shareholder, partner, member, principal, parent, subsidiary occurrences prior to the Release Date directly or other affiliate of Seller, including, without limitation, Tishman Speyer Properties, L.P. and Goldman, Sachs & Co., indirectly relating to or ▇▇▇ ▇▇fic▇▇, ▇irector, employee, trustee, shareholder, member, partner or principal of any such parent, subsidiary or other affiliate (collectively, "Seller's Affiliates"), arising out of with this Agreement the Notes, the indentures relating to the Notes or the transactions contemplated hereby. Buyer agrees to look solely to Seller and its assets for the satisfaction of any liability or obligation arising under this Agreement or the transactions contemplated hereby, or for the performance of any of the covenants, warranties or other agreements contained herein, and further agrees not to sue or otherwise seek to e▇▇▇rce any personal obligation against any of Seller's Affiliates with respect to any matters arising out of this Agreement or the transactions contemplated hereby. The provisions of this Section 10.10Exchange Offers; provided, however, nothing in this Section 3 shall not apply to Tishman Speyer/Travelers Real Estate Venture, L.P. and Whitehall Street Real Estate Limited Partnership IX exculpate the Company from liability for: (collectively, the "Members"A) to the extent any obligation of the amount Company and its subsidiaries to indemnify or to advance fees or reimburse any costs to their current and former directors or officers under its organizational documents, by-laws, employee-indemnification policies, state law, or any other agreement; (B) any right of any Party under the Members has received from the proceeds of the transactions which is the subject of this Agreement, if the remaining funds available to Seller to satisfy the obligations of the Seller pursuant to this Agreement or the transactions contemplated hereby are not at least equal to Five Million Dollars ($5,000,000) or such lower amount of liability or potential liability as the Seller may have under such agreements. The provisions of this Section 10.10 shall survive the termination of this Credit Agreement and the Closing. This Section 10.10 will not apply Receivables Agreement; (C) any right of any party to receive the exchange consideration as set forth in the final prospectus relating to the parties Exchange Offers and related transactions thereto and any right such party to make a Claim if the Parking Easement Company fails to implement the changes to its board of directors described in the section entitled “Summary of the Restructuring Plan” of the Prospectus; (D) any failure by the Company to seek the Shareholder Approval or the Development Indemnity Agreement to Merger in each case in the extent such claim manner described in the Prospectus or cause any violation by the Company of action relates solely to the Parking Easement Agreement Securities Act of 1933, as amended or the Development Indemnity AgreementSecurities Exchange Act of 1934, as applicableamended, in connection with the Exchange Offer which cannot be released hereby; (E) any claims arising under, through or otherwise relating to any Notes that remain outstanding after the Effective Time, as such obligations may be amended by any supplemental indentures entered into in connection with the Exchange Offer; or (F) any agreement or transaction entered into after the Effective Time, except for, in the case of clauses (C), (D) and (F) above, any Merger Claims.
Appears in 1 contract
Sources: Mutual Release (Yrc Worldwide Inc)
Exculpation. Buyer agrees that it does (a) Subject to the qualifications below, Lender shall not have enforce the liability and will not have 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 claims action or causes of action proceeding wherein a money judgment or any deficiency judgment or other judgment establishing personal liability shall be sought against Borrower or any disclosed or undisclosed officerprincipal, director, officer, employee, trusteebeneficiary, shareholder, partner, member, principaltrustee, parent, subsidiary or other affiliate of Seller, including, without limitation, Tishman Speyer Properties, L.P. and Goldman, Sachs & Co.agent, or ▇▇▇ ▇▇fic▇▇Affiliate of Borrower or any legal representatives, ▇irector, employee, trustee, shareholder, member, partner successors or principal of any such parent, subsidiary or other affiliate (collectively, "Seller's Affiliates"), arising out of with this Agreement or the transactions contemplated hereby. Buyer agrees to look solely to Seller and its assets for the satisfaction of any liability or obligation arising under this Agreement or the transactions contemplated hereby, or for the performance assigns of any of the covenantsforegoing (collectively, warranties the “Exculpated Parties”), except that Lender may bring a foreclosure action, an action for specific performance or any other agreements contained 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 (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 further agrees 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 to sue for, seek or otherwise seek to e▇▇▇rce demand any personal obligation deficiency judgment against Borrower or any of Seller's Affiliates the Exculpated Parties in any such action or proceeding under or by reason of or under or in connection with respect to any matters arising out of the Note, this Agreement Agreement, the Security Instrument or the transactions contemplated herebyother Loan Documents. The provisions of this Section 10.10shall not, however, shall not apply (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 Tishman Speyer/Travelers Real Estate Venturename 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, L.P. guaranty or similar instrument (including, without limitation, indemnities set forth in Article 12 hereof, Section 11.2 hereof, in the Guaranty and Whitehall Street Real Estate Limited Partnership IX the Environmental Indemnity) made in connection with the Loan or any of the rights and remedies of Lender thereunder (collectivelyincluding, without limitation, L▇▇▇▇▇’s right to enforce said rights and remedies against B▇▇▇▇▇▇▇ and/or Guarantor (as applicable) personally and without the "Members"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 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 L▇▇▇▇▇ (including reasonable attorneys’ fees and costs reasonably incurred) arising out of or in connection with the amount following:
(i) fraud or intentional material misrepresentation by B▇▇▇▇▇▇▇, any SPE Component Entity, Sponsor, any Affiliated Manager, Guarantor or any director, officer, shareholder (except for a shareholder of Publicly Traded Shares in a Public Vehicle), partner, member, employee or agent acting on behalf of and at the direction of any of the Members has received foregoing (each, a “Recourse Party”) in connection with the Loan;
(ii) willful misconduct of any Recourse Party in connection with the Loan;
(iii) the breach of any indemnification provision in the Loan Documents concerning environmental laws, hazardous substances and asbestos and any indemnification of Lender with respect thereto;
(iv) material physical waste to any Property caused by the intentional acts of any Recourse Party, but only to the extent there is sufficient cash flow from the proceeds Properties to prevent such physical waste and such cash flow is made available by Lender for the purpose of preventing such physical waste;
(v) the removal of any property in contravention of the transactions 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 a Recourse Party in contravention of the Loan Documents: (A) any insurance proceeds received by Borrower by reason of any Casualty, (B) any Awards or other amounts received by Borrower from a governmental authority in connection with a Condemnation of all or a portion of the Property, or (C) any revenues generated by the Properties;
(vii) any Security Deposits, advance deposits or any other deposits collected with respect to any Property which are not delivered to Lender upon a foreclosure of such 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 Lease;
(viii) any litigation or other legal proceeding related to the Loan filed by a Recourse Party with the effect of delaying, opposing, impeding, obstructing, hindering, enjoining or otherwise interfering with the efforts of L▇▇▇▇▇ 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, B▇▇▇▇▇▇▇’s or Guarantor’s right to, dispute, in good faith, whether the relevant Event of Default shall have occurred or whether an action taken by Lender pursuant to 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 subject foreclosure proceeding would be barred, and which does not seek to enjoin the enforcement action by L▇▇▇▇▇;
(ix) Borrower fails to obtain L▇▇▇▇▇’s prior written consent to any additional indebtedness or voluntary lien encumbering any Property and not permitted by the Loan Documents;
(x) a material breach by Borrower of Section 5.5;
(xi) any voluntary termination, or any voluntary, material modification of any Ground Lease by Borrower without L▇▇▇▇▇’s prior written consent other than as expressly permitted under this Agreement; provided, that 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 L▇▇▇▇▇’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, if the remaining funds available to Seller to satisfy the obligations (B) any termination of any PILOT Lease and/or PILOT Document as a result of a foreclosure of the Seller pursuant applicable Security Instrument or deed in lieu thereof or (C) Borrower’s or the applicable Tenant’s failure to comply with or Borrower’s or the applicable Tenant’s breach of any PILOT Lease and/or PILOT Document that results in (x) a reduction of any tax abatement and/or mandatory repayment of any past or current tax abatement under such PILOT Lease and/or PILOT Document, 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, in any such case, Losses shall include lost rental income); provided, that, in each case, the liability with respect to this Section 13.1(a)(xii) shall not exceed the Allocated Loan Amount of the applicable PILOT Property;
(xiii) other 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 Condominium Documents are amended, modified, supplemented, terminated, cancelled or otherwise cease to exist without Lender’s prior written consent;
(xv) any 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 transactions contemplated hereby 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 use such amounts for the payment of such Taxes or 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 at least equal be deemed to Five Million Dollars ($5,000,000) or such lower amount of liability or potential liability as the Seller have waived any right which Lender may have under such agreements. The Section 506(a), 506(b), 1111(b) or any other provisions of this Section 10.10 the Bankruptcy Code to file a claim for the full amount of the Debt or to require that all collateral shall survive continue to secure all of the termination 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 filing of, a petition against Borrower under the 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 this Agreement and a custodian, receiver, trustee, or examiner for Borrower (other than with the Closing. This Section 10.10 will not apply prior written consent of L▇▇▇▇▇),
(iv) B▇▇▇▇▇▇▇ makes an assignment for the benefit of creditors (other than to Lender in connection with the parties to Loan or with the Parking Easement prior written consent of L▇▇▇▇▇);
(v) there is a breach of any provision of Article 5 (Single Purpose Entity Covenants) hereof or the Development Indemnity Agreement 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 extent such claim 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 cause of action relates solely to the Parking Easement Agreement pleading seeking substantive consolidation was not brought or the Development Indemnity Agreementsupported by L▇▇▇▇▇ and, as applicable.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
Appears in 1 contract
Sources: Loan Agreement (Industrial Logistics Properties Trust)
Exculpation. Buyer agrees that it does (a) Subject to the qualifications below, Lender shall not have enforce the liability and will not have 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 claims action or causes of action proceeding wherein a money judgment shall be sought against Borrower or any disclosed or undisclosed officer, director, employee, trustee, shareholder, partner, member, principal, parentemployee of Borrower or any direct or indirect owner of Borrower (provided that the foregoing shall not limit in any manner, subsidiary the liability of any Guarantor), except that Lender may bring a foreclosure action, an action for specific performance or any other affiliate of Sellerappropriate action or proceeding to enable Lender to enforce and realize upon its interest under the Note, includingthis Agreement, without limitation, Tishman Speyer Properties, L.P. the Security Instrument and Goldman, Sachs & Co.the other Loan Documents, or ▇▇▇ ▇▇fic▇▇in the Property (or any portion thereof), ▇irectorthe Rents, employeeor any other collateral given to Lender pursuant to the Loan Documents; provided, trusteehowever, shareholderthat, memberexcept as specifically provided herein, partner or principal of any judgment in any such parentaction or proceeding shall be enforceable against Borrower only to the extent of Borrower’s interest in the Property, subsidiary 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 sue for, seek or other affiliate (collectivelydemand any deficiency judgment against Borrower in any such action or proceeding under or by reason of or under or in connection with the Note, "Seller's Affiliates")this Agreement, arising out of with this Agreement the Security Instrument or the transactions contemplated hereby. Buyer agrees to look solely to Seller and its assets for the satisfaction of any liability or obligation arising under this Agreement or the transactions contemplated hereby, or for the performance of any of the covenants, warranties or other agreements contained herein, and further agrees not to sue or otherwise seek to e▇▇▇rce any personal obligation against any of Seller's Affiliates with respect to any matters arising out of this Agreement or the transactions contemplated herebyLoan Documents. The provisions of this Section 10.109.3 shall not, however, (i) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (ii) 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; (iii) affect the validity or enforceability of any guaranty, indemnity or similar agreement or undertaking made in connection with the Loan or any of the rights and remedies of Lender thereunder; (iv) impair the right of Lender to obtain the appointment of a receiver; (v) 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 (or any portion thereof).
(b) Nothing contained herein shall in any manner or way release, affect or impair the right of Lender to recover from Borrower, 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 other obligation (including reasonable out-of-pocket attorneys’ fees and expenses 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 Borrower or Guarantor in connection with the Loan;
(ii) the gross negligence or willful misconduct of Borrower or Guarantor;
(iii) arson or any intentional material physical waste of the Property, provided, however, that if Borrower does not have sufficient cash flow on a current basis to prevent waste, any waste shall not apply be deemed intentional and Borrower shall have no liability under this clause (iii);
(iv) the removal or disposal of any portion of the Property 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 misappropriation, misapplication or conversion by Borrower or Guarantor, or any Affiliate of the foregoing, of (A) any Insurance Proceeds paid by reason of any loss, damage or destruction to Tishman Speyer/Travelers Real Estate Venturethe Property, L.P. (B) any Awards received in connection with a Condemnation of all or a portion of the Property during the continuance of an Event of Default, (C) any Rents or other Property income or collateral proceeds, or (D) any Rents paid more than one month in advance (including security deposits) during the continuance of an Event of Default;
(vi) following the occurrence and Whitehall Street Real Estate Limited Partnership IX (collectivelyduring the continuance of an Event of Default, the "Members"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 this Agreement);
(vii) failure to maintain insurance or to pay taxes and assessments, or to pay charges for labor or materials or other charges or judgments that can create Liens on any portion of the Property (unless Lender is escrowing funds therefor and fails to make such payments or has taken possession of the Property following an Event of Default, has received all Rents from the Property applicable to the period for which such insurance, taxes or other items are due, and thereafter fails to make such payments), it being acknowledged that if Borrower does not have sufficient cash flow on a current basis to maintain insurance or to pay taxes and assessments or to pay charges for labor or materials or other charges or judgments (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) 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 the amount any of the Members has received from Leases prior to the proceeds occurrence of the transactions which Event of Default that gave rise to such foreclosure or action in lieu thereof 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 failure by Borrower to comply with any of the representations, warranties or covenants set forth in Sections 4.1.37 or 5.1.19 hereof;
(xi) [intentionally omitted];
(A) a Casualty at the Individual Property identified on Schedule IV attached hereto as “Nordstrom Rack – Tampa, FL” (the “Florida Property”) caused by a “named storm” under the applicable insurance policy covering the Florida Property, after the application of all Insurance Proceeds received in connection with such Casualty; or (B) a Casualty at an Additional Windstorm Property caused by a “named storm” under the applicable insurance policy covering such Additional Windstorm Property (provided that that there shall be no liability pursuant to this clause (xii)(B) with respect to an Additional Windstorm Property following the date that Borrower obtains the Additional Windstorm Insurance Coverage for such Additional Windstorm Property and delivers one or more insurance certificates to Lender evidencing the same);
(xiii) any 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 subject full recourse event set forth in Section 9.3(c)(D) below;
(xiv) Borrower fails to obtain L▇▇▇▇▇’s prior written consent to any Transfer that is not a Full Recourse Transfer, to the extent required pursuant to the terms of the Loan Documents;
(xv) the Violations; provided, however, that there shall be no liability pursuant to this clause (xv) with respect to a particular Violation at an Individual Property from and after the date that Borrower has cured such Violation and delivered to Lender an update to the applicable zoning report verifying such Violation has been cured;
(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) B▇▇▇▇▇▇▇, acting in bad faith, fails to cooperate in transferring any 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 L▇▇▇▇▇’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 hinder, delay or otherwise interfere with Lender’s exercise of its remedies (whether at law or granted under the Loan Documents), or (2) was made in bad faith by Guarantor, Borrower or such Affiliate; or
(xx) reconciliation of common area maintenance or other reimbursements or charges related to the calendar year 2022 and prior years under any of the Leases identified on Schedule XIII attached hereto; provided, however, that there shall be no liability pursuant to this clause (xx) with respect to a particular Lease from and after the date that B▇▇▇▇▇▇▇ has delivered to Lender a written notice executed by the applicable Tenant, or other evidence reasonably satisfactory to Lender, confirming that such Tenant has accepted all reconciliations of common area maintenance and other reimbursements and charges for the calendar year 2022 and prior years under such T▇▇▇▇▇’s Lease and there are no disputes in connection therewith.
(c) Notwithstanding anything to the contrary in this Agreement, if the remaining funds available to Seller to satisfy the obligations Note or any of the Seller other Loan Documents, Borrower shall be personally liable for the Debt if (A) Borrower fails to obtain L▇▇▇▇▇’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 L▇▇▇▇▇’s prior written consent to any Indebtedness or voluntary mortgage, deed of trust, collateral assignment or similar voluntary Lien (including a P▇▇▇ ▇▇▇▇) 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) B▇▇▇▇▇▇▇ 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 constitute a waiver by Lender of any right Lender may have under Sections 506(a), 506(b), 1111(b) or any other 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.
(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 the Loan Documents, other than with respect to the Guarantor under the Guaranty and the Environmental Indemnity, neither Guarantor, nor any officer, director, shareholder, partner, member, principal, employee of, shall have any personal liability for, nor be joined as a party to, any action with respect to (i) the payment of any sum which is or may be payable under this Agreement or the transactions contemplated hereby are not at least equal Loan Documents, or (ii) the performance or discharge of any covenants, obligations or undertakings of Borrower. In addition to Five Million Dollars the foregoing, in no event will the assets of any officer, director, shareholder, partner, member, principal, employee of Borrower or Guarantor be available to satisfy any obligation of Guarantor thereunder.
($5,000,000g) or such lower amount of liability or potential liability as Notwithstanding the Seller may have under such agreements. The foregoing provisions of this Section 10.10 shall survive the termination of this Agreement and the Closing. This Section 10.10 will not apply 9.3 or anything to the parties to the Parking Easement or the Development Indemnity Agreement to the extent such claim or cause of action relates solely to the Parking Easement contrary in this Agreement or the Development Indemnity Agreementother 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 flow at the Property, subsequently breaches the definition of Permitted Equipment Financing or Permitted Trade Payables by being outstanding for longer than any time period specified in such definitions, or by exceeding the one percent (1%) or two percent (2%) cap, as applicable., specified in such definitions, and (ii) Guarantor shall have no liability under any of the Loan Documents with respect to liabilities or obligations arising from events, acts, omissions, facts or circumstances first occurring from and after the date that Lender (or any Affiliate, designee, agent, nominee, successor to or assignee of Lender) takes title to the Property or the ownership interests in Borrower pursuant to a foreclosure, deed-in-lieu of foreclosure, assignment-in-lieu of foreclosure, other exercise of remedies unde
Appears in 1 contract
Exculpation. Buyer agrees that it does (a) Subject to the qualifications below, Administrative Agent, on behalf of Lenders, shall not have enforce the liability and will not have 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 claims action or causes of action proceeding wherein a money judgment or any deficiency judgment or other judgment establishing personal liability shall be sought against Borrower or any disclosed or undisclosed officerprincipal, director, officer, employee, trusteebeneficiary, shareholder, partner, member, principaltrustee, parentagent, subsidiary or other affiliate of SellerBorrower (but specifically excluding Guarantor to the extent of Guarantor’s liability under the Guaranty) or any legal representatives, including, without limitation, Tishman Speyer Properties, L.P. and Goldman, Sachs & Co., successors or ▇▇▇ ▇▇fic▇▇, ▇irector, employee, trustee, shareholder, member, partner or principal of any such parent, subsidiary or other affiliate (collectively, "Seller's Affiliates"), arising out of with this Agreement or the transactions contemplated hereby. Buyer agrees to look solely to Seller and its assets for the satisfaction of any liability or obligation arising under this Agreement or the transactions contemplated hereby, or for the performance assigns of any of the covenantsforegoing but excluding shareholders of any public company (collectively, warranties the “Exculpated Parties”), except that Administrative Agent, on behalf of Lenders, may bring a foreclosure action, an action for specific performance or any other agreements contained appropriate action or proceeding to enable Administrative Agent to enforce and realize upon Lenders’ 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 Administrative Agent, on behalf of Lenders, pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower’s interest in the Property, in the Rents and further agrees in any other collateral given to Lenders and Administrative Agent, on behalf of Lenders, and Administrative Agent and Lenders, by accepting the Note, this Agreement, the Security Instrument and the other Loan Documents, shall not to sue s▇▇ for, seek or otherwise seek to e▇▇▇rce demand any personal obligation deficiency judgment against Borrower or any of Seller's Affiliates the Exculpated Parties in any such action or proceeding under or by reason of or under or in connection with respect to any matters arising out of the Note, this Agreement Agreement, the Security Instrument or the transactions contemplated herebyother Loan Documents. The provisions of this Section 10.10shall not, however, shall not apply (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, on behalf of Lenders, to Tishman Speyer/Travelers Real Estate Venturename 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, L.P. and Whitehall Street Real Estate Limited Partnership IX guaranty or similar instrument (collectivelyincluding, without limitation, the "Members"indemnities set forth in Article 12 hereof, in the Guaranty and in the Environmental Indemnity) made in connection with the Loan or any of the rights and remedies of Administrative Agent and Lenders thereunder (including, without limitation, Lenders’ and Administrative Agent’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 right of Administrative Agent, on behalf of Lenders, to obtain the appointment of a receiver; (5) impair the enforcement of the assignment of leases contained in the Security Instrument; (6) constitute a prohibition against Administrative Agent, on behalf of Lenders, 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 to exercise Lenders’ remedies against the Property; or (7) constitute a waiver of the right of Administrative Agent and Lenders to enforce the liability and obligation of Borrower, by money judgment or otherwise, to the extent of any Losses incurred by Administrative Agent and/or Lenders (including attorneys’ fees and costs reasonably incurred) arising out of or in connection with the amount following:
(i) any intentional misrepresentation of Borrower or Guarantor or any of the Members has received from Exculpated Parties in connection with the proceeds Loan;
(ii) the fraudulent acts or willful misconduct of Borrower or Guarantor or any of the transactions which is Exculpated Parties in connection with the subject of this AgreementLoan;
(iii) any waste to the Property from intentional physical damage or destruction committed by Borrower, Manager, if the remaining funds available to Seller to satisfy the obligations Manager is an Affiliate of Borrower or Guarantor, Guarantor and/or any of the Seller pursuant to this Agreement or the transactions contemplated hereby are not at least equal to Five Million Dollars ($5,000,000) or such lower amount of liability or potential liability as the Seller may have under such agreements. The provisions of this Section 10.10 shall survive the termination of this Agreement and the Closing. This Section 10.10 will not apply to the parties to the Parking Easement or the Development Indemnity Agreement to the extent such claim or cause of action relates solely to the Parking Easement Agreement or the Development Indemnity Agreement, as applicable.Exculpated Parties;
Appears in 1 contract
Sources: Loan Agreement (Alexanders Inc)
Exculpation. Buyer agrees that it does Subject to the qualifications below, Lender shall not have enforce the liability and will not have obligation of Borrower to perform and observe the obligations contained in the Note, this Agreement, the Mortgage or the other Loan Documents by any claims action or causes of action proceeding wherein a money judgment or any deficiency judgment or other judgment establishing personal liability shall be sought against Borrower or any disclosed or undisclosed officerprincipal, director, officer, employee, trusteebeneficiary, shareholder, partner, member, principaltrustee, parentagent, subsidiary or other affiliate of SellerBorrower (but specifically excluding Guarantor) or any legal representatives, including, without limitation, Tishman Speyer Properties, L.P. and Goldman, Sachs & Co., successors or ▇▇▇ ▇▇fic▇▇, ▇irector, employee, trustee, shareholder, member, partner or principal of any such parent, subsidiary or other affiliate (collectively, "Seller's Affiliates"), arising out of with this Agreement or the transactions contemplated hereby. Buyer agrees to look solely to Seller and its assets for the satisfaction of any liability or obligation arising under this Agreement or the transactions contemplated hereby, or for the performance assigns of any of the covenantsforegoing (collectively, warranties the “Exculpated Parties”), except that Lender may bring a foreclosure action, an action for specific performance or any other agreements contained appropriate action or proceeding to enable Lender to enforce and realize upon its interest under the Note, this Agreement, the Mortgage and the other Loan Documents, or in any Property, the Rents, or any other collateral given to Lender pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower’s interest in the Collective Properties, in the Rents and further agrees in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Mortgage and the other Loan Documents, shall not to sue or otherwise seek to e▇▇▇rce ▇ for, seek or demand any personal obligation deficiency judgment against Borrower or any of Seller's Affiliates the Exculpated Parties, in any such action or proceeding under or by reason of or under or in connection with respect to any matters arising out of the Note, this Agreement Agreement, the Mortgage or the transactions contemplated herebyother Loan Documents. The provisions of this Section 10.10shall not, however, shall not apply (a) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (b) impair the right of Lender to Tishman Speyer/Travelers Real Estate Venturename Borrower as a party defendant in any action or suit for foreclosure and sale under the Mortgage; (c) affect the validity or enforceability of any indemnity, L.P. guaranty, or similar instrument made in connection with the Loan or any of the rights and Whitehall Street Real Estate Limited Partnership IX remedies of Lender thereunder; (collectivelyd) impair the right of Lender to obtain the appointment of a receiver; (e) impair the enforcement of the Mortgage; (f) impair the right of Lender to enforce the provisions of the Guaranty or the Environmental Indemnity; (g) 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 or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against such security; or (h) constitute a waiver of the right of Lender to enforce the liability and obligation of Borrower, the "Members") by money judgment or otherwise, to the extent of any actual Losses incurred by Lender (including out-of-pocket attorneys’ fees and costs reasonably incurred) arising out of or in connection with the amount following:
(i) fraud or intentional material misrepresentation by Borrower, Guarantor or any Borrower Party in connection with the Loan;
(ii) the willful misconduct of Borrower, Guarantor or any Borrower Party in connection with the Members has received Loan;
(iii) the breach of any representation, warranty, covenant or indemnification provision in the Environmental Indemnity or in any other Loan Document concerning environmental laws, hazardous substances and asbestos and any indemnification of Lender with respect thereto in any such document;
(iv) material physical waste to any Property caused by intentional acts or intentional omissions of Borrower, Guarantor or any Borrower Party, other than waste (or alleged waste) to such Property resulting from (A) the insufficiency of cash flow from the proceeds Collective Properties as a whole to prevent such waste and such insufficiency is not a result of the transactions which is the subject misappropriation of this Agreement, if the remaining funds Rents by any Borrower Party or (B) Lender’s failure to make cash flow received by Lender available to Seller Borrower in order to satisfy prevent such waste;
(v) the obligations removal of the Seller pursuant to this Agreement any portion of any Property by Borrower, Guarantor or the transactions contemplated hereby are not at least equal to Five Million Dollars ($5,000,000) or such lower amount of liability or potential liability as the Seller may have under such agreements. The provisions of this Section 10.10 shall survive the termination any other Borrower Party in violation of this Agreement and the Closing. This Section 10.10 will not apply other Loan Documents other than in the ordinary course of business;
(vi) Borrower fails to obtain Lender’s prior written consent to any subordinate financing or voluntary Lien encumbering any Property or to the parties incurrence of unsecured indebtedness or indemnification obligations by Borrower and, in each case, not otherwise expressly permitted by the Loan Documents;
(vii) the misappropriation or conversion by Borrower, or any Borrower Parties of (A) any insurance proceeds paid by reason of any loss, damage or destruction to any Property, (B) any Awards or other amounts received in connection with the Parking Easement Condemnation of all or the Development Indemnity Agreement a portion of any Property or (C) any Rents;
(viii) any security deposits, advance deposits or any other deposits collected with respect to any Property which are not delivered to Lender upon a foreclosure of such Property or action in lieu thereof, except to the extent any such claim security deposits, advance deposits or cause other deposits were applied in accordance with the terms and conditions of action relates solely any of the Leases;
(ix) the breach of any representation, warranty or covenant of Borrower with respect to itself, or any SPE Party, and such breach is cited as a material factor in the substantive consolidation of Borrower with any other Person (other than a co-borrower under the Loan) in connection with any federal or state bankruptcy proceeding;
(x) any litigation or other legal proceeding related to the Parking Easement Agreement Debt filed by Borrower, Guarantor, any Borrower Party or any Affiliate thereof in bad faith with the Development Indemnity sole intention (as finally determined by a court of competent jurisdiction pursuant to a non-appealable judgment) of delaying, opposing, impeding, obstructing, hindering, enjoining or otherwise interfering with the efforts of Lender to exercise any rights and remedies available to Lender as provided herein and in the other Loan Documents upon an Event of Default;
(xi) Borrower effects a Transfer in violation of the provisions of Section 4.2.1 or Article VIII hereof; and/or
(xii) the non-compliance or non-conformity of any Property with applicable zoning law (which includes, for the avoidance of doubt, the lack of a valid certificate of occupancy for the occupancy or use of such Property as currently operated and any building, use, zoning, or fire code violations) disclosed in any zoning report delivered to Lender on or prior to the date hereof, or disclosed in any zoning report delivered to Lender subsequent to the date hereof in accordance with Section 4.1.20, which Losses shall also include (A) any cost or expense incurred by Lender in remedying such non-compliance or non-conformity and (B) any lost rents during (1) the period of remediation (including re-tenanting, if applicable) by Lender or (2) any period in which the applicable regulatory authority prevents the operation of such Property until the remediation or cure (including re-tenanting, if applicable) of the related non-compliance or non-conformity. Notwithstanding anything to the contrary in this Agreement, as applicablethe 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: (1) intentionally omitted; (2) Borrower or any SPE Party or any Affiliate of any of them files, or joins in the filing of, a voluntary petition against Borrower or any SPE Party under the Bankruptcy code or any other Federal or state bankruptcy or insolvency law; (3) any Borrower Party or any Affiliate, officer, director, or representative thereof files, or joins in the filing of, an involuntary petition against Borrower or any SPE Party under the 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 or any SPE Party from any Person; (4) Borrower or any SPE Party fails to oppose any involuntary petition filed against it, by any other Person under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law unless there is no good faith defense to such involuntary petition; (5) any Borrower Party or any Affiliate, officer, director, or representative thereof consents to or acquiesces in writing or joins in an application for the appointment of a custodian, receiver, trustee, or examiner for Borrower or any SPE Party or any portion of the Collective Properties (other than at the request of Lender); and/or (6) Borrower or any SPE Party makes an assignment for the benefit of creditors (other than in favor of Lender).
Appears in 1 contract
Sources: Loan Agreement (Industrial Logistics Properties Trust)
Exculpation. Buyer agrees that it does Subject to the qualifications below, Lender shall not have enforce the liability and will not have obligation of Borrower to perform and observe the obligations contained in the Note, this Agreement, the Mortgage or the other Loan Documents by any claims action or causes of action proceeding wherein a money judgment or any deficiency judgment or other judgment establishing personal liability shall be sought against Borrower or any disclosed or undisclosed officerprincipal, director, officer, employee, trusteebeneficiary, shareholder, partner, member, principaltrustee, parentagent, subsidiary or other affiliate of SellerBorrower (but specifically excluding Guarantor) or any legal representatives, including, without limitation, Tishman Speyer Properties, L.P. and Goldman, Sachs & Co., successors or ▇▇▇ ▇▇fic▇▇, ▇irector, employee, trustee, shareholder, member, partner or principal of any such parent, subsidiary or other affiliate (collectively, "Seller's Affiliates"), arising out of with this Agreement or the transactions contemplated hereby. Buyer agrees to look solely to Seller and its assets for the satisfaction of any liability or obligation arising under this Agreement or the transactions contemplated hereby, or for the performance assigns of any of the covenantsforegoing (collectively, warranties the “Exculpated Parties”), except that Lender may bring a foreclosure action, an action for specific performance or any other agreements contained appropriate action or proceeding to enable Lender to enforce and realize upon its interest under the Note, this Agreement, the Mortgage and the other Loan Documents, or in any Property, the Rents, or any other collateral given to Lender pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower’s interest in the Collective Properties, in the Rents and further agrees in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Mortgage and the other Loan Documents, shall not to sue s▇▇ for, seek or otherwise seek to e▇▇▇rce demand any personal obligation deficiency judgment against Borrower or any of Seller's Affiliates the Exculpated Parties, in any such action or proceeding under or by reason of or under or in connection with respect to any matters arising out of the Note, this Agreement Agreement, the Mortgage or the transactions contemplated herebyother Loan Documents. The provisions of this Section 10.10shall not, however, shall not apply (a) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (b) impair the right of Lender to Tishman Speyer/Travelers Real Estate Venturename Borrower as a party defendant in any action or suit for foreclosure and sale under the Mortgage; (c) affect the validity or enforceability of any indemnity, L.P. guaranty, or similar instrument made in connection with the Loan or any of the rights and Whitehall Street Real Estate Limited Partnership IX remedies of Lender thereunder; (collectivelyd) impair the right of Lender to obtain the appointment of a receiver; (e) impair the enforcement of the Mortgage; (f) impair the right of Lender to enforce the provisions of the Guaranty or the Environmental Indemnity; (g) 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 or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against such security; or (h) constitute a waiver of the right of Lender to enforce the liability and obligation of Borrower, the "Members") by money judgment or otherwise, to the extent of any actual Losses incurred by Lender (including out-of-pocket attorneys’ fees and costs reasonably incurred) arising out of or in connection with the amount following:
(i) fraud or intentional material misrepresentation by Borrower, Guarantor or any Borrower Party in connection with the Loan;
(ii) the willful misconduct of Borrower, Guarantor or any Borrower Party in connection with the Loan;
(iii) the breach of any representation, warranty, covenant or indemnification provision in the Environmental Indemnity or in any other Loan Document concerning environmental laws, hazardous substances and asbestos and any indemnification of Lender with respect thereto in any such document;
(iv) material physical waste to any Property caused by intentional acts or intentional omissions of Borrower, Guarantor or any Borrower Party, other than waste (or alleged waste) to such Property resulting from (A) the insufficiency of cash flow from the Collective Properties as a whole to prevent such waste and such insufficiency is not a result of misappropriation of Rents by any Borrower Party or (B) Lender’s failure to make cash flow received by Lender available to Borrower in order to prevent such waste;
(v) Borrower fails to obtain Lender’s prior written consent to any subordinate financing or voluntary Lien encumbering a Property or to the incurrence of unsecured indebtedness or indemnification obligations by Borrower and, in each case, not otherwise expressly permitted by the Loan Documents;
(vi) the misappropriation or conversion by Borrower, or any Borrower Parties 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 a Property, (C) any Rents, or (D) any amounts disbursed from Reserve Funds;
(vii) 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, advance deposits or other deposits were applied in accordance with the terms and conditions of any of the Members has received from Leases;
(viii) the proceeds breach of any representation, warranty or covenant of Borrower with respect to itself, or any SPE Party, and such breach is cited as a material factor in the substantive consolidation of Borrower with any other Person (other than a co-borrower) in connection with any federal or state bankruptcy proceeding;
(ix) any litigation or other legal proceeding related to the Debt filed by Borrower, Guarantor, any Borrower Party or any Affiliate thereof in bad faith with the sole intention (as finally determined by a court of competent jurisdiction pursuant to a non-appealable order) of delaying, opposing, impeding, obstructing, hindering, enjoining or otherwise interfering with the efforts of Lender to exercise any rights and remedies available to Lender as provided herein and in the other Loan Documents upon an Event of Default;
(x) Borrower effects a Transfer in violation of the transactions which is provisions of Section 4.2.1 or Article VIII hereof; and/or
(xi) the subject breach of any representation, warranty or covenant set forth in Section 3.1.44. Notwithstanding anything to the contrary in this Agreement, if the remaining funds available to Seller to satisfy the obligations Note or any of the Seller pursuant Loan Documents, (A) Lender shall not be deemed to this Agreement or the transactions contemplated hereby are not at least equal to Five Million Dollars ($5,000,000) or such lower amount of liability or potential liability as the Seller have waived any right which Lender may have under such agreements. The Section 506(a), 506(b), 1111(b) or any other provisions of this Section 10.10 the Bankruptcy Code to file a claim for the full amount of the Debt or to require that all collateral shall survive continue to secure all of the termination Debt owing to Lender in accordance with the Loan Documents, and (B) the Debt shall be fully recourse to Borrower in the event that: (1) intentionally omitted; (2) Borrower or any SPE Party or any Affiliate of this Agreement and any of them files, or joins in the Closing. This Section 10.10 will not apply filing of, a voluntary petition against Borrower under the Bankruptcy code or any other Federal or state bankruptcy or insolvency law; (3) any Borrower Party or any Affiliate, officer, director, or representative thereof files, or joins in the filing of, an involuntary petition against Borrower or any SPE Party under the 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 or any SPE Party from any Person; (4) Borrower or any SPE Party fails to oppose any involuntary petition filed against it, by any other Person under the parties Bankruptcy Code or any other Federal or state bankruptcy or insolvency law unless there is no good faith defense to such involuntary petition; (5) any Borrower Party or any Affiliate, officer, director, or representative thereof consents to or acquiesces in writing or joins in an application for the Parking Easement appointment of a custodian, receiver, trustee, or examiner for Borrower or any SPE Party or any portion of the Development Indemnity Agreement Collective Properties (other than at the request of Lender); and/or (6) Borrower or any SPE Party makes an assignment for the benefit of creditors or admits, in writing in any legal proceeding, its insolvency or its inability to the extent pay its debts as they become due (unless failure to make such claim or cause admission would be a violation of action relates solely to the Parking Easement Agreement or the Development Indemnity Agreement, as applicablelaw).
Appears in 1 contract
Sources: Loan Agreement (Industrial Logistics Properties Trust)
Exculpation. Buyer agrees (a) Notwithstanding anything in the Loan Documents to the contrary, but subject to the qualifications below, ▇▇▇▇▇▇ 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 it does not have and will not have in the event (A) of a breach or default under Section 4.3, 4.4, 4.5, 4.6 or 8.2 of the Security Instrument, (B) the Borrower intentionally interferes with ▇▇▇▇▇▇’s pursuit of any claims of its remedies hereunder or causes of action against under the other Loan Documents (C) the Property or any disclosed part thereof becomes an asset in a voluntary bankruptcy or undisclosed insolvency proceeding or (D) (x) Borrower or any Affiliate, officer, director, employeeor representative which controls, directly or indirectly, Borrower shall file, or join in the filing of, an involuntary petition against Borrower under any Creditors Rights Laws, or solicit or cause to be solicited petitioning creditors for any involuntary petition against Borrower from any Person; (y) Borrower shall file 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 solicit or cause to be solicited petitioning creditors for any involuntary petition from any Person; or (z) 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, shareholderor examiner for Borrower or any portion of the Property; the limitation on recourse set forth in this Subsection 10(a) will be null and void and completely inapplicable, partnerand 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, memberLender shall not enforce the liability and obligation of Borrower to perform and observe the obligations contained in this Note or the Security Instrument by any action or proceeding wherein a money judgment shall be sought against Borrower, principalexcept that Lender may bring a foreclosure action, parent, subsidiary action for specific performance or other affiliate appropriate action or proceeding to enable Lender to enforce and realize upon the Security Instrument, the Other Loan Documents and the interest in the Property, the Rents and any other collateral given to Lender created by the Security Instrument and the Other Loan Documents; provided, however, that any judgment in any action or proceeding shall be enforceable against Borrower only to the extent of SellerBorrower’s interest in the Property, including, without limitation, Tishman Speyer Properties, L.P. in the Rents and Goldman, Sachs & Co., or in any other collateral given to Lender. ▇▇▇ ▇▇fic▇▇, ▇irectorby accepting this Note and the Security Instrument, employeeagrees that it shall not, trusteeexcept as otherwise herein provided, shareholdersue for, memberseek or demand any deficiency judgment against Borrower in any action or proceeding, partner under or principal by reason of any such parent, subsidiary or other affiliate (collectively, "Seller's Affiliates"), arising out of under or in connection with this Agreement Note, the Other Loan Documents or the transactions contemplated hereby. Buyer agrees to look solely to Seller and its assets for the satisfaction of any liability or obligation arising under this Agreement or the transactions contemplated hereby, or for the performance of any of the covenants, warranties or other agreements contained herein, and further agrees not to sue or otherwise seek to e▇▇▇rce any personal obligation against any of Seller's Affiliates with respect to any matters arising out of this Agreement or the transactions contemplated hereby. Security Instrument.
(iii) The provisions of this Section 10.10Subsection 10(a) shall not (A) constitute a waiver, release or impairment of any obligation evidenced or secured by this Note, the Other Loan Documents or the Security Instrument; (B) 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; (C) affect the validity or enforceability of any indemnity, guaranty, including without limitation any guaranty, master lease or similar instrument made in connection with this Note, the Security Instrument, or the Other Loan Documents; (D) impair the right of Lender to obtain the appointment of a receiver; (E) impair the enforcement of the Assignment executed in connection herewith; (F) impair the right of Lender to enforce the provisions of Article 11 of the Security Instrument; or (G) impair the right of Lender to obtain a deficiency judgment or judgment on this Note against Borrower if necessary to obtain any insurance proceeds or condemnation awards to which ▇▇▇▇▇▇ would otherwise be entitled under the Security Instrument; provided, however, Lender shall not apply to Tishman Speyer/Travelers Real Estate Venture, L.P. and Whitehall Street Real Estate Limited Partnership IX only enforce such judgment against the insurance proceeds and/or condemnation awards.
(collectively, iv) Notwithstanding the "Members") provisions of this Article to the contrary, Borrower shall be personally liable to Lender for the Losses it incurs due to: (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 in connection with the loan evidenced by this Note, (B) the misapplication or misappropriation of Rents; (C) the misapplication or misappropriation of insurance proceeds or condemnation awards; (D) any tenant security deposits or other refundable deposits paid to or held by Borrower or any 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, (E) waste committed on the Property, damage to the Property as a result of the intentional misconduct or gross negligence of Borrower or any of its principals, officers, general partners or members, any guarantor, any indemnitor, or any agent or employee of any such person, or 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 amount any losses or damages incurred by Lender on account of such occurrence; (F) Borrower’s failure to comply with the provisions of Section 11 of the Members has received from the proceeds Security Instrument; or (G) any breach of the transactions Environmental Indemnity.
(b) Nothing herein shall be deemed to be a waiver of any right which is the subject of this Agreement, if the remaining funds available to Seller to satisfy the obligations of the Seller pursuant to this Agreement or the transactions contemplated hereby are not at least equal to Five Million Dollars ($5,000,000) or such lower amount of liability or potential liability as the Seller Lender may have under such agreements. The 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, owing to Lender in accordance with this Section 10.10 shall survive Note, the termination of this Agreement Security Instrument and the Closing. This Section 10.10 will not apply to the parties to the Parking Easement or the Development Indemnity Agreement to the extent such claim or cause of action relates solely to the Parking Easement Agreement or the Development Indemnity Agreement, as applicableOther Loan Documents.
Appears in 1 contract
Exculpation. Buyer agrees that it does not have and will not have any claims or causes of action against any disclosed or undisclosed officer(a) Except as otherwise provided in the Act, director, employee, trustee, shareholder, partner, member, principal, parent, subsidiary or other affiliate of Seller, including, without limitation, Tishman Speyer Properties, L.P. and Goldman, Sachs & Co.by applicable law, or ▇▇▇ ▇▇fic▇▇, ▇irector, employee, trustee, shareholder, member, partner or principal of any such parent, subsidiary or other affiliate (collectively, "Seller's Affiliates"), arising out of with this Agreement or the transactions contemplated hereby. Buyer agrees to look solely to Seller and its assets for the satisfaction of any liability or obligation arising under this Agreement or the transactions contemplated hereby, or for the performance of any of the covenants, warranties or other agreements contained herein, and further agrees not to sue or otherwise seek to e▇▇▇rce any personal obligation against any of Seller's Affiliates with respect to any matters arising out of this Agreement or the transactions contemplated hereby. The provisions of this Section 10.10, however, shall not apply to Tishman Speyer/Travelers Real Estate Venture, L.P. and Whitehall Street Real Estate Limited Partnership IX (collectively, the "Members") to the extent of the amount any of the Members has received from the proceeds of the transactions which is the subject of expressly in this Agreement, no Manager will be obligated personally for any debt, obligation, or liability of the Company, whether arising in contract, tort, or otherwise, solely by reason of being a Manager.
(b) To the maximum extent permitted by applicable law, no officer (in such person’s capacity as such) shall be liable to the Company or to any Member for losses sustained or liabilities incurred as a result of any act or omission (in relation to the Company, any transaction, any investment or any business decision or action, including for breach of duties including fiduciary duties) taken or omitted by such officer (in such person’s capacity as such), unless there has been a final and non-appealable judgment entered by a court of competent jurisdiction determining that, in respect of such act or omission, and taking into account the acknowledgments and agreements set forth in this Agreement, such officer (in such person’s capacity as such) would have had such liability for such act or omission that an officer of the Company would have if the remaining funds available to Seller to satisfy Company were a corporation organized under the obligations laws of the Seller pursuant to State of Delaware.
(c) NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, TO THE FULLEST EXTENT PERMITTED BY LAW, NO MEMBER (IN HIS, HER OR ITS CAPACITY AS A MEMBER) OR MANAGER (IN HIS OR HER CAPACITY AS A MANAGER) OR OFFICER OF THE COMPANY (IN HIS OR HER CAPACITY AS AN OFFICER) SHALL BE LIABLE TO THE COMPANY, TO ANY MEMBER OR TO ANY OTHER PERSON MAKING CLAIMS ON BEHALF OF THE FOREGOING FOR CONSEQUENTIAL, EXEMPLARY, PUNITIVE, INCIDENTAL, INDIRECT OR SPECIAL DAMAGES, INCLUDING DAMAGES FOR LOSS OF PROFITS, LOSS OF USE OR REVENUE OR LOSSES BY REASON OF COST OF CAPITAL, ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE BUSINESS OF THE COMPANY OR ANY OF ITS CONTROLLED AFFILIATES, REGARDLESS OF WHETHER SUCH CLAIMS ARE BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, VIOLATION OF ANY APPLICABLE DECEPTIVE TRADE PRACTICES ACT OR SIMILAR LAW OR ANY OTHER LEGAL OR EQUITABLE DUTY OR PRINCIPLE, AND THE COMPANY AND EACH MEMBER HEREBY RELEASE EACH OTHER MEMBER (IN HIS, HER OR ITS CAPACITY AS A MEMBER), MANAGER (IN HIS OR HER CAPACITY AS A MANAGER) AND OFFICER (IN HIS OR HER CAPACITY AS AN OFFICER) OF THE COMPANY FROM ANY SUCH DAMAGES.
(d) Notwithstanding anything in this Agreement or the transactions contemplated hereby are not at least equal to Five Million Dollars ($5,000,000) or such lower amount of liability or potential liability as the Seller may have under such agreements. The provisions of this Section 10.10 shall survive the termination of this Agreement and the Closing. This Section 10.10 will not apply to the parties to the Parking Easement or the Development Indemnity Agreement to the extent such contrary, nothing in this Section 11.4 shall limit or waive any claims against, actions, rights to sue, other remedies or other recourse the Company, any Member or any other Person may have against any Member, Manager or officer of the Company for a breach of contract claim or cause of action relates solely relating to the Parking Easement Agreement or the Development Indemnity any binding agreement, including this Agreement, as applicable.
Appears in 1 contract
Sources: Limited Liability Company Agreement (Pitney Bowes Inc /De/)
Exculpation. Buyer agrees that it does not The Administrative Agent and the Auction Agent shall have no duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) neither the Administrative Agent nor the Auction Agent shall be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and will not is continuing, (b) neither the Administrative Agent nor the Auction Agent shall have any claims duty to take any discretionary action or causes exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the Administrative Agent or the Auction Agent is required to exercise in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in SECTION 9.2), and (c) except as expressly set forth in the Loan Documents, neither the Administrative Agent nor the Auction Agent shall have any duty to disclose, or shall be liable for the failure to disclose, any information relating to the Borrower or any of its Subsidiaries that is communicated to or obtained by the bank serving as Administrative Agent, Auction Agent, or any of their respective Affiliates in any capacity. Neither the Administrative Agent nor the Auction Agent shall be liable for any action against taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in SECTION 9.2) or in the absence of its own gross negligence or willful misconduct. Neither the Administrative Agent nor the Auction Agent shall be responsible for or have any disclosed duty to ascertain or undisclosed officerinquire into (i) any statement, directorwarranty or representation made in or in connection with any Loan Document, employee(ii) the contents of any certificate, trustee, shareholder, partner, member, principal, parent, subsidiary report or other affiliate of Sellerdocument delivered thereunder or in connection therewith, including, without limitation, Tishman Speyer Properties, L.P. and Goldman, Sachs & Co., or ▇▇▇ ▇▇fic▇▇, ▇irector, employee, trustee, shareholder, member, partner or principal of any such parent, subsidiary or other affiliate (collectively, "Seller's Affiliates"), arising out of with this Agreement or the transactions contemplated hereby. Buyer agrees to look solely to Seller and its assets for the satisfaction of any liability or obligation arising under this Agreement or the transactions contemplated hereby, or for iii) the performance or observance of any of the covenants, warranties agreements or other agreements contained hereinterms or conditions set forth in any Loan Document, and further agrees not (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in ARTICLE IV or elsewhere in any Loan Document, other than to sue or otherwise seek confirm receipt of items expressly required to e▇▇▇rce any personal obligation against any of Seller's Affiliates with respect be delivered to any matters arising out of this Agreement the Administrative Agent or the transactions contemplated hereby. The provisions of this Section 10.10Auction Agent, however, shall not apply to Tishman Speyer/Travelers Real Estate Venture, L.P. and Whitehall Street Real Estate Limited Partnership IX (collectively, the "Members") to the extent of the amount any of the Members has received from the proceeds of the transactions which is the subject of this Agreement, if the remaining funds available to Seller to satisfy the obligations of the Seller pursuant to this Agreement or the transactions contemplated hereby are not at least equal to Five Million Dollars ($5,000,000) or such lower amount of liability or potential liability as the Seller case may have under such agreements. The provisions of this Section 10.10 shall survive the termination of this Agreement and the Closing. This Section 10.10 will not apply to the parties to the Parking Easement or the Development Indemnity Agreement to the extent such claim or cause of action relates solely to the Parking Easement Agreement or the Development Indemnity Agreement, as applicablebe.
Appears in 1 contract
Sources: Credit Agreement (Stewart & Stevenson Services Inc)
Exculpation. Buyer agrees that it does (a) Subject to the qualifications below, Lender shall not have enforce the liability and will not have obligation of Borrower to perform and observe the obligations contained in the Note, this Agreement, the Security Instruments or the other Loan Documents by any claims action or causes of action proceeding wherein a money judgment or any deficiency judgment or other judgment establishing personal liability shall be sought against Borrower or any disclosed or undisclosed officerprincipal, director, officer, employee, trusteebeneficiary, shareholder, partner, member, principaltrustee, parentagent, subsidiary or other affiliate of SellerBorrower or any legal representatives, including, without limitation, Tishman Speyer Properties, L.P. and Goldman, Sachs & Co., successors or ▇▇▇ ▇▇fic▇▇, ▇irector, employee, trustee, shareholder, member, partner or principal of any such parent, subsidiary or other affiliate (collectively, "Seller's Affiliates"), arising out of with this Agreement or the transactions contemplated hereby. Buyer agrees to look solely to Seller and its assets for the satisfaction of any liability or obligation arising under this Agreement or the transactions contemplated hereby, or for the performance assigns of any of the covenantsforegoing (collectively, warranties the “Exculpated Parties”), except that Lender may bring a foreclosure action, an action for specific performance or any other agreements contained appropriate action or proceeding to enable Lender to enforce and realize upon its interest under the Note, this Agreement, the Security Instruments and the other Loan Documents, or in the Properties (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 further agrees in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Security Instruments and the other Loan Documents, shall not to sue or otherwise seek to e▇▇▇rce ▇ for, seek or demand any personal obligation deficiency judgment against Borrower or any of Seller's Affiliates the Exculpated Parties in any such action or proceeding under or by reason of or under or in connection with respect to any matters arising out of the Note, this Agreement Agreement, the Security Instruments or the transactions contemplated herebyother Loan Documents. The provisions of this Section 10.10shall not, however, shall not apply (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 Tishman Speyer/Travelers Real Estate Venture, L.P. name Borrower as a party defendant in any action or suit for foreclosure and Whitehall Street Real Estate Limited Partnership IX sale under the Security Instruments; (collectively3) affect the validity or enforceability of the Guaranty, the "Members"Environmental Indemnity and/or any guaranty set forth in Section 11.2 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 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 Instruments and in any other Loan Documents; (6) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted by the Security Instruments or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against the Properties (or any portion thereof); or (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 material willful misrepresentation by any Borrower Party in connection with the Loan;
(ii) the willful misconduct of any Borrower Party;
(iii) any intentional act or omission of any Borrower Party made frivolously or in bad faith, including any assertion of defenses or counterclaims by any Borrower Party, which hinders, delays or interferes in any material respect with the Lender’s enforcement of its rights under the Loan Documents or the realization of the collateral;
(iv) (A) material physical waste to the Property (or any portion thereof) and/or (B) after the occurrence and during the continuance of an Event of Default, removal or disposal of any portion of any Individual Property other 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 Property (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, (D) any Tenant security deposits or Rents collected in 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);
(vi) failure to pay Taxes in accordance with the terms and provisions hereof to the extent that the Properties have generated sufficient net operating income for the immediately preceding twelve (12) month period to pay the same, unless such charges are the subject to a bona fide dispute in which the Borrower is contesting the amount or validity thereof in accordance with the terms and conditions set forth herein; and/or
(vii) any material amendment, material modification or voluntary termination or cancellation of any Ground Lease by any Borrower without Lender’s consent other than as expressly permitted pursuant to the terms hereof.
(b) Notwithstanding anything to the contrary in this Agreement, the Note or any of the Members has received from the proceeds 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 transactions which is Bankruptcy Code to file a claim for the subject of this Agreement, if the remaining funds available to Seller to satisfy the obligations full amount of the Seller pursuant 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 any Individual Property to the extent required by this Agreement or the transactions contemplated hereby are not at least equal other Loan Documents, (ii) any Borrower and/or any SPE Component Entity fails to Five Million Dollars ($5,000,000) or such lower amount obtain Lender’s prior written consent to any transfer in violation of liability or potential liability as the Seller may have under such agreements. The provisions of this Section 10.10 shall survive the termination of this Agreement and the Closing. This Section 10.10 will not apply to the parties to the Parking Easement or the Development Indemnity Agreement Article 6 hereof to the extent such claim or cause of action relates solely to the Parking Easement required by this Agreement or the Development Indemnity Agreementother Loan Documents; (iii) a Bankruptcy Event occurs; or (iv) any representation, warranty or covenant contained in Article 5 is violated or breached and such breach or violation is cited as applicablea contributing factor by the applicable bankruptcy court in the substantive consolidation of Borrower and/or any SPE Component Entity with any other Person.
Appears in 1 contract
Exculpation. Buyer agrees that it does (a) Notwithstanding anything to the contrary contained in this Note, the Security Instruments or any Other Security Document (but subject to the provisions of subsections (b), (c) and (d) of this Article 11), Lender shall not have enforce the liability and will not have obligation of Borrower to perform and observe the obligations contained in this Note or the Security Instruments by any claims action or causes of action proceeding wherein a money judgment or any deficiency judgment or other judgment establishing any personal liability shall be sought against Borrower or any disclosed or undisclosed officerprincipal, director, officer, employee, trusteebeneficiary, shareholder, partner, member, principaltrustee, parent, subsidiary agent or other affiliate of SellerBorrower or any person owning, includingdirectly or indirectly, without limitation, Tishman Speyer Properties, L.P. and Goldman, Sachs & Co.any legal or beneficial interest in Borrower, or ▇▇▇ ▇▇fic▇▇, ▇irector, employee, trustee, shareholder, member, partner any successors or principal of any such parent, subsidiary or other affiliate (collectively, "Seller's Affiliates"), arising out of with this Agreement or the transactions contemplated hereby. Buyer agrees to look solely to Seller and its assets for the satisfaction of any liability or obligation arising under this Agreement or the transactions contemplated hereby, or for the performance assigns of any of the covenantsforegoing (collectively, warranties the "Exculpated Parties"), except that Lender may bring a foreclosure action, action for specific performance or other agreements contained hereinappropriate action or proceeding to enable Lender to enforce and realize upon this Note, the Security Instruments, the Other Security Documents, and further the interest in the Property, the Rents (as defined in the Security Instruments) and any other collateral given to Lender to secure this Note; provided, however, subject to the provisions of subsections (b), (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 interest in the Property, in the Rents and in any other collateral given to Lender to secure this Note. Lender, by accepting this Note and the Security Instruments, agrees not to sue or otherwise seek to e▇▇▇rce ▇ it shall not, except as otherwise provided in this Article 11, sue for, seek or demand any personal obligation deficiency judgment against Borrower or any of Seller's Affiliates the Exculpated Parties, in any such action or proceeding, under or by reason of or under or in connection with respect to any matters arising out of this Agreement Note, the Security Instruments or the transactions contemplated herebyOther Security Documents. The provisions of this Section 10.10Article II shall not, however, shall not apply to Tishman Speyer/Travelers Real Estate Venture(i) constitute a waiver, L.P. and Whitehall Street Real Estate Limited Partnership IX (collectivelyrelease or impairment of any obligation evidenced or secured by this Note, the "Members"Security Instruments or the Other Security Documents delivered to Lender; (ii) 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 Instruments; (iii) affect the validity or enforceability of any indemnity, guaranty, master lease or similar instrument made in connection with this Note, the Security Instruments, or the Other Security Documents; (iv) impair the right of Lender to obtain the appointment of a receiver; (v) impair the enforcement of the Assignment of Leases and Rents executed in connection herewith; (vi) impair the right of Lender to enforce the provisions of Section 12.2 of the Security Instruments or of Section 3.12(c) of the Security Instruments; or (vii) impair the right of Lender to obtain a deficiency judgment or other judgment on the Note against Borrower if necessary to obtain any insurance proceeds or condemnation awards to which Lender would otherwise be entitled under the Security Instruments; ▇▇▇▇▇▇ed however, Lender shall only enforce such judgment to the extent of the amount insurance proceeds and/or condemnation awards.
(b) Notwithstanding the provisions of this Article II to the contrary, Borrower shall be personally liable to Lender for the Losses (as defined in the Security Instruments) Lender incurs due to: (i) fraud or intentional misrepresentation by Borrower or any of the Members has received from Exculpated Parties in connection with the proceeds execution and the delivery of this Note, the Security Instruments or the Other Security Documents or any documents or certificate now or at any time during the term of the transactions which is the subject of Loan evidenced by this Agreement, if the remaining funds available to Seller to satisfy the obligations of the Seller pursuant to this Agreement or the transactions contemplated hereby are not at least equal to Five Million Dollars ($5,000,000) or such lower amount of liability or potential liability as the Seller may have under such agreements. The provisions of this Section 10.10 shall survive the termination of this Agreement and the Closing. This Section 10.10 will not apply to the parties to the Parking Easement or the Development Indemnity Agreement to the extent such claim or cause of action relates solely to the Parking Easement Agreement or the Development Indemnity Agreement, as applicable.Note;
Appears in 1 contract
Sources: Promissory Note (Carey Institutional Properties Inc /Md/)
Exculpation. Buyer agrees that it does Subject to the qualifications below, Lender shall not have enforce the liability and will not have 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 claims action or causes of action proceeding wherein a money judgment or any deficiency judgment or other judgment establishing personal liability shall be sought against Borrower or any disclosed or undisclosed officerprincipal, director, officer, employee, trusteebeneficiary, shareholder, partner, member, principaltrustee, parent, subsidiary or other affiliate of Seller, including, without limitation, Tishman Speyer Properties, L.P. and Goldman, Sachs & Co.agent, or ▇▇▇ ▇▇fic▇▇Affiliate of Borrower (but specifically excluding Guarantor) or any legal representatives, ▇irector, employee, trustee, shareholder, member, partner successors or principal of any such parent, subsidiary or other affiliate (collectively, "Seller's Affiliates"), arising out of with this Agreement or the transactions contemplated hereby. Buyer agrees to look solely to Seller and its assets for the satisfaction of any liability or obligation arising under this Agreement or the transactions contemplated hereby, or for the performance assigns of any of the covenantsforegoing (collectively, warranties the “Exculpated Parties”), except that Lender may bring a foreclosure action, an action for specific performance or any other agreements contained 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 further agrees 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 to sue s▇▇ for, seek or otherwise seek to e▇▇▇rce demand any personal obligation deficiency judgment against Borrower or any of Seller's Affiliates the Exculpated Parties in any such action or proceeding under or by reason of or under or in connection with respect to any matters arising out of the Note, this Agreement Agreement, the Security Instrument or the transactions contemplated herebyother Loan Documents. The provisions of this Section 10.10shall not, however, shall not apply (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 Tishman Speyer/Travelers Real Estate Venturename 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, L.P. and Whitehall Street Real Estate Limited Partnership IX guaranty or similar instrument (collectivelyincluding, without limitation, the "Members"indemnities set forth in Article 12 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 13); (4) impair the right of Lender to obtain the appointment of a receiver; (5) impair the enforcement of the assignment of leases and rents contained in the Security Instrument; (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 any Individual 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 the amount any Losses incurred by Lender (including attorneys’ fees and costs reasonably incurred) arising out of or in connection with any of the Members has following:
(i) fraud or intentional misrepresentation or any failure to disclose a material fact by Borrower, 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 Party or the commission of a criminal act by Borrower, any SPE Component Entity, Guarantor, Sponsor or any Borrower Party which results in a forfeiture of the Property;
(iii) 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 Default by Borrower, any SPE Component Entity, Guarantor, Sponsor or any Borrower Party;
(iv) the misapplication, misappropriation or conversion by Borrower of (A) any insurance proceeds paid by reason of any loss, damage or destruction to the Property, (B) any Awards or other amounts received in connection with the Condemnation of all or a portion of the Property, (C) any Rents following an Event of Default or (D) any Tenant security deposits or Rents collected in advance;
(v) failure to pay (or cause to be paid) any 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 proceeds 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 transactions which Loan Documents);
(vi) the breach of any material representation, warranty, covenant or indemnification provision in the Environmental Indemnity, this Agreement or in the Security Instrument concerning Environmental Laws and Hazardous Substances and any indemnification of Lender with respect thereto in either document;
(vii) any fees or commissions paid by Borrower after the occurrence of an Event of Default to Guarantor, Sponsor and/or any Borrower Party in violation of the terms of the Note, this Agreement, the Security Instrument or the other Loan Documents;
(viii) Borrower’s breach of, or failure to comply with, the representations, warranties and covenants contained in Article 15 of this Agreement and/or the provisions of Sections 12.2 and 12.3 hereof;
(ix) failure to maintain insurance as required by this Agreement to the extent that the revenue from the Property is sufficient to pay the subject Insurance Premiums relating thereto (other than the failure to pay amounts deposited with Lender as Tax and Insurance 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);
(x) Borrower fails to permit on-site inspections of the Property, fails to provide the Required Financial Items or fails to appoint a new property manager upon the request of Lender, each as required by, and in accordance with the terms and provisions of, this Agreement, the Assignment of Management Agreement and the other Loan Documents or Borrower appoints a new property manager or replaces the property manager other than in accordance with the terms of this Agreement, if the remaining funds Assignment of Management Agreement and the other Loan Documents;
(xi) any litigation or other legal proceeding related to the Debt filed in bad faith by Borrower, any SPE Component Entity, Guarantor, Sponsor 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 Seller to satisfy Lender as provided herein and in the obligations other Loan Documents;
(xii) the seizure or forfeiture of the Seller Property, or any portion thereof, or Borrower’s interest therein, resulting from criminal wrongdoing by Borrower, Guarantor, Sponsor, or any Borrower Party;
(xiii) failure of Borrower to deliver the Required Estoppels; and/or
(xiv) Additional Interest not being paid. 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 representation, warranty or covenant contained in Article 5 or Article 6 or Section 4.14 hereof is violated or breached, provided, however, that any such breach or violation with respect to Article 5 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 Non-Consolidation Opinion to the effect that such failure does not negate/impair the opinion previously delivered to Lender; (ii) Borrower or any SPE Component Entity files a voluntary petition under the Bankruptcy Code or any other Creditors’ Rights Laws; (iii) 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; (iv) 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; (v) 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 custodian, receiver, trustee, or examiner for Borrower, any SPE Component Entity or any portion of the Property; (vi) Borrower or any SPE Component Entity 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; (vii) 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; (viii) 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; (ix) any casualty to the Individual Property located in Anderson, South Carolina resulting in Walgreens terminating its Lease thereof (provided, however, that Borrower’s liability pursuant to this Agreement subsection (ix) shall be limited to the difference between (a) the Allocated Loan Amount of the Individual Property located in Anderson, South Carolina and (b) the building insurance proceeds estimated to be received from the insurance carrier plus estimated the proceeds from a sale of such Individual Property), or (x) Borrower’s failure to deposit any springing Reserve Funds deposits pursuant to the transactions contemplated hereby are not at least equal to Five Million Dollars ($5,000,000) or such lower amount of liability or potential liability as the Seller may have under such agreements. The provisions terms of this Section 10.10 shall survive the termination of this Agreement and the Closing. This Section 10.10 will not apply to the parties to the Parking Easement or the Development Indemnity Agreement to the extent such claim or cause of action relates solely to the Parking Easement Agreement or the Development Indemnity Agreement, as applicable.
Appears in 1 contract
Sources: Loan Agreement (American Realty Capital Trust III, Inc.)
Exculpation. Buyer agrees that it does Notwithstanding anything to the contrary ----------- contained in the Transaction Documents, the liability and obligation of the Borrower to perform and observe and make good the obligations contained in the Transaction Documents shall not have and will not have be enforced by any claims action or causes of action proceeding wherein damages or any money judgment or any deficiency judgment or any judgment establishing any personal obligation or liability shall be sought, collected or otherwise obtained against the Borrower, the Guarantor or any disclosed past, present or undisclosed future partner, officer, directordirector or shareholder of the Borrower or the Guarantor, employeeand each Lender and the Administrative Agent for itself and its successors and assigns irrevocably waives any and all right to ▇▇▇ for, trusteeseek or demand any such damages, shareholdermoney judgment, deficiency judgment or personal judgment against the Borrower, the Guarantor or any past, present or future partner, memberofficer, principaldirector or shareholder of the Borrower or the Guarantor, parentunder or by reason of or in connection with the Transaction Documents and agrees to look solely to the security and collateral held under or in connection with the Transaction Documents for the enforcement of such liability and obligation of the Borrower. Nothing contained in this Section 9.14 shall be construed (i) as preventing the Administrative Agent or any Lender from naming the Borrower, subsidiary the Guarantor, or any past, present or future partner, officer, director or shareholder of the Borrower or the Guarantor, in any action or proceeding brought by the Administrative Agent or any Lender to enforce and to realize upon the security and collateral provided under or in connection with the Transaction Documents so long as no judgment, order, decree or other affiliate relief in the nature of Sellera personal or deficiency judgment or otherwise establishing any personal obligation shall be asked for, taken, entered or enforced against the Borrower, the Guarantor or any past, present or future partner, officer, director or shareholder of the Borrower or the Guarantor, in any such action or proceeding, (ii) as modifying, qualifying or affecting in any manner whatsoever the lien and security interests created by the Mortgage and the other Transaction Documents or the enforcement thereof by any Lender or Administrative Agent, (iii) as modifying, qualifying or affecting in any manner whatsoever the personal recourse undertakings, obligations and liabilities of any Person under any guaranty of payment, completion guaranty, other guaranty or indemnification agreement now or hereafter executed and delivered to any Lender or the Administrative Agent in connection with the Transaction, including without limitation, the personal recourse obligations and liabilities of the Borrower and the Guarantor under the Current Guarantees and of the Borrower under that certain other agreement, of even date herewith, relating to the National Football League Lease, or (iv) as modifying, qualifying or affecting in any manner whatsoever the personal recourse liability of the Borrower or the Guarantor or any other Person for fraud or willful misrepresentation, any wrongful misappropriation or diversion of any portion of the Mortgaged Property (including, without limitation, Tishman Speyer PropertiesRents, L.P. and Goldman, Sachs & Co., insurance proceeds or ▇▇▇ ▇▇fic▇▇, ▇irector, employee, trustee, shareholder, member, partner condemnation awards) or principal of any such parent, subsidiary or other affiliate (collectively, "Seller's Affiliates"), arising out of with this Agreement or the transactions contemplated hereby. Buyer agrees to look solely to Seller and its assets for the satisfaction of obligation under any liability or obligation arising under this Agreement or the transactions contemplated hereby, or for the performance of any of the covenants, warranties or other agreements contained herein, and further agrees not to sue or otherwise seek to e▇▇▇rce any personal obligation against any of Seller's Affiliates with respect to any matters arising out of this Agreement or the transactions contemplated hereby. The provisions of this Section 10.10, however, shall not apply to Tishman Speyer/Travelers Real Estate Venture, L.P. and Whitehall Street Real Estate Limited Partnership IX (collectively, the "Members") to the extent of the amount any of the Members has received from the proceeds of the transactions Transaction Document which is the subject specifically set forth therein as a recourse obligation, undertaking or liability of this Agreementsuch Person (including, if the remaining funds available to Seller to satisfy without limitation, the obligations of the Seller pursuant to this Agreement or the transactions contemplated hereby are not at least equal to Five Million Dollars Borrower under clauses ($5,000,000iii) or such lower amount and (viii) of liability or potential liability as the Seller may have under such agreements. The provisions of this Section 10.10 shall survive the termination of this Agreement and the Closing. This Section 10.10 will not apply to the parties to the Parking Easement or the Development Indemnity Agreement to the extent such claim or cause of action relates solely to the Parking Easement Agreement or the Development Indemnity Agreement, as applicable9.03(b)).
Appears in 1 contract
Exculpation. Buyer agrees that it does Subject to the qualifications below, Lender shall not have enforce the liability and will not have 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 claims action or causes of action proceeding wherein a money judgment or any deficiency judgment or other judgment establishing personal liability shall be sought against Borrower or any disclosed or undisclosed officerprincipal, director, officer, employee, trusteebeneficiary, shareholder, partner, member, principaltrustee, parentagent, subsidiary or other affiliate of SellerBorrower (but specifically excluding Guarantor) or any legal representatives, including, without limitation, Tishman Speyer Properties, L.P. and Goldman, Sachs & Co., successors or ▇▇▇ ▇▇fic▇▇, ▇irector, employee, trustee, shareholder, member, partner or principal of any such parent, subsidiary or other affiliate (collectively, "Seller's Affiliates"), arising out of with this Agreement or the transactions contemplated hereby. Buyer agrees to look solely to Seller and its assets for the satisfaction of any liability or obligation arising under this Agreement or the transactions contemplated hereby, or for the performance assigns of any of the covenantsforegoing (collectively, warranties the "Exculpated Parties"), except that Lender may bring a foreclosure action, an action for specific performance or any other agreements contained 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 further agrees 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 to sue s▇▇ for, seek or otherwise seek to e▇▇▇rce demand any personal obligation deficiency judgment against Borrower or any of Seller's Affiliates the Exculpated Parties, in any such action or proceeding under or by reason of or under or in connection with respect to any matters arising out of the Note, this Agreement Agreement, the Security Instrument or the transactions contemplated herebyother Loan Documents. The provisions of this Section 10.10shall not, however,
(a) constitute a waiver, shall not apply to Tishman Speyer/Travelers Real Estate Venture, L.P. and Whitehall Street Real Estate Limited Partnership IX (collectively, the "Members") to the extent release or impairment of the amount any obligation evidenced or secured by any of the Members has received from Loan Documents; (b) impair the proceeds right of Lender to name Borrower as a party defendant in any action or suit for foreclosure and sale under the Security Instrument; (c) affect the validity or enforceability of any indemnity, guaranty, or similar instrument made in connection with the Loan or any of the transactions which is rights and remedies of Lender thereunder; (d) impair the subject right of Lender to obtain the appointment of a receiver; (e) impair the enforcement of the assignment of leases and rents contained in the Security Instrument; (f) impair the right of Lender to enforce the provisions of the Environmental Indemnity or of Section 4.1.6(h) of this Agreement, if the remaining funds available to Seller to satisfy the obligations of the Seller pursuant to this Agreement or the transactions contemplated hereby are not at least equal to Five Million Dollars ($5,000,000) or such lower amount of liability or potential liability as the Seller may have under such agreements. The provisions of this Section 10.10 shall survive the termination of this Agreement and the Closing. This Section 10.10 will not apply to the parties to the Parking Easement or the Development Indemnity Agreement to the extent such claim or cause of action relates solely to the Parking Easement Agreement or the Development Indemnity Agreement, as applicable.;
Appears in 1 contract
Sources: Loan Agreement (Hartman Short Term Income Properties XX, Inc.)
Exculpation. Buyer agrees that it does not have and will (i) The Collateral Agent shall not have any claims duties or causes obligations except those expressly set forth herein and in the other Loan Documents, which shall be ministerial and administrative in nature. Without limiting the generality of action against the foregoing, the Collateral Agent:
(A) shall not be subject to any disclosed or undisclosed officer, director, employee, trustee, shareholder, partner, member, principal, parent, subsidiary fiduciary or other affiliate implied duties, regardless of Sellerwhether a Default or an Event of Default has occurred and is continuing; (B) shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby or by the other Loan Documents that the Collateral Agent is required to exercise or as may otherwise be directed in writing by the Lender; provided that, the Collateral Agent shall not be required to take any action that, in its opinion or the opinion of its 56 HB: 4868-8978-1628.11 counsel, may expose the Collateral Agent to liability or that is contrary to any Loan Document or applicable law, including, without limitationfor the avoidance of doubt, Tishman Speyer Propertiesany Debtor Relief Law applicable to any 57 HB: 4868-8978-1628.11 Borrower; and (C) shall not, L.P. except as expressly set forth herein and Goldmanin the other Loan Documents, Sachs & Co.have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Loan Parties or any of their Affiliates that is communicated to or obtained by the Collateral Agent or any of its Affiliates in any capacity.
(ii) The Collateral Agent shall not be liable for any action taken or not taken by it (A) with the consent or at the request of the Lender, or ▇▇▇ ▇▇fic▇▇(B) in the absence of its own gross negligence, ▇irectorfraud, employee, trustee, shareholder, member, partner or principal willful misconduct as determined by a final and non-appealable judgment of a court of competent jurisdiction.
(iii) The Collateral Agent shall not be deemed to have knowledge of any Default or Event of Default unless and until notice describing such parentDefault or Event of Default is given to the Collateral Agent in writing by any Loan Party or the Lender. In the event that the Collateral Agent receives such notice, subsidiary the Collateral Agent shall give prompt notice thereof to the Lender. Upon the occurrence of a Default or other affiliate Event of Default, the Collateral Agent shall take such action with respect to such Default or Event of Default as shall be reasonably directed by the Lender. Unless and until the Collateral Agent shall have received such direction, the Collateral Agent may (collectivelybut shall not be obligated to) take such action, "Seller's Affiliates")or refrain from taking such action, arising out with respect to any such Default or Event of Default as it shall deem advisable in the best interest of the Lender. In no event shall the Collateral Agent be required to comply with any such directions to the extent that the Collateral Agent believes that its compliance with such directions would be unlawful.
(iv) The Collateral Agent shall not be responsible for or have any duty to ascertain or inquire into (A) any statement, warranty or representation made in or in connection with this Agreement or any other Loan Document, (B) the transactions contemplated hereby. Buyer agrees to look solely to Seller and its assets for the satisfaction contents of any liability certificate, report or obligation arising under this Agreement other document delivered hereunder or the transactions contemplated herebythereunder or in connection herewith or therewith, or for (C) the performance or observance of any of the covenants, warranties agreements or other agreements contained herein, and further agrees not to sue terms or otherwise seek to e▇▇▇rce any personal obligation against any of Seller's Affiliates with respect to any matters arising out of this Agreement conditions set forth herein or therein or the transactions contemplated hereby. The provisions occurrence of this Section 10.10any Default or Event of Default, however(D) the validity, shall not apply to Tishman Speyer/Travelers Real Estate Ventureenforceability, L.P. and Whitehall Street Real Estate Limited Partnership IX (collectively, the "Members") to the extent of the amount any of the Members has received from the proceeds of the transactions which is the subject effectiveness or genuineness of this Agreement, if any other Loan Document or any other agreement, instrument or document or the remaining funds available creation, perfection or priority of any Lien purported to Seller be created by the Security Documents, (E) the value or the sufficiency of any Collateral, or (F) the satisfaction of any condition set forth in Article IV or elsewhere herein, other than to satisfy confirm receipt of items expressly required to be delivered to the obligations Collateral Agent.
(v) The Collateral Agent shall not be responsible or liable for or have any duty to ascertain, monitor or enforce, compliance with the provisions hereof relating to Disqualified Institutions. Without limiting the generality of the Seller foregoing, the Collateral Agent shall have no
(A) obligation to ascertain, monitor or inquire whether the Lender or Participant or prospective Lender or Participant is a Disqualified Institution or (B) liability with respect to or arising out of any assignment or participation of Loans, or disclosure of Information, to any Disqualified Institution.
(vi) The Collateral Agent shall have no obligation whatsoever to the Lender to assure that the Collateral exists or is owned by the Borrowers or is cared for, protected or insured or has been encumbered or that the Lien granted to the Collateral Agent pursuant to this 58 HB: 4868-8978-1628.11 Agreement or any other Loan Document has been properly or sufficiently or lawfully created, perfected, protected or enforced or is entitled to any particular priority, or to exercise at all or in any particular 59 HB: 4868-8978-1628.11 manner or under any duty of care, disclosure or fidelity, or to continue exercising, any of the transactions contemplated hereby are not at least equal to Five Million Dollars ($5,000,000) rights, authorities and powers granted or such lower amount of liability or potential liability as the Seller may have under such agreements. The provisions of this Section 10.10 shall survive the termination of this Agreement and the Closing. This Section 10.10 will not apply available to the parties to Collateral Agent in any Loan Document, it being understood and agreed that in respect of the Parking Easement Collateral, or any act, omission or event related thereto, the Development Indemnity Agreement to the extent such claim or cause of action relates solely to the Parking Easement Agreement or the Development Indemnity AgreementCollateral Agent may act in any manner it may deem appropriate, as applicablein its sole discretion.
Appears in 1 contract
Exculpation. Buyer agrees that it does not have (a) Subject to the qualifications below, no recourse shall be had against, and will not have none of Administrative Agent or any claims Lender shall enforce the liability and obligation of Borrower to perform and observe the obligations contained in the Note, this Agreement, the Security Instrument or causes of the other Loan Documents by any action against or proceeding wherein a money judgment or any disclosed deficiency judgment or undisclosed officerother judgment establishing personal liability shall be sought against, any Borrower Party or any direct or indirect principal, director, officer, employee, trusteemanager, beneficiary, parent, beneficial owner, shareholder, partner, member, principaltrustee, parent, subsidiary or other affiliate of Seller, including, without limitation, Tishman Speyer Properties, L.P. and Goldman, Sachs & Co.agent, or ▇▇▇ ▇▇fic▇▇, ▇irector, employee, trustee, shareholder, member, partner or principal Affiliate of any such parentBorrower Party or any direct or indirect legal representatives, subsidiary successors or other affiliate (collectively, "Seller's Affiliates"), arising out of with this Agreement or the transactions contemplated hereby. Buyer agrees to look solely to Seller and its assets for the satisfaction of any liability or obligation arising under this Agreement or the transactions contemplated hereby, or for the performance assigns of any of the covenantsforegoing (collectively, warranties the “Exculpated Parties”), except that Administrative Agent, on behalf of Lenders, may bring a foreclosure action, an action for specific performance or any other agreements contained appropriate action or proceeding to enforce the Note, this Agreement, the Security Instrument and the other Loan Documents, or to enable Administrative Agent to realize upon Lenders’ interest in the Property, the Rents, or any other collateral given to Administrative Agent, on behalf of Lenders, pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower’s interest in the Property, in the Rents and further agrees in any other collateral given to Lenders and Administrative Agent, on behalf of Lenders, and Administrative Agent and Lenders, by accepting the Note, this Agreement, the Security Instrument and the other Loan Documents, shall not to sue or otherwise seek to e▇▇▇rce ▇ for, seek or demand any personal obligation against any of Seller's Affiliates deficiency judgment with respect to the Loan against Borrower or any matters arising out 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 Agreement, the Security Instrument, the other Loan Documents or the transactions contemplated herebyotherwise. The provisions of this Section 10.10shall not, however, shall not apply (1) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (2) impair - 143 - the right of Administrative Agent, on behalf of Lenders, to Tishman Speyer/Travelers Real Estate Venturename any 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 Loan Document or any guaranty in connection with the Loan (including, L.P. and Whitehall Street Real Estate Limited Partnership IX (collectivelywithout limitation, the "Members"indemnities set forth in Article 12 hereof, the Guaranty and the Environmental Indemnity) made in connection with the Loan or any of the rights and remedies of Agent and Lenders thereunder; (4) intentionally omitted, (5) impair the right of Administrative Agent, on behalf of Lenders, to (A) obtain the appointment of a receiver and/or (B) enforce its rights and remedies provided in Articles 8 and 9 hereof; (6) impair the enforcement of the assignment of leases and rents contained in the Security Instrument and in any other Loan Documents; (7) constitute a prohibition against Administrative Agent, on behalf of Lenders, 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 to exercise Lenders’ remedies against the Property or any portion thereof; or (8) constitute a waiver of the right of Administrative Agent and Lenders to enforce the liability and obligation of Borrower, by money judgment or otherwise, to the extent of any actual Losses incurred by Administrative Agent and/or Lenders (including actual out-of-pocket 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 willful misconduct of any Borrower Party in connection with the Loan;
(iii) any litigation or other legal proceeding (including, the raising of defenses) related to the Debt filed or raised by any Borrower Party that delays, opposes, impedes, obstructs, hinders, enjoins or otherwise interferes with or frustrates the efforts of Administrative Agent or any Lender to exercise any rights and remedies available to Administrative Agent or any Lender as provided herein and in the other Loan Documents which is found by a court of competent jurisdiction to be without merit or brought or raised, as applicable, in bad faith;
(iv) intentional physical waste to the Property in violation of the terms of this Agreement caused by any Borrower Party and/or the removal or disposal of any portion of the Property in violation of the terms of this Agreement during the continuance of an Event of Default;
(v) the 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, or (D) any Security Deposits or Rents collected in advance;
(vi) to the extent there exists sufficient cash flow from the Property to pay Taxes or charges for labor or materials or other charges that create liens on any portion of the amount Property, Borrower’s failure to pay (or Borrower’s failure to cause payment of) such Taxes or charges (except to the extent (A) sums sufficient to pay such Taxes or charges have been deposited with Administrative Agent in accordance with the terms of this Agreement or (B) such cash flow is not being made available to Borrower by Administrative Agent as a result of Administrative Agent’s exercise of its remedies under the Loan Documents) unless such Taxes or other charges are being contested as permitted hereunder;
(vii) to the extent there exists sufficient cash flow from the Property to pay Insurance Premiums and/or to maintain the Policies in full force and effect, Borrower’s failure to pay (or Borrower’s failure to cause payment of) such Insurance Premiums and/or to maintain the Policies in full force and effect, in each case, as expressly provided herein (except to the (A) extent sums sufficient to pay such Insurance Premiums and/or to maintain the Policies have been deposited with Administrative Agent in accordance with the terms of this Agreement or (B) such cash flow is not being made available to Borrower by Administrative Agent as a result of Administrative Agent’s exercise of its remedies under the Loan Documents);
(viii) any Security Deposits which are not delivered to Administrative Agent on behalf of Lenders by a Borrower Party following 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 Members applicable Leases prior to the occurrence of an Event of Default;
(ix) if as a result of the actions or inactions of Borrower or its Affiliates (including, without limitation, Borrower failing to comply with the terms of such Property Document) any Property Document is (A) materially modified in a manner adverse to Administrative Agent or any Lender or Borrower, (B) terminated, (C) cancelled or (D) otherwise ceases to exist, except in each of the foregoing cases, if such action or inaction of Borrower or its Affiliates is permitted pursuant to the terms of this Agreement and/or Administrative Agent has received approved the same;
(x) any representation, warranty or covenant contained in Article 5 hereof is violated or breached; provided, however, that solely with respect to a breach of Section 5.1(a)(vii) that arise from Borrower’s failure to pay trade and operational indebtedness, such breach shall not result in recourse under the Loan pursuant to this clause (x), if cash flow from the proceeds Property available to Borrower is not sufficient to pay such amounts;
(xi) except as set forth in Section 13.1(b) below, (A) Borrower fails to obtain Lender’s prior consent to any Prohibited Transfer as required by this Agreement (other than a Permitted Transfer) or (B) any covenant contained in Section 6.6 hereof is violated or breached; and/or
(xii) Borrower gives notice of termination of the transactions which Restricted Account Agreement other than in accordance with Section 8(d) of the Restricted Account Agreement in effect as of the Closing Date and the Restricted Account Agreement is terminated by Bank as a result of such notice.
(b) Notwithstanding anything to the subject of contrary in this Agreement, if the remaining funds available to Seller to satisfy the obligations Note or any of the Seller pursuant Loan Documents, (A) Administrative Agent and Lenders shall not be deemed to this Agreement or the transactions contemplated hereby are not at least equal to Five Million Dollars ($5,000,000) or such lower amount of liability or potential liability as the Seller have waived any right which Administrative Agent and Lenders may have under such agreements. The 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 Administrative Agent and Lenders 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) any voluntary Sale or Pledge of the Property (other than (i) an easement (except for an easement affecting the Property that interferes or impairs in a material way Borrower’s ability to use and operate the Property as currently used or that otherwise has a Material Adverse Effect), (ii) a covenant or restriction that (A) does not interfere with or impair in a material way Borrower’s ability to use and operate the Property as currently used and (B) does not have a Material Adverse Effect, and (iii) a Lease entered into at the Property (except for a lease of all or a majority of the Property, a ground lease, or a master lease)) or any direct or indirect interest in Borrower or Guarantor that results in a failure to comply with the Minimum Ownership/Control Test, in each case in violation of the terms of this Agreement (but excluding (x) any failure to comply with the requirements in any of clause (A), (D), (E), (G) or (H) appearing in the definition of “Permitted Transfer” in Section 10.10 shall survive the termination 6.3 of this Agreement and (y) any violation as a result of a failure of a Mezzanine Lender to comply with the Closing. This Section 10.10 will not apply Intercreditor Agreement);
(iii) if Borrower fails to obtain Administrative Agent’s prior consent (if and to the parties extent required under the Loan Documents) to (A) any subordinate financing or other voluntary liens encumbering the Parking Easement Property that are not considered Permitted Encumbrances hereunder or the Development Indemnity Agreement (B) any subordinate financing or other voluntary liens encumbering: (1) a direct interest in any subsidiary of Guarantor to the extent such claim subsidiary owns a direct or cause indirect interest in Borrower; or (2) a direct or indirect interest in Borrower if foreclosed upon would result in the Minimum Ownership/Control Test not being met; and/or
(iv) if any representation, warranty or covenant contained in Article 5 hereof is violated or breached and such violation or breach results in the substantive consolidation of action relates solely to the Parking Easement Agreement or assets and liabilities of Borrower with the Development Indemnity Agreement, as applicableassets and liabilities of any other Person.
Appears in 1 contract
Sources: Loan Agreement (Brookfield DTLA Fund Office Trust Investor Inc.)
Exculpation. Buyer agrees that it does (a) Subject to the qualifications below, Lender shall not have enforce the liability and will not have 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 claims action or causes of action proceeding wherein a money judgment or any deficiency judgment or other judgment establishing personal liability shall be sought against Borrower or any disclosed or undisclosed officerprincipal, director, officer, employee, trusteebeneficiary, shareholder, partner, member, principaltrustee, parentagent, subsidiary or other affiliate of SellerBorrower (but specifically excluding Guarantor) or any legal representatives, including, without limitation, Tishman Speyer Properties, L.P. and Goldman, Sachs & Co., successors or ▇▇▇ ▇▇fic▇▇, ▇irector, employee, trustee, shareholder, member, partner or principal of any such parent, subsidiary or other affiliate (collectively, "Seller's Affiliates"), arising out of with this Agreement or the transactions contemplated hereby. Buyer agrees to look solely to Seller and its assets for the satisfaction of any liability or obligation arising under this Agreement or the transactions contemplated hereby, or for the performance assigns of any of the covenantsforegoing (collectively, warranties the “Exculpated Parties”), except that Lender may bring a foreclosure action, an action for specific performance or any other agreements contained 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 further agrees 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 to sue or otherwise seek to e▇▇▇rce ▇ for, seek or demand any personal obligation deficiency judgment against Borrower or any of Seller's Affiliates the Exculpated Parties in any such action or proceeding under or by reason of or under or in connection with respect to any matters arising out of the Note, this Agreement Agreement, the Security Instrument or the transactions contemplated herebyother Loan Documents. The provisions of this Section 10.10shall not, however, shall not apply (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 Tishman Speyer/Travelers Real Estate Venturename 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, L.P. guaranty or similar instrument (including, without limitation, indemnities set forth in Article 12 hereof, Section 11.2 hereof, in the Guaranty and Whitehall Street Real Estate Limited Partnership IX the Environmental Indemnity) made in connection with the Loan or any of the rights and remedies of Lender thereunder (collectivelyincluding, without limitation, Lender’s right to enforce said rights and remedies against Borrower and/or Guarantor (as applicable) personally and without the "Members"effect of the exculpatory provisions of this Article 13); (4) impair the right of Lender to obtain the appointment of a receiver; (5) impair the enforcement of the Assignment of Leases; (6) impair the right of Lender to enforce Section 4.12(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 amount following:
(i) fraud or intentional misrepresentation by Borrower, any of the Members has received from Exculpated Parties, Sponsor or Guarantor in connection with the proceeds Loan;
(ii) the gross negligence or willful misconduct of Borrower, its agents, Affiliates, officers, or employees;
(iii) any litigation or other legal proceeding related to the Debt filed by Borrower or any Affiliate thereof that delays or impairs Lender’s ability to preserve, enforce or foreclose its lien on the Property in which action a claim, counterclaim, or defense is asserted against Lender;
(iv) waste to the Property caused by the intentional acts or intentional omissions of Borrower, its agents, Affiliates, officers, employees or contractors and/or the removal or disposal of any portion of the transactions Property after an Event of Default;
(v) the misapplication, misappropriation or conversion by Borrower of (A) any insurance proceeds paid by reason of any loss, damage or destruction to the Property, (B) any Awards or other amounts received in connection with the Condemnation of all or a portion of the Property, (C) any Rents following an Event of Default or (D) any Tenant security deposits or Rents collected in advance;
(vi) 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;
(vii) any security deposits, advance deposits or any other deposits collected with respect to the Property which is are not delivered to Lender upon a foreclosure of the subject Property or action in lieu thereof, except to the extent any such security deposits were applied in accordance with the terms and conditions of any of the Leases prior to the occurrence of the Event of Default that gave rise to such foreclosure or action in lieu thereof;
(viii) any tax on the making and/or recording of the Security Instrument, the Note or any of the other Loan Documents (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;
(ix) the seizure or forfeiture of the Property, or any portion thereof, or Borrower’s interest therein, resulting from criminal wrongdoing by Borrower, its agents, Affiliates, officers, or employees; or
(x) any violation or breach of any representation, warranty or covenant contained in Article 5 hereof;
(b) Notwithstanding anything to the contrary in this Agreement, if the remaining funds available to Seller to satisfy the obligations Note or any of the Seller pursuant Loan Documents, (A) Lender shall not be deemed to this Agreement or the transactions contemplated hereby are not at least equal to Five Million Dollars ($5,000,000) or such lower amount of liability or potential liability as the Seller have waived any right which Lender may have under such agreements. The Section 506(a), 506(b), 1111(b) or any other provisions of this Section 10.10 the Bankruptcy Code to file a claim for the full amount of the Debt or to require that all collateral shall survive continue to secure all of the termination 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 permit on-site inspections of the Property, fails to provide the Required Financial Items or fails to appoint a new property manager upon the request of Lender, each as required by, and in accordance with the terms and provisions of, this Agreement and the Closing. This Section 10.10 will not apply Security Instrument; (iii) any representation, warranty or covenant contained in Article 6 hereof is violated or breached; (iv) Borrower files a voluntary petition under the Bankruptcy Code or any other Creditors Rights Laws; (v) an Affiliate, officer, director, or representative which Controls, directly or indirectly, Borrower files, or joins in the filing of, an involuntary petition against Borrower under the Bankruptcy Code or any other 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 involuntary petition filed against it, by any other Person under the parties 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 Parking Easement appointment of a custodian, receiver, trustee, or examiner for Borrower or any portion of the Development Indemnity Agreement to the extent such claim or cause of action relates solely to the Parking Easement Agreement or the Development Indemnity Agreement, as applicable.Property; or
Appears in 1 contract
Exculpation. Buyer agrees It is expressly understood and agreed by and between the parties hereto, anything herein to the contrary notwithstanding, that it does each and all of the representations, warranties, covenants, undertakings, and agreements herein made on the part of any Landlord while in form purporting to be the representations, warranties, covenants, undertakings, and agreements of such Landlord are nevertheless each and every one of them made and intended, not have as personal representations, warranties, covenants, undertakings, and will not have agreements by such Landlord or for the purpose or with the intention of binding such Landlord personally, but are made and intended for the purpose only of subjecting such Landlord's interest in the Building to the terms of the Lease and for no other purpose whatsoever. The liability of Landlord to Tenant for any claims default by Landlord under the Lease or causes of action against any disclosed arising in connection herewith or undisclosed officerwith Landlord's operation, directormanagement, employeeleasing, trusteerepair, shareholderrenovation, partner, member, principal, parent, subsidiary or other affiliate of Seller, including, without limitation, Tishman Speyer Properties, L.P. and Goldman, Sachs & Co.alteration, or ▇▇▇ ▇▇fic▇▇, ▇irector, employee, trustee, shareholder, member, partner or principal of any such parent, subsidiary or other affiliate (collectively, "Seller's Affiliates"), arising out of with this Agreement matter relating to the Building or the transactions contemplated herebyPremises, shall be limited to the interest of Landlord in the Building (and the rental proceeds thereof). Buyer Tenant agrees to look solely to Seller Landlord's interest in the Building (and its assets the rental proceeds thereof) for the satisfaction recovery of any judgment against Landlord, and Landlord shall not be personally liable for any such judgment or deficiency after execution thereon. The limitations of liability contained in this provision shall apply equally and inure to the benefit of Landlord's present and future partners, beneficiaries, officers, directors, trustees, shareholders, agents and employees, and their respective partners, heirs, successors and assigns. Under no circumstances shall any present or obligation arising under this Agreement future general or the transactions contemplated herebylimited partner of Landlord (if Landlord is a partnership), or trustee or beneficiary (if Landlord or any partner of Landlord is a trust) have any liability for the performance of any of Landlord's obligations under the covenantsLease. Notwithstanding the foregoing to the contrary, warranties or other agreements contained hereinLandlord shall have personal liability for insured claims, beyond Landlord's interest in the Building (and further agrees not to sue or otherwise seek to e▇▇▇rce any personal obligation against any of Seller's Affiliates with respect to any matters arising out of this Agreement or the transactions contemplated hereby. The provisions of this Section 10.10rental proceeds thereof), however, shall not apply to Tishman Speyer/Travelers Real Estate Venture, L.P. and Whitehall Street Real Estate Limited Partnership IX (collectively, the "Members") to the extent of the amount any of the Members has received from the proceeds of the transactions which is the subject of this Agreement, if the remaining funds Landlord's liability insurance coverage available to Seller to satisfy the obligations of the Seller pursuant to this Agreement or the transactions contemplated hereby are not at least equal to Five Million Dollars ($5,000,000) or for such lower amount of liability or potential liability as the Seller may have under such agreements. The provisions of this Section 10.10 shall survive the termination of this Agreement and the Closing. This Section 10.10 will not apply to the parties to the Parking Easement or the Development Indemnity Agreement to the extent such claim or cause of action relates solely to the Parking Easement Agreement or the Development Indemnity Agreement, as applicableclaims.
Appears in 1 contract
Exculpation. Buyer agrees that it does not have and will The Administrative Agent shall not have any claims duties or causes obligations, except those expressly set forth herein and in the other Loan Documents, and its duties hereunder shall be administrative in nature. Without limiting the generality of action against the foregoing, the Administrative Agent:
(a) shall not have or be deemed to have any disclosed fiduciary relationship with any Lender or undisclosed officer, director, employee, trustee, shareholder, partner, member, principal, parent, subsidiary Issuing Bank or be subject to any fiduciary or other affiliate implied duties, regardless of Sellerwhether a Default has occurred and is continuing, includingand no implied covenants, without limitationfunctions, Tishman Speyer Propertiesresponsibilities, L.P. duties, obligations or liabilities shall be read into this Agreement or any other Loan Document or otherwise exist against the Administrative Agent;
(b) shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and Goldman, Sachs & Co.powers expressly contemplated hereby or by the other Loan Documents that the Administrative Agent is required to exercise as directed in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be, or ▇▇▇ ▇▇fic▇▇as the Administrative Agent shall believe in good faith to be, ▇irectorexpressly provided for herein or in the other Loan Documents), employeeprovided that the Administrative Agent shall not be required to take any action that, trusteein its opinion or the opinion of its counsel, shareholdermay expose the Administrative Agent to liability or that is contrary to any Loan Document or applicable law, memberincluding for the avoidance of doubt any action that may be in violation of the automatic stay under any applicable bankruptcy or insolvency proceeding or that may affect a forfeiture, partner modification or principal termination of property of a Defaulting Lender in violation of any applicable bankruptcy or insolvency law; and
(c) shall not, except as expressly set forth herein and in the other Loan Documents, have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Borrower or any of its Affiliates that is communicated to or obtained by the Person serving as the Administrative Agent or any of its Affiliates in any capacity. The Administrative Agent and its Related Parties shall not be liable for any action taken or not taken by it (i) with the consent or at the request of the Required Lenders (or such parentother number or percentage of the Lenders as shall be necessary, subsidiary or as the Administrative Agent shall believe in good faith shall be necessary, under the circumstances as provided herein or in the other affiliate Loan Documents) or (collectivelyii) in the absence of its own gross negligence or willful misconduct (such absence to be preserved unless otherwise determined by a court of competent jurisdiction by final and nonappealable judgment). The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice (stating that it is a “notice of default”) describing such Default is given to the Administrative Agent by the Borrower, "Seller's Affiliates")a Lender or an Issuing Bank. The Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, arising out of warranty or representation made in or in connection with this Agreement or any other Loan Document, (ii) the transactions contemplated hereby. Buyer agrees to look solely to Seller and its assets for the satisfaction contents of any liability certificate, report or obligation arising under this Agreement other document delivered hereunder or the transactions contemplated herebythereunder or in connection herewith or therewith, or for (iii) the performance or observance of any of the covenants, warranties agreements or other agreements contained herein, and further agrees not to sue terms or otherwise seek to e▇▇▇rce any personal obligation against any of Seller's Affiliates with respect to any matters arising out of this Agreement conditions set forth herein or therein or the transactions contemplated hereby. The provisions occurrence of this Section 10.10any Default, however(iv) the sufficiency, shall not apply to Tishman Speyer/Travelers Real Estate Venturevalidity, L.P. and Whitehall Street Real Estate Limited Partnership IX (collectivelyenforceability, the "Members") to the extent of the amount any of the Members has received from the proceeds of the transactions which is the subject effectiveness or genuineness of this Agreement, if any other Loan Document or any other agreement, instrument or document or (v) the remaining funds available satisfaction of any condition set forth in Article V or elsewhere herein, other than to Seller confirm receipt of items expressly required to satisfy the obligations of the Seller pursuant to this Agreement or the transactions contemplated hereby are not at least equal to Five Million Dollars ($5,000,000) or such lower amount of liability or potential liability as the Seller may have under such agreements. The provisions of this Section 10.10 shall survive the termination of this Agreement and the Closing. This Section 10.10 will not apply be delivered to the parties to the Parking Easement or the Development Indemnity Agreement to the extent such claim or cause of action relates solely to the Parking Easement Agreement or the Development Indemnity Agreement, as applicableAdministrative Agent.
Appears in 1 contract
Sources: Third Amendment (Noble Energy Inc)
Exculpation. Buyer agrees that it does not have and will The Administrative Agent shall not have any claims duties or causes obligations except those expressly set forth herein. Without limiting the generality of action against the foregoing, (a) the Administrative Agent shall not be subject to any disclosed or undisclosed officer, director, employee, trustee, shareholder, partner, member, principal, parent, subsidiary fiduciary or other affiliate implied duties, regardless of Sellerwhether a Default has occurred and is continuing, including(b) the Administrative Agent shall not be responsible to any Lender for any recitals, without limitationstatements, Tishman Speyer Properties, L.P. and Goldman, Sachs & Co.representations or warranties contained in this Agreement or any other Loan Document or in any writing furnished or provided by or on behalf of the Borrower or any other Obligor pursuant to this Agreement or any other Loan Document, or ▇▇▇ ▇▇fic▇▇in any certificate or other document referred to or provided for in, ▇irectoror received by it under, employeethis Agreement or any other Loan Document, trusteeor for the value, shareholdervalidity, membereffectiveness, partner genuineness, enforceability or principal sufficiency of this Agreement or any other Loan Document or any document referred to or provided for herein or therein, or any Property covered thereby or for any failure by the Borrower or any other Person to perform any of its obligations hereunder or thereunder; (c) the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby that the Administrative Agent is required to exercise in writing as directed by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 9.02), and (d) except as expressly set forth herein, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Borrower or any of its Subsidiaries that is communicated to or obtained by the lender serving as Administrative Agent or any of its Affiliates in any capacity. The Administrative Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 9.02) or in the absence of its own gross negligence or willful misconduct. The Administrative Agent shall be deemed not to have knowledge of any such parentDefault unless and until written notice thereof is given to the Administrative Agent by the Borrower or a Lender, subsidiary and the Administrative Agent shall not be responsible for or other affiliate have any duty to ascertain or inquire into (collectivelyi) any statement, "Seller's Affiliates"), arising out of warranty or representation made in or in connection with this Agreement or any other Loan Document, (ii) the transactions contemplated hereby. Buyer agrees to look solely to Seller and its assets for the satisfaction contents of any liability certificate, report or obligation arising under this Agreement other document delivered hereunder or the transactions contemplated herebyin connection herewith, or for (iii) the performance or observance of any of the covenants, warranties agreements or other agreements contained hereinterms or conditions set forth herein or any other Loan Document, and further agrees not to sue (iv) the validity, enforceability, effectiveness or otherwise seek to e▇▇▇rce any personal obligation against any of Seller's Affiliates with respect to any matters arising out genuineness of this Agreement or any other agreement, instrument or document, or (v) the transactions contemplated hereby. The provisions satisfaction of this Section 10.10any condition set forth in Article IV or elsewhere herein, however, shall not apply other than to Tishman Speyer/Travelers Real Estate Venture, L.P. and Whitehall Street Real Estate Limited Partnership IX (collectively, the "Members") confirm receipt of items expressly required to be delivered to the extent of the amount any of the Members has received from the proceeds of the transactions which is the subject of this Agreement, if the remaining funds available to Seller to satisfy the obligations of the Seller pursuant to this Agreement or the transactions contemplated hereby are not at least equal to Five Million Dollars ($5,000,000) or such lower amount of liability or potential liability as the Seller may have under such agreements. The provisions of this Section 10.10 shall survive the termination of this Agreement and the Closing. This Section 10.10 will not apply to the parties to the Parking Easement or the Development Indemnity Agreement to the extent such claim or cause of action relates solely to the Parking Easement Agreement or the Development Indemnity Agreement, as applicableAdministrative Agent.
Appears in 1 contract
Exculpation. Buyer agrees Except as otherwise specifically provided in the Plan, the Confirmation Order or this Agreement, after the Effective Date, neither the Liquidating Trustee nor the Liquidating Trustee’s Agents shall have or incur liability to one another or against any Holder of a Claim or Interest, or any other party in interest, or any of their respective officers, directors, shareholders, members and/or enrollees, employees, representatives, advisors, attorneys, financial advisors, investment bankers, agents, related professionals or affiliates, or any of their successors or assigns, for any act or omission occurring or failing to occur after the Petition Date in connection with, relating to, or arising out of, the Chapter 11 Cases, the negotiation and execution of the Plan, the Disclosure Statement, this Agreement, the Asset Purchase Agreement and related sale process, the solicitation of votes for and the pursuit of confirmation of the Plan, the consummation of the Plan, the management of the Liquidating Trust, the liquidation of the Liquidating Trust Assets, the administration of the Plan and/or the property to be distributed under the Plan, including all documents ancillary thereto, all decisions, actions, inactions and alleged negligence or misconduct relating thereto; provided, however, that the foregoing shall not apply if it does not have is determined in a Final Order that the Liquidating Trustee or the Liquidating Trustee’s Agents engaged in fraud, willful misconduct or gross negligence. As of the Effective Date, notwithstanding any provision of the Plan, neither any Holder of a Claim or Interest, nor other party in interest, nor any of their respective officers, directors, shareholders, members and/or enrollees, employees, representatives, advisors, attorneys, financial advisors, investment bankers, related professionals, agents or affiliates, and will not no successors or assigns of the foregoing, shall have any claims or causes right of action against the Liquidating Trustee or the Liquidating Trustee’s Agents for any disclosed act or undisclosed officeromission occurring or failing to occur after the Petition Date in connection with, director, employee, trustee, shareholder, partner, member, principal, parent, subsidiary or other affiliate of Seller, including, without limitation, Tishman Speyer Properties, L.P. and Goldman, Sachs & Co.relating to, or ▇▇▇ ▇▇fic▇▇, ▇irector, employee, trustee, shareholder, member, partner or principal of any such parent, subsidiary or other affiliate (collectively, "Seller's Affiliates"), arising out of with this Agreement or of, the transactions contemplated hereby. Buyer agrees to look solely to Seller Chapter 11 Cases, the negotiation and its assets for the satisfaction of any liability or obligation arising under this Agreement or the transactions contemplated hereby, or for the performance of any execution of the covenantsPlan, warranties the Disclosure Statement, this Agreement, the Asset Purchase Agreement and related sale process, the solicitation of votes for and the pursuit of confirmation of the Plan, the management of the Liquidating Trust, the liquidation of Liquidating Trust Assets, the consummation of the Plan, the administration of the Plan and/or the property to be distributed under the Plan, including all documents ancillary thereto, all decisions, actions, inactions and alleged negligence or other agreements contained herein, and further agrees not to sue or otherwise seek to e▇▇▇rce any personal obligation against any of Seller's Affiliates with respect to any matters arising out of this Agreement or the transactions contemplated hereby. The provisions of this Section 10.10misconduct relating thereto; provided, however, that the foregoing shall not apply to Tishman Speyer/Travelers Real Estate Venture, L.P. and Whitehall Street Real Estate Limited Partnership IX (collectively, if it is determined in a Final Order that the "Members") to the extent of the amount any of the Members has received from the proceeds of the transactions which is the subject of this Agreement, if the remaining funds available to Seller to satisfy the obligations of the Seller pursuant to this Agreement Liquidating Trustee or the transactions contemplated hereby are not at least equal to Five Million Dollars ($5,000,000) Liquidating Trustee’s Agents engaged in fraud, willful misconduct or such lower amount of liability or potential liability as the Seller may have under such agreements. The provisions of this Section 10.10 shall survive the termination of this Agreement and the Closing. This Section 10.10 will not apply to the parties to the Parking Easement or the Development Indemnity Agreement to the extent such claim or cause of action relates solely to the Parking Easement Agreement or the Development Indemnity Agreement, as applicablegross negligence.
Appears in 1 contract
Sources: Liquidating Trust Agreement
Exculpation. Buyer agrees that it does not None of the Debtors or Reorganized Drug Emporium, or any of their respective officers, directors, employees, advisors, attorneys, or agents, have or may incur any liability to any holder of a Claim or Equity Interest, including the holder of any Equity Related Claim, or any other party in interest, or any of their respective members or former members, agents, employees, representatives, financial advisors, attorneys, 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 Cases, the negotiation and will not execution of the prepetition Reorganization Agreement, the negotiation and pursuit of Confirmation of the Plan, or the consummation of the Plan, or the administration of the Plan except for their acts or omissions constituting willful misconduct, as finally determined by a court of competent jurisdiction and in all respects are entitled to reasonably rely upon the advice of counsel with respect to their duties and responsibilities under the Plan or in the context of the Chapter 11 Cases. No holder of a Claim, Equity Interest, or Equity Related Claim, or any other party in interest, including their respective agents, employees, representatives, financial advisors, attorneys, or affiliates, have any right of action against the Debtors or Reorganized Drug Emporium, or any of their respective officers, directors, employees, advisors, attorneys, or agents, for any act or omission in connection with, relating to, or arising out of, the Chapter 11 Cases, the negotiation and execution of the prepetition Restructuring Agreement, the negotiation and pursuit of Confirmation of the Plan, the consummation of the Plan, or the administration of the Plan, except for their acts or omissions constituting willful misconduct as finally determined by a court of competent jurisdiction. In addition, as of the Effective Date, the Debtors shall be deemed to have released its current and prior directors and officers from any claims or causes of action the Debtors may have against any disclosed such parties, unless such claims or undisclosed officer, director, employee, trustee, shareholder, partner, member, principal, parent, subsidiary or other affiliate causes of Seller, including, without limitation, Tishman Speyer Properties, L.P. and Goldman, Sachs & Co., or ▇▇▇ ▇▇fic▇▇, ▇irector, employee, trustee, shareholder, member, partner or principal of any such parent, subsidiary or other affiliate (collectively, "Seller's Affiliates"), arising action arise out of with this Agreement acts or the transactions contemplated hereby. Buyer agrees to look solely to Seller and its assets for the satisfaction of any liability or obligation arising under this Agreement or the transactions contemplated hereby, or for the performance of any of the covenants, warranties or other agreements contained herein, and further agrees not to sue or otherwise seek to e▇▇▇rce any personal obligation against any of Seller's Affiliates with respect to any matters arising out of this Agreement or the transactions contemplated hereby. The provisions of this Section 10.10, however, shall not apply to Tishman Speyer/Travelers Real Estate Venture, L.P. and Whitehall Street Real Estate Limited Partnership IX (collectively, the "Members") to the extent of the amount any of the Members has received from the proceeds of the transactions which is the subject of this Agreement, if the remaining funds available to Seller to satisfy the obligations of the Seller pursuant to this Agreement or the transactions contemplated hereby are not at least equal to Five Million Dollars ($5,000,000) or omissions by such lower amount of liability or potential liability as the Seller may have under such agreements. The provisions of this Section 10.10 shall survive the termination of this Agreement and the Closing. This Section 10.10 will not apply to the parties to the Parking Easement or the Development Indemnity Agreement to the extent such claim or cause of action relates solely to the Parking Easement Agreement or the Development Indemnity Agreement, as applicableconstituting willful misconduct.
Appears in 1 contract
Sources: Acquisition and Reorganization Agreement (Drug Emporium Inc)
Exculpation. Buyer agrees that it does The liability of Borrower with respect to the payment of principal and interest hereunder shall be “non-recourse.” Except as hereinafter provided, ▇▇▇▇▇▇’s source of satisfaction of Borrower’s obligations under this Note and the other Loan Documents shall be limited to the Property and Lender’s receipt of the rents, issues and profits from the Property and any other security or collateral now or hereafter held by Lender, and Lender shall not have and will not have seek to procure payment out of any claims or causes other assets of action against any disclosed or undisclosed officer, director, employee, trustee, shareholder, partner, member, principal, parent, subsidiary or other affiliate of Seller, including, without limitation, Tishman Speyer Properties, L.P. and Goldman, Sachs & Co.Borrower, or any person or entity comprising Borrower, or to seek judgment (except as hereinafter provided) for any sums which are or may be payable under this Note or any of the other Loan Documents, as well as any claim or judgment (except as hereafter provided) for any deficiency remaining after foreclosure of the Deed of Trust. Notwithstanding the foregoing, nothing herein contained shall be deemed to be a release or impairment of the Loan evidenced by this Note or the security therefor intended by the other Loan Documents, or be deemed to preclude Lender from exercising its rights to foreclose the Deed of Trust or to enforce any of its other rights or remedies under the Loan Documents. Notwithstanding the foregoing, it is expressly understood and agreed that the aforesaid limitation on liability shall in no way affect or apply to the continued personal liability of Borrower for all sums due to:
(a) fraud, willful misconduct or material misrepresentation made in or in connection with the Application for Mortgage Loan dated August 1, 2002, and any subsequent amendments thereto, this Note or any of the other Loan Documents;
(b) the failure to pay taxes which accrue prior to Lender taking control of the Property or to pay assessments or any other governmental impositions, charges for labor, materials or any other charges which may create liens on any portion of the Property;
(c) the misapplication or misappropriation of (i) proceeds of insurance covering any portion of the Property; (ii) proceeds of the sale, condemnation or transfer in lieu of condemnation of any portion of the Property; or (iii) rentals received by or on behalf of Borrower subsequent to the date on which ▇▇▇▇▇▇ makes written demand therefor pursuant to any of the Loan Documents;
(d) causing or permitting waste or causing arson to occur in, on or about the Property, and failing to maintain the Property, except for ordinary wear and tear;
(e) the failure to return to Lender all unearned advance rentals and security deposits that have been paid by tenants of the Property to the extent that such amounts have not been refunded to or forfeited by such tenants;
(f) the failure to pay any and all tenant improvement allowances owed to tenants leasing space in the Property;
(g) the failure to pay to Lender any and all fees paid to Borrower by any tenant of the Property which fees permit the tenant to terminate its lease or otherwise abandon or vacate its leased premises;
(h) loss by fire or any other casualty to the extent not compensated by insurance proceeds collected by or remitted to Lender, as a result of ▇▇fic▇▇▇▇▇▇’s failure to comply with the insurance provisions of the Deed of Trust;
(i) the failure to return to or reimburse Lender for all Fixtures and Personal Property (as defined in the Deed of Trust) owned by ▇▇▇▇▇▇▇▇ and taken from the Property by or on behalf of ▇▇▇▇▇▇▇▇, out of the ordinary course of business, and not replaced by items with values equal to or greater than the original values of the Fixtures and Personal Property so removed;
(j) all court costs and Reasonable Attorneys’ Fees actually incurred by ▇irector, employee, trustee, shareholder, member, partner ▇▇▇▇▇ for which Borrower is liable pursuant to the terms of this Note or principal any of the other Loan Documents;
(i) the removal of any such parentchemical, subsidiary material or substance in excess of legal limits or which is required by any governmental entity, to which exposure is prohibited, limited or regulated by any federal, state, county or local authority, and which may or could pose a hazard to the health and safety of the occupants of the Property (which substances are also further defined in the Deed of Trust as “Hazardous Materials”), regardless of the source of origination (including sources off the Property which migrate onto the Property or its groundwater); (ii) the restoration of the Property to comply with all governmental regulations pertaining to Hazardous Materials found in, on or under the Property, regardless of the source of origination (including sources off the Property which migrate onto the Property or its groundwater); and (iii) any indemnity or other affiliate (collectivelyagreement to hold Lender harmless from and against any and all losses, "Seller's Affiliates")liabilities, arising out of with this Agreement or the transactions contemplated hereby. Buyer agrees to look solely to Seller damages, injuries, costs and its assets for the satisfaction expenses of any liability and every kind arising as a result of the existence and/or removal of Hazardous Materials and from the violation of Hazardous Waste Laws (as defined in the Deed of Trust). Borrower shall not be liable hereunder if the Property becomes contaminated for reasons other than the acts or obligation arising omissions of Borrower or subsequent to Lender’s acquisition of the Property by foreclosure or acceptance of a deed in lieu thereof, or subsequent to any transfer of ownership of the Property which was approved or authorized in writing by Lender pursuant to the Deed of Trust, provided that such transferee assumes in writing all obligations of Borrower under the Loan Documents pertaining to Hazardous Materials. Liability under this Agreement subsection (k) shall extend beyond repayment of the Loan through the applicable statute of limitations period and compliance with the terms of the Note and compliance with the terms of the Deed of Trust unless Borrower at such time provides Lender with an environmental assessment report acceptable to Lender, in ▇▇▇▇▇▇’s sole discretion, showing the Property to be free of Hazardous Materials and not in violation of Hazardous Waste Laws. The burden of proof under this subsection with regard to establishing the date upon which such Hazardous Materials were placed or appeared in, on or under the transactions contemplated herebyProperty shall be upon Borrower;
(i) any and all costs incurred in order to cause the Property to comply with any applicable Accessibility Laws (as defined in the Deed of Trust) and (ii) any indemnity or other agreements to hold Lender harmless from and against any and all losses, liabilities, damages, injuries, costs or expenses of any kind arising as a result of non-compliance with any applicable Accessibility Laws. Borrower shall not be liable hereunder for compliance with any applicable Accessibility Laws that first become effective, or for any violation of any applicable Accessibility Laws resulting from alterations or improvements to the performance Property that are performed subsequent to Lender’s acquisition of the Property by foreclosure or acceptance of a deed in lieu thereof or subsequent to any transfer of ownership of the Property which was approved or authorized in writing by Lender pursuant to the Deed of Trust, provided that such transferee assumes in writing all obligations of Borrower pertaining to any applicable Accessibility Laws pursuant to the terms of the Loan Documents. The burden of proof under this subsection with regard to establishing the date upon which such non-compliance with any Accessibility Laws occurred at the Property shall be upon Borrower;
(m) failure to remit to Lender any amounts under any letter of credit (or any renewals and/or replacements thereof) supplied by Borrower to Lender in connection with the Loan, this Note or any of the covenantsother Loan Documents in the event that the bank issuing such letter of credit becomes insolvent, warranties files or has filed against it any bankruptcy or similar proceeding or is closed (either temporarily or permanently), is placed in receivership, conservatorship or liquidation by the Federal Deposit Insurance Corporation, Resolution Trust Corporation or any other agreements contained hereingovernmental or quasi-governmental entity, and further agrees not to sue or otherwise seek fails or refuses to e▇▇▇rce honor such letter of credit or otherwise fails to maintain certain criteria required by Lender; and
(n) failure to timely pay any amounts payable for all state documentary stamp taxes and intangible personal obligation property taxes, if any, which may be levied or assessed against any of Seller's Affiliates with respect to any matters arising out of the Loan, this Agreement or the transactions contemplated hereby. The provisions of this Section 10.10, however, shall not apply to Tishman Speyer/Travelers Real Estate Venture, L.P. and Whitehall Street Real Estate Limited Partnership IX (collectivelyNote, the "Members") to the extent Deed of the amount Trust or any of the Members has received from the proceeds of the transactions which is the subject of this Agreementother Loan Documents, if the remaining funds available to Seller to satisfy the together with all interest penalties or charges in connection therewith. The obligations of the Seller pursuant to this Agreement or the transactions contemplated hereby are not at least equal to Five Million Dollars Borrower in subsections ($5,000,000a) or such lower amount of liability or potential liability through (n) above, except as the Seller may have under such agreements. The provisions of this Section 10.10 specifically provided in subsections (k) and (l), shall survive the termination repayment of the Loan through the applicable statute of limitations period evidenced by this Agreement Note, and satisfaction of the Closing. This Section 10.10 will not apply to the parties to the Parking Easement or the Development Indemnity Agreement to the extent such claim or cause Deed of action relates solely to the Parking Easement Agreement or the Development Indemnity Agreement, as applicableTrust.
Appears in 1 contract
Exculpation. Buyer agrees that it does (a) Subject to the qualifications below, Lender shall not have enforce the liability and will not have 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 claims action or causes of action proceeding wherein a money judgment or any deficiency judgment or other judgment establishing personal liability shall be sought against Borrower or any disclosed or undisclosed officerprincipal, director, officer, employee, trusteebeneficiary, shareholder, partner, member, principaltrustee, parentagent, subsidiary or other affiliate of SellerBorrower or any legal representatives, including, without limitation, Tishman Speyer Properties, L.P. and Goldman, Sachs & Co., successors or ▇▇▇ ▇▇fic▇▇, ▇irector, employee, trustee, shareholder, member, partner or principal of any such parent, subsidiary or other affiliate (collectively, "Seller's Affiliates"), arising out of with this Agreement or the transactions contemplated hereby. Buyer agrees to look solely to Seller and its assets for the satisfaction of any liability or obligation arising under this Agreement or the transactions contemplated hereby, or for the performance assigns of any of the covenantsforegoing (collectively, warranties the “Exculpated Parties”), except that Lender may bring a foreclosure action, an action for specific performance or any other agreements contained 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 (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 further agrees 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 to sue or otherwise seek to e▇▇▇rce ▇ for, seek or demand any personal obligation deficiency judgment against Borrower or any of Seller's Affiliates the Exculpated Parties in any such action or proceeding under or by reason of or under or in connection with respect to any matters arising out of the Note, this Agreement Agreement, the Security Instrument or the transactions contemplated herebyother Loan Documents. The provisions of this Section 10.10shall not, however, shall not apply (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 Tishman Speyer/Travelers Real Estate Venture, L.P. name Borrower as a party defendant in any action or suit for foreclosure and Whitehall Street Real Estate Limited Partnership IX sale under the Security Instrument; (collectively3) affect the validity or enforceability of the Guaranty, the "Members"Environmental Indemnity and/or any guaranty set forth in Section 11.2 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 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) 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 any portion thereof); or (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 material willful misrepresentation by any Borrower Party in connection with the Loan;
(ii) the willful misconduct of any Borrower Party;
(iii) any intentional act or 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 and which, in bad faith, hinders, delays or interferes in any material respect with the Lender’s enforcement of its rights under the Loan Documents or the realization of the collateral;
(iv) (A) material physical waste to the Property (or any portion thereof) and/or (B) after the occurrence and during the continuance of an Event of Default, removal or disposal of any portion of the Property other 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 Property (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, (D) any Tenant security deposits or Rents collected in 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) failure to pay Taxes in accordance with the terms and provisions hereof to the extent that the Property has generated sufficient net operating income for the immediately preceding twelve (12) month period to pay the same, unless such charges are the subject to a bona fide dispute in which the Borrower is contesting the amount or validity thereof in accordance with the terms and conditions set forth herein.
(b) Notwithstanding anything to the contrary in this Agreement, the Note or any of the Members has received from the proceeds 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 transactions which is Bankruptcy Code to file a claim for the subject of this Agreement, if the remaining funds available to Seller to satisfy the obligations full amount of the Seller pursuant 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 Property to the extent required by this Agreement or the transactions contemplated hereby are not at least equal other Loan Documents, (ii) any Borrower and/or any SPE Component Entity fails to Five Million Dollars ($5,000,000) or such lower amount obtain Lender’s prior written consent to any transfer in violation of liability or potential liability as the Seller may have under such agreements. The provisions of this Section 10.10 shall survive the termination of this Agreement and the Closing. This Section 10.10 will not apply to the parties to the Parking Easement or the Development Indemnity Agreement Article 6 hereof to the extent such claim or cause of action relates solely to the Parking Easement required by this Agreement or the Development Indemnity Agreementother Loan Documents; (iii) a Bankruptcy Event occurs; or (iv) any representation, warranty or covenant contained in Article 5 is violated or breached and such breach or violation is cited as applicablea material contributing factor by the applicable bankruptcy court in the substantive consolidation of Borrower and/or any SPE Component Entity with any other Person.
Appears in 1 contract
Sources: Loan Agreement (American Realty Capital New York City REIT, Inc.)
Exculpation. Buyer agrees that it does (a) Subject to the qualifications below, Lender shall not have enforce the liability and will not have obligation of Borrower to perform and observe the obligations contained in the Note, this Agreement, the Mortgage or the other Loan Documents by any claims action or causes of action proceeding wherein a money judgment shall be sought against Borrower or any disclosed or undisclosed principal, director, officer, director, employee, trusteeadvisor, beneficiary, shareholder, partner, manager, member, principaltrustee, parentagent, subsidiary or Affiliate of Borrower (but specifically excluding Guarantor under the Guaranty and the Environmental Indemnity) 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 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 Mortgage and the other Loan Documents, agrees that it shall not s▇▇ for, seek or demand any deficiency judgment against Borrower, Guarantor (but specifically excluding Guarantor under the Guaranty and the Environmental Indemnity) 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 Mortgage or the other Loan Documents. The provisions of this Section shall not, however, (a) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (b) impair the right of Lender to name Borrower as a party defendant in any action or suit for foreclosure and sale under the Mortgage; (c) affect the validity or enforceability of or any guaranty or indemnity made in connection with the Loan (including the Guaranty and the Environmental Indemnity) or any of the rights and remedies of Lender thereunder; (d) impair the right of Lender to obtain the appointment of a receiver; (e) impair the enforcement of any assignment of leases contained in the Mortgage; or (f) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted by the Mortgage (if required by applicable law and provided such deficiency judgment is not enforced against Borrower, the Exculpated Parties or Guarantor (but specifically excluding Guarantor under the Guaranty and the Environmental Indemnity) personally) or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against the Property. 107
(b) Nothing contained herein shall in any manner or way release, affect or impair the right of Lender to recover, and Borrower shall be fully and personally liable and subject to legal action, for any loss, cost, expense, damage, claim or other affiliate obligation (including without limitation reasonable attorneys’ fees and court costs) actually incurred or suffered by Lender arising out of Selleror in connection with the following (provided that in no event shall Borrower be liable for any actions taken by, or inaction of, a receiver, regardless of whether such action or inaction is undertaken by a receiver pursuant to any authority it may have to control the actions of Borrower, in each case to the extent the acts or omissions giving rise to such right of recovery occurred prior to (1) a Transfer resulting from, the exercise of Lender’s rights under the Loan Documents or (2) the consummation of any remedial or enforcement action by the Lender or of the collateral for the Loan, including, without limitation, Tishman Speyer Propertiesany foreclosure, L.P. deed-in-lieu or assignment in lieu of foreclosure and Goldman, Sachs & Co., or ▇▇▇ ▇▇fic▇▇, ▇irector, employee, trustee, shareholder, member, partner or principal including the exercise of any rights of Lender under the Mortgage, that in each case results in any such parententity or the Property not being under the Control of Guarantor (any of the foregoing pursuant to clause (1) or (2), subsidiary a “Transfer Event”)):
(i) fraud or intentional misrepresentation by Borrower, Principal or Guarantor in connection with the Loan;
(ii) the gross negligence or willful misconduct of Borrower, Principal or Guarantor;
(iii) intentional material physical waste of the Property by Borrower, Principal or Guarantor (to the extent that there exists sufficient cash flow from the Property that is made available to Borrower);
(iv) the removal or disposal of any portion of the Property by Borrower, Principal or Guarantor (other than as permitted by the Loan Documents or required by the Franchise Agreement or with respect to obsolete Personal Property (including FF&E) removed in the ordinary course of owning and operating the Property) after the occurrence and during the continuance of an Event of Default unless such property is replaced with property of equal or greater utility or value;
(v) the misappropriation, misapplication or conversion by Borrower, Principal or Guarantor of (A) any Insurance Proceeds paid by reason of any loss, damage or destruction to the Property, (B) any Awards received in connection with a Condemnation of all or a portion of the Property, (C) any Rents during the continuance of an Event of Default, (D) any Rents paid more than one month in advance or (E) any amounts disbursed to Borrower from the Reserve Funds; 108
(vi) failure to pay charges for labor or materials or other affiliate charges or judgments that can create Liens on any portion of the Property, (collectivelyexcept for Permitted Encumbrances or to the extent Borrower is contesting the same in subject to and in compliance with the terms and conditions of Sections 5.1.1, "Seller's Affiliates"5.1.2 or 5.1.4 of the Loan Agreement), arising out provided that sufficient cash flow is available from the Property to pay such costs (and not on reserve with Lender or Manager) and such costs either (A) are contracted for during a period in which no Event of Default had occurred and was continuing or (B) if contracted for during the continuance of an Event of Default, were approved by Lender in writing;
(vii) any security deposits, advance deposits or any other deposits collected by Borrower, Principal or Guarantor with this Agreement respect to the Property which are not delivered to Lender upon a foreclosure of the Property or action in lieu thereof, except to the transactions contemplated hereby. Buyer agrees to look solely to Seller extent (A) any such security deposits were applied in accordance with the terms and its assets for the satisfaction of any liability or obligation arising under this Agreement or the transactions contemplated hereby, or for the performance conditions of any of the covenantsLeases prior to the occurrence of the Event of Default that gave rise to such foreclosure or action in lieu thereof or (B) any such deposits were deposited into the Cash Management Account during a Cash Sweep Period;
(viii) if Borrower fails to maintain its status as a Special Purpose Entity or comply with any representation, warranties warranty or other agreements covenant set forth in Section 4.1.30 or Section 4.1.43 hereof (but expressly excluding any representation regarding future solvency or capital adequacy);
(ix) [intentionally omitted];
(x) if (1) without the prior written consent of Lender, the Franchise Agreement is modified in a manner that requires Lender’s prior written consent under Section 5.2.1(a) hereof or is terminated or cancelled by Borrower; or (2) without the prior written consent of Lender, Borrower accepts a surrender of the Franchise Agreement or accepts a modification of the Franchise Agreement which requires Lender’s prior written consent under Section 5.2.1(a) hereof;
(xi) any obligation of Lender to indemnify, defend or hold harmless Franchisor, or to pay any damages, costs, fees or expenses pursuant to any term or condition contained hereinin the Comfort Letter;
(xii) if Borrower fails to permit on-site inspections of the Property or fails to provide financial information, each as required by, and further agrees not to sue or otherwise seek to e▇▇▇rce any personal obligation against any of Seller's Affiliates with respect to any matters arising out of this Agreement or in accordance with, the transactions contemplated hereby. The terms and provisions of this Section 10.10, however, shall not apply to Tishman Speyer/Travelers Real Estate Venture, L.P. and Whitehall Street Real Estate Limited Partnership IX (collectively, the "Members") to the extent of the amount any of the Members has received from the proceeds of the transactions which is the subject of this Agreement, if the remaining funds available to Seller to satisfy the obligations of the Seller pursuant to this Agreement or the transactions contemplated hereby are not at least equal to Five Million Dollars ($5,000,000) or such lower amount of liability or potential liability as the Seller may have under such agreements. The provisions of this Section 10.10 shall survive the termination of this Agreement and the Closing. This Section 10.10 will not apply to the parties to the Parking Easement or the Development Indemnity Agreement to the extent such claim or cause of action relates solely to the Parking Easement Agreement or the Development Indemnity Agreement, as applicable.; or
Appears in 1 contract
Exculpation. Buyer agrees that it does not have and will not have Notwithstanding anything to the contrary contained in this Agreement or any claims other Loan Document, no present or causes of action against future Constituent Member (as hereinafter defined) in any disclosed Borrower or undisclosed Fee Owner, nor any present or future shareholder, officer, director, employee, trustee, shareholderbeneficiary, advisor, member, partner, member, principal, parentparticipant or agent of or in any Borrower or any Fee Owner or of or in any Person that is or becomes a Constituent Member in any Borrower or any Fee Owner, subsidiary shall have any personal or other affiliate liability, directly or indirectly, under or in connection with the Loan Documents, except as may occur by virtue of Sellersuch Person becoming a successor to any Borrower or any Fee Owner pursuant to, includingin respect of the Borrower, without limitationSection 12.6(a) or in respect of any Fee Owner, Tishman Speyer Propertiesas a result of any merger, L.P. consolidation or sale permitted under the Loan Documents. Administrative Agent and Goldmaneach Lender each, Sachs & Co.on behalf of itself and its respective successors and assigns, hereby waives any and all such personal or ▇▇▇ ▇▇fic▇▇other liability. The term “Constituent Member,” as used herein, ▇irector, employee, trustee, shareholder, member, shall mean any direct partner or principal member in any Borrower or any Fee Owner and any Person that, directly or indirectly through one or more other partnerships, limited liability companies, corporations or other entities, is a partner or member in any Borrower or any Fee Owner Notwithstanding anything to the contrary contained in the Loan Documents, neither the negative capital account of any such parent, subsidiary Constituent Member in any Borrower or other affiliate (collectively, "Seller's Affiliates"), arising out of with this Agreement or the transactions contemplated hereby. Buyer agrees to look solely to Seller and its assets for the satisfaction any Fee Owner nor any obligation of any liability Constituent Member in any Borrower or obligation arising under this Agreement any Fee Owner to restore a negative capital account or to contribute or loan capital to any Borrower or Fee Owner or to any other Constituent Member in any Borrower or any Fee Owner shall at any time be deemed to be the transactions contemplated herebyproperty or an asset of Borrower or Fee Owner (or any such other Constituent Member) and neither any Borrower, or for the performance of any Fee Owner nor any of the covenantstheir respective successors or assigns shall have any right to collect, warranties enforce or other agreements contained herein, and further agrees not to sue or otherwise seek to e▇▇▇rce any personal obligation proceed against any of Seller's Affiliates Constituent Member with respect to any matters arising out such negative capital account or obligation to restore, contribute or loan. Nothing contained in this Section 12.9 shall apply to, or be deemed to be a release or exculpation from liability of, (a) any general partner of this Agreement any Borrower or any Fee Owner, and (b) any Guarantor or any other Person who executes, or is required by any Loan Document to execute, a Guaranty or the transactions contemplated hereby. The provisions of this Section 10.10, however, shall not apply to Tishman Speyer/Travelers Real Estate Venture, L.P. and Whitehall Street Real Estate Limited Partnership IX (collectively, the "Members") to the extent of the amount any of the Members has received from the proceeds of the transactions which is the subject of this Agreement, if the remaining funds available to Seller to satisfy the obligations of the Seller pursuant to this Agreement or the transactions contemplated hereby are not at least equal to Five Million Dollars ($5,000,000) or such lower amount of liability or potential liability as the Seller may have under such agreements. The provisions of this Section 10.10 shall survive the termination of this Agreement and the Closing. This Section 10.10 will not apply to the parties to the Parking Easement or the Development Indemnity Agreement to the extent such claim or cause of action relates solely to the Parking Easement Agreement or the Development Indemnity Agreement, as applicableEnvironmental Indemnity.
Appears in 1 contract
Exculpation. Buyer agrees that it does not The Lender has and shall have and will not have any claims or causes of action against any disclosed or undisclosed officer, director, employee, trustee, shareholder, partner, member, principal, parent, subsidiary or other affiliate of Seller, including, without limitation, Tishman Speyer Properties, L.P. and Goldman, Sachs & Co., or ▇▇▇ ▇▇fic▇▇, ▇irector, employee, trustee, shareholder, member, partner or principal of any such parent, subsidiary or other affiliate (collectively, "Seller's Affiliates"), arising out of with this Agreement or the transactions contemplated hereby. Buyer agrees to look solely to Seller and its assets for the satisfaction of any no liability or obligation arising whatsoever or howsoever in connection with the construction, completion or management of the Improvements, and has no obligation except to make Loan Advances as provided in this Participation Agreement and the Loan Agreement, and the Lender is not obligated to inspect the Improvements; nor is the Lender liable and under this Agreement no circumstances whatsoever shall the Lender be or become liable for the transactions contemplated herebyperformance or default of any contractor or subcontractor, or for any failure to construct, complete, protect or insure the Improvements, or any part thereof, or for the payment of any cost or expense incurred in connection therewith, or for the performance or non-performance of any obligation of the covenants, warranties Lessor or other agreements contained herein, and further agrees not the Lessee to sue the Lender or otherwise seek to e▇▇▇rce any personal obligation against any of Seller's Affiliates with respect to any matters arising out other person, firm or entity without limitation; and nothing, including without limitation, any disbursement of Loan Advances or acceptance of any document or instrument, shall be construed as a representation or warranty, express or implied, on the Lender's part. Further, the Lessee shall be solely responsible for all aspects of the Lessee's business and conduct in connection with the construction, completion and management of the Improvements including, but not limited to:
(a) The quality and suitability of the Plans and Specifications;
(b) Supervision of the work of Construction;
(c) The qualifications, financial condition and performance of all architects, engineers, contractors, subcontractors and material suppliers and consultants;
(d) Conformance of the work of Construction and the Improvements to the requirements of all Applicable Laws and public and private restrictions and requirements and to the requirements of this Agreement or Participation Agreement;
(e) The quality and suitability of all materials and workmanship; and
(f) The accuracy of all requests for the transactions contemplated hereby. The provisions of this Section 10.10, however, shall not apply to Tishman Speyer/Travelers Real Estate Venture, L.P. and Whitehall Street Real Estate Limited Partnership IX (collectively, the "Members") to the extent of the amount any of the Members has received from the disbursement proceeds of the transactions which is Loans and the subject proper application of this Agreementdisbursed proceeds of the Loans. The Lender shall have no obligation to supervise, if inspect or inform the remaining funds available Lessee, the Lessor or any third party of any aspect of the work or construction of the Improvements or any other matter referred to Seller to satisfy above. Any inspection or review made by or on behalf of the Lender shall be made for the purpose of determining whether or not the obligations of the Seller pursuant Lessee under this Participation Agreement are being properly discharged, and neither the Lessee, the Lessor nor any third party shall be entitled to this Agreement rely upon any such inspection or review. The Lender owes no duty of care to the Lessee or the transactions contemplated hereby are not at least equal Lessor or any third person to Five Million Dollars ($5,000,000) protect against or such lower amount inform the Lessee, the Lessor or any third person of liability the existence of negligent, faulty, inadequate or potential liability as defective design or construction of the Seller may have under such agreements. The provisions of this Section 10.10 shall survive the termination of this Agreement and the Closing. This Section 10.10 will not apply to the parties to the Parking Easement or the Development Indemnity Agreement to the extent such claim or cause of action relates solely to the Parking Easement Agreement or the Development Indemnity Agreement, as applicableImprovements.
Appears in 1 contract
Sources: Master Participation Agreement (Atria Communities Inc)
Exculpation. Buyer agrees that it does (a) Subject to the qualifications below, Lender shall not have enforce the liability and will not have obligation of Borrower to perform and observe the obligations contained in the Note, this Agreement, the Security Instruments or the other Loan Documents by any claims action or causes of action proceeding wherein a money judgment or any deficiency judgment or other judgment establishing personal liability shall be sought against Borrower or any disclosed or undisclosed officerprincipal, director, officer, employee, trusteebeneficiary, shareholder, partner, member, principaltrustee, parentagent, subsidiary or other affiliate of SellerBorrower or any legal representatives, including, without limitation, Tishman Speyer Properties, L.P. and Goldman, Sachs & Co., successors or ▇▇▇ ▇▇fic▇▇, ▇irector, employee, trustee, shareholder, member, partner or principal of any such parent, subsidiary or other affiliate (collectively, "Seller's Affiliates"), arising out of with this Agreement or the transactions contemplated hereby. Buyer agrees to look solely to Seller and its assets for the satisfaction of any liability or obligation arising under this Agreement or the transactions contemplated hereby, or for the performance assigns of any of the covenantsforegoing (collectively, warranties the “Exculpated Parties”), except that Lender may bring a foreclosure action, an action for specific performance or any other agreements contained appropriate action or proceeding to enable Lender to enforce and realize upon its interest under the Note, this Agreement, the Security Instruments and the other Loan Documents, or in the Properties (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 further agrees in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Security Instruments and the other Loan Documents, shall not to sue s▇▇ for, seek or otherwise seek to e▇▇▇rce demand any personal obligation deficiency judgment against Borrower or any of Seller's Affiliates the Exculpated Parties in any such action or proceeding under or by reason of or under or in connection with respect to any matters arising out of the Note, this Agreement Agreement, the Security Instruments or the transactions contemplated herebyother Loan Documents. The provisions of this Section 10.10shall not, however, shall not apply (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 Tishman Speyer/Travelers Real Estate Venture, L.P. name Borrower as a party defendant in any action or suit for foreclosure and Whitehall Street Real Estate Limited Partnership IX sale under the Security Instruments; (collectively3) affect the validity or enforceability of the Guaranty, the "Members"Environmental Indemnity and/or any guaranty set forth in Section 11.2 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 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 Instruments and in any other Loan Documents; (6) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted by the Security Instruments or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against the Properties (or any portion thereof); or (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 amount following:
(i) fraud or intentional material misrepresentation by any Borrower Party in connection with the Loan;
(ii) the gross negligence or willful misconduct of any Borrower Party;
(iii) the breach of any representation, warranty, covenant or indemnification provision in the Environmental Indemnity Agreement concerning environmental laws, hazardous substances and asbestos and any indemnification of Lender with respect thereto;
(iv) material physical waste to the Properties caused by the intentional acts or intentional omissions of any Borrower Party (it being agreed that is shall not be waste for purposes of this clause (iv)(A) if Borrower fails to maintain the Properties because (1) the revenue generated by the Properties (on an aggregate basis) on a current basis (after payment of the applicable Priority Payments) is insufficient to do so or (2) the Properties (on an aggregate basis) generated sufficient revenue (after payment of the applicable Priority Payments) to maintain the Properties but Borrower lacks access to such revenue as a result of any cash trap by Lender during a Trigger Period or any exercise of Lender’s remedies under the Loan Documents) and/or (B) the removal or disposal of any portion of the Properties after an Event of Default in violation of the terms of the Loan Documents;
(v) the misappropriation, conversion or intentional misapplication by any Borrower Party of (A) any insurance proceeds paid by reason of any Casualty, (B) any Awards received in connection with a Condemnation, (C) any Rents, or (D) any Rents paid more than one (1) month in advance;
(vi) failure to pay charges for labor or materials or other charges or judgments that can create liens on any portion of the Properties except to the extent the same are being contested in good faith in accordance with this Agreement; provided, however, that there shall be no personal liability under this subsection solely for the failure to pay charges for labor or materials or other charges that can create liens on any portion of the Properties if (A) the revenue generated by the Properties (on an aggregate basis) on a current basis (after payment of the applicable Priority Payments) is insufficient to pay such charges, (B) the Properties (on an aggregate basis) generated sufficient revenue (after payment of the applicable Priority Payments) to pay such charges but Borrower lacks access to such revenue as a result of any cash trap by Lender during a Trigger Period or any exercise of Lender’s remedies under the Loan Documents and/or (C) sufficient sums had been reserved with Lender under the Loan Documents for the express purpose of paying the charges for labor or materials or other charges that can create liens on any portion of the Properties in question and Lender failed to pay same or give Borrower access to such sums to pay same (and in each case, Lender’s access to such funds was not restricted or impeded in any way);
(vii) any security deposits, advance deposits or any other deposits collected with respect to the Properties which are not delivered to Lender upon a foreclosure of the Properties or action in lieu thereof, except to the extent any such security deposits were applied in accordance with the terms and conditions of any of the Members has received from Leases prior to the proceeds occurrence of the transactions Event of Default that gave rise to such foreclosure or action-in-lieu thereof or previously delivered to Lender;
(viii) any zoning matters with respect to the Property, and/or any zoning violations identified in any of the Zoning Reports;
(ix) a breach of Section 4.23(e), Section 11.2 and/or Section 17.17 of this Agreement;
(x) the failure to pay Taxes or Insurance Premiums in accordance with the terms of this Agreement or the failure to maintain the Policies (to the extent such Policies are generally available) required pursuant to the terms of this Agreement in full force and effect; provided, however, that there shall be no personal liability under this subsection solely for the failure to pay Taxes and Insurance Premiums if (A) the revenue generated by the Properties (on an aggregate basis) over the prior twelve (12) month period (after payment of the applicable Priority Payments) is insufficient to pay such Taxes and Insurance Premiums, (B) the Properties (on an aggregate basis) generated sufficient revenue (after payment of the applicable Priority Payments) to pay such Taxes and Insurance Premiums but Borrower lacks access to such revenue as a result of any cash trap by Lender during a Trigger Period or any exercise of Lender’s remedies under the Loan Documents, and/or (C) sufficient sums had been reserved with Lender under Section 8.6 hereof for the express purpose of paying the Taxes and/or Insurance Premiums in question and Lender failed to pay same or give Borrower access to such sums to pay same (and in each case, Lender’s access to such funds was not restricted or impeded in any way);
(xi) if Borrower or any Affiliate of Borrower, in any judicial or quasi-judicial case, action or proceeding relating to the Debt brought by Lender (A) contests the validity or enforceability of the Loan Documents or (B) directly or indirectly contests or intentionally hinders, delays or obstructs the pursuit of any rights or remedies by Lender (including the commencement and/or prosecution of a foreclosure action, judicial or non-judicial, the appointment of a receiver for the Property or any portion thereof or any enforcement of the terms of the Assignment of Leases) after an Event of Default; provided, however, that there shall be no liability to Borrower under this subsection for raising and pursuing actions or defenses to the extent the same are raised and pursued in good faith;
(xii) any termination of a Ground Lease (other than (A) a termination due to the occurrence of a casualty or condemnation which gives the lessor the unilateral right to terminate a Ground Lease and in connection with which the insurance proceeds and condemnation award, as applicable, have been paid to Lender in accordance with this Agreement or (B) a termination in connection with the acquisition of the underlying Fee Estate provided there is no violation of the subject terms of the Loan Documents and Borrower causes the lien of the Security Instrument to be spread to cover such Fee Estate) or the material modification of a Ground Lease, in each case without Lender’s consent;
(xiii) any material amendment or modification of any Lease affecting any Individual Property in violation of the terms of this Agreement or any cancellation or termination of any Lease (other than a termination of a Lease due to the Tenant’s unilateral right to terminate such Lease as set forth in such Lease at the time of Lender’s approval or deemed approval thereof) in violation of the terms of this Agreement;
(xiv) the failure by any Individual Borrower or SPE Component Entity to comply with any representation, warranty or covenant set forth in Article 5 of this Agreement; and/or
(xv) Borrower fails to obtain Lender’s prior written consent to any transfer to the extent required pursuant to the terms of this Agreement that is not a Full Recourse Transfer or Borrower fails to obtain Lender’s prior written consent, to the extent required pursuant to the terms of this Agreement, if to any Indebtedness or voluntary Lien encumbering the remaining funds available Property that is not a Full Recourse Lien.
(b) Notwithstanding anything to Seller to satisfy the obligations contrary in this Agreement, the Notes or any of the Seller pursuant Loan Documents, (I) Lender shall not be deemed to this Agreement or the transactions contemplated hereby are not at least equal to Five Million Dollars ($5,000,000) or such lower amount of liability or potential liability as the Seller have waived any right which Lender may have under such agreements. The Section 506(a), 506(b), 1111(b) or any other provisions of this Section 10.10 the Bankruptcy Code to file a claim for the full amount of the Debt secured by the Security Instruments or to require that all collateral shall survive continue to secure all of the termination Debt owing to Lender in accordance with the Loan Documents and (II) the Debt shall be fully recourse to Borrower in the event of this Agreement any of the following: (A) Borrower filing a voluntary petition under the Bankruptcy Code or any other federal or state bankruptcy or insolvency law; (B) the filing of an involuntary petition against Borrower under the Bankruptcy Code or any other federal or state bankruptcy or insolvency law in which Borrower or Guarantor colludes with, or otherwise assists such Person, or solicits or causes to be solicited petitioning creditors for any involuntary petition against Borrower from any Person; (C) Borrower filing an answer consenting to or otherwise acquiescing in or joining in any involuntary petition filed against it, by any other Person under the Bankruptcy Code or any other federal or state bankruptcy or insolvency law (provided that the foregoing shall not be deemed to require Borrower to file an objection to any such involuntary petition if Borrower determines reasonably and in good faith that it has no reasonable basis for doing so, or if Borrower is otherwise not permitted by law to file such an objection); (D) Borrower consenting to or acquiescing in or joining in an application for the Closing. This Section 10.10 will appointment of a custodian, receiver, trustee, or examiner for Borrower or any portion of the Properties other than at Lender’s request (provided that in connection with any acquiescence, Borrower shall not apply be required to file an objection to any such application if Borrower determines reasonably and in good faith following consultation with legal counsel that it has no reasonable basis for doing so, or if Borrower is otherwise not permitted by law to file such an objection); (E) Borrower making an assignment for the parties benefit of creditors other than at Lender’s request, or admitting, in writing or in any legal proceeding other than at Lender’s request, its insolvency or inability to pay its debts as they become due; (F) if any Borrower fails to maintain its status as a Single Purpose Entity and such failure is cited in a final non-appealable judgment by a court of competent jurisdiction as a material factor in the Parking Easement substantive consolidation of such Borrower with any other Person in connection with any federal or the Development Indemnity Agreement state bankruptcy proceeding; (G) Borrower fails to obtain Lender’s prior written consent (to the extent such claim or cause of action relates solely consent is required pursuant to the Parking Easement Agreement terms of the Loan Documents) to any transfer (1) that results in a direct or indirect change in Control over Borrower or (2) of any of the Development Indemnity AgreementProperties by deed, b▇▇▇ of sale, installment sales agreement, ground lease (but excluding any space Lease entered into in the ordinary course of business) or any similar agreement (collectively, a “Full Recourse Transfer”); and/or (H) 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 other voluntary lien or interest encumbering all or a substantial portion of the Property (a “Full Recourse Lien”); provided that nothing in clauses (B), (C), (D) and (E) of this paragraph shall impose on Borrower or Guarantor any recourse liability for providing (x) any truthful testimony or (y) truthful responses to duly-served discovery or legal process in the event that Borrower or Guarantor or any of their respective Affiliates, as applicable, is advised by counsel that such Person is required to provide such testimony or response pursuant to applicable law.
(c) As used in this Section 13.1, “Priority Payments” shall mean: (i) with respect to the applicable recourse carveout liability described in Section 13.1(a)(x) above as it relates to the failure to pay Taxes and Insurance Premiums, no other payments; (ii) with respect to the applicable recourse carveout liability described in Section 13.1(a)(iv) above, the payment of all Taxes and Insurance Premiums, Ground Rent, Debt Service and sums required to be deposited into any Reserve Accounts other than the Excess Cash Flow Account, and (iii) with respect to the applicable recourse carveout liability described in Section 13.1(a)(vi) above as it relates to the failure to pay any charges that create Liens, the payment of all Taxes, Insurance Premiums, Ground Rent, Debt Service and sums required to be deposited into any Reserve Account other than the Excess Cash Flow Account, and all sums necessary to avoid material physical waste to the Property, in each case on a current basis.
Appears in 1 contract
Exculpation. Buyer agrees that it does (a) Subject to the qualifications below, Lender shall not have enforce the liability and will not have 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 claims action or causes of action proceeding wherein a money judgment or any deficiency judgment or other judgment establishing personal liability shall be sought against Borrower or any disclosed or undisclosed officerprincipal, director, officer, employee, trusteebeneficiary, shareholder, partner, member, principaltrustee, parent, subsidiary or other affiliate of Seller, including, without limitation, Tishman Speyer Properties, L.P. and Goldman, Sachs & Co.agent, or ▇▇▇ ▇▇fic▇▇Affiliate of Borrower (but specifically excluding Guarantor) or any legal representatives, ▇irector, employee, trustee, shareholder, member, partner successors or principal of any such parent, subsidiary or other affiliate (collectively, "Seller's Affiliates"), arising out of with this Agreement or the transactions contemplated hereby. Buyer agrees to look solely to Seller and its assets for the satisfaction of any liability or obligation arising under this Agreement or the transactions contemplated hereby, or for the performance assigns of any of the covenantsforegoing (collectively, warranties the “Exculpated Parties”), except that Lender may bring a foreclosure action, an action for specific performance or any other agreements contained 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 further agrees 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 to sue or otherwise seek to e▇▇▇rce ▇ for, seek or demand any personal obligation deficiency judgment against Borrower or any of Seller's Affiliates the Exculpated Parties in any such action or proceeding under or by reason of or under or in connection with respect to any matters arising out of the Note, this Agreement Agreement, the Security Instrument or the transactions contemplated herebyother Loan Documents. The provisions of this Section 10.10shall not, however, shall not apply (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 Tishman Speyer/Travelers Real Estate Venturename 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, L.P. and Whitehall Street Real Estate Limited Partnership IX guaranty or similar instrument (collectivelyincluding, without limitation, the "Members"indemnities set forth in Article 11 hereof, Section 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 12); (4) impair the right of Lender to obtain the appointment of a receiver; (5) impair the enforcement of the assignment of leases and rents contained in the Security Instrument; (6) impair the right of Lender to enforce Section 7.12(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 the amount any Losses incurred by Lender (including attorneys’ fees and costs reasonably incurred) arising out of or in connection with any of the Members has 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 Party 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) 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 Default by Borrower, any SPE Component Entity, Guarantor, Sponsor or any Borrower Party;
(iv) the misapplication, misappropriation or conversion by Borrower 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 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 the Property to the extent that the revenue from the proceeds 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 transactions which 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 subject 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 of, this Agreement, the Assignment of Management Agreement and the other Loan Documents or Borrower appoints a new property manager or replaces the property manager other than in accordance with the terms of this Agreement, if the remaining funds Assignment of Management Agreement and the other Loan Documents;
(xi) the failure to make any True Up Payment as and when required hereunder; and/or
(xii) any litigation or other legal proceeding related to the Debt filed by Borrower, any SPE Component Entity, Guarantor, Sponsor or any Borrower Party that is determined by final, non-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 efforts of Lender to exercise any rights and remedies available to Seller Lender as provided herein and in the other Loan Documents.
(b) Notwithstanding anything to satisfy the obligations contrary in this Agreement, the Note or any of the Seller pursuant Loan Documents, (A) Lender shall not be deemed to this Agreement or the transactions contemplated hereby are not at least equal to Five Million Dollars ($5,000,000) or such lower amount of liability or potential liability as the Seller 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 representation, warranty or covenant contained in Article 6 hereof is violated or breached (unless such agreementsbreach is de minimis and promptly cured); (ii) any representation, warranty or covenant contained in Article 8 hereof is violated (unless such violation is de minimis and promptly cured); (iii) Borrower or any 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 custodian, 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 (x) Borrower’s failure to deposit any springing Reserve Funds deposits pursuant to the terms of this Agreement. Survival . The provisions obligations and liabilities of Borrower under this Section 10.10 Article 12 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 termination of this Agreement and the Closing. This Section 10.10 will not apply to the parties to the Parking Easement or the Development Indemnity Agreement to the extent such claim or cause of action relates solely to the Parking Easement Agreement or the Development Indemnity Agreement, as applicableSecurity Instrument.
Appears in 1 contract
Sources: Loan Agreement (Gaia, Inc)
Exculpation. Buyer Except to the extent otherwise provided in Paragraph 17.B or elsewhere in this Sublease, Subtenant agrees that it does not have and will not have none of Sublandlord, any claims Sublandlord Indemnitees, Master Landlord or causes any Master Landlord Indemnitees shall at any time or to any extent whatsoever be liable, responsible or in any way accountable for any loss, liability, injury, death or damage to persons or property which at any time may be suffered or sustained by Subtenant or by any person(s) whomsoever who may at any time be using, occupying or visiting the Sublease Premises or any other portion of action against any disclosed or undisclosed officer, director, employee, trustee, shareholder, partner, member, principal, parent, subsidiary or other affiliate of Sellerthe Property, including, without limitationbut not limited to, Tishman Speyer Propertiesany acts, L.P. errors or omissions of any other tenants or occupants of the Property (excluding Sublandlord and GoldmanSublandlord Representatives). Except as expressly provided herein, Sachs & Co.Subtenant shall not, in any event or circumstance, be permitted to offset or otherwise credit against any payments of Sublease Rent required herein for matters for which Sublandlord or Master Landlord may be liable hereunder. None of Sublandlord, any Sublandlord Indemnitees, Master Landlord or any Master Landlord Indemnitees shall be liable for any interference with light, or ▇▇▇ ▇▇fic▇▇air, ▇irector, employee, trustee, shareholder, member, partner for any latent defect in the Sublease Premises or principal of any such parent, subsidiary or other affiliate (collectively, "Seller's Affiliates"), arising out of with this Agreement or the transactions contemplated hereby. Buyer agrees to look solely to Seller and its assets for the satisfaction of any liability or obligation arising under this Agreement or the transactions contemplated hereby, Building or for any loss or damage to Subtenants Property that may arise on account of or in any way be connected with the repair, maintenance, performance of any or condition of the covenantsBuilding Systems and Structural Components, warranties or other agreements contained herein, and further agrees not to sue or otherwise seek to e▇▇▇rce any personal obligation against any of Seller's Affiliates with respect to any matters arising out of this Agreement or the transactions contemplated hereby. The provisions of this Section 10.10, however, shall not apply to Tishman Speyer/Travelers Real Estate Venture, L.P. and Whitehall Street Real Estate Limited Partnership IX (collectively, the "Members") except to the extent of damage resulting from (i) the amount negligence or willful misconduct of Sublandlord, Sublandlord’s Representatives or Master Landlord during the Sublease Term or (ii) the breach by Sublandlord or Sublandlord’s Representatives of any material representation or warranty contained herein when made regarding the condition of the Members has received from Building Systems and Structural Components or (iii) the proceeds failure, prior to the applicable Sublease Commencement Date for any Sublease Premises Portion, beyond any applicable notice and cure period, by Sublandlord or Sublandlord’s Representatives to maintain the Building Systems and Structural Components in such Sublease Premises Portion in accordance with and as required by Section 8.2 of the transactions which is the subject of this Agreement, if the remaining funds available to Seller to satisfy the obligations of the Seller pursuant to this Agreement or the transactions contemplated hereby are not at least equal to Five Million Dollars ($5,000,000) or such lower amount of liability or potential liability as the Seller may have under such agreements. The provisions of this Section 10.10 shall survive the termination of this Agreement and the Closing. This Section 10.10 will not apply to the parties to the Parking Easement or the Development Indemnity Agreement to the extent such claim or cause of action relates solely to the Parking Easement Agreement or the Development Indemnity Agreement, as applicableMaster Lease.
Appears in 1 contract
Sources: Sublease Agreement (Google Inc.)
Exculpation. Buyer agrees that it does Subject to the qualifications below, Administrative Agent shall not have enforce the liability and will not have obligation of Borrower to perform and observe the obligations contained in the Note, this Agreement, the Pledge Agreement or the other Loan Documents by any claims action or causes of action proceeding wherein a money judgment or any deficiency judgment or other judgment establishing personal liability shall be sought against any disclosed Borrower Party, except that Administrative Agent may bring a foreclosure action, an action for specific performance or undisclosed any other appropriate action or proceeding to enable Administrative Agent to enforce and realize upon its interest under the Note, this Agreement, the Pledge Agreement and the other Loan Documents, or in the Property, the Collateral, the Rents, or any other collateral given to 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 Collateral, in the Rents and in any other collateral given to Administrative Agent, for the benefit of Lenders, and Administrative Agent and Lenders, by accepting the Note, this Agreement, the Pledge Agreement and the other Loan Documents, shall not ▇▇▇ for, seek or demand any deficiency judgment against Borrower or any Borrower Party, in any such action or proceeding under or by reason of or under or in connection with the Note, this Agreement, the Pledge Agreement or the other Loan Documents. The provisions of this Section 11.22 shall not, however, (a) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (b) impair the right of Administrative Agent to name Borrower as a party defendant in any action or suit for foreclosure and sale of the Property under the Pledge Agreement; (c) affect the validity or enforceability of any indemnity, guaranty, or similar instrument made in connection with the Loan or any of the rights and remedies of Administrative Agent thereunder; (d) impair the right of Administrative Agent to obtain the appointment of a receiver; (e) [reserved]; (f) impair the right of Administrative Agent to enforce the provisions of any Guaranty; (g) constitute a prohibition against Administrative Agent to seek a deficiency judgment against Borrower solely in order to fully realize on any security given by Borrower in connection with the Loan or to commence any other appropriate action or proceeding in order for Administrative Agent to exercise its remedies against such security; or (h) constitute a waiver of the right of Administrative Agent to enforce the liability and obligation of Borrower, by money judgment or otherwise, to the extent of any actual Losses incurred by Administrative Agent and/or any Lender (including out-of-pocket attorneys’ fees and costs reasonably incurred, but excluding special, treble, consequential or punitive damages (except to the extent required to be paid by Administrative Agent and/or Lender to any third party) arising out of or in connection with the following:
(a) willful misconduct, fraud or material misrepresentation by a Borrower Party in connection with the Loan;
(b) misappropriation or conversion by Borrower or Mortgage Borrower of (A) Net Proceeds paid by reason of any loss, damage or destruction to the Property, (B) Awards received in connection with a Condemnation, (C) any Rents or Gross Revenue of any nature, (D) any security deposits, advance deposits or any other deposits collected with respect to the Property which are not delivered to Mortgage Administrative Agent, for the benefit of Lenders, in accordance with the Mortgage Loan Documents (E) any Reserve Funds or Security Account Funds or any funds held by Administrative Agent under this Agreement or by Mortgage administrative Agent under the Mortgage Loan Documents by or on behalf of Borrower and/or Mortgage Borrower or (F) any other funds due to Administrative Agent or any Lender, or any other Person, by Borrower under the Loan Documents;
(c) any intentional material physical waste to all or any portion of the Property, except to the extent that (i) cash flow from the Property is insufficient to prevent such waste or (ii) Administrative Agent was required to under the Loan Documents and failed to make Excess Cash Flow available to Borrower during a Cash Trap Period;
(d) removal of any portion of a Property or Improvements by any Borrower Related Party in violation of the Loan Documents during the continuance of an Event of Default;
(e) forfeiture by Mortgage Borrower of the Property, or any portion thereof, because of the conduct of criminal activity by any Borrower Party or any officer, director, employeemanager, trusteeagent or employee of any of the foregoing, shareholderand any Person acting at the direction of any of the foregoing;
(f) failure beyond applicable grace notice and cure periods of Borrower to cause Mortgage Borrower to (A) obtain and maintain the Policies required to be obtained and maintained in accordance with the provisions of the Loan Documents, partnerand/or (B) pay when due any and all Insurance Premiums required to be paid in connection therewith until such time as Mortgage Borrower is no longer the owner of all or any portion of the Property, memberin each case, principalexcept to the extent that the cash flow from the Property is insufficient to pay such amounts, parentor to the extent that there are sufficient Insurance Funds on deposit in the Insurance Reserve Account allocated to pay such amounts and Mortgage Administrative Agent fails to permit the release of such amounts in violation of Section 6.3.1 of the Senior Loan Agreement and Borrower gives Administrative Agent written notice of such insufficiency at least 30 days’ prior to the date such amounts first become due and payable;
(g) subject to Mortgage Borrower’s right to contest the following in accordance with the terms and conditions of the Loan Documents, subsidiary failure by Borrower to cause Mortgage Borrower to pay when due any and all Taxes and Other Charges, in each case, except to the extent that the cash flow from the Property is insufficient to pay such amounts, or to the extent that there are sufficient Tax Funds on deposit in the Tax Reserve Account allocated to pay such amounts and Mortgage Administrative Agent fails to permit the release of such amounts in violation of Section 6.2.1 of the Senior Loan Agreement;
(h) any material breach by Borrower or Mortgage Borrower of the covenants contained in this Agreement or the other Loan Documents relating to the requirement that Borrower shall be a Special Purpose Bankruptcy Remote Entity (other than requirements related to Borrower’s and Mortgage Borrower’s solvency, maintenance of adequate capital, or failure to pay debts to the extent that the cash flow from the Property is insufficient to pay the same);
(i) unless a court of competent jurisdiction issues a non-appealable final judgment in favor of Borrower or Guarantor, as applicable, in such action, all out-of-pocket costs and expenses (including, without limitation, attorneys’ fees and costs) incurred by Administrative Agent and/or Lender in connection with the interference, whether direct or indirect, by Borrower, any Guarantor or any of their respective Affiliates, with Administrative Agent or Lender’s exercise of rights or remedies under the Loan Documents (including any foreclosure action or sale) in accordance with the Loan Documents, whether by making any motion, bringing any counterclaim, claiming any defense, seeking any injunction or other affiliate restraint, commencing any action seeking to consolidate any such foreclosure or other enforcement with any other action or otherwise; and
(j) any failure to pay mortgage recording, stamp, intangible or other similar tax required to be paid under applicable Legal Requirements in connection with the execution, delivery, recordation, filing, registration, perfection or enforcement of Sellerany of the Loan Documents or Mortgage Loan Documents, including, without limitation, Tishman Speyer Propertiesthe Mortgage.
(k) any liabilities accruing prior to a UCC foreclosure sale, L.P. and Goldmana UCC strict foreclosure, Sachs & Co., or ▇▇▇ ▇▇fic▇▇, ▇irector, employee, trustee, shareholder, member, partner or principal an assignment-in-lieu of any such parent, subsidiary foreclosure or other affiliate enforcement action under the Loan Documents (collectively, "Seller's Affiliates"an “Equity Collateral Enforcement Action”; and the date on which an Equity Collateral Enforcement Action is consummated, an “Equity Collateral Transfer Date”), arising out of with this Agreement or relating to the transactions contemplated hereby. Buyer agrees to look solely to Seller and its assets for the satisfaction action or inaction of any liability Borrower Related Party (including, without limitation, any aged payable or obligation arising under cost to terminate a contract, including payment during a notice period) that remain unpaid following the Equity Collateral Transfer Date; Notwithstanding anything to the contrary in this Agreement Agreement, the Note or the transactions contemplated hereby, or for the performance of any of the covenantsLoan Documents, warranties or other agreements contained herein, (A) Administrative Agent and further agrees not to sue or otherwise seek to e▇▇▇rce any personal obligation against any of Seller's Affiliates with respect to any matters arising out of this Agreement or the transactions contemplated hereby. The provisions of this Section 10.10, however, Lenders shall not apply be deemed to Tishman Speyer/Travelers Real Estate Venture, L.P. have waived any right which Administrative Agent and Whitehall Street Real Estate Limited Partnership IX (collectively, the "Members") to the extent of the amount any of the Members has received from the proceeds of the transactions which is the subject of this Agreement, if the remaining funds available to Seller to satisfy the obligations of the Seller pursuant to this Agreement or the transactions contemplated hereby are not at least equal to Five Million Dollars ($5,000,000) or such lower amount of liability or potential liability as the Seller Lenders may have under such agreements. The Section 506(a), 506(b), 1111(b) or any other provisions of this Section 10.10 shall survive the termination Bankruptcy Code to file a claim for the full amount of this Agreement and the Closing. This Section 10.10 will not apply to the parties to the Parking Easement Debt or the Development Indemnity Agreement to the extent such claim or cause of action relates solely to the Parking Easement Agreement or the Development Indemnity Agreement, as applicable.to
Appears in 1 contract
Sources: Mezzanine Loan Agreement (KBS Strategic Opportunity REIT, Inc.)
Exculpation. Buyer agrees that it does Notwithstanding anything herein or in any other Loan Document to the contrary, except as otherwise set forth in this Section 18.32 to the contrary, Lender shall not have enforce the liability and will not have obligation of Borrower or (a) if Borrower is a partnership, its constituent partners or any claims of their respective partners, (b) if Borrower is a trust, its beneficiaries or causes any of action against their respective Partners (as hereinafter defined), (c) if Borrower is a corporation, any disclosed of its shareholders, directors, principals, officers or undisclosed officer, director, employee, trustee, shareholder, partner, member, principal, parent, subsidiary or other affiliate of Seller, including, without limitation, Tishman Speyer Properties, L.P. and Goldman, Sachs & Co.employees, or (d) if Borrower is a limited liability company, any of its members, holders of an indirect interest in ▇▇▇ ▇▇fic▇▇▇▇, ▇irector▇▇▇▇▇▇▇’s officers, employeemanagers and directors. and any shareholders, trusteedirectors, shareholderprincipals, memberpartners, partner officers or principal employees of the holders of any indirect interest in Borrower (the Persons described in the foregoing clauses (a) - (d), as the case may be, are hereinafter referred to as the “Partners”) to perform and observe the obligations contained in this Security Instrument or any of the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against Borrower or the Partners, except that Lender may bring a foreclosure action, action for specific performance, or other appropriate action or proceeding solely for the purpose of enabling Lender to realize upon (i) Borrower’s interest in the Property, (ii) the Rent to the extent received by Borrower (or received by its Partners) during the continuance of an Event of Default and not applied to operating expenses or debt service (all Rent covered by clause (ii) being hereinafter referred to as the “Recourse Distributions”) and (iii) any other collateral given to Lender under the Loan Documents (the collateral described in the foregoing clauses (i) - (iii) is hereinafter referred to as the “Default Collateral”); provided, however, that any judgment in any such action or proceeding shall be enforceable against Borrower and the Partners only to the extent of any such parent, subsidiary or other affiliate (collectively, "Seller's Affiliates"), arising out of with this Agreement or the transactions contemplated hereby. Buyer agrees to look solely to Seller and its assets for the satisfaction of any liability or obligation arising under this Agreement or the transactions contemplated hereby, or for the performance of any of the covenants, warranties or other agreements contained herein, and further agrees not to sue or otherwise seek to e▇▇▇rce any personal obligation against any of Seller's Affiliates with respect to any matters arising out of this Agreement or the transactions contemplated herebyDefault Collateral. The provisions of this Section 10.10shall not, however, (a) impair the validity of the Debt evidenced by the Note or in any way affect or impair the lien of this Security Instrument or any of the other Loan Documents or the right of Lender to foreclose this Security Instrument following the occurrence and during the continuance of an Event of Default; (b) impair the right of Lender to name Borrower as a party defendant in any action or suit for judicial foreclosure and sale under this Security Instrument; (c) affect the validity or enforceability of the Note, this Security Instrument, or any of the other Loan Documents, or impair the right of Lender to seek a personal judgment against Guarantor; (d) impair the right of Lender to obtain the appointment of a receiver; (e) impair the enforcement of the Assignment; (f) impair the right of Lender to bring suit for a monetary judgment with respect to fraud or intentional misrepresentation by Borrower or Guarantor in connection with this Security Instrument, the Note or the other Loan Documents, and the foregoing provisions shall not apply modify, diminish or discharge the liability of Borrower or the Partners with respect to Tishman Speyer/Travelers Real Estate Venturesame; (g) impair the right of Lender to bring suit for a monetary judgment to obtain the Recourse Distributions received by Borrower including, L.P. and Whitehall Street Real Estate Limited Partnership IX (collectivelywithout limitation, the "Members") right to bring suit for a monetary judgement to proceed against any Partner, to the extent of any such Recourse Distributions theretofore distributed to and received by such Partner, and the amount any foregoing provisions shall not modify, diminish or discharge the liability of Borrower or the Members has received from Partners with respect to same; (h) impair the proceeds right of Lender to bring suit for a monetary judgment with respect to Borrower’s misappropriation of tenant security deposits or Rent, and the transactions which is foregoing provisions shall not modify, diminish or discharge the subject liability of this Agreement, if Borrower with respect to same; (i) impair the remaining funds available right of Lender to Seller obtain Loss Proceeds due to satisfy the obligations of the Seller Lender pursuant to this Agreement Security Instrument; (j) impair the right of Lender to enforce the provisions of Sections 2.02(g), 12.01, 16.01 or 16.02, inclusive of this Security Instrument, even after repayment in full by Borrower of the Debt or to bring suit for a monetary judgment against Borrower with respect to any obligation set forth in said Sections; (k) prevent or in any way hinder Lender from exercising, or constitute a defense, or counterclaim, or other basis for relief in respect of the exercise of, any other remedy against any or all of the collateral securing the Note as provided in the Loan Documents; (l) impair the right of Lender to bring suit for a monetary judgment with respect to any misapplication or conversion by Borrower (not Bank) of Loss Proceeds, and the foregoing provisions shall not modify, diminish or discharge the liability of Borrower with respect to same; (m) impair the ability of Lender to bring suit for a monetary judgment with respect to any act of intentional damage, arson or waste of the Property resulting from the intentional acts or intentional omissions of Borrower, Guarantor or their respective Affiliates; (n) impair the right of Lender to bring a suit for a monetary judgment in the event of the exercise of any right or remedy under any federal, state or local forfeiture laws resulting in the loss of the lien of this Security Instrument, or the transactions contemplated hereby are not at least equal to Five Million Dollars priority thereof, against the Property as a result of the acts or intentional omissions of Borrower, Guarantor or their respective Affiliates; ($5,000,000o) or such lower amount be deemed a waiver of liability or potential liability as the Seller any right which Lender may have under such agreementsSections 506(a), 506(b), 1111(b) or any other 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; (p) impair the right of Lender to bring suit for monetary judgment with respect to any losses resulting from any claims, actions or proceedings initiated by ▇▇▇▇▇▇▇▇ or Guarantor alleging that the relationship of Borrower and Lender is that of joint venturers, partners, tenants in common, joint tenants or any relationship other than that of debtor and creditor; or (q) impair the right of Lender to bring suit for a monetary judgment in the event of a Transfer in violation of the provisions of Article IX hereof. (it being agreed that permitted transfers and encumbrances pursuant to the terms of the Loan Documents or which may be contested pursuant to the Loan Documents shall not be deemed to be violations of Article IX hereof) The provisions of this Section 10.10 18.32 shall survive be inapplicable to Borrower if (a) any proceeding, action, petition or filing under the termination Bankruptcy Code, or any similar state or federal law now or hereafter in effect relating to bankruptcy, reorganization or insolvency, or the arrangement or adjustment of debts, shall be filed by, consented to or acquiesced in by or with respect to Borrower, or if Borrower shall institute any proceeding for its dissolution or liquidation, or shall make an assignment for the benefit of creditors or (b) Borrower or any Affiliate contests or in any material way interferes with, directly or indirectly (collectively, a “Contest”) any foreclosure action, UCC sale or other material remedy exercised by Lender upon the occurrence of any Event of Default whether by making any motion, bringing any counterclaim, claiming any defense, seeking any injunction or other restraint, commencing any action, or otherwise (provided that if any such Person obtains a non-appealable order successfully asserting a Contest, Borrower shall have no liability under this Agreement clause (b)), in which event Lender shall have recourse against all of the assets of Borrower including, without limitation, any right, title and the Closing. This Section 10.10 will not apply interest of ▇▇▇▇▇▇▇▇ in and to the parties to Property, any partnership interests in Borrower and any Recourse Distributions received by the Parking Easement or Partners of Borrower (but excluding the Development Indemnity Agreement other assets of such Partners to the extent such claim Lender would not have had recourse thereto other than in accordance with the provisions of this Section 18.32). Notwithstanding the foregoing, Borrower shall have no liability under this Section 18.32 for consequential or cause of action relates solely to the Parking Easement Agreement or the Development Indemnity Agreement, as applicablespeculative damages.
Appears in 1 contract
Sources: Deed of Trust, Security Agreement, Assignment of Rents and Fixture Filing (Maguire Properties Inc)
Exculpation. Buyer agrees that it does not have and will not have any claims or causes of action against any disclosed or undisclosed officer, director, employee, trustee, shareholder, partner, member, principal, parent, subsidiary or other affiliate of Seller, including, without limitation, Tishman Speyer Properties, L.P. and Goldman, Sachs & Co., or ▇▇▇ ▇▇fic▇▇, ▇irector, employee, trustee, shareholder, member, partner or principal of any such parent, subsidiary or other affiliate (collectively, "Seller's Affiliates"), arising out of with this Agreement or Notwithstanding anything to the transactions contemplated hereby. Buyer agrees to look solely to Seller and its assets for the satisfaction of any liability or obligation arising under this Agreement or the transactions contemplated hereby, or for the performance of any of the covenants, warranties or other agreements contrary contained herein, it is agreed (a) that if Landlord or any successor in interest is a corporation, there shall be no personal liability on the part of any stockholder, officer or director of such corporation or any subsidiary, affiliate, joint venturer, or partner of such corporation herewith, and further agrees not to sue (b) that if Landlord is a firm, partnership, joint venture or otherwise seek to e▇▇▇rce association, there shall be no personal liability on the part of any personal obligation against any of Seller's Affiliates partner, general or limited, or member thereof with respect to any matters arising out obligations hereunder or in connection herewith. If Landlord shall be in breach or default with respect to its obligations under this Lease, Tenant agrees (a) that it shall look solely to the estate, equity and interest 2 of this Agreement Landlord in the land and building of which the demised premises form a part for the collection of any judgement (or other judicial process} requiring the transactions contemplated herebypayment of money by Landlord in the event of any default or breach by Landlord hereunder and (b) that there shall be no personal liability on the part of Landlord or its stockholders, officers, directors, subsidiaries, affiliates, joint venturers, partners or members for the collection of any such judgement or other judicial process beyond their respective interests in the land and building of which the demised premises form a part. The provisions of this Section 10.10hereof shall not, however, be deemed a waiver or modification of Tenant's rights or Landlord's obligations under this Lease, nor shall not apply to Tishman Speyer/Travelers Real Estate Venture, L.P. and Whitehall Street Real Estate Limited Partnership IX (collectively, it prevent Tenant from obtaininq judgement against the "Members") Landlord in case of such breach or default to the extent of that the amount same shall be a lien against Landlord's equity or interest in said land and building or from levying against Landlord's equity or interest therein, nor from asserting any of set off or deduction against the Members has received from the proceeds of the transactions rents payable under this Lease to which is the subject of Tenant may be entitled under this AgreementLease, if the remaining funds available to Seller to satisfy the obligations of the Seller pursuant to this Agreement or the transactions contemplated hereby are not at least equal to Five Million Dollars ($5,000,000) or such lower amount of liability or potential liability as the Seller may have under such agreements. The provisions of this Section 10.10 shall survive the termination of this Agreement and the Closing. This Section 10.10 will not apply to the parties to the Parking Easement or the Development Indemnity Agreement to the extent such claim or cause of action relates solely to the Parking Easement Agreement or the Development Indemnity Agreement, as applicableby judgement in its favor.
Appears in 1 contract
Sources: Lease Agreement (Lbu Inc)
Exculpation. Buyer agrees Except with respect to the matters set forth in subsections (a) and (b) below, Lender's source of satisfaction of the indebtedness evidenced by this Note and all other covenants and obligations under this Note and any other of the Loan Documents shall be limited to the Property, and Lender shall not seek to procure payment out of other assets of Borrower or its general partners, or seek a judgment (except as hereinafter provided) for any sums which are or may be payable under this Note or any other of the Loan Documents, or claim or seek judgment for any deficiency remaining after foreclosure of the Security Instrument; provided, however, that it does the foregoing clause shall not have and will not have any claims or causes prejudice the right of action against any disclosed or undisclosed officer, director, employee, trustee, shareholder, partner, member, principal, parent, subsidiary Lender to enforce the lien of the Security Instrument or other affiliate security given for the payment thereof or to exercise any of Sellerits remedies at law other than the entry of a personal money judgment against the Borrower. The foregoing notwithstanding:
(a) Borrower and its general partners shall be and remain personally liable for all losses, includingcosts, without limitation, Tishman Speyer Properties, L.P. and Goldman, Sachs & Co.damages, or expenses incurred by L▇▇▇▇▇ in the following instances:
(i) failure to pay or cause to be paid Taxes (except to the extent that Borrower has deposited funds with Lender pursuant to the Security Instrument for the purpose of paying such items) or to pay or cause to be paid charges for labor or materials, or other charges which can create liens on any portion of the Property;
(ii) as a result of waste (except ordinary wear and tear), arson committed or instigated by B▇▇fic▇▇▇▇▇, ▇irectorany Guarantor or any partner, employeemember or shareholder in Borrower, trusteeor a violation of the provisions in the Security Instrument regarding removal, shareholder, member, partner demolition or principal structural alteration of any such parentportion of the Property;
(iii) breach or failure to perform or comply with any of the insurance provisions of the Loan Documents;
(iv) all court costs and reasonable attorneys' fees and costs actually incurred by L▇▇▇▇▇ to the extent that Lender is the prevailing party in any litigation to collect amounts owing pursuant to the provisions of this Section 10;
(v) B▇▇▇▇▇▇▇'s breach or failure to perform or comply with Section 1.03 (captioned "Hazardous Waste") of the Security Instrument, subsidiary or other affiliate Borrower's or any Guarantor's breach or failure to perform or comply with the provisions of the Environmental Indemnification Agreement of even date herewith executed by Borrower for the benefit of Lender;
(collectively, "Seller's Affiliates"vi) misapplication of or failure to deliver to Lender (in accordance with the terms of the Loan Documents), arising out of with this Agreement the following: (1) any insurance or the transactions contemplated hereby. Buyer agrees condemnation proceeds; (2) rents, issues or profits received by B▇▇▇▇▇▇▇/Guarantor or its agent after L▇▇▇▇▇ makes written demand therefor pursuant to look solely to Seller and its assets for the satisfaction of any liability Loan Document; or obligation arising under this Agreement (3) prepaid rents or the transactions contemplated hereby, or for the performance tenant security deposits; or
(vii) violation of any of the covenantsprovisions of Sections 1.29 and 1.30 (captioned "Single Purpose Entity" and "ERISA", warranties respectively) of the Security Instrument.
(b) Borrower and its general partners shall be and remain personally liable without exculpation or other agreements contained hereinlimitation of liability whatsoever for the entire amount of the indebtedness evidenced by the Note (including all principal, interest, and further agrees not other charges) and all other sums due or to sue become due under the other Loan Documents, whether at maturity or otherwise seek to e▇▇▇rce any personal obligation against any by acceleration or otherwise, in the following instances:
(i) violation of Seller's Affiliates with respect to any matters arising out of this Agreement or the transactions contemplated hereby. The provisions of this Section 10.10, however, shall not apply to Tishman Speyer/Travelers Real Estate Venture, L.P. and Whitehall Street Real Estate Limited Partnership IX (collectively, the "Members") to the extent of the amount any of the Members has received provisions of Sections 1.15(c) and (d) of the Security Instrument (captioned, "No Sale/Encumbrance" and "Permitted Transfers", respectively);
(ii) fraud or intentional misrepresentation in connection with the Property, Loan Documents, or Loan Application; or
(iii) the Property or any part thereof becomes an asset in: (1) a voluntary bankruptcy or insolvency proceeding commenced by Borrower; or (2) an involuntary bankruptcy or insolvency proceeding in which: (A) such proceeding was commenced by any entity controlling, controlled by or under common control with Borrower (individually or collectively, "Affiliate''), including but not limited to any creditor or claimant acting in concert with Borrower or any Affiliate; or (B) any Affiliate objects to a motion by Lender for relief from any stay or injunction from the proceeds foreclosure of the transactions which is Security Instrument or any other remedial action permitted under the subject of this AgreementNote, if the remaining funds available to Seller to satisfy the obligations of the Seller pursuant to this Agreement Security Instrument or the transactions contemplated hereby are not at least equal to Five Million Dollars ($5,000,000) or such lower amount of liability or potential liability as the Seller may have under such agreements. The provisions of this Section 10.10 shall survive the termination of this Agreement and the Closing. This Section 10.10 will not apply to the parties to the Parking Easement or the Development Indemnity Agreement to the extent such claim or cause of action relates solely to the Parking Easement Agreement or the Development Indemnity Agreement, as applicableother Loan Documents.
Appears in 1 contract
Sources: Loan Agreement (Netreit, Inc.)
Exculpation. Buyer agrees that it does Subject to the qualifications below, Lender shall not have enforce the liability and will not have 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 claims action or causes of action proceeding wherein a money judgment or any deficiency judgment or other judgment establishing personal liability shall be sought against Borrower or any disclosed or undisclosed officerprincipal, director, officer, employee, trusteebeneficiary, shareholder, partner, member, principaltrustee, parent, subsidiary or other affiliate of Seller, including, without limitation, Tishman Speyer Properties, L.P. and Goldman, Sachs & Co.agent, or ▇▇▇ ▇▇fic▇▇Affiliate of Borrower (but specifically excluding Guarantor) or any legal representatives, ▇irector, employee, trustee, shareholder, member, partner successors or principal of any such parent, subsidiary or other affiliate (collectively, "Seller's Affiliates"), arising out of with this Agreement or the transactions contemplated hereby. Buyer agrees to look solely to Seller and its assets for the satisfaction of any liability or obligation arising under this Agreement or the transactions contemplated hereby, or for the performance assigns of any of the covenantsforegoing (collectively, warranties the “Exculpated Parties”), except that Lender may bring a foreclosure action, an action for specific performance or any other agreements contained 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 further agrees 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 to sue or otherwise seek to e▇▇▇rce ▇ for, seek or demand any personal obligation deficiency judgment against Borrower or any of Seller's Affiliates the Exculpated Parties in any such action or proceeding under or by reason of or under or in connection with respect to any matters arising out of the Note, this Agreement Agreement, the Security Instrument or the transactions contemplated herebyother Loan Documents. The provisions of this Section 10.10shall not, however, shall not apply (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 Tishman Speyer/Travelers Real Estate Venturename 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, L.P. and Whitehall Street Real Estate Limited Partnership IX guaranty or similar instrument (collectivelyincluding, without limitation, the "Members"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 and/or Guarantor (as applicable) personally and without the effect of the exculpatory provisions of this Article 13); (4) impair the right of Lender to obtain the appointment of a receiver; (5) impair the enforcement of the assignment of leases and rents contained in the Security Instrument; (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 the amount any Losses incurred by Lender (including attorneys’ fees and costs reasonably incurred) arising out of or in connection with any of the Members has following:
(i) fraud or intentional misrepresentation or any failure to disclose a material fact by Borrower, any SPE Component Entity, Guarantor, or any Borrower Party in connection with the Loan;
(ii) the gross negligence or willful misconduct of Borrower, any SPE Component Entity, Guarantor or any Borrower Party or the commission of a criminal act by Borrower, any SPE Component Entity, Guarantor or any Borrower Party which results in any seizure or forfeiture of the Property, or any portion thereof, or Borrower’s interest therein;
(iii) material physical waste to the Property caused by the intentional acts or intentional omissions of Borrower, any SPE Component Entity, Guarantor 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 Default by Borrower, any SPE Component Entity, Guarantor or any Borrower Party;
(iv) the misapplication, misappropriation or conversion by Borrower of (A) any insurance proceeds paid by reason of any loss, damage or destruction to the Property, (B) any Awards or other amounts received in connection with the Condemnation of all or a portion of the Property, (C) any Rents following an Event of Default or (D) any Tenant security deposits or Rents collected more than one (1) month 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 the Property to the extent that the revenue from the proceeds Property is sufficient to pay such amounts (other than (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 transactions which 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 subject Insurance Premiums relating thereto (other than the failure to 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 the Security Instrument, in each case, concerning Environmental Laws and Hazardous Substances;
(viii) any fees or commissions paid by Borrower after the occurrence of any Event of Default to Guarantor and/or any Affiliate of Borrower and/or Guarantor 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 15 of this Agreement and/or the provisions of Sections 11.2 and 12.3 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 of, this Agreement, the Assignment of Management Agreement and the other Loan Documents or Borrower appoints a new property manager or replaces the property manager other than in accordance with the terms of this Agreement, if the remaining funds Assignment of Management Agreement and the other Loan Documents; and/or
(xi) Borrower’s breach of or failure to comply with any representation, warranty or covenant contained in Article 5 hereof, provided, however, that Borrower shall only be liable to Lender to the extent any such breach or failure with respect to Article 5 was material and, within fifteen (15) days of notice from Lender, Borrower fails to cure such breach or failure and fails to deliver to Lender a New Non-Consolidation Opinion to the effect that such failure does not negate/impair the opinion previously delivered to Lender.
(xii) Borrower fails to perform the Environmental Work as and when required pursuant to Section 8.9 hereof.
(xiii) any litigation or other legal proceeding related to the Debt filed by 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 Seller Lender as provided herein and in the other Loan Documents. Notwithstanding anything to satisfy the obligations contrary in this Agreement, the Note or any of the Seller pursuant Loan Documents, (A) Lender shall not be deemed to this Agreement or the transactions contemplated hereby are not at least equal to Five Million Dollars ($5,000,000) or such lower amount of liability or potential liability as the Seller have waived any right which Lender may have under such agreements. The Section 506(a), 506(b), 1111(b) or any other provisions of this Section 10.10 the Bankruptcy Code to file a claim for the full amount of the Debt or to require that all collateral shall survive continue to secure all of the termination 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) if any Prohibited Transfer occurs in violation of this Agreement and Article 6 hereof; (ii) Borrower or any SPE Component Entity files a voluntary petition under the Closing. This Section 10.10 will not apply Bankruptcy Code or any other Creditors Rights Laws; (iii) 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; (iv) 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 (other than an involuntary petition filed by Lender) under the parties Bankruptcy Code or any other Creditors Rights Laws, or solicits or causes to be solicited petitioning creditors for any involuntary petition from any Person; (v) 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 Parking Easement appointment of a receiver or similar arrangement under any Applicable Laws (other than an application for the Development Indemnity Agreement appointment of a receiver sought by Lender); (vi) 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 (other than an admission in a legal proceeding commenced by Lender in which Borrower or SPE Component Entity is making a truthful statement upon the extent advice of counsel which is required to be made in such claim legal proceeding); (vii) there is substantive consolidation of Borrower or cause 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 action relates solely to the Parking Easement Agreement or the Development Indemnity Agreementits Affiliates (including, without limitation, as applicablea result or any breach or violation by Borrower of any of the representations, warranties or covenants contained in Article 5 hereof); or (viii) 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.
Appears in 1 contract
Exculpation. Buyer agrees that it does not have and will Notwithstanding any provision to the contrary ----------- elsewhere in this Agreement or any of the other Loan Documents, the Agent shall not have any claims duties or causes of action against any disclosed or undisclosed officerresponsibilities, director, employee, trustee, shareholder, partner, member, principal, parent, subsidiary or other affiliate of Seller, including, without limitation, Tishman Speyer Properties, L.P. and Goldman, Sachs & Co.except those expressly set forth herein, or ▇▇▇ ▇▇fic▇▇any trust or fiduciary relationship with any Bank, ▇irectorand no implied covenants, employeefunctions, trusteeresponsibilities, shareholderduties, member, partner obligations or principal of any such parent, subsidiary or other affiliate (collectively, "Seller's Affiliates"), arising out of with liabilities shall be read into this Agreement or any other Loan Document or otherwise exist against the transactions contemplated herebyAgent. Buyer agrees to look solely to Seller and its assets for Neither the satisfaction of any liability or obligation arising under this Agreement or the transactions contemplated hereby, or for the performance of Agent nor any of the covenantsits directors, warranties officers, employees or other agreements contained herein, and further agrees not to sue or otherwise seek to e▇▇▇rce any personal obligation against any of Seller's Affiliates with respect to any matters arising out of this Agreement or the transactions contemplated hereby. The provisions of this Section 10.10, however, shall not apply to Tishman Speyer/Travelers Real Estate Venture, L.P. and Whitehall Street Real Estate Limited Partnership IX agents (collectively, the "MembersRelated Parties") shall be liable to any --------------- Bank for any action taken or omitted to be taken by it under this Agreement or any other Loan Document, or in connection herewith or therewith, except for its own willful misconduct or gross negligence, nor shall the extent of the amount Agent or any of the Members has received from Related Parties be responsible for any recitals or representations or warranties herein or therein, or for the proceeds effectiveness, enforceability, validity, or due execution of the transactions which is the subject of this Agreement, if the remaining funds available to Seller to satisfy the obligations of the Seller pursuant to this Agreement or any other Loan Document, nor shall the transactions contemplated hereby are not at least equal Agent or any of the Related Parties be obligated to Five Million Dollars ($5,000,000) make any inquiry respecting the performance by the Principal Companies of their obligations hereunder or such lower amount thereunder, or to inspect the Properties, books or records of liability or potential liability as the Seller may have under such agreementsPrincipal Companies. The provisions Agent shall be entitled to rely upon advice of this Section 10.10 counsel concerning legal matters and upon any notice, consent, certificate, statement, or writing which it believes to be genuine and to have been presented by a proper Person. The Agent shall survive the termination of in all cases be fully protected in acting, or in refraining from acting, under this Agreement and the Closing. This Section 10.10 will not apply to other Loan Documents in accordance with a request of the parties to the Parking Easement or the Development Indemnity Agreement Required Banks (or, to the extent this Agreement requires a higher percentage, such claim higher percentage), and such request and any action taken or cause failure to act pursuant thereto shall be binding upon all the Banks and all future holders of the Obligations. The Agent shall be fully justified in failing or refusing to take any action relates solely under this Agreement or any other Loan Document unless it shall first receive such advice or concurrence of the Required Banks (or, to the Parking Easement extent this Agreement or the Development Indemnity Agreementrequires a higher percentage, such higher percentage) as applicableit deems appropriate.
Appears in 1 contract
Sources: Credit Agreement (View Tech Inc)
Exculpation. Buyer agrees that it does not have and will not have any claims or causes of action against any disclosed or undisclosed officer, director, employee, trustee, shareholder, partner, member, principal, parent, subsidiary or other affiliate of Seller (herein "Seller's Affiliates") or against any disclosed or undisclosed officer, director, employee, trustee, shareholder, partner, member, principal, parent, subsidiary or other affiliate of WHTS, including, without limitation, Tishman Speyer Properties, L.P. and Goldman▇▇▇▇▇▇▇, Sachs ▇▇▇▇▇ & Co., or ▇▇▇ ▇▇fic▇▇any officer, ▇irectordirector, employee, trustee, shareholder, member, partner or principal of any such parent, subsidiary or other affiliate (collectively, "Seller's WHTS' Affiliates"), arising out of with this Agreement Agreement, the Closing Certificates, or the transactions contemplated hereby. Buyer agrees to look solely to Seller and its assets and to WHTS and its assets for the satisfaction of any liability or obligation arising under this Agreement Agreement, the Closing Documents, or the transactions contemplated hereby, or for the performance of any of the covenants, warranties or other agreements contained hereinherein or in the Closing Documents, and further agrees not to sue ▇▇▇ or otherwise seek to e▇▇▇rce enforce any personal obligation against any of Seller's Affiliates or WHTS' Affiliates with respect to any matters arising out of this Agreement Agreement, the Closing Documents, or the transactions contemplated hereby. The provisions of this Section 10.1010.11, however, shall not apply to Seller's Affiliates to the extent of the amount a Seller's Affiliate has received after the date of this Agreement, if the remaining funds available to Seller to satisfy the obligations of Seller to Buyer pursuant to this Agreement and the Closing Documents are not at least equal to Five Million Dollars ($5,000,000) or such lower amount of liability or potential liability as Seller may have under such agreements. In addition, the provisions of this Section 10.11 shall not apply to Tishman Speyer/Travelers Real Estate Venture, L.P. and Whitehall Street Real Estate Limited Partnership IX (collectively, the "Members") to the extent of the amount any of the Members has received from the proceeds of the transactions which is the subject of this the WHTS Agreement, if the remaining funds available to Seller WHTS to satisfy the obligations of the Seller WHTS to Buyer pursuant to this Agreement, the Closing Documents and the WHTS Agreement or the transactions contemplated hereby are not at least equal to Five Million Dollars ($5,000,000) or such lower amount of liability or potential liability as the Seller WHTS may have under such agreements. The provisions of this Section 10.10 10.11 shall survive the termination of this Agreement and the ClosingClosing Date. This Section 10.10 10.11 will not apply to the parties to the Parking Easement or the Development Indemnity Agreement to the extent such claim or cause of action relates solely to the Parking Easement Agreement or the Development Indemnity Agreement, as applicable.
Appears in 1 contract
Exculpation. Buyer agrees Notwithstanding anything to the contrary in this Lease, and except with respect to the Security Deposit or as may be explicitly agreed in writing after the date hereof, it is expressly understood and agreed that it does not have Tenant is a limited liability company and will not have any claims or causes of action against any disclosed or undisclosed officer, director, employee, trustee, shareholder, partner, member, principal, parent, subsidiary or other affiliate of Seller, including, without limitation, Tishman Speyer Properties, L.P. and Goldman, Sachs & Co., or ▇▇▇ ▇▇fic▇▇, ▇irector, employee, trustee, shareholder, member, partner or principal of any such parent, subsidiary or other affiliate (collectively, "Seller's Affiliates"), arising out of with this Agreement or the transactions contemplated hereby. Buyer agrees to look solely to Seller and its assets a) Tenant shall be personally liable for the satisfaction payment and performance of any liability or obligation arising the duties, responsibilities, liabilities and obligations of Tenant under this Agreement or Lease to the transactions contemplated hereby, or for extent (but only to the performance extent) of the assets of Tenant (specifically excluding the assets of any of the covenantspast, warranties present or future members of Tenant or any past, present or future shareholder of any corporate member of Tenant, except for any such member’s or shareholder’s interest in any then undistributed assets of Tenant and sales proceeds thereof), (b) none of the past, present or future members of Tenant or past, present or future shareholders of any of the corporate members of Tenant shall be personally liable for the payment or performance of any such duties, responsibilities, liabilities or obligations, (c) no past, present or future member of Tenant or past, present or future shareholders of any corporate member of Tenant shall be named as a party in any suit or other agreements contained herein, and further agrees not to sue judicial proceeding of any kind or otherwise seek to e▇▇▇rce any personal obligation nature whatsoever brought against any of Seller's Affiliates Tenant with respect to any matters arising out of this Agreement or the transactions contemplated hereby. The provisions of this Section 10.10Lease, however, shall not apply to Tishman Speyer/Travelers Real Estate Venture, L.P. and Whitehall Street Real Estate Limited Partnership IX (collectively, the "Members") except to the extent necessary to secure jurisdiction of Tenant, and any such suit or other judicial proceeding shall be limited to the enforcement of the amount rights of Landlord with respect to the then undistributed assets (and sales proceeds thereof) of Tenant, and (d) no attachment, execution or other write of process shall be sought, issued or levied upon any assets, property or funds of any of the Members has received from past, present or future members of Tenant or past, present or future shareholder of any corporate member of Tenant, except for any such member’s or shareholder’s interest in any then undistributed assets (and sales proceeds thereof) of Tenant. For the proceeds purposes of this Section, no portion of the transactions which is assets of any employee benefit plans maintained by Tenant for the subject benefit of this Agreementany present, if the remaining funds available future or former members or employees of Tenant shall be deemed to Seller to satisfy the obligations be assets of the Seller pursuant to this Agreement or the transactions contemplated hereby are not at least equal to Five Million Dollars ($5,000,000) or such lower amount of liability or potential liability as the Seller may have under such agreements. The provisions of this Section 10.10 shall survive the termination of this Agreement and the Closing. This Section 10.10 will not apply to the parties to the Parking Easement or the Development Indemnity Agreement to the extent such claim or cause of action relates solely to the Parking Easement Agreement or the Development Indemnity Agreement, as applicableTenant.
Appears in 1 contract
Exculpation. Buyer agrees that it does (a) Subject to the qualifications below, Lender shall not have enforce the liability and will not have obligation of Borrower to perform and observe the obligations contained in the Note, this Agreement, the Pledge Agreement or the other Loan Documents by any claims action or causes of action proceeding wherein a money judgment or any deficiency judgment or other judgment establishing personal liability shall be sought against Borrower, any disclosed other Borrower Party, or undisclosed officerany principal, director, officer, employee, trusteebeneficiary, shareholder, partner, member, principaltrustee, parent, subsidiary or other affiliate of Seller, including, without limitation, Tishman Speyer Properties, L.P. and Goldman, Sachs & Co.agent, or ▇▇▇ ▇▇fic▇▇Affiliate of Borrower or any legal representatives, ▇irector, employee, trustee, shareholder, member, partner successors or principal of any such parent, subsidiary or other affiliate (collectively, "Seller's Affiliates"), arising out of with this Agreement or the transactions contemplated hereby. Buyer agrees to look solely to Seller and its assets for the satisfaction of any liability or obligation arising under this Agreement or the transactions contemplated hereby, or for the performance assigns of any of the covenantsforegoing (collectively, warranties the “Exculpated Parties”), except that Lender may bring a foreclosure action, an action for specific performance or any other agreements contained appropriate action or proceeding to enable Lender to enforce and realize upon its interest under the Note, this Agreement, the Pledge Agreement and the other Loan Documents, or in the Property, the 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 Collateral and further agrees in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Pledge Agreement and the other Loan Documents, shall not to sue for, seek or otherwise seek to e▇▇▇rce demand any personal obligation deficiency judgment against Borrower or any of Seller's Affiliates the Exculpated Parties in any such action or proceeding under or by reason of or under or in connection with respect to any matters arising out of the Note, this Agreement, the Pledge Agreement or the transactions contemplated herebyother Loan Documents. The provisions of this Section 10.10shall not, however, shall not apply (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 Tishman Speyer/Travelers Real Estate Venturename Borrower as a party defendant in any action or suit for foreclosure and sale under the Pledge Agreement; (3) affect the validity or enforceability of any indemnity, L.P. guaranty or similar instrument (including, without limitation, indemnities set forth in Article 12 hereof, Section 11.2 hereof, in the Guaranty and Whitehall Street Real Estate Limited Partnership IX the Environmental Indemnity) made in connection with the Loan or any of the rights and remedies of Lender thereunder (collectivelyincluding, without limitation, L▇▇▇▇▇’s right to enforce said rights and remedies against B▇▇▇▇▇▇▇ and/or Guarantor (as applicable) personally and without the "Members"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 Pledge Agreement or 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 Pledge Agreement or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against the Property (or any portion thereof) and/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 actually incurred by Lender (including reasonable attorneys’ fees and costs reasonably incurred) arising out of or in connection with the amount following:
(i) fraud or intentional material misrepresentation by B▇▇▇▇▇▇▇, Mortgage Borrower, any SPE Component Entity, any Mortgage 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 Members has received foregoing (each, a “Recourse Party”) in connection with the Loan;
(ii) willful misconduct of any Recourse Party in connection with the Loan;
(iii) the breach of any indemnification provision in the Loan Documents or the Mortgage Loan Documents concerning environmental laws, hazardous substances and asbestos and any indemnification of Lender with respect thereto;
(iv) material physical waste to any Property caused by the intentional acts of any Recourse Party, but only to the extent there is sufficient cash flow from the proceeds Properties to prevent such physical waste and such cash flow is made available by (x) Mortgage Lender for the purpose of preventing such physical waste from the applicable Mortgage Loan Reserve Accounts after all conditions to such release had been met to the extent sums sufficient to pay or perform such liability have been deposited with Mortgage Lender in accordance with the terms of the transactions which is Mortgage Loan Agreement or (y) Lender for the subject purpose of preventing such physical waste from Accounts (if any) after all conditions to such release had been met to the extent sums sufficient to pay or perform such liability have been deposited with Lender in accordance with the terms of this Agreement;
(v) the 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 a Recourse Party in contravention of the Loan Documents: (A) any insurance proceeds received by Borrower by reason of any Casualty, (B) any Awards or other amounts received by Borrower from a governmental authority in connection with a Condemnation of all or a portion of the Property, (C) any revenues generated by the Properties, (D) any proceeds received by Mortgage Borrower or Borrower under any owner’s title insurance policy, (E) any distributions or other payments made in violation of this Agreement, if or (F) Net Liquidation Proceeds After Debt Service;
(vii) any Security Deposits, advance deposits or any other deposits collected with respect to any Property which are not delivered to Lender upon a foreclosure of such Property or action in lieu thereof, except to the remaining funds extent any such Security Deposits were delivered to Mortgage Lender in accordance with the Mortgage Loan Agreement and/or applied in accordance with the terms and conditions of any of the applicable Lease;
(viii) any litigation or other legal proceeding related to the Loan filed by a Recourse Party with the effect of delaying, opposing, impeding, obstructing, hindering, enjoining or otherwise interfering with the efforts of L▇▇▇▇▇ to exercise any rights and remedies available to Seller 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, B▇▇▇▇▇▇▇’s or Guarantor’s right to, dispute, in good faith, whether the relevant Event of Default shall have occurred or whether an action taken by Lender pursuant to satisfy 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 L▇▇▇▇▇;
(ix) Borrower fails to obtain L▇▇▇▇▇’s prior written consent to any additional indebtedness or voluntary lien encumbering any Property, the Collateral and not permitted by the Loan Documents;
(x) Intentionally omitted;
(xi) any voluntary termination, or any voluntary, material modification of any Ground Lease by Borrower or Mortgage Borrower without L▇▇▇▇▇’s prior written consent other than as expressly permitted under this Agreement; provided, that 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 Mortgage Borrower without L▇▇▇▇▇’s prior written consent other than in connection with Mortgage 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 a foreclosure of the Pledge Agreement or assignment in lieu thereof, or (C) Mortgage Borrower’s or the applicable Tenant’s failure to comply with or Mortgage Borrower’s or the applicable Tenant’s breach of any PILOT Lease and/or PILOT Document that results in (x) a reduction of any tax abatement and/or mandatory repayment of any past or current tax abatement under such PILOT Lease and/or PILOT Document, as applicable, (y) termination of such PILOT Lease and/or PILOT Document, as applicable, and the benefits thereunder in favor of Mortgage Borrower or Tenant or (z) a default by such Mortgage Borrower under the applicable Lease for such PILOT Property (and, in any such case, Losses shall include lost rental income); provided, that, in each case, the liability with respect to this Section 13.1(a)(xii) shall not exceed the Allocated Loan Amount of the applicable PILOT Property;
(xiii) other 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 Condominium Documents are amended, modified, supplemented, terminated, cancelled or otherwise cease to exist without Lender’s prior written consent;
(xv) any 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 or Mortgage Borrower relating to the Previously-Owned Property;
(xvii) incurrence of liens encumbering any Property, the Collateral or the direct or indirect interests in Borrower or Mortgage Borrower;
(xviii) any Borrower Party enters into Material Agreements in violation of this Agreement;
(xix) unsecured indebtedness and indemnification obligations of Mortgage Borrower, in each instance, in contravention of the Seller Loan Documents or Mortgage Loan Documents;
(xx) if Borrower or any Affiliate of Borrower purchases all or any part of the Mortgage Loan;
(xxi) any obligation of Borrower or Mortgage Borrower (a) to indemnify any Person that, immediately prior to any acquisition of title to the Collateral pursuant to a UCC foreclosure sale, a UCC strict foreclosure, an assignment in lieu of foreclosure or other enforcement action under the Loan Documents (collectively, an “Equity Collateral Enforcement Action”) was an Affiliate of Borrower or Mortgage Borrower, (b) to pay any amounts due under any contract or agreement between Borrower or Mortgage Borrower, on the one hand, and any Person that, immediately prior to an Equity Collateral Enforcement Action, was an Affiliate of Borrower or Mortgage Borrower, on the other hand; and/or (c) to pay legal fees to any legal counsel engaged by Borrower or Mortgage Borrower or any Affiliate of Borrower or Mortgage Borrower prior to the date of the consummation of an Equity Collateral Enforcement Action;
(xxii) any breach of any representation, warranty or covenant contained in Section 10 of the Pledge Agreement; and/or
(xxiii) failure to pay (A) Taxes when the same become delinquent, subject to Borrower’s or Mortgage 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)(xxiii) 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 from the applicable Mortgage Loan Reserve Accounts held by Mortgage Lender or any Accounts held by Lender to pay such Taxes or Insurance Premiums prior to the date upon which such payment becomes delinquent and Mortgage Lender or Lender is required to use such amounts for the payment of such Taxes or Insurance Premiums and fails to make such payment in accordance with this Agreement or the transactions contemplated hereby are Mortgage Loan Agreement.
(b) Notwithstanding anything to the contrary in this Agreement, the Note or any of the Loan Documents, (A) Lender shall not at least equal be deemed to Five Million Dollars ($5,000,000) or such lower amount of liability or potential liability as the Seller have waived any right which Lender may have under such agreements. The Section 506(a), 506(b), 1111(b) or any other provisions of this Section 10.10 the Bankruptcy Code to file a claim for the full amount of the Debt or to require that all collateral shall survive continue to secure all of the termination 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 filing of, a petition against Borrower under the 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 this Agreement and a custodian, receiver, trustee, or examiner for Borrower (other than with the Closing. This Section 10.10 will not apply to the parties to the Parking Easement or the Development Indemnity Agreement to the extent such claim or cause prior written consent of action relates solely to the Parking Easement Agreement or the Development Indemnity Agreement, as applicable.L▇▇▇▇▇),
Appears in 1 contract
Sources: Mezzanine Loan Agreement (Industrial Logistics Properties Trust)
Exculpation. Buyer agrees that it does not Except as otherwise specifically provided in the Plan, no Exculpated Party shall have or incur liability for and will not have each Exculpated Party is hereby released and exculpated from any claims Cause of Action for any claim related to any act or causes omission in connection with, relating to, or arising out of, the Chapter 11 Cases, the formulation, preparation, dissemination, solicitation, negotiation, filing, or termination of action against the Restructuring Support Agreement and related prepetition transactions, the Disclosure Statement, the Plan, the Plan Supplement, or any disclosed or undisclosed officerRestructuring Transaction, directorcontract, employeeinstrument, trusteerelease, shareholder, partner, member, principal, parent, subsidiary or other affiliate agreement or document (including any legal opinion requested by any Entity regarding any transaction, contract, instrument, document or other agreement contemplated by the Plan or the reliance by any Released Party on the Plan or the Confirmation Order in lieu of Sellersuch legal opinion) created or entered into in connection with the Restructuring Support Agreement, includingthe Disclosure Statement, without limitationthe Plan, Tishman Speyer Propertiesthe Plan Supplement, L.P. the Chapter 11 Cases, the filing of the Chapter 11 Cases, the pursuit of Confirmation, the pursuit of Consummation, the administration and Goldmanimplementation of the Plan, Sachs & Co.including the issuance or distribution of Securities pursuant to the Plan, or ▇▇▇ ▇▇fic▇▇the distribution of property under the Plan or any other related agreement, ▇irectoror upon any other related act or omission, employeetransaction, trusteeagreement, shareholderevent, member, partner or principal of any such parent, subsidiary or other affiliate (collectivelyoccurrence taking place on or before the Effective Date, "Seller's Affiliates")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, arising out of with this Agreement or the transactions contemplated hereby. Buyer agrees to look solely to Seller and its assets for the satisfaction of any liability or obligation arising under this Agreement or the transactions contemplated herebywillful misconduct, or for gross negligence, but in all respects such Entities shall be entitled to reasonably rely upon the performance advice of any of the covenants, warranties or other agreements contained herein, and further agrees not to sue or otherwise seek to e▇▇▇rce any personal obligation against any of Seller's Affiliates counsel with respect to any matters arising out of this Agreement or their duties and responsibilities pursuant to the transactions contemplated herebyPlan. The provisions Exculpated Parties shall be deemed to have participated in good faith and in compliance with the applicable laws with regard to the solicitation of this Section 10.10votes and distribution of consideration pursuant to the Plan and, howevertherefore, are not, and on account of such distributions shall not apply to Tishman Speyer/Travelers Real Estate Venturebe, L.P. and Whitehall Street Real Estate Limited Partnership IX (collectivelyliable at any time for the violation of any applicable law, rule, or regulation governing the "Members") solicitation of acceptances or rejections of the Plan or distributions made pursuant to the extent of the amount any of the Members has received from the proceeds of the transactions which is the subject of this Agreement, if the remaining funds available to Seller to satisfy the obligations of the Seller pursuant to this Agreement or the transactions contemplated hereby are not at least equal to Five Million Dollars ($5,000,000) or such lower amount of liability or potential liability as the Seller may have under such agreements. The provisions of this Section 10.10 shall survive the termination of this Agreement and the Closing. This Section 10.10 will not apply to the parties to the Parking Easement or the Development Indemnity Agreement to the extent such claim or cause of action relates solely to the Parking Easement Agreement or the Development Indemnity Agreement, as applicablePlan.
Appears in 1 contract
Sources: Restructuring Support Agreement (Jones Energy, Inc.)
Exculpation. Buyer Notwithstanding any contrary provision hereof, (a) the liability of the Landlord Parties to Tenant shall be limited to an amount equal to Landlord’s interest in the Building; (b) Tenant shall look solely to Landlord’s interest in the Building for the recovery of any judgment or award against any Landlord Party; (c) no Landlord Party shall have any personal liability for any judgment or deficiency, and Tenant waives and releases such personal liability on behalf of itself and all parties claiming by, through or under Tenant; and (d) no Landlord Party shall be liable for any injury or damage to, or interference with, Tenant’s business, including loss of profits, loss of rents or other revenues, loss of business opportunity, loss of goodwill or loss of use, or for any form of special or consequential damage. Landlord acknowledges and agrees that it does Tenant shall not be deemed to have waived any Claim not otherwise waived pursuant to the terms of this Lease. For purposes of this Section 20, “Landlord’s interest in the Building” shall include rents paid by tenants, insurance proceeds, condemnation proceeds, and will not have any claims or causes proceeds from the sale of action against any disclosed or undisclosed officer, director, employee, trustee, shareholder, partner, member, principal, parent, subsidiary or other affiliate of Seller, including, without limitation, Tishman Speyer Properties, L.P. and Goldman, Sachs & Co., or ▇▇▇ ▇▇fic▇▇, ▇irector, employee, trustee, shareholder, member, partner or principal of any such parent, subsidiary or other affiliate the Building (collectively, "Seller's Affiliates"“Owner Proceeds”), arising out of with this Agreement or the transactions contemplated hereby. Buyer agrees to look solely to Seller and its assets for the satisfaction of any liability or obligation arising under this Agreement or the transactions contemplated hereby, or for the performance of any of the covenants, warranties or other agreements contained herein, and further agrees not to sue or otherwise seek to e▇▇▇rce any personal obligation against any of Seller's Affiliates with respect to any matters arising out of this Agreement or the transactions contemplated hereby. The provisions of this Section 10.10; provided, however, that Tenant shall not apply be entitled to Tishman Speyer/Travelers Real Estate Venture, L.P. and Whitehall Street Real Estate Limited Partnership IX recover Owner Proceeds from any Landlord Party (collectively, the "Members") to the extent of the amount any of the Members has received from the proceeds of the transactions which is the subject of this Agreement, if the remaining funds available to Seller to satisfy the obligations of the Seller pursuant to this Agreement or the transactions contemplated hereby are not at least equal to Five Million Dollars ($5,000,000other than Landlord) or any other third party after they have been distributed or paid to such lower amount of liability or potential liability as the Seller party; provided further, however, that nothing in this sentence shall diminish any right Tenant may have under such agreements. The provisions of this Section 10.10 shall survive the termination of this Agreement and the Closing. This Section 10.10 will not apply to the parties to the Parking Easement or the Development Indemnity Agreement to the extent such claim or cause of action relates solely to the Parking Easement Agreement or the Development Indemnity AgreementLaw, as applicablea creditor of Landlord, to initiate or participate in an action to recover Owner Proceeds from a third party on the grounds that such third party obtained such Owner Proceeds when Landlord was, or could reasonably be expected to become, insolvent or in a transfer that was preferential or fraudulent as to Landlord’s creditors. Notwithstanding any contrary provision hereof, no Tenant Party shall be liable for any form of special or consequential damage, except as provided in Section 16.
Appears in 1 contract
Sources: Office Lease (Actuate Corp)
Exculpation. Buyer Subject to the qualifications below, Lender shall not enforce the liability and obligation of any 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 this Agreement, the Note or any of the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against any of the Borrower Parties or any other Person, except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender to enforce and realize upon the Property, the Rents or any other collateral given to Lender pursuant to this Agreement and the other Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against the Borrower Parties only to the extent of their interest in the Property, the Rents and in any other collateral given to Lender, and Lender, by accepting this Agreement, the Note and the other Loan Documents, agrees that it does shall not have and will not have any claims or causes of action against any disclosed or undisclosed officer, director, employee, trustee, shareholder, partner, member, principal, parent, subsidiary or other affiliate of Seller, including, without limitation, Tishman Speyer Properties, L.P. and Goldman, Sachs & Co., or ▇▇▇ ▇▇fic▇▇for, ▇irector, employee, trustee, shareholder, member, partner seek or principal of demand any such parent, subsidiary or other affiliate (collectively, "Seller's Affiliates"), arising out of with this Agreement or the transactions contemplated hereby. Buyer agrees to look solely to Seller and its assets for the satisfaction of any liability or obligation arising under this Agreement or the transactions contemplated hereby, or for the performance of deficiency judgment against any of the covenantsBorrower Parties or any other Person in any such action or proceeding under or by reason of or in connection with this Agreement, warranties the Note or other agreements contained herein, and further agrees not to sue or otherwise seek to e▇▇▇rce any personal obligation against any of Seller's Affiliates with respect to any matters arising out of this Agreement or the transactions contemplated herebyother Loan Documents. The provisions of this Section 10.10paragraph shall not, however, shall not apply to Tishman Speyer/Travelers Real Estate Venture(i) constitute a waiver, L.P. and Whitehall Street Real Estate Limited Partnership IX (collectivelyrelease or impairment of any obligation evidenced or secured by this Agreement, the "Members"Note or any of the other Loan Documents; (ii) impair the right of Lender to name any of the Borrower Parties, as a party defendant in any action or suit for foreclosure and sale under the Mortgage; (iii) affect the validity or enforceability of any guaranty made in connection with the Loan or any rights and remedies of Lender thereunder; (iv) impair the right of Lender to obtain the appointment of a receiver; (v) impair the enforcement of the Assignment of Leases and Rents executed in connection herewith; or (vi) constitute a waiver of the right of Lender to enforce the liability and obligation of Borrowers (but not against any members of Borrowers (other than Guarantor) or their direct or indirect constituent members or partners or any other Person), by money judgment or otherwise, to the extent of any loss, damage, cost, expense, liability, claim or other obligation incurred by Lender (including attorneys’ fees and costs reasonably incurred) arising out of or in connection with the amount following:
(a) fraud or intentional misrepresentation by any Borrower or any Guarantor in connection with the Loan;
(b) intentional physical waste of the Property (including, but not limited to, waste due to gross negligence) by any Borrower or 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 any Borrower or any affiliate thereof;
(c) the material breach of any representation, warranty, covenant or indemnification provision in that certain Environmental and Hazardous Substance Indemnification Agreement of even date herewith given by Borrowers to Lender or in this Agreement concerning Environmental Laws, Hazardous Substances and Asbestos;
(d) the removal or disposal by any Borrower or any affiliate thereof of any portion of the Property after an Event of Default, unless such portion of the Property is replaced by an item of equal or greater value as determined by Lender in its reasonable discretion;
(e) the misapplication or conversion by any Borrower or any affiliate thereof of (i) any insurance proceeds paid by reason of any loss, damage or destruction to the Property, (ii) any awards or other amounts received in connection with the condemnation of all or a portion of the Property, (iii) any Rents following an Event of Default or (iv) any Rents paid more than one month in advance; 84
(f) failure to pay 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 herewith or such charges have been delivered to Lender in accordance with Section 3.3; and
(g) any security deposits collected by Borrowers or any affiliate thereof 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 Members has received from Leases prior to the proceeds occurrence of the transactions Event of Default that gave rise to such foreclosure or action in lieu thereof.
(1) a receiver (other than a receiver appointed by Lender), liquidator or trustee of any Borrower or Guarantor shall be appointed which is the subject of this Agreementnot dismissed within ninety (90) days, or (2) if the remaining funds available to Seller to satisfy the obligations of the Seller any petition for bankruptcy, reorganization or arrangement pursuant to this Agreement federal bankruptcy law, or the transactions contemplated hereby any similar federal or state law, shall be filed by any Borrower or Guarantor, or (3) if 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 found 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 any Borrower or Guarantor, or (4) if any Borrower or Guarantor are not at least equal found, pursuant to Five Million Dollars ($5,000,000) a final unappealable order of a court of competent jurisdiction, to have been in collusion with creditors that initiate a bankruptcy action or such lower amount of liability proceeding against a Borrower or potential liability as the Seller may have under such agreements. The provisions of this Section 10.10 shall survive the termination of this Agreement and the Closing. This Section 10.10 will not apply to the parties to the Parking Easement or the Development Indemnity Agreement to the extent such claim or cause of action relates solely to the Parking Easement Agreement or the Development Indemnity Agreement, as applicableGuarantor.
Appears in 1 contract
Exculpation. Buyer agrees that it does not The Lender has and shall have and will not have any claims or causes of action against any disclosed or undisclosed officer, director, employee, trustee, shareholder, partner, member, principal, parent, subsidiary or other affiliate of Seller, including, without limitation, Tishman Speyer Properties, L.P. and Goldman, Sachs & Co., or ▇▇▇ ▇▇fic▇▇, ▇irector, employee, trustee, shareholder, member, partner or principal of any such parent, subsidiary or other affiliate (collectively, "Seller's Affiliates"), arising out of with this Agreement or the transactions contemplated hereby. Buyer agrees to look solely to Seller and its assets for the satisfaction of any no liability or obligation arising whatsoever or howsoever in connection with the construction, completion or management of the Improvements, and has no obligation except to make Loan Advances as provided in this Participation Agreement and the Loan Agreement, and the Lender is not obligated to inspect the Improvements; nor is the Lender liable and under this Agreement no circumstances whatsoever shall the Lender be or become liable for the transactions contemplated herebyperformance or default of any contractor or subcontractor, or for any failure to construct, complete, protect or insure the Improvements, or any part thereof, or for the payment of any cost or expense incurred in connection therewith, or for the performance or non-performance of any obligation of the covenants, warranties Lessor or other agreements contained herein, and further agrees not the Lessee to sue the Lender or otherwise seek to e▇▇▇rce any personal obligation against any of Seller's Affiliates with respect to any matters arising out other person, firm or entity without limitation; and nothing, including without limitation, any disbursement of Loan Advances or acceptance of any document or instrument, shall be construed as a representation or warranty, express or implied, on the Lender's part. Further, the Lessee shall be solely responsible for all aspects of the Lessee's business and conduct in connection with the construction, completion and management of the Improvements including, but not limited to:
(a) The quality and suitability of the Plans and Specifications;
(b) Supervision of the work of Construction;
(c) The qualifications, financial condition and performance of all architects, engineers, contractors, subcontractors and material suppliers and consultants;
(d) Conformance of the work of Construction and the Improvements to the requirements of all Applicable Laws and public and private restrictions and requirements and to the requirements of this Agreement or Participation Agreement;
(e) The quality and suitability of all materials and workmanship; and
(f) The accuracy of all requests for the transactions contemplated herebydisbursement of Loan proceeds and the proper application of disbursed Loan proceeds. The provisions of this Section 10.10Lender shall have no obligation to supervise, however, shall not apply to Tishman Speyer/Travelers Real Estate Venture, L.P. and Whitehall Street Real Estate Limited Partnership IX (collectivelyinspect or inform the Lessee, the "Members") to the extent Lessor or any third party of any aspect of the amount any work or construction of the Members has received from the proceeds Improvements or any other matter referred to above. Any inspection or review made by or on behalf of the transactions which is Lender shall be made for the subject purpose of this Agreement, if the remaining funds available to Seller to satisfy determining whether or not the obligations of the Seller pursuant Lessee under this Participation Agreement are being properly discharged, and neither the Lessee, the Lessor nor any third party shall be entitled to this Agreement rely upon any such inspection or review. The Lender owes no duty of care to the Lessee or the transactions contemplated hereby are not at least equal Lessor or any third person to Five Million Dollars ($5,000,000) protect against or such lower amount inform the Lessee, the Lessor or any third person of liability the existence of negligent, faulty, inadequate or potential liability as defective design or construction of the Seller may have under such agreements. The provisions of this Section 10.10 shall survive the termination of this Agreement and the Closing. This Section 10.10 will not apply to the parties to the Parking Easement or the Development Indemnity Agreement to the extent such claim or cause of action relates solely to the Parking Easement Agreement or the Development Indemnity Agreement, as applicableImprovements.
Appears in 1 contract
Exculpation. Buyer agrees (a) The Agent shall have no duties or responsibilities, implied by application of law or otherwise, except those expressly set out in this Agreement. The Agent shall not be required to make any decision or take any action which may expose it to personal liability or which, in its sole discretion, may be contrary to this Agreement or any Applicable Law. As between the Agent and each of the Lenders, neither the Agent nor any of its officers, directors, employees or agents shall be liable for any action taken or omitted to be taken under the Loan Documents or in connection with the Loan Documents, unless caused by their fraudulent conduct or wilful misconduct. Nothing in this Agreement or any of the Loan Documents, expressed or implied, is intended to, or shall be construed in any way so as to, impose upon the Agent any obligation except as expressly set out in this Agreement or the Loan Documents. Without limiting the generality of the foregoing, the Agent shall not be responsible for any calculation, recitals, statements, representations or warranties made by the Borrower or any Guarantor in the Loan Documents or which may be contained in any Loan Document subsequently entered into by the Agent or in any verbal or written information provided by the Borrower, any Guarantor or any other Subsidiary thereof for the benefit of the Lenders or for the authorization, execution, effectiveness, genuineness, validity or enforceability of the Loan Documents or any other instruments and agreements referred to therein and shall not be required to make any inquiry or investigation concerning the performance, compliance or observance of any of the terms, provisions or conditions of the Loan Documents or any other instruments or agreements referred to therein or arising therefrom.
(b) Each of the Lenders severally represents and warrants to the Agent that it has made and shall continue to make such independent investigation of the financial condition and affairs of the Borrower and the Guarantors as such Lender deems for itself to be appropriate in connection with any of the Loan Documents and the making and continuance of Advances under the Credit Facilities, that such Lender has and shall continue to make its own appraisal of the creditworthiness of the Borrower and the Guarantors and that such Lender in connection with such investigation and appraisal has not relied upon any information provided to such Lender by the Agent, including any legal advice provided to the Agent by its counsel. The Agent may at any time request instructions or directions from the Lenders with respect to any actions or approvals which, by the terms of this Agreement, the Agent is permitted or required to take or to grant, and the Agent shall be absolutely entitled to refrain from taking any action or to withhold any approval and shall not be under any liability whatsoever to any Lender for refraining from taking any action or withholding any approval under the Loan Documents until it has received such written instructions or directions from the Lenders. No Lender shall have any right of action or recourse whatsoever against the Agent as a result of the Agent acting or refraining from acting under any of the Loan Documents in accordance with instructions or directions received from the Lenders. The Lenders have reviewed the consequences of entering into and performing obligations and receiving amounts under this Agreement, including the Canadian income tax consequences in respect thereof, and are not relying on any information provided by the Agent, including any legal or tax advice provided to the Agent by its counsel.
(c) The Agent may consult with its own legal counsel, Borrower's Counsel, independent public accountants and other experts and advisors selected by it and shall not be liable for any action taken or omitted to be taken in good faith in accordance with the advice of such counsel, accountants, experts or advisors.
(d) The Agent does not make any warranty or representation to any Lender and is not responsible to any Lender for the accuracy or completeness of any information or data made available to the Lender in connection with the syndication of the Credit Facilities, or for any statements, warranties or representations (whether written or oral) made in or in connection with any of the Loan Documents. The Agent shall have no duty to ascertain or to enquire as to the performance or observation of any of the terms, covenants or conditions of the Loan Documents, where applicable. The Agent shall not be responsible to any Lender for the due execution, legality, validity, enforcement, genuineness, sufficiency or value of any of the Loan Documents and will shall not have any claims or causes of action against duty to procure funds for any disclosed or undisclosed officer, director, employee, trustee, shareholder, partner, member, principal, parent, subsidiary or other affiliate of Sellerpayment required hereunder, including, without limitation, Tishman Speyer Properties, L.P. and Goldman, Sachs & Co., or ▇▇▇ ▇▇fic▇▇, ▇irector, employee, trustee, shareholder, member, partner or principal of by charging any such parent, subsidiary or other affiliate (collectively, "Seller's Affiliates"), arising out of with this Agreement or the transactions contemplated hereby. Buyer agrees to look solely to Seller and its assets for the satisfaction of any liability or obligation arising under this Agreement or the transactions contemplated hereby, or for the performance of any account of the covenants, warranties or other agreements contained herein, and further agrees not to sue or otherwise seek to e▇▇▇rce Borrower maintained with the Agent for any personal obligation against any of Seller's Affiliates with respect to any matters arising out of this Agreement or the transactions contemplated hereby. The provisions of this Section 10.10, however, shall not apply to Tishman Speyer/Travelers Real Estate Venture, L.P. and Whitehall Street Real Estate Limited Partnership IX (collectively, the "Members") amount due to the extent of the amount any of the Members has received from the proceeds of the transactions which is the subject of this Agreement, if the remaining funds available to Seller to satisfy the obligations of the Seller pursuant to this Agreement or the transactions contemplated hereby are not at least equal to Five Million Dollars ($5,000,000) or such lower amount of liability or potential liability as the Seller may have under such agreements. The provisions of this Section 10.10 shall survive the termination of this Agreement and the Closing. This Section 10.10 will not apply to the parties to the Parking Easement or the Development Indemnity Agreement to the extent such claim or cause of action relates solely to the Parking Easement Agreement or the Development Indemnity Agreement, as applicableLenders hereunder.
Appears in 1 contract
Exculpation. Buyer agrees that it does not have and will not have (a) To the fullest extent permitted under applicable law, none of the General Partner, the Investment Manager, or any claims of their respective Affiliates, executors, heirs, assigns, successors, directors, principals or causes their respective legal representatives (each, a “Covered Person”), shall be liable to any Partner or the Partnership for (i) any acts or omissions (or alleged acts or omissions) or any error of action against judgment or for any disclosed losses, liabilities, damages, expenses or undisclosed officer, director, employee, trustee, shareholder, partner, member, principal, parent, subsidiary or other affiliate of Seller, costs (including, without limitation, Tishman Speyer Propertiesany judgment, L.P. award, settlement, reasonable attorneys’ fees and Goldman, Sachs & Co., other costs or ▇▇▇ ▇▇fic▇▇, ▇irector, employee, trustee, shareholder, member, partner or principal expenses incurred in connection with the defense of any such parentactual or threatened action, subsidiary proceeding (including, without limitation, routine examinations, regulatory inquiries and regulatory “sweeps”) or other affiliate claim (collectively, "Seller's Affiliates"“Indemnified Losses”)) suffered, incurred and/or sustained by them in connection with the Partnership’s affairs, except those Indemnified Losses resulting from the willful misconduct, bad faith, fraud, criminal conduct or gross negligence of the Covered Person, or material breach of this Agreement by the Covered Person (collectively or individually, “Disabling Conduct”), arising out of with this Agreement or the transactions contemplated hereby. Buyer agrees to look solely to Seller and its assets for the satisfaction (ii) any acts or omissions (or alleged acts or omissions) of any liability broker or obligation arising under this Agreement or the transactions contemplated hereby, or for the performance of any agent of the covenantsPartnership or any Covered Person, warranties provided that such broker or other agreements contained hereinagent was selected, engaged and further agrees not to sue or otherwise seek to e▇▇▇rce any personal obligation against any retained in accordance with the standard of Seller's Affiliates care set forth above. Each of the Covered Persons may consult with counsel and accountants with respect to the Partnership’s affairs and will be fully protected and justified in any matters arising out action or inaction which is taken in reasonable reliance upon the advice or opinion of this Agreement such counsel or accountants, provided that such counsel or accountants were selected, engaged and retained in accordance with the transactions contemplated herebystandard of care set forth above. The foregoing provisions, as well as the indemnification provisions of this set forth in Section 10.103.08, however, shall not apply be construed so as to Tishman Speyer/Travelers Real Estate Ventureprovide for the exculpation or indemnification of any Covered Person for any liability (including liability under U.S. Federal securities laws which, L.P. and Whitehall Street Real Estate Limited Partnership IX (collectivelyunder certain circumstances, the "Members") impose liability even on Persons acting in good faith), to the extent (but only to the extent) that such exculpation or indemnification would be in violation of applicable law, but shall be construed so as to effectuate these provisions to the amount fullest extent permitted by law.
(b) Pursuant to the exculpation provision described in this Section 3.07, the Partnership (not the General Partner, the Investment Manager or any other Covered Person) shall be responsible for any Indemnified Losses resulting from trading errors and similar human errors, absent Disabling Conduct or the inability to waive or limit such Indemnified Losses under applicable law. Notwithstanding the foregoing, the Investment Manager or its Affiliates may, in their sole discretion, voluntarily reimburse the Partnership for Indemnified Losses suffered as a result of certain trade errors identified by the Members has received from the proceeds of the transactions which is the subject Investment Manager or its Affiliates.1 This Section 3.07 shall survive termination of this Agreement, if the remaining funds available to Seller to satisfy the obligations of the Seller pursuant to this Agreement or the transactions contemplated hereby are not at least equal to Five Million Dollars ($5,000,000) or such lower amount of liability or potential liability as the Seller may have under such agreements. The provisions of this Section 10.10 shall survive the termination of this Agreement and the Closing. This Section 10.10 will not apply to the parties to the Parking Easement or the Development Indemnity Agreement to the extent such claim or cause of action relates solely to the Parking Easement Agreement or the Development Indemnity Agreement, as applicable.
Appears in 1 contract
Sources: Limited Partnership Agreement (Eminence Capital, Lp)
Exculpation. Buyer agrees that it does not have and will not have Notwithstanding anything to the contrary contained in this Security Instrument or any claims other document or causes certificate executed in connection with the Loan or any Securitization (but subject to the exceptions expressly provided herein) none of action against Borrower, any disclosed or undisclosed officermember of Borrower, director, employee, trustee, shareholder, any partner, member, principal, parent, subsidiary or other affiliate of Seller, including, without limitation, Tishman Speyer Properties, L.P. and Goldman, Sachs & Co., or ▇▇▇ ▇▇fic▇▇, ▇irector, employee, trustee, shareholder, memberdirector, partner officer, employee or principal agent of Borrower or of any such parentmember, subsidiary and any legal representative, heir, estate, successor or other affiliate (collectively, "Seller's Affiliates"), arising out of with this Agreement or the transactions contemplated hereby. Buyer agrees to look solely to Seller and its assets for the satisfaction assign of any of the foregoing, shall have any personal liability for any payment which is or obligation arising may be payable hereunder or under this Agreement or the transactions contemplated herebyany other loan document, or for the performance of any covenants contained in, or for any other claims arising under or with respect hereto or any other loan document, it being understood that all of Borrower's obligations shall be enforceable only against Borrower's interest in the covenantsProperty, warranties the rents and other collateral given to Lender in accordance herewith. Except as otherwise provided, Lender shall not enforce the liability and obligation of Borrower to perform and observe the obligations contained in the Note or this Security Instrument by any action or proceeding wherein a money judgment shall be sought against Borrower, except that Lender may bring (i) a foreclosure action or other agreements contained hereinappropriate action or proceeding to enable Lender to realize upon this Security Instrument, the Other Security Documents, and further agrees not the interest in the Property, the Rents and any other collateral given to sue or otherwise seek to e▇▇▇rce any personal obligation against any of Seller's Affiliates with respect to any matters arising out of Lender created by this Agreement or Security Instrument and the transactions contemplated hereby. The provisions of Other Security Documents and (ii) an action for injunctive relief enjoining Borrower from violating this Section 10.10Security Instrument, the Other Security Documents; provided, however, that any judgment in any action or proceeding shall not apply to Tishman Speyer/Travelers Real Estate Venture, L.P. and Whitehall Street Real Estate Limited Partnership IX (collectively, the "Members") be enforceable against Borrower only to the extent of Borrower's interest in the amount Property, in the Rents and in any other collateral given to Lender. Lender, by accepting the Note and this Security Instrument, agrees that it shall not, except as otherwise provided in Section 11.10, sue ▇▇▇, seek or demand any deficiency judgment against Borrower in any action or proceeding, under or by reason of or under or in connection with the Members has received from Note, the proceeds of the transactions which is the subject of Other Security Documents or this Agreement, if the remaining funds available to Seller to satisfy the obligations of the Seller pursuant to this Agreement or the transactions contemplated hereby are not at least equal to Five Million Dollars ($5,000,000) or such lower amount of liability or potential liability as the Seller may have under such agreements. The provisions of this Section 10.10 shall survive the termination of this Agreement and the Closing. This Section 10.10 will not apply to the parties to the Parking Easement or the Development Indemnity Agreement to the extent such claim or cause of action relates solely to the Parking Easement Agreement or the Development Indemnity Agreement, as applicableSecurity Instrument.
Appears in 1 contract
Exculpation. Buyer agrees Notwithstanding any provision in this Agreement to the contrary (other than the proviso below), it is agreed and understood that it does Purchaser shall look solely to the assets of Seller in the event of any breach or default by Seller under this Agreement, and not have and will not have to the assets of: (a) any claims person or causes entity which is a member, manager or partner in Seller, if Seller is a limited liability company or a partnership, or which otherwise owns or holds any ownership interest in Seller, directly or indirectly (each such partner or other holder or owner of action against any disclosed interest in Seller being referred to herein as a "Subtier Owner"); (b) any person or undisclosed entity which is a member, manager or partner in or otherwise owns or holds any ownership interest in any Subtier Owner, whether directly or indirectly; (c) any person or entity serving as an officer, director, employeeemployee or otherwise for or in Seller; or (d) any person or entity serving as an officer, trusteedirector, shareholderemployee or otherwise for or in any Subtier Owner. This Agreement is executed by one or more persons (the "Signatories", partner, member, principal, parent, subsidiary whether one or other affiliate more) of Seller, including, without limitation, Tishman Speyer Properties, L.P. Seller solely in their capacities as representatives of the Seller or a Subtier Owner of Seller and Goldman, Sachs & Co., not in their own individual capacities. Purchaser hereby releases and relinquishes the Signatories from any and all personal liability for any matters or ▇▇▇ ▇▇fic▇▇, ▇irector, employee, trustee, shareholder, member, partner or principal claims of any kind which arise under or in connection with or as a result of this Agreement. The foregoing release of liability shall be effective with respect to and shall apply to all claims against any members, managers and partners of Seller (if Seller is a limited liability company or a partnership) and any members, managers and partners of any Subtier Owner (if such parent, subsidiary Subtier Owner is a limited liability company or other affiliate (collectively, "Seller's Affiliates"), arising out a partnership) regardless of with this Agreement or the transactions contemplated hereby. Buyer agrees to look solely to Seller and its assets for the satisfaction whether such claims arise as a result of any liability which the Signatories may have as members, managers or obligation arising under this Agreement partners of the Seller or the transactions contemplated herebyany Subtier Owner, or for the performance of any of the covenants, warranties or other agreements contained herein, and further agrees not to sue or otherwise seek to e▇▇▇rce any personal obligation against any of otherwise. Seller acknowledges that Seller's Affiliates ’s obligations with respect to any matters arising out of covenant, indemnity, representation or warranty under this Agreement or which expressly survives the transactions contemplated hereby. The provisions Closing shall be considered a liability for purposes of this Section 10.10, however, shall not apply to Tishman Speyer/Travelers Real Estate Venture, L.P. and Whitehall Street Real Estate Limited Partnership IX (collectively, the "Members") to the extent of the amount any of the Members has received from the proceeds of the transactions which is the subject of this Agreement, if the remaining funds available to Seller to satisfy the obligations of the Seller pursuant to this Agreement or the transactions contemplated hereby are not at least equal to Five Million Dollars ($5,000,000) or such lower amount of member distribution limitation imposed under applicable Texas limited liability or potential liability as the Seller may have under such agreements. The provisions of this Section 10.10 shall survive the termination of this Agreement and the Closing. This Section 10.10 will not apply to the parties to the Parking Easement or the Development Indemnity Agreement to the extent such claim or cause of action relates solely to the Parking Easement Agreement or the Development Indemnity Agreement, as applicablelaws.
Appears in 1 contract
Sources: Agreement of Sale and Purchase (Stratus Properties Inc)
Exculpation. Buyer agrees that it does not The Lender has and shall have and will not have any claims or causes of action against any disclosed or undisclosed officer, director, employee, trustee, shareholder, partner, member, principal, parent, subsidiary or other affiliate of Seller, including, without limitation, Tishman Speyer Properties, L.P. and Goldman, Sachs & Co., or ▇▇▇ ▇▇fic▇▇, ▇irector, employee, trustee, shareholder, member, partner or principal of any such parent, subsidiary or other affiliate (collectively, "Seller's Affiliates"), arising out of with this Agreement or the transactions contemplated hereby. Buyer agrees to look solely to Seller and its assets for the satisfaction of any no liability or obligation arising whatsoever or howsoever in connection with the construction, completion or management of the Improvements, and has no obligation except to make Loan Advances as provided in this Participation Agreement and the Loan Agreement, and the Lender is not obligated to inspect the Improvements; nor is the Lender liable and under this Agreement no circumstances whatsoever shall the Lender be or become liable for the transactions contemplated herebyperformance or default of any contractor or subcontractor, or for any failure to construct, complete, protect or insure the Improvements, or any part thereof, or for the payment of any cost or expense incurred in connection therewith, or for the performance or non-performance of any obligation of the covenants, warranties Lessor or other agreements contained herein, and further agrees not the Lessee to sue the Lender or otherwise seek to e▇▇▇rce any personal obligation against any of Seller's Affiliates with respect to any matters arising out other person, firm or entity without limitation; and nothing, including without limitation, any disbursement of Loan Advances or acceptance of any document or instrument, shall be construed as a representation or warranty, express or implied, on the Lender's part. Further, the Lessee shall be solely responsible for all aspects of the Lessee's business and conduct in connection with the construction, completion and management of the Improvements including, but not limited to:
(a) The quality and suitability of the Plans and Specifications;
(b) Supervision of the work of Construction;
(c) The qualifications, financial condition and performance of all architects, engineers, contractors, subcontractors and material suppliers and consultants;
(d) Conformance of the work of Construction and the Improvements to the requirements of all Applicable Laws and public and private restrictions and requirements and to the requirements of this Agreement or Participation Agreement;
(e) The quality and suitability of all materials and workmanship; and
(f) The accuracy of all requests for the transactions contemplated hereby. The provisions of this Section 10.10, however, shall not apply to Tishman Speyer/Travelers Real Estate Venture, L.P. and Whitehall Street Real Estate Limited Partnership IX (collectively, the "Members") to the extent of the amount any of the Members has received from the disbursement proceeds of the transactions which is Loans and the subject proper application of this Agreementdisbursed proceeds of the Loan. The Lender shall have no obligation to supervise, if inspect or inform the remaining funds available Lessee, the Lessor or any third party of any aspect of the work or construction of the Improvements or any other matter referred to Seller to satisfy above. Any inspection or review made by or on behalf of the Lender shall be made for the purpose of determining whether or not the obligations of the Seller pursuant Lessee under this Participation Agreement are being properly discharged, and neither the Lessee, the Lessor nor any third party shall be entitled to this Agreement rely upon any such inspection or review. The Lender owes no duty of care to the Lessee or the transactions contemplated hereby are not at least equal Lessor or any third person to Five Million Dollars ($5,000,000) protect against or such lower amount inform the Lessee, the Lessor or any third person of liability the existence of negligent, faulty, inadequate or potential liability as defective design or construction of the Seller may have under such agreements. The provisions of this Section 10.10 shall survive the termination of this Agreement and the Closing. This Section 10.10 will not apply to the parties to the Parking Easement or the Development Indemnity Agreement to the extent such claim or cause of action relates solely to the Parking Easement Agreement or the Development Indemnity Agreement, as applicableImprovements.
Appears in 1 contract
Sources: Master Participation Agreement (Eagle Usa Airfreight Inc)
Exculpation. Buyer Notwithstanding any provision herein or in any of the other Loan Documents to the contrary, except as set forth in this Section 4.04, Payee shall not enforce the liability and obligation of Maker to perform and observe the obligations contained in this Note, the Mortgages or the other Loan Documents by an action or proceeding wherein a money judgment shall be sought against Maker or any judgment shall be sought against any director, officer, employee, partner or stockholder of Maker, or its general partners (all of the foregoing, collectively, "Principals"). Payee, by accepting this Note, the Mortgages and the other Loan Documents, agrees that it does shall not have and will not have sue for, seek or demand any claims deficiency judgment against Maker or causes any judgment, including a judgment for specific performance, against its Principals or any one or more of action against any disclosed or undisclosed officer, director, employee, trustee, shareholder, partner, member, principal, parent, subsidiary or other affiliate of Seller, including, without limitation, Tishman Speyer Properties, L.P. and Goldman, Sachs & Co., or ▇▇▇ ▇▇fic▇▇, ▇irector, employee, trustee, shareholder, member, partner or principal of them in any such parentaction or proceeding, subsidiary under or other affiliate (collectively, "Seller's Affiliates"), arising out by reason of or under or in connection with this Agreement Note, the Mortgages or the transactions contemplated hereby. Buyer agrees other Loan Documents except to look solely the extent necessary or appropriate to Seller and its assets for the satisfaction of proceed against or execute or foreclose on any liability or obligation arising under this Agreement or the transactions contemplated hereby, or for the performance of any all of the covenants, warranties or other agreements contained herein, and further agrees not collateral granted to sue or otherwise seek to e▇▇▇rce any personal obligation against any of Seller's Affiliates with respect to any matters arising out of this Agreement or Payee under the transactions contemplated herebyLoan Documents. The provisions of this Section 10.104.04 shall not, however, shall not apply (a) impair the validity of the indebtedness evidenced by this Note or in any way affect or impair the lien of the Mortgages or any of the other Loan Documents, or the right of Payee to Tishman Speyer/Travelers Real Estate Venture, L.P. foreclose the Mortgages or otherwise realize upon any collateral securing this Note following an Event of Default; (b) impair the right of Payee to name Maker or any other Person as a party defendant in any action or suit for judicial foreclosure and Whitehall Street Real Estate Limited Partnership IX (collectively, sale or otherwise under the "Members") Mortgages to the extent necessary to realize upon any collateral securing this Note; (c) impair the right of Payee to obtain the appointment of a receiver; (d) impair the enforcement of the amount Assignments; (e) impair the right of Payee to bring suit with respect to, or Maker's personal liability for, fraud or intentional misrepresentation by Maker or any other Person in connection with this Note, the Mortgages or any other Loan Document; (f) impair the right of Payee to bring suit with respect to, or Maker's personal liability for, Maker's misappropriation of tenant security deposits or Rents; (g) impair the right of Payee to obtain, or Maker's personal liability for Maker's misapplication or misappropriation of insurance proceeds or condemnation awards due to Payee under the Mortgages; (h) impair the right of Payee to enforce, or Maker's personal liability for, the provisions of Section 16.01 or Section 16.02 of the Members has received from the proceeds Mortgages whether before or after payment in full of the transactions which is the subject of this AgreementPrincipal Amount; (i) prevent or in any way hinder Payee from exercising, if the remaining funds available to Seller to satisfy the obligations or constitute a defense, or counterclaim or or-her basis for relief in respect of the Seller pursuant exercise of, any other remedy against the collateral securing the Note as provided in the Loan Documents or as prescribed by law or in equity in case of Defaults; (j) prevent or in any way hinder Payee from exercising, or constitute a defense, a counterclaim, or other basis for relief in respect of the exercise of its remedies in respect of any judgments or other sums due from Maker to this Agreement Payee other than under the Loan Documents; (k) impair the aright of Payee to bring suit with respect to, or Maker's personal liability for, Maker's misappropriation, during the transactions contemplated hereby are continuance of an Event of Default, from any Cross-collateralized Property of any items of personalty or any fixtures or any other misappropriation with respect to any Cross-collateralized Property during the continuance of an Event of Default or (1) impair the right of Payee to bring suit with respect to, or Maker's personal liability for, losses, damages or liabilities suffered by Payee arising from any acts or omissions by Maker that resulted in waste, provided, however, that waste shall not at least equal be deemed to Five Million Dollars ($5,000,000) include the non-payment of impositions, mechanics liens, materialmen's liens or such lower amount of liability any other liens arising from work performed on, or potential liability as materials delivered to, the Seller may have under such agreements. The provisions of this Section 10.10 shall survive the termination of this Agreement and the Closing. This Section 10.10 will not apply to the parties to the Parking Easement or the Development Indemnity Agreement to the extent such claim or cause of action relates solely to the Parking Easement Agreement or the Development Indemnity Agreement, as applicableCross collateralized Properties.
Appears in 1 contract
Exculpation. Buyer agrees that it does (a) Subject to the qualifications below, Lender shall not have enforce the liability and will not have 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 claims action or causes of action proceeding wherein a money judgment shall be sought against Borrower or any disclosed or undisclosed officer, director, employee, trustee, shareholder, partner, member, principal, parentemployee of Borrower or any direct or indirect owner of Borrower (provided that the foregoing shall not limit in any manner, subsidiary the liability of any Guarantor), except that Lender may bring a foreclosure action, an action for specific performance or any other affiliate of Sellerappropriate action or proceeding to enable Lender to enforce and realize upon its interest under the Note, includingthis Agreement, without limitation, Tishman Speyer Properties, L.P. the Security Instrument and Goldman, Sachs & Co.the other Loan Documents, or ▇▇▇ ▇▇fic▇▇in the Property (or any portion thereof), ▇irectorthe Rents, employeeor any other collateral given to Lender pursuant to the Loan Documents; provided, trusteehowever, shareholderthat, memberexcept as specifically provided herein, partner or principal of any judgment in any such parentaction or proceeding shall be enforceable against Borrower only to the extent of Borrower’s interest in the Property, subsidiary 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 sue for, seek or other affiliate (collectivelydemand any deficiency judgment against Borrower in any such action or proceeding under or by reason of or under or in connection with the Note, "Seller's Affiliates")this Agreement, arising out of with this Agreement the Security Instrument or the transactions contemplated hereby. Buyer agrees to look solely to Seller and its assets for the satisfaction of any liability or obligation arising under this Agreement or the transactions contemplated hereby, or for the performance of any of the covenants, warranties or other agreements contained herein, and further agrees not to sue or otherwise seek to e▇▇▇rce any personal obligation against any of Seller's Affiliates with respect to any matters arising out of this Agreement or the transactions contemplated herebyLoan Documents. The provisions of this Section 10.109.3 shall not, however, (i) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (ii) 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; (iii) affect the validity or enforceability of any guaranty, indemnity or similar agreement or undertaking made in connection with the Loan or any of the rights and remedies of Lender thereunder; (iv) impair the right of Lender to obtain the appointment of a receiver; (v) 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 (or any portion thereof).
(b) Nothing contained herein shall in any manner or way release, affect or impair the right of Lender to recover from Borrower, 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 other obligation (including reasonable out-of-pocket attorneys’ fees and expenses 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 Borrower or Guarantor in connection with the Loan;
(ii) the gross negligence or willful misconduct of Borrower or Guarantor;
(iii) arson or any intentional material physical waste of the Property, provided, however, that if Borrower does not have sufficient cash flow on a current basis to prevent waste, any waste shall not apply be deemed intentional and Borrower shall have no liability under this clause (iii);
(iv) the removal or disposal of any portion of the Property 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 misappropriation, misapplication or conversion by Borrower or Guarantor, or any Affiliate of the foregoing, of (A) any Insurance Proceeds paid by reason of any loss, damage or destruction to Tishman Speyer/Travelers Real Estate Venturethe Property, L.P. (B) any Awards received in connection with a Condemnation of all or a portion of the Property during the continuance of an Event of Default, (C) any Rents or other Property income or collateral proceeds, or (D) any Rents paid more than one month in advance (including security deposits) during the continuance of an Event of Default;
(vi) following the occurrence and Whitehall Street Real Estate Limited Partnership IX (collectivelyduring the continuance of an Event of Default, the "Members"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 this Agreement);
(vii) failure to maintain insurance or to pay taxes and assessments, or to pay charges for labor or materials or other charges or judgments that can create Liens on any portion of the Property (unless Lender is escrowing funds therefor and fails to make such payments or has taken possession of the Property following an Event of Default, has received all Rents from the Property applicable to the period for which such insurance, taxes or other items are due, and thereafter fails to make such payments), it being acknowledged that if Borrower does not have sufficient cash flow on a current basis to maintain insurance or to pay taxes and assessments or to pay charges for labor or materials or other charges or judgments (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) 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 the amount any of the Members has received Leases prior to the occurrence of the Event of Default that gave rise to such foreclosure or action in lieu thereof 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 failure by Borrower to comply with any of the representations, warranties or covenants set forth in Sections 4.1.37 or 5.1.19 hereof;
(xi) from the proceeds date upon which L▇▇▇▇▇ acquires title to the Grupo A▇▇▇▇▇▇ Property upon a foreclosure or action in lieu thereof, until Lender sells or otherwise transfers title to the Grupo A▇▇▇▇▇▇ Property to an unaffiliated third-party, any exercise by A▇▇▇▇▇▇ ▇▇▇▇▇▇ of its rights pursuant to Section 44 of the transactions which Grupo A▇▇▇▇▇▇ Lease (including, without limitation, as a result of Lender’s inability to comply with Section 44 of the Grupo A▇▇▇▇▇▇ Lease);
(xii) [intentionally omitted];
(xiii) any 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 subject full recourse event set forth in Section 9.3(c)(D) below;
(xiv) Borrower fails to obtain L▇▇▇▇▇’s prior written consent to any Transfer that is not a Full Recourse Transfer, to the extent required pursuant to the terms of the Loan Documents;
(xv) the Violations; provided, however, that there shall be no liability pursuant to this clause (xv) with respect to a particular Violation at an Individual Property from and after the date that Borrower has cured such Violation and delivered to Lender an update to the applicable zoning report verifying such Violation has been cured;
(xvi) B▇▇▇▇▇▇▇’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) B▇▇▇▇▇▇▇, acting in bad faith, fails to cooperate in transferring any 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 L▇▇▇▇▇’s 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 hinder, delay or otherwise interfere with Lender’s exercise of its remedies (whether at law or granted under the Loan Documents), or (2) was made in bad faith by Guarantor, Borrower or such Affiliate.
(c) Notwithstanding anything to the contrary in this Agreement, if the remaining funds available to Seller to satisfy the obligations Note or any of the Seller other Loan Documents, Borrower shall be personally liable for the Debt if (A) Borrower fails to obtain L▇▇▇▇▇’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 L▇▇▇▇▇’s prior written consent to any Indebtedness or voluntary mortgage, deed of trust, collateral assignment or similar voluntary Lien (including a P▇▇▇ ▇▇▇▇) 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) Notwithstanding anything to the contrary in this Agreement, the Note or any of the other Loan Documents, if B▇▇▇▇▇▇▇ fails to deliver the Grupo A▇▇▇▇▇▇ Letter of Credit in accordance with Section 5.1.26 hereof, Borrower shall have full recourse liability in an amount equal to the Allocated Loan Amount for the Grupo A▇▇▇▇▇▇ Property, and B▇▇▇▇▇▇▇ agrees that no portion of any sums received from Borrower or Guarantor, from time to time, in reduction of the outstanding amount of the Debt (including, without limitation, any amounts received or deemed to have been received pursuant to a foreclosure or other exercise of remedies by Lender, or by virtue of the applications of any casualty or condemnation proceeds pursuant to the terms and conditions of the Loan Documents) shall be deemed to have been applied in reduction of Borrower’s liability under this clause (d) until such time as the entire outstanding amount of the Debt shall have been reduced by payments by or on behalf of Borrower or Guarantor to less than the amount of Borrower’s recourse liability under this clause (d).
(e) Nothing herein shall be deemed to constitute a waiver by Lender of any right Lender may have under Sections 506(a), 506(b), 1111(b) or any other 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.
(f) 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.
(g) Notwithstanding anything to the contrary contained in the Loan Documents, other than with respect to the Guarantor under the Guaranty and the Environmental Indemnity, neither Guarantor, nor any officer, director, shareholder, partner, member, principal, employee of, shall have any personal liability for, nor be joined as a party to, any action with respect to (i) the payment of any sum which is or may be payable under this Agreement or the transactions contemplated hereby are not at least equal Loan Documents, or (ii) the performance or discharge of any covenants, obligations or undertakings of Borrower. In addition to Five Million Dollars the foregoing, in no event will the assets of any officer, director, shareholder, partner, member, principal, employee of Borrower or Guarantor be available to satisfy any obligation of Guarantor thereunder.
($5,000,000h) or such lower amount of liability or potential liability as Notwithstanding the Seller may have under such agreements. The foregoing provisions of this Section 10.10 shall survive the termination of this Agreement and the Closing. This Section 10.10 will not apply 9.3 or anything to the parties to the Parking Easement or the Development Indemnity Agreement to the extent such claim or cause of action relates solely to the Parking Easement contrary in this Agreement or the Development Indemnity Agreementother 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 flow at the Property, subsequently breaches the definition of Permitted Equipment Financing or Permitted Trade Payables by being outstanding for longer than any time period specified in such definitions, or by exceeding the one percent (1%) or two percent (2%) cap, as applicable., specified in such definitions, and (ii) Guarantor shall have no liability under any of the Loan Documents with respect to liabilities or obligations arising from events, acts, omissions, facts or circumstances first occurring from and after the date that Lender (or any Affiliate, designee, agent, nominee, successor to or assignee of Lender) takes title to the Property or the ownership interests in Borrower pursuant to a foreclosure, deed-in-lieu of foreclosure, assignment-in-lieu of foreclosure, other exercise of remedies under t
Appears in 1 contract
Exculpation. Buyer Subject to the qualifications below, Lender shall not enforce the liability and obligation of Borrower to perform and observe the obligations contained in the Notes, this Agreement, the Mortgage or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against Borrower, unless, except as expressly reserved to Lender in clause (g) below, the judgment in any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower’s interest in the Property, the Rents and any other collateral given to Lender, and Lender, by accepting the Notes, this Agreement, the Mortgage and the other Loan Documents, agrees that it does shall not have and will not have any claims or causes of action against any disclosed or undisclosed officer, director, employee, trustee, shareholder, partner, member, principal, parent, subsidiary or other affiliate of Seller, including, without limitation, Tishman Speyer Properties, L.P. and Goldman, Sachs & Co., or ▇▇▇ ▇▇fic▇▇for, ▇irector, employee, trustee, shareholder, member, partner seek or principal of demand any deficiency judgment against Borrower or its direct or indirect partners or members in any such parentaction or proceeding under or by reason of or under or in connection with the Notes, subsidiary or other affiliate (collectivelythis Agreement, "Seller's Affiliates"), arising out of with this Agreement the Mortgage or the transactions contemplated hereby. Buyer agrees other Loan Documents except, to look the extent permitted by applicable law, for any deficiency judgment that shall be enforced solely against or collected solely from the Property, the Rents or any other collateral given to Seller and its assets for the satisfaction of any liability or obligation arising under this Agreement or the transactions contemplated hereby, or for the performance of any of the covenants, warranties or other agreements contained herein, and further agrees not to sue or otherwise seek to e▇▇▇rce any personal obligation against any of Seller's Affiliates with respect to any matters arising out of this Agreement or the transactions contemplated herebyLender. The provisions of this Section 10.10shall not, however, shall (a) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (b) impair the right of Lender to name Borrower as a party defendant in any action or suit for foreclosure and sale under the Mortgage; (c) affect the validity or enforceability of or any guaranty or indemnity made in connection with the Loan or any of the rights and remedies of Lender thereunder; (d) impair the right of Lender to obtain the appointment of a receiver; (e) 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 Mortgage or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against the Property; or (g) constitute a waiver of the right of Lender to enforce the liability and obligation of Borrower (but not apply to Tishman Speyer/Travelers Real Estate Ventureits limited partners), L.P. and Whitehall Street Real Estate Limited Partnership IX (collectivelyby money judgment or otherwise, the "Members") to the extent of any loss, damage, cost, expense, liability, claim or other obligation incurred by Lender (including attorneys’ fees and costs reasonably incurred), but excluding consequential damages, arising out of or in connection with (but only to the amount extent of) the following:
(i) fraud, gross negligence or willful misconduct by Borrower in connection with the Loan;
(ii) any liability under the Environmental Indemnity;
(iii) the misappropriation by Borrower of the Members has received any Proceeds, Rents or other revenues from the proceeds of the transactions which is the subject of this AgreementProperty, if the remaining funds available to Seller to satisfy the obligations of the Seller pursuant to this Agreement or the transactions contemplated hereby are not at least equal to Five Million Dollars ($5,000,000) or such lower amount of liability or potential liability as the Seller may have under such agreements. The provisions of this Section 10.10 shall survive the termination of this Agreement and the Closing. This Section 10.10 will not apply to the parties to the Parking Easement or the Development Indemnity Agreement except to the extent such claim or cause of action relates solely funds are applied to the Parking Easement payment of Operating Expenses of the Property or to pay amounts due under the Loan Documents; and
(iv) the amount of any security 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 or pursuant to Applicable Law prior to the occurrence of the Event of Default that gave rise to such foreclosure or action in lieu thereof. Notwithstanding anything to the contrary in this Agreement or any of the Development Indemnity AgreementLoan Documents, as applicableLender 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 secured by the Mortgage or to require that all collateral shall continue to secure all of the Debt owing to Lender in accordance with the Loan Documents.
Appears in 1 contract
Exculpation. (a) After Closing, Buyer agrees that it does not have and will not have have, any claims or causes of action against any disclosed or undisclosed officer, director, employee, trustee, shareholder, partner, member, principal, parent, subsidiary or other affiliate of Seller, including, without limitation, Tishman Speyer Properties, L.P. and Goldman, Sachs & Co., or ▇▇▇ ▇▇fic▇▇, ▇irector, employee, trustee, shareholder, member, partner or principal of any such parent, subsidiary or other affiliate (collectively, "Seller's Affiliates"), arising out of or in connection with this Agreement or the transactions contemplated herebyhereby against Seller except (i) in the case of Seller’s Fraud or (ii) with respect to any Surviving Obligations. Buyer agrees to look (a) prior to the Closing, solely to Seller and its assets Seller’s interest in the Acquired Entities and (b) after the Closing, other than as otherwise expressly provided in this Agreement or with respect to any Surviving Obligations, solely to the Representations and Warranties Insurance Policy (if any) for the satisfaction of any liability or obligation of Seller arising under this Agreement or the transactions contemplated hereby. Subject to the foregoing provisions, or for the performance Buyer hereby unconditionally and irrevocably waives any and all claims and causes of action of any of the covenants, warranties nature whatsoever that Buyer may now or other agreements contained hereinhereafter have against, and further agrees not hereby unconditionally and irrevocably releases and discharges from any and all liability whatsoever, Seller, other than Seller to sue the extent provided for in the first and second sentences of this Section 12.1(a) in connection with or otherwise seek to e▇▇▇rce any personal obligation against any of Seller's Affiliates with respect to any matters arising out of this Agreement or the transactions contemplated hereby.
(b) Notwithstanding anything to the contrary contained herein, Seller’s shareholders, partners, members, the partners or members of such partners or members, the shareholders of such partners or members, and the trustees, officers, directors, employees, agents and security holders of Seller and the partners or members of Seller assume no personal liability for any obligations entered into on behalf of Seller and such persons’ (other than Seller) individual assets shall not be subject to any claims of any person relating to such obligations. The foregoing shall govern any direct and indirect obligations of Seller under this Agreement. The provisions of this Section 10.10, however, 12.1(a) shall not apply to Tishman Speyer/Travelers Real Estate Venture, L.P. and Whitehall Street Real Estate Limited Partnership IX (collectively, survive the "Members") to the extent of the amount Closing or any of the Members has received from the proceeds of the transactions which is the subject termination of this Agreement.
(c) Notwithstanding anything to the contrary contained herein, if Buyer’s shareholders, partners, members, the remaining funds available partners or members of such partners or members, the shareholders of such partners or members, and the trustees, officers, directors, employees, agents and security holders of Buyer and the partners or members of Buyer assume no personal liability for any obligations entered into on behalf of Buyer and such persons’ (other than Buyer) individual assets shall not be subject to Seller any claims of any person relating to satisfy the such obligations. The foregoing shall govern any direct and indirect obligations of the Seller pursuant to Buyer under this Agreement or the transactions contemplated hereby are not at least equal to Five Million Dollars ($5,000,000) or such lower amount of liability or potential liability as the Seller may have under such agreementsAgreement. The provisions of this Section 10.10 12.1(c) shall survive the Closing or any termination of this Agreement and the Closing. This Section 10.10 will not apply to the parties to the Parking Easement or the Development Indemnity Agreement to the extent such claim or cause of action relates solely to the Parking Easement Agreement or the Development Indemnity Agreement, as applicable.
Appears in 1 contract
Sources: Membership Purchase Agreement
Exculpation. Buyer (a) Optionee agrees that it does shall not have enforce the liability and will not have obligation of Optionor to perform and observe the obligations contained in this Agreement by any claims action or causes of action proceeding against any disclosed Optionor Exculpated Party (as hereinafter defined), and shall not sue for, seek or undisclosed officerdemand any money judgment against any direct or indirect member, director, employee, trusteemanager, shareholder, partner, member, principal, parent, subsidiary beneficiary or other affiliate owner of Seller, including, without limitation, Tishman Speyer Properties, L.P. and Goldman, Sachs & Co.beneficial ownership interests in Optionor, or ▇▇▇ ▇▇fic▇▇any director, ▇irectorofficer, employeeagent, trusteeattorney, shareholder, member, partner employee or principal of any such parent, subsidiary or other affiliate (collectively, "Seller's Affiliates"), arising out of with this Agreement or the transactions contemplated hereby. Buyer agrees to look solely to Seller and its assets for the satisfaction of any liability or obligation arising under this Agreement or the transactions contemplated hereby, or for the performance trustee of any of the covenantsforegoing (each, warranties an “Optionor Exculpated Party” and, collectively, the “Optionor Exculpated Parties”) under or other agreements contained herein, and further agrees not to sue by reason of or otherwise seek to e▇▇▇rce any personal obligation against any of Seller's Affiliates in connection with respect to any matters arising out of this Agreement or the transactions contemplated herebyAgreement. The provisions of this Section 10.1021(a) shall not, however, (i) constitute a waiver, release or impairment of any obligation of Optionor hereunder; or (ii) impair the right of Optionee to name Optionor as a party defendant in any action or suit under this Agreement.
(b) Optionor agrees that it shall not apply enforce the liability and obligation of Optionee to Tishman Speyer/Travelers Real Estate Ventureperform and observe the obligations contained in this Agreement by any action or proceeding against any Optionee Exculpated Party (as hereinafter defined), L.P. and Whitehall Street Real Estate Limited Partnership IX shall not sue for, seek or demand any money judgment against any direct or indirect member, manager, shareholder, partner, beneficiary or other owner of beneficial ownership interests in Optionee, or any director, officer, agent, attorney, employee or trustee of any of the foregoing (each, an “Optionee Exculpated Party” and, collectively, the "Members"“Optionee Exculpated Parties”) to the extent under or by reason of the amount any of the Members has received from the proceeds of the transactions which is the subject of or in connection with this Agreement, if the remaining funds available to Seller to satisfy the obligations of the Seller pursuant to this Agreement or the transactions contemplated hereby are not at least equal to Five Million Dollars ($5,000,000) or such lower amount of liability or potential liability as the Seller may have under such agreements. The provisions of this Section 10.10 21(b) shall not, however, (i) constitute a waiver, release or impairment of any obligation of Optionee hereunder; or (ii) impair the right of Optionor to name Optionee as a party defendant in any action or suit under this Agreement.
(c) The provisions of this Section 21 shall survive the Closing, the expiration of the Option Period and the termination of this Agreement and the Closing. This Section 10.10 will not apply to the parties to the Parking Easement or the Development Indemnity Agreement to the extent such claim or cause of action relates solely to the Parking Easement Agreement or the Development Indemnity Agreement, as applicable.
Appears in 1 contract
Sources: Mta Project Documents
Exculpation. Buyer agrees that it does (a) Subject to the qualifications below, Lender shall not have enforce the liability and will not have 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 claims action or causes of action proceeding wherein a money judgment or any deficiency judgment or other judgment establishing personal liability shall be sought against Borrower or any disclosed or undisclosed officerprincipal, director, officer, employee, trusteebeneficiary, shareholder, partner, member, principaltrustee, parent, subsidiary or other affiliate of Seller, including, without limitation, Tishman Speyer Properties, L.P. and Goldman, Sachs & Co.agent, or ▇▇▇ ▇▇fic▇▇Affiliate of Borrower (but specifically excluding Guarantor) or any legal representatives, ▇irector, employee, trustee, shareholder, member, partner successors or principal of any such parent, subsidiary or other affiliate (collectively, "Seller's Affiliates"), arising out of with this Agreement or the transactions contemplated hereby. Buyer agrees to look solely to Seller and its assets for the satisfaction of any liability or obligation arising under this Agreement or the transactions contemplated hereby, or for the performance assigns of any of the covenantsforegoing (collectively, warranties the “Exculpated Parties”), except that Lender may bring a foreclosure action, an action for specific performance or any other agreements contained 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 further agrees 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 to sue s▇▇ for, seek or otherwise seek to e▇▇▇rce demand any personal obligation deficiency judgment against Borrower or any of Seller's Affiliates the Exculpated Parties in any such action or proceeding under or by reason of or under or in connection with respect to any matters arising out of the Note, this Agreement Agreement, the Security Instrument or the transactions contemplated herebyother Loan Documents. The provisions of this Section 10.10shall not, however, shall (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 or any guaranty made in connection with the Loan or any of the rights and remedies of Lender thereunder; (4) impair the right of Lender to obtain the appointment of a receiver; (5) impair the enforcement of the assignment of leases and rents contained in the Security Instrument; (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 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, Master Lessee or any Borrower Party in connection with the Loan;
(ii) the gross negligence or willful misconduct of Borrower, any SPE Component Entity, Guarantor, Sponsor, Master Lessee, or any Borrower Party or the commission of a criminal act by Borrower, any SPE Component Entity, Guarantor, Sponsor, Master Lessee or any Borrower Party which results in any seizure or forfeiture of the Property, or any portion thereof, or Borrower’s interest therein;
(iii) material physical waste to the Property caused by the intentional acts or intentional omissions of Borrower, any SPE Component Entity, Guarantor, Sponsor, Master Lessee, 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 during the continuation an Event of Default by Borrower, any SPE Component Entity, Guarantor, Sponsor, Master Lessee, or any Borrower Party, without the replacement of same, to the extent the same is material to the operation of the Property;
(iv) the misapplication, misappropriation or conversion by Borrower or Master Lessee 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 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 the Property (other than (x) amounts deposited with Lender as Tax Reserve Funds for Taxes or Other Charges where Lender elects not to apply to Tishman Speyer/Travelers Real Estate Venture, L.P. and Whitehall Street Real Estate Limited Partnership IX such funds toward payment of such Taxes or Other Charges owed or (collectively, y) Taxes or Other Charges owed that are contested strictly in accordance with the "Members"terms of the Loan Documents) to the extent that the revenue from the Property is sufficient to pay such amounts as well as other costs of servicing the Debt and of operating the Property;
(vi) failure to maintain insurance as required by this Agreement (other than the failure to 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) to the extent that the revenue from the Property is sufficient to pay the Insurance Premiums relating thereto as well as other costs of servicing the Debt and of operating the Property;
(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 or Master Lessee after the occurrence and during the continuation of any Event of Default to Guarantor, Sponsor, Master Lessee, and/or any Affiliate of Borrower, Guarantor, Sponsor and/or Master Lessee in violation of the amount any terms of the Members has received from Note, this Agreement, the proceeds Security Instrument or the other Loan Documents;
(ix) Borrower’s breach of, or failure to comply with, the representations, warranties and covenants contained in Sections 15.1 and 15.3 of this Agreement and/or the transactions which is provisions of Section 11.2 hereof;
(x) Borrower or Master Lessee fails to appoint a new property manager upon the subject request of Lender, each as required by, and in accordance with the terms and provisions of, this Agreement, the Assignment of Management Agreement and the other Loan Documents or Borrower or Master Lessee appoints a new property manager or replaces the property manager other than in accordance with the terms of this Agreement, if the remaining funds Assignment of Management Agreement and the other Loan Documents;
(xi) any litigation or other legal proceeding related to the Debt filed by Borrower, any SPE Component Entity, Guarantor, Sponsor, Master Lessee 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 Seller Lender as provided herein and in the other Loan Documents, provided that neither Borrower nor Guarantor shall be liable to satisfy the obligations 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;
(xii) any representation, warranty or covenant contained in Section 5.1 or Section 5.3 hereof is violated or breached;
(xiii) Borrower and/or Master Lessee fails to comply with the Seller Cash Management Agreement relating to the establishment of a Deposit Account (as defined in the Cash Management Agreement), a Cash Management Account, and/or the institution of cash management generally;
(xiv) Borrower’s failure to deposit any initial springing Reserve Fund deposit required pursuant to this Agreement Agreement;
(xv) if, in connection with any transfer of the Property to Lender (or Lender’s designee) in full or partial satisfaction of the transactions contemplated hereby are Debt, Borrower or any affiliate of Borrower fails to take any lawful action reasonably necessary to effect the transfer of any licenses or permits with respect to the Property from the then-current holder thereof to the transferee of the Property or its designee; and/or
(xvi) any amendment, modification or termination of the Master Lease without Lender’s consent. Notwithstanding anything to the contrary in this Agreement, the Note or any of the Loan Documents, (A) Lender shall not at least equal be deemed to Five Million Dollars ($5,000,000) or such lower amount of liability or potential liability as the Seller have waived any right which Lender may have under such agreements. The Section 506(a), 506(b), 1111(b) or any other provisions of this Section 10.10 the Bankruptcy Code to file a claim for the full amount of the Debt or to require that all collateral shall survive 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 representation, warranty or covenant contained in Article 5 hereof is violated or breached, and such violation or breach is cited as a factor in the substantive consolidation of Borrower with any other person (unless such failure results solely from the economic performance of the Property); (ii) if Borrower fails to obtain Lender’s prior written consent to any voluntary Sale or Pledge encumbering the Property for which Lender’s consent is required hereunder; (iii) Borrower, Master Lessee or any 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, Master Lessee or any SPE Component Entity files, or joins in the filing of, an involuntary petition against Borrower, Master Lessee 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, Master Lessee or any SPE Component Entity from any Person; (v) Borrower, Master Lessee 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, Master Lessee or any SPE Component Entity consents to or acquiesces in or joins in an application for the appointment of a custodian, receiver, trustee, or examiner for Borrower, Master Lessee, any SPE Component Entity or any portion of the Property; (vii) Borrower, Master Lessee 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, Master Lessee 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 and one of the factors cited as the bases therefor is a breach by Borrower or Master Lessee of any representation, warranty or covenant contained in Sections 5.1 and/or 5.3 hereof; (ix) intentionally omitted; (x) there occurs any voluntary cancellation, surrender, or termination of the Franchise Agreement by Borrower and/or Master Lessee without the prior written consent of Lender unless a Replacement Franchise Agreement is entered into concurrently with such termination in accordance with this Agreement, or (xi) Borrower and/or Master Lessee amends or modifies the Franchise Agreement and without the Closing. This Section 10.10 will not apply to the parties to the Parking Easement or the Development Indemnity Agreement prior written consent of Lender (to the extent such claim or cause of action relates solely to consent is required under the Parking Easement Agreement or the Development Indemnity Agreement, as applicableLoan Documents).
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