Common use of Liability Cap Carveout Clause in Contracts

Liability Cap Carveout. The Liability Cap set forth in Article II(a) with respect to the Guaranteed Obligations shall not apply: (i) in the event that any of the following events or circumstances shall occur by or on behalf of Seller and/or Guarantor: (1) the filing by any Seller Party of any voluntary petition under any bankruptcy, insolvency, reorganization, liquidation, dissolution or similar law relating to the protection of creditors, or (2) the commencing, or authorizing the commencement, by any Seller Party of any case or proceeding under any bankruptcy, insolvency, reorganization, liquidation, dissolution or similar law relating to the protection of creditors; (B) the solicitation by any Seller Party or any Seller Party otherwise colluding with petitioning creditors for any involuntary petition, case or proceeding against any Seller Party under any bankruptcy, insolvency, reorganization, liquidation, dissolution or similar law relating to the protection of creditors; (C) any Seller Party seeking or consenting to the appointment of a receiver, trustee, custodian or similar official for any Seller Party or any substantial part of the property of any Seller Party; or (D) the making by any Seller Party of a general assignment for the benefit of creditors of any Seller Party in connection with any case or proceeding described in the foregoing clauses (A) or (B); or (ii) with respect to any and all losses, damages, costs and expenses actually incurred by Purchaser resulting from any of the following matters: (1) any fraud, willful misconduct, illegal act, or intentional material misstatement on the part of any Seller Party or any Affiliate thereof or any officer, director, partner, member, employee, agent or representative of any Seller Party or any Affiliate thereof in connection with the execution and delivery of the Master Repurchase Agreement and the other Transaction Documents, or any certificate, report, notice, financial statement, representation, warranty or other instrument or document furnished to Purchaser by any Seller Party or any Affiliate thereof in connection with the Master Repurchase Agreement or any other Transaction Document on the Closing Date or during the term of the Master Repurchase Agreement; (2) any misappropriation, conversion or intentional misapplication by any Seller Party or any Affiliate thereof of any Income required to be deposited in the Collection Account pursuant to Article 5 of the Master Repurchase Agreement; (3) any failure by Seller to comply with Article 13 of the Master Repurchase Agreement, which failure results in a substantive consolidation of Seller with any other entity; (4) any Future Advance Failure by Seller that is determined in a final non-appealable judgment by a court of competent jurisdiction in the United States of America to have been committed by Seller in bad faith; (5) if any Seller Party or any Affiliate thereof interferes with, frustrates or prevents Purchaser’s exercise of remedies provided under the Transaction Documents; provided that any assertion, claim or defense reasonably made in good faith by Seller or Guarantor as to the existence and continuation of such Default or Event of Default shall not, and shall not be deemed to, result in liability under this sub-clause (5); (6) any claim by any Seller Party or any Affiliate thereof that, after Purchaser has exercised its remedies under the Transaction Documents, Purchaser is not the record and beneficial owner of, and did not acquire good and marketable title to, each Purchased Asset in accordance with the Transaction Documents; or (7) any loss, damage, cost or expense in connection with the violation of any environmental law, the correction of any environmental condition, or the removal of any hazardous, toxic or harmful substances, materials, wastes, pollutants or contaminants defined as such in or regulated under any environmental law, in each case to the extent affecting Seller’s or any of its Affiliates’ properties or any of the Purchased Assets; provided, that Guarantor shall have no liability under this clause (7) with respect to conditions on any Mortgaged Property first arising after the date upon which Purchaser enforces its remedies with respect to the related Purchase Asset pursuant to the Repurchase Agreement following an Event of Default.

Liability Cap Carveout. The Liability Cap set forth in (excluding, for the avoidance of doubt, the last proviso to Article II(a), which shall continue to apply notwithstanding the occurrence of any of the following events or circumstances) with respect to the Guaranteed Obligations shall not apply: (i) apply in the event that any of the following events or circumstances shall occur by and payments made in connection with any of the following events or on behalf of Seller and/or Guarantorcircumstances shall not accrue toward the Liability Cap: (1i) (A) the filing by any Seller Party and/or Guarantor of any voluntary petition under any bankruptcy, insolvency, reorganization, liquidation, dissolution or similar law relating to the protection of creditors, or (2B) the commencing, or authorizing the commencement, commencement by any Seller Party and/or Guarantor of any case or proceeding under any bankruptcy, insolvency, reorganization, liquidation, dissolution or similar law relating to the protection of creditors; (Bii) the solicitation by any Seller Party and/or Guarantor or any Seller Party and/or Guarantor otherwise colluding with petitioning creditors for any involuntary petition, case or proceeding against any Seller Party and/or Guarantor under any bankruptcy, insolvency, reorganization, liquidation, dissolution or similar law relating to the protection of creditors; (Ciii) any Seller Party and/or Guarantor seeking or consenting to the appointment of a receiver, trustee, custodian or similar official for any Seller Party and/or Guarantor or any substantial part of the property of any Seller Party; orand/or Guarantor (unless consented to by Purchaser); (Div) the making by any Seller Party and/or Guarantor of a general assignment for the benefit of creditors of any Seller Party and/or Guarantor (other than in favor of Purchaser or if consented to by Purchaser) in connection with any case or proceeding described in the foregoing clauses (Ai) or (Bii); or (iiv) with respect to and solely to the extent of any and all out-of-pocket losses, damages, costs and expenses (including reasonable fees and disbursements of outside counsel) actually incurred by Purchaser resulting from any of the following matters:in connection with (1) any fraud, willful misconduct, illegal act, act or intentional material misstatement on the part of any Seller Party Seller, Guarantor or any Affiliate thereof or any officer, director, partner, member, employee, agent or representative of any Seller Party or any Affiliate thereof Guarantor in connection with the execution and delivery of the Master Repurchase Agreement and the or other Transaction Documents, or any certificate, report, notice, financial statement, representation, warranty or other instrument or document furnished to Purchaser by any Seller Party Seller, Guarantor or any Affiliate thereof in connection with the Master Repurchase Agreement or any other Transaction Document on the Closing Date or during the term of the Master Repurchase Agreement; (2) any misappropriation, conversion or intentional misapplication by any Seller Party Seller, Guarantor or any Affiliate thereof of the foregoing of any Income Net Cash Flow required to be deposited in the Collection Account pursuant to Article 5 of the Master Repurchase Agreement; (3) any failure by any Seller to comply with Article 13 of the Master Repurchase Agreement, which failure results in a substantive consolidation of any Seller with any other entityentity in an insolvency proceeding; (4) any failure by any Seller to fund a Future Advance Failure by Seller that Advance, which failure is determined in a final non-appealable judgment by a court of competent jurisdiction in the United States of America to have been committed by such Seller in bad faith; (5) if any Seller Party Seller, Guarantor or any Affiliate thereof of the foregoing interferes with, frustrates or prevents Purchaser’s exercise of remedies provided under the Transaction Documents; provided that any assertion, claim or defense reasonably made in good faith by such Seller or Guarantor as to the existence and continuation of such Default or Event of Default shall not, and shall not be deemed to, result in liability under this sub-clause (5); (6) any claim by any Affiliate of any Seller Party or any Affiliate thereof that, after Purchaser has exercised its remedies under the Transaction Documents, that Purchaser is not the record and beneficial owner of, and did does not acquire have good and marketable title to, each Purchased Asset in accordance with the Transaction Documents; or (7) any loss, damage, cost or and expense in connection with the violation of any environmental law, the correction of any environmental condition, or the removal of any hazardous, toxic or harmful substances, materials, wastes, pollutants or contaminants defined as such in or regulated under any environmental law, in each case to the extent in any way affecting any Seller’s or any of its Affiliates’ properties or any of the Purchased Assets; provided, that Guarantor shall have no liability under this clause (7Article II(b)(v)(7) with respect to conditions on any Mortgaged Property first arising after the date upon which Purchaser enforces its remedies with respect to the related Purchase Purchased Asset pursuant to Article 14(b)(ii)(D) or 14(b)(iii) of the Master Repurchase Agreement following an Event of Default.

Liability Cap Carveout. The Liability Cap set forth in Article II(a) with respect to the Guaranteed Obligations shall not apply: (i) apply in the event that any of the following events or circumstances shall occur by and payments made in connection with any of the following events or on behalf of Seller and/or Guarantorcircumstances shall not accrue toward the Liability Cap: (1i) (A) the filing by any Seller Party and/or Guarantor of any voluntary petition under any bankruptcy, insolvency, reorganization, liquidation, dissolution or similar law relating to the protection of creditors, or (2B) the commencing, or authorizing the commencement, by any Seller Party and/or Guarantor of any case or proceeding under any bankruptcy, insolvency, reorganization, liquidation, dissolution or similar law relating to the protection of creditors; (Bii) the solicitation by any Seller Party and/or Guarantor or any Seller Party and/or Guarantor otherwise colluding with petitioning creditors for any involuntary petition, case or proceeding against any Seller Party and/or Guarantor under any bankruptcy, insolvency, reorganization, liquidation, dissolution or similar law relating to the protection of creditors; (Ciii) any Seller Party and/or Guarantor seeking or consenting to the appointment of a receiver, trustee, custodian or similar official for any Seller Party and/or Guarantor or any substantial part of the property of any Seller Party; orand/or Guarantor (unless consented to by Purchaser); (Div) the making by any Seller Party and/or Guarantor of a general assignment for the benefit of creditors of any Seller Party and/or Guarantor (other than in favor of Purchaser or if consented to by Purchaser) in connection with any case or proceeding described in the foregoing clauses (Ai) or (Bii); or (iiv) with respect to and solely to the extent of any and all out-of-pocket losses, damages, costs and expenses (including reasonable fees and disbursements of outside counsel) actually incurred by Purchaser resulting from any of the following mattersPurchaser, Repurchase Agent and Realisation Agent in connection with: (1) any fraud, willful misconduct, illegal act, act or intentional material misstatement on the part of any Seller Party Seller, Guarantor or any Affiliate thereof or any officer, director, partner, member, employee, agent or representative of any Seller Party or any Affiliate thereof Guarantor in connection with the execution and delivery of the Master Repurchase Agreement and the or other Transaction Documents, or any certificate, report, notice, financial statement, representation, warranty or other instrument or document furnished to Purchaser Purchaser, Repurchase Agent or Realisation Agent by any Seller Party Seller, Guarantor or any Affiliate thereof in connection with the Master Repurchase Agreement or any other Transaction Document on the Closing Date or during the term of the Master Repurchase Agreement; (2) any misappropriationmisappropriation , conversion or intentional misapplication by any Seller Party Seller, Guarantor or any Affiliate thereof of the foregoing of any Income Net Cash Flow required to be deposited in the Collection Account pursuant to Article 5 of the Master Repurchase Agreement; (3) any failure by any Seller to comply with Article 13 of the Master Repurchase Agreement, which failure results in a substantive consolidation of any Seller with any other entityentity in an insolvency proceeding; (4) any failure by any Seller to fund a Future Advance Failure by Seller that Advance, which failure is determined in a final non-appealable judgment by a court of competent jurisdiction in the United States of America to have been committed by such Seller in bad faith; (5) if any Seller Party Seller, Guarantor or any Affiliate thereof of the foregoing interferes with, frustrates or prevents Purchaser’s, Repurchase Agent’s or Realisation Agent’s exercise of remedies provided under the Transaction Documents; provided that any assertion, claim or defense reasonably made in good faith by such Seller or Guarantor as to the existence and continuation of such Default or Event of Default shall not, and shall not be deemed to, result in liability under this sub-clause (5); (6) any claim by any Affiliate of any Seller Party or any Affiliate thereof that, after Purchaser has exercised its remedies under the Transaction Documents, that Purchaser is not the record and beneficial owner of, and did does not acquire have good and marketable title to, each Purchased Asset in accordance with the Transaction Documents; or (7) any loss, damage, cost or and expense in connection with the violation of any environmental law, the correction of any environmental condition, or the removal of any hazardous, toxic or harmful substances, materials, wastes, pollutants or contaminants defined as such in or regulated under any environmental law, in each case to the extent in any way affecting any Seller’s or any of its Affiliates’ properties or any of the Purchased Assets; provided, that Guarantor shall have no liability under this clause (7Article II(b)(v)(7) with respect to conditions on any Mortgaged Property first arising after the date upon which Purchaser (or Repurchase Agent or Realisation Agent on its behalf) enforces its remedies with respect to the related Purchase Purchased Asset pursuant to Article 14(b)(ii)(D) or 14(b)(iii) of the Master Repurchase Agreement following an Event of Default.

Liability Cap Carveout. The Liability Cap set forth in (excluding, for the avoidance of doubt, the last proviso to Article II(a), which shall continue to apply notwithstanding the occurrence of any of the following events or circumstances) with respect to the Guaranteed Obligations shall not apply: (i) apply in the event that any of the following events or circumstances shall occur by and payments made in connection with any of the following events or on behalf of Seller and/or Guarantorcircumstances shall not accrue toward the Liability Cap: (1i) (A) the filing by any Seller Party and/or Guarantor of any voluntary petition under any bankruptcy, insolvency, reorganization, liquidation, dissolution or similar law relating to the protection of creditors, or (2B) the commencing, or authorizing the commencement, commencement by any Seller Party and/or Guarantor of any case or proceeding under any bankruptcy, insolvency, reorganization, liquidation, dissolution or similar law relating to the protection of creditors; (Bii) the solicitation by any Seller Party and/or Guarantor or any Seller Party and/or Guarantor otherwise colluding with petitioning creditors for any involuntary petition, case or proceeding against any Seller Party and/or Guarantor under any bankruptcy, insolvency, reorganization, liquidation, dissolution or similar law relating to the protection of creditors; (Ciii) any Seller Party and/or Guarantor seeking or consenting to the appointment of a receiver, trustee, custodian or similar official for any Seller Party and/or Guarantor or any substantial part of the property of any Seller Party; orand/or Guarantor (unless consented to by Purchaser); (Div) the making by any Seller Party and/or Guarantor of a general assignment for the benefit of creditors of any Seller Party and/or Guarantor (other than in favor of Purchaser or if consented to by Purchaser) in connection with any case or proceeding described in the foregoing clauses (Ai) or (Bii); or (iiv) with respect to and solely to the extent of any and all out-of-pocket losses, damages, costs and expenses (including reasonable fees and disbursements of outside counsel) actually incurred by Purchaser resulting from any of the following mattersand Collateral Agent in connection with: (1) any fraud, willful misconduct, illegal act, act or intentional material misstatement on the part of any Seller Party Seller, Guarantor or any Affiliate thereof or any officer, director, partner, member, employee, agent or representative of any Seller Party or any Affiliate thereof Guarantor in connection with the execution and delivery of the Master Repurchase Agreement and the or other Transaction Documents, or any certificate, report, notice, financial statement, representation, warranty or other instrument or document furnished to Purchaser or Collateral Agent by any Seller Party Seller, Guarantor or any Affiliate thereof in connection with the Master Repurchase Agreement or any other Transaction Document on the Closing Date or during the term of the Master Repurchase Agreement; (2) any misappropriation, conversion or intentional misapplication by any Seller Party Seller, Guarantor or any Affiliate thereof of the foregoing of any Income Net Cash Flow required to be deposited in the Collection Account pursuant to Article 5 of the Master Repurchase Agreement; (3) any failure by any Seller to comply with Article 13 of the Master Repurchase Agreement, which failure results in a substantive consolidation of any Seller with any other entityentity in an insolvency proceeding; (4) any failure by any Seller to fund a Future Advance Failure by Seller that Advance, which failure is determined in a final non-appealable judgment by a court of competent jurisdiction in the United States of America to have been committed by such Seller in bad faith; (5) if any Seller Party Seller, Guarantor or any Affiliate thereof of the foregoing interferes with, frustrates or prevents Purchaser’s or Collateral Agent’s exercise of remedies provided under the Transaction Documents; provided that any assertion, claim or defense reasonably made in good faith by such Seller or Guarantor as to the existence and continuation of such Default or Event of Default shall not, and shall not be deemed to, result in liability under this sub-clause (5); (6) any claim by any Affiliate of any Seller Party or any Affiliate thereof that, after Purchaser has exercised its remedies under the Transaction Documents, that Purchaser is not the record and beneficial owner of, and did does not acquire have good and marketable title to, each Purchased Asset in accordance with the Transaction Documents; or (7) any loss, damage, cost or and expense in connection with the violation of any environmental law, the correction of any environmental condition, or the removal of any hazardous, toxic or harmful substances, materials, wastes, pollutants or contaminants defined as such in or regulated under any environmental law, in each case to the extent in any way affecting any Seller’s or any of its Affiliates’ properties or any of the Purchased Assets; provided, that Guarantor shall have no liability under this clause (7Article II(b)(v)(7) with respect to conditions on any Mortgaged Property first arising after the date upon which Purchaser (or Collateral Agent on its behalf) enforces its remedies with respect to the related Purchase Purchased Asset pursuant to Article 14(b)(ii)(D) or 14(b)(iii) of the Master Repurchase Agreement following an Event of Default.