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Common use of Liability Limited Clause in Contracts

Liability Limited. (a) The parties hereto agree that except as specifically set forth herein or in any other Operative Document, no Certificate Holder or Owner Trustee shall have any personal liability whatsoever to any Participant or their respective successors and assigns for any claim based on or in respect hereof or any of the other Operative Documents or arising in any way from the transactions contemplated hereby or thereby and recourse, if any, shall be solely had against such Certificate Holder's interest in the Lessor Trust; provided, however, that each Certificate Holder and Owner Trustee shall be liable in its individual capacity (a) for its own willful misconduct or gross negligence, (b) breach of any of its representations, warranties or covenants under the Operative Documents, (c) with respect to Certificate Holders, for any Tax based on or measured by any fees, commission or compensation received by a Certificate Holder for acting as a Certificate Holder as contemplated by the Operative Documents, or (d) any Lessor Liens attributable to it. It is understood and agreed that, except as provided in the preceding sentence: (i) no Certificate Holder or Owner Trustee shall have any personal liability under any of the Operative Documents as a result of acting pursuant to and consistent with any of the Operative Documents; (ii) all obligations of each Certificate Holder and Owner Trustee to any Lender are solely nonrecourse obligations except to the extent that such Certificate Holder or Owner Trustee has received payment from others (including, without limitation, obligations with respect to the Loans); and (iii) all such personal liability of any Certificate Holder and Owner Trustee is expressly waived and released as a condition of, and as consideration for, the execution and delivery of the Operative Documents by such Certificate Holder and Owner Trustee. (b) No Participant shall have any obligation to any other Participant or to the Lessee, the Certificate Holders or the Lenders with respect to transactions contemplated by the Operative Documents, except those obligations of such Participant expressly set forth in the Operative Documents or except as set forth in the instruments delivered in connection therewith, and no Participant shall be liable for performance by any other party hereto of such other party's obligations under the Operative Documents except as otherwise so set forth.

Appears in 2 contracts

Samples: Participation Agreement (Mondavi Robert Corp), Participation Agreement (Mondavi Robert Corp)

Liability Limited. (a) The parties hereto Lenders, the Agent, the Lessee, the Owner Trustee and the Holders each acknowledge and agree that the Owner Trustee is (except as specifically set forth otherwise expressly provided herein or therein) entering into this Agreement and the other Operative Agreements to which it is a party (other than the Trust Agreement and to the extent otherwise provided in Section 6.1 of this Agreement), solely in its capacity as trustee under the Trust Agreement and not in its individual capacity and that the Trust Company shall not be liable or accountable under any circumstances whatsoever in its individual capacity for or on account of any statements, representations, warranties, covenants or obligations stated to be those of the Owner Trustee, except for its own gross negligence or willful misconduct and as otherwise expressly provided herein or in the other Operative Agreements. (b) Anything to the contrary contained in this Agreement, the Credit Agreement, the Notes or in any other Operative DocumentAgreement notwithstanding, no Certificate Holder or Owner Trustee Exculpated Person shall have be personally liable in any personal liability whatsoever to any Participant or their respective successors and assigns respect for any claim based on liability or obligation arising hereunder or in respect hereof any other Operative Agreement including without limitation the payment of the principal of, or interest on, the Notes, or for monetary damages for the breach of performance of any of the covenants contained in the Credit Agreement, the Notes, this Agreement, the Security Agreement or any of the other Operative Documents Agreements. The Lenders, the Holders and the Agent agree that, in the event any remedies under any Operative Agreement are pursued, neither the Lenders, the Holders nor the Agent shall have any recourse against any Exculpated Person for any deficiency, loss or arising in any way from the transactions contemplated hereby Claim for monetary damages or thereby otherwise resulting therefrom and recourse, if any, recourse shall be had solely had and exclusively against such Certificate Holder's interest in the Lessor Trust; provided, however, that each Certificate Holder Trust Estate (excluding Excepted Payments) and Owner Trustee shall be liable in its individual capacity the Lessee (a) for its own willful misconduct or gross negligence, (b) breach of any of its representations, warranties or covenants with respect to the Lessee’s obligations under the Operative DocumentsAgreements); but nothing contained herein shall be taken to prevent recourse against or the enforcement of remedies against the Trust Estate (excluding Excepted Payments) in respect of any and all liabilities, (c) with respect to Certificate Holdersobligations and undertakings contained herein and/or in any other Operative Agreement. Notwithstanding the provisions of this Section, for nothing in any Tax based on or measured by any fees, commission or compensation received by a Certificate Holder for acting as a Certificate Holder as contemplated by the Operative Documents, or (d) any Lessor Liens attributable to it. It is understood and agreed that, except as provided in the preceding sentenceAgreement shall: (i) no Certificate Holder constitute a waiver, release or Owner Trustee discharge of any indebtedness or obligation evidenced by the Notes and/or the Certificates arising under any Operative Agreement or secured by any Operative Agreement, but the same shall have continue until paid or discharged; (ii) relieve any personal Exculpated Person from liability under and responsibility for (but only to the extent of the damages arising by reason of): active waste knowingly committed by any Exculpated Person with respect to any Property, any fraud, gross negligence or willful misconduct on the part of any Exculpated Person; (iii) relieve any Exculpated Person from liability and responsibility for (but only to the extent of the moneys misappropriated, misapplied or not turned over) (A) except for Excepted Payments, misappropriation or misapplication by the Lessor (i.e., application in a manner contrary to any of the Operative Documents as a result Agreements) of acting pursuant any insurance proceeds or condemnation award paid or delivered to the Lessor by any Person other than the Agent, (B) except for Excepted Payments, any deposits or any escrows or amounts owed by the Construction Agent under the Agency Agreement held by the Lessor or (C) except for Excepted Payments, any rent or other income received by the Lessor from the Lessee that is not turned over to the Agent; or (iv) affect or in any way limit the Agent’s rights and consistent remedies under any Operative Agreement with any respect to the Rents and rights and powers of the Agent under the Operative Documents; Agreements or to obtain a judgment against the Lessee’s interest in the Properties or the Agent’s rights and powers to obtain a judgment against the Lessor (ii) all obligations of each Certificate Holder and Owner Trustee to provided, that no deficiency judgment or other money judgment shall be enforced against any Lender are solely nonrecourse obligations Exculpated Person except to the extent that such Certificate Holder of the Lessor’s interest in the Trust Estate (excluding Excepted Payments) or Owner Trustee has received payment from others (including, without limitation, obligations with respect to the Loans); extent the Lessor may be liable as otherwise contemplated in clauses (ii) and (iii) all such personal liability of any Certificate Holder and Owner Trustee is expressly waived and released as a condition of, and as consideration for, the execution and delivery of the Operative Documents by such Certificate Holder and Owner Trusteethis Section 12.9(b)). (b) No Participant shall have any obligation to any other Participant or to the Lessee, the Certificate Holders or the Lenders with respect to transactions contemplated by the Operative Documents, except those obligations of such Participant expressly set forth in the Operative Documents or except as set forth in the instruments delivered in connection therewith, and no Participant shall be liable for performance by any other party hereto of such other party's obligations under the Operative Documents except as otherwise so set forth.

Appears in 2 contracts

Samples: Participation Agreement (Sabre Holdings Corp), Participation Agreement (Sabre Holdings Corp)

Liability Limited. (a) The parties hereto Lenders, the Agent, the Credit Parties, the Owner Trustee and the Holders each acknowledge and agree that the Owner Trustee is (except as specifically set forth otherwise expressly provided herein or therein) entering into this Agreement and the other Operative Agreements to which it is a party (other than the Trust Agreement and to the extent otherwise provided in Section 6.2 of this Agreement), solely in its capacity as trustee under the Trust Agreement and not in its individual capacity and that the Trust Company shall not be liable or accountable under any circumstances whatsoever in its individual capacity for or on account of any statements, representations, warranties, covenants or obligations stated to be those of the Owner Trustee, except for its own gross negligence or willful misconduct and as otherwise expressly provided herein or in the other Operative Agreements. (b) Anything to the contrary contained in this Agreement, the Credit Agreement, the Notes or in any other Operative DocumentAgreement notwithstanding, no Certificate Holder or Owner Trustee Exculpated Person shall have be personally liable in any personal liability whatsoever to any Participant or their respective successors and assigns respect for any claim based on liability or obligation arising hereunder or in respect hereof any other Operative Agreement including without limitation the payment of the principal of, or interest on, the Notes, or for monetary damages for the breach of performance of any of the covenants contained in the Credit Agreement, the Notes, this Agreement, the Security Agreement or any of the other Operative Documents Agreements. The Lenders, the Holders and the Agent agree that, in the event any remedies under any Operative Agreement are pursued, neither the Lenders, the Holders nor the Agent shall have any recourse against any Exculpated Person, for any deficiency, loss or Claim for monetary damages or otherwise resulting therefrom and recourse shall be had solely and exclusively against the Trust Estate (excluding Excepted Payments) and the Credit Parties (with respect to the Credit Parties' obligations under the Operative Agreements); but nothing contained herein shall be taken to prevent recourse against or the enforcement of remedies against the Trust Estate (excluding Excepted Payments) in respect of any and all liabilities, obligations and undertakings contained herein and/or in any other Operative Agreement. Notwithstanding the provisions of this Section, nothing in any Operative Agreement shall: (i) constitute a waiver, release or discharge of any indebtedness or obligation evidenced by the Notes and/or the Certificates arising under any Operative Agreement or secured by any Operative Agreement, but the same shall continue until paid or discharged; (ii) relieve any Exculpated Person from liability and responsibility for (but only to the extent of the damages arising by reason of): active waste knowingly committed by any Exculpated Person with respect to any Property, any fraud, gross negligence or willful misconduct on the part of any Exculpated Person; (iii) relieve any Exculpated Person from liability and responsibility for (but only to the extent of the moneys misappropriated, misapplied or not turned over) (A) except for Excepted Payments, misappropriation or misapplication by the Lessor (i.e., application in a manner contrary to any of the Operative Agreements) of any insurance proceeds or condemnation award paid or delivered to the Lessor by any Person other than the Agent, (B) except for Excepted Payments, any deposits or any escrows or amounts owed by the Construction Agent under the Agency Agreement held by the Lessor or (C) except for Excepted Payments, any rent or other income received by the Lessor from any Credit Party that is not turned over to the Agent; or (iv) affect or in any way from limit the transactions contemplated hereby Agent's rights and remedies under any Operative Agreement with respect to the Rents and rights and powers of the Agent under the Operative Agreements or thereby and recourse, if any, shall be solely had to obtain a judgment against such Certificate Holderthe Lessee's interest in the Properties or the Agent's rights and powers to obtain a judgment against the Lessor Trust; or any Credit Party (provided, however, that each Certificate Holder and Owner Trustee no deficiency judgment or other money judgment shall be liable in its individual capacity (a) for its own willful misconduct or gross negligence, (b) breach of enforced against any of its representations, warranties or covenants under the Operative Documents, (c) with respect to Certificate Holders, for any Tax based on or measured by any fees, commission or compensation received by a Certificate Holder for acting as a Certificate Holder as contemplated by the Operative Documents, or (d) any Lessor Liens attributable to it. It is understood and agreed that, except as provided in the preceding sentence: (i) no Certificate Holder or Owner Trustee shall have any personal liability under any of the Operative Documents as a result of acting pursuant to and consistent with any of the Operative Documents; (ii) all obligations of each Certificate Holder and Owner Trustee to any Lender are solely nonrecourse obligations Exculpated Person except to the extent that such Certificate Holder of the Lessor's interest in the Trust Estate (excluding Excepted Payments) or Owner Trustee has received payment from others (including, without limitation, obligations with respect to the Loans); extent the Lessor may be liable as otherwise contemplated in clauses (ii) and (iii) all such personal liability of any Certificate Holder and Owner Trustee is expressly waived and released as a condition of, and as consideration for, the execution and delivery of the Operative Documents by such Certificate Holder and Owner Trusteethis Section 12.10(b)). (b) No Participant shall have any obligation to any other Participant or to the Lessee, the Certificate Holders or the Lenders with respect to transactions contemplated by the Operative Documents, except those obligations of such Participant expressly set forth in the Operative Documents or except as set forth in the instruments delivered in connection therewith, and no Participant shall be liable for performance by any other party hereto of such other party's obligations under the Operative Documents except as otherwise so set forth.

Appears in 2 contracts

Samples: Participation Agreement (Quorum Health Group Inc), Participation Agreement (Province Healthcare Co)

Liability Limited. (a) The parties hereto Lessee, the Agent, and the Participants each acknowledge and agree that except as specifically set forth herein or in any other Operative Document, no Certificate Holder or Owner Trustee the Lessor shall have any no personal liability whatsoever to the Lessee, the Agent or any Participant or their respective successors and assigns for any claim based on or in respect hereof of this Participation Agreement or any of the other Operative Documents or arising in any way from the transactions contemplated hereby or thereby and recourse, if any, shall be solely had against such Certificate Holder's interest in the Lessor Trustthereby; provided, however, that each Certificate Holder and Owner Trustee the Lessor shall be -------- ------- liable in its individual capacity (a) for its own willful misconduct or gross negligencenegligence (or negligence in the handling of funds), (b) breach for liabilities that may result from the incorrectness of any representation or warranty expressly made by it in Section 8.1 hereof or from the failure of the Lessor to perform ----------- its representationscovenants and agreements set forth in Section 10.3 hereof, warranties or covenants under the Operative Documents, (c) with respect to Certificate Holders, for any Tax ------------ Taxes based on or measured by any fees, commission or compensation received by a Certificate Holder it for acting as a Certificate Holder the Lessor as contemplated by the Operative Documents, or (d) any Lessor Liens attributable to it. It is understood and agreed that, except as provided in the preceding sentenceproviso: (i) no Certificate Holder or Owner Trustee the Lessor shall have any no personal liability under any of the Operative Documents as a result of acting pursuant to and consistent with any of the Operative Documents; (ii) all obligations of each Certificate Holder and Owner Trustee the Lessor to the Lessee, the Agent or any Lender Participant are solely nonrecourse obligations except to the extent that such Certificate Holder or Owner Trustee it has received payment from others (including, without limitation, obligations with respect to and are enforceable solely against the Loans)Lessor's interest in the Property; and (iii) all such personal liability of any Certificate Holder and Owner Trustee the Lessor is expressly waived and released as a condition of, and as consideration for, the execution and delivery of the Operative Documents by such Certificate Holder and Owner Trusteethe Lessor. (b) No Participant shall have any obligation to any other Participant or to the Lessee, the Certificate Holders Lessor or the Lenders Agent with respect to transactions contemplated by the Operative Documents, except those obligations of such Participant expressly set forth in the Operative Documents or except as set forth in the instruments delivered in connection therewith, and no Participant shall be liable for performance by any other party hereto of such other party's obligations under the Operative Documents except as otherwise so set forth.

Appears in 1 contract

Samples: Participation Agreement (Asyst Technologies Inc /Ca/)

Liability Limited. (a) The parties hereto Lenders, the Agent, the Credit Parties, the Owner Trustee and the Holders each acknowledge and agree that the Owner Trustee is (except as specifically set forth otherwise expressly provided herein or therein) entering into this Agreement and the other Operative Agreements to which it is a party (other than the Trust Agreement and to the extent otherwise provided in Section 6.1 of this Agreement), solely in its capacity as trustee under the Trust Agreement and not in its individual capacity and that the Trust Company shall not be liable or accountable under any circumstances whatsoever in its individual capacity for or on account of any statements, representations, warranties, covenants or obligations stated to be those of the Owner Trustee, except for its own gross negligence or willful misconduct and as otherwise expressly provided herein or in the other Operative Agreements. (b) Anything to the contrary contained in this Agreement, the Credit Agreement, the Notes or in any other Operative DocumentAgreement notwithstanding, no Certificate Holder or Owner Trustee Exculpated Person shall have be personally liable in any personal liability whatsoever to any Participant or their respective successors and assigns respect for any claim based on liability or obligation arising hereunder or in respect hereof any other Operative Agreement including without limitation the payment of the principal of, or interest on, the Notes, or for monetary damages for the breach of performance of any of the covenants contained in the Credit Agreement, the Notes, this Agreement, the Security Agreement or any of the other Operative Documents Agreements. The Lenders, the Holders and the Agent agree that, in the event any remedies under any Operative Agreement are pursued, neither the Lenders, the Holders nor the Agent shall have any recourse against any Exculpated Person, for any deficiency, loss or Claim for monetary damages or otherwise resulting therefrom and recourse shall be had solely and exclusively against the Trust Estate (excluding Excepted Payments) and the Credit Parties (with respect to the Credit Parties' obligations under the Operative Agreements); but nothing contained herein shall be taken to prevent recourse against or the enforcement of remedies against the Trust Estate (excluding Excepted Payments) in respect of any and all liabilities, obligations and undertakings contained herein and/or in any other Operative Agreement. Notwithstanding the provisions of this Section, nothing in any Operative Agreement shall: (i) constitute a waiver, release or discharge of any indebtedness or obligation evidenced by the Notes and/or the Certificates arising under any Operative Agreement or secured by any Operative Agreement, but the same shall continue until paid or discharged; (ii) relieve any Exculpated Person from liability and responsibility for (but only to the extent of the damages arising by reason of): active waste knowingly committed by any Exculpated Person with respect to any Property, any fraud, gross negligence or willful misconduct on the part of any Exculpated Person; (iii) relieve any Exculpated Person from liability and responsibility for (but only to the extent of the moneys misappropriated, misapplied or not turned over) (A) except for Excepted Payments, misappropriation or misapplication by the Lessor (i.e., application in a manner contrary to any of the Operative Agreements) of any insurance proceeds or condemnation award paid or delivered to the Lessor by any Person other than the Agent, (B) except for Excepted Payments, any deposits or any escrows or amounts owed by the Construction Agent under the Agency Agreement held by the Lessor or (C) except for Excepted Payments, any rent or other income received by the Lessor from the any Credit Party that is not turned over to the Agent; or (iv) affect or in any way from limit the transactions contemplated hereby Agent's rights and remedies under any Operative Agreement with respect to the Rents and rights and powers of the Agent under the Operative Agreements or thereby and recourse, if any, shall be solely had to obtain a judgment against such Certificate Holderthe Lessee's interest in the Properties or the Agent's rights and powers to obtain a judgment against the Lessor Trust; or any Credit Party (provided, however, that each Certificate Holder and Owner Trustee no deficiency judgment or other money judgment shall be liable in its individual capacity (a) for its own willful misconduct or gross negligence, (b) breach of enforced against any of its representations, warranties or covenants under the Operative Documents, (c) with respect to Certificate Holders, for any Tax based on or measured by any fees, commission or compensation received by a Certificate Holder for acting as a Certificate Holder as contemplated by the Operative Documents, or (d) any Lessor Liens attributable to it. It is understood and agreed that, except as provided in the preceding sentence: (i) no Certificate Holder or Owner Trustee shall have any personal liability under any of the Operative Documents as a result of acting pursuant to and consistent with any of the Operative Documents; (ii) all obligations of each Certificate Holder and Owner Trustee to any Lender are solely nonrecourse obligations Exculpated Person except to the extent that such Certificate Holder of the Lessor's interest in the Trust Estate (excluding Excepted Payments) or Owner Trustee has received payment from others (including, without limitation, obligations with respect to the Loans); extent the Lessor may be liable as otherwise contemplated in clauses (ii) and (iii) all such personal liability of any Certificate Holder and Owner Trustee is expressly waived and released as a condition of, and as consideration for, the execution and delivery of the Operative Documents by such Certificate Holder and Owner Trusteethis Section 12.9(b)). (b) No Participant shall have any obligation to any other Participant or to the Lessee, the Certificate Holders or the Lenders with respect to transactions contemplated by the Operative Documents, except those obligations of such Participant expressly set forth in the Operative Documents or except as set forth in the instruments delivered in connection therewith, and no Participant shall be liable for performance by any other party hereto of such other party's obligations under the Operative Documents except as otherwise so set forth.

Appears in 1 contract

Samples: Participation Agreement (Correctional Services Corp)

Liability Limited. (a) The parties hereto agree that Anything to the contrary contained in any Operative Agreement notwithstanding, except as specifically set forth herein stated in this Section 12.9, no Exculpated Person shall be personally liable in any respect for any liability or obligation arising hereunder or in any other Operative DocumentAgreement including the payment of the advance amount or yield regarding the Lessor Advances, no Certificate Holder or Owner Trustee for monetary damages for the breach of performance of any of the covenants contained in the Operative Agreements. The Lessor Parties and the Agent agree that, in the event any remedies under any Operative Agreement are pursued, none of the Lessor Parties or the Agent shall have any personal liability whatsoever to recourse against any Participant or their respective successors and assigns Exculpated Person, for any claim based on deficiency, loss or in respect hereof Claim for monetary damages or any of the other Operative Documents or arising in any way from the transactions contemplated hereby or thereby otherwise resulting therefrom and recourse, if any, recourse shall be had solely had and exclusively against such Certificate Holder's the Lessor’s interest in the Lessor TrustTrust Property, and the assets of the Credit Parties (with respect to the Credit Parties’ obligations under the Operative Agreements); provided, however, that each Certificate Holder and Owner Trustee but nothing contained herein shall be liable in its individual capacity taken to prevent recourse against or the enforcement of remedies against (a) for its own willful misconduct or gross negligencethe Lessor’s interest in the Trust Property in respect of any and all liabilities, obligations and undertakings contained herein and/or in any other Operative Agreement; (b) breach of the Lessor Parties for any of its representations, warranties their obligations arising on a full recourse basis; or covenants under the Operative Documents, (c) the Lessor Parties or any other Person for gross negligence or willful misconduct (other than any gross negligence or willful misconduct imputed to any Lessor Party from any Person other than the Lessor Party or any Affiliate of the Lessor Party (excepting the Agent)). Notwithstanding the provisions of this Section 12.9, nothing in any Operative Agreement shall: (w) constitute a waiver, release or discharge of any indebtedness or obligation evidenced by or arising under any Operative Agreement or secured by any Operative Agreement, but the same shall continue until paid or discharged; (x) relieve any Exculpated Person from liability and responsibility for (but only to the extent of the damages arising by reason of): active waste knowingly committed by any Exculpated Person with respect to Certificate Holdersthe Property, any fraud, gross negligence or willful misconduct on the part of any Exculpated Person (other than any fraud, gross negligence or willful misconduct imputed to such Exculpated Person from any Person other than an Affiliate of such Exculpated Person (excepting the Agent)); (y) relieve any Exculpated Person from liability and responsibility for any Tax based on (but only to the extent of the moneys misappropriated, misapplied or measured by any fees, commission or compensation received by a Certificate Holder for acting as a Certificate Holder as contemplated by the Operative Documents, or (d) any Lessor Liens attributable to it. It is understood and agreed that, except as provided in the preceding sentence: not turned over) (i) no Certificate Holder except for Excepted Payments, misappropriation or Owner Trustee shall have misapplication by any personal liability under Lessor Party (i.e., application in a manner contrary to any of the Operative Documents as a result Agreements) of acting pursuant any insurance proceeds or condemnation award paid or delivered to and consistent with any of Lessor Party by any Person other than the Operative Documents; Agent, (ii) all obligations except for Excepted Payments, any rent or other income received by any Lessor Party from any Credit Party that is not turned over to the Agent, or (iii) except for Excepted Payments, any deposits or any CHAR1\1917164v13 escrows or amounts owed by the Construction Agent under the Agency Agreement held by any Lessor Party; or (z) affect or in any way limit the Agent’s rights and remedies under any Operative Agreement with respect to the Rents (other than Excepted Payments) and rights and powers of each Certificate Holder the Agent under the Operative Agreements or to obtain a judgment against the Lessee’s interest in the Property or the Agent’s rights and Owner Trustee powers to obtain a judgment against any Lender are solely nonrecourse obligations Lessor Party (but limited as to those matters specified in this Section 12.9) or any Credit Party (provided, that no deficiency judgment or other money judgment shall be enforced against any Exculpated Person except to the extent that such Certificate Holder of the Lessor’s interest in the Trust Property or Owner Trustee has received payment from others (including, without limitation, obligations with respect to the Loans); and (iii) all such personal liability of extent any Certificate Holder and Owner Trustee is expressly waived and released Lessor Party may be liable as a condition of, and as consideration for, the execution and delivery of the Operative Documents by such Certificate Holder and Owner Trustee. otherwise contemplated in clauses (b) No Participant shall have any obligation to any other Participant or to the Lessee, the Certificate Holders or the Lenders with respect to transactions contemplated by the Operative Documents, except those obligations and (c) of such Participant expressly set forth in the Operative Documents or except as set forth in the instruments delivered in connection therewith, and no Participant shall be liable for performance by any other party hereto of such other party's obligations under the Operative Documents except as otherwise so set forththis Section 12.9).

Appears in 1 contract

Samples: Fourth Amendment to Certain Operative Agreements (Big Lots Inc)

Liability Limited. (a) The parties hereto Lenders, the Agent, the Credit Parties, the Owner Trustee and the Holders each acknowledge and agree that the Owner Trustee is (except as specifically set forth otherwise expressly provided herein or therein) entering into this Agreement and the other Operative Agreements to which it is a party (other than the Trust Agreement and to the extent otherwise provided in Section 6.1 of this Agreement), solely in its capacity as trustee under the Trust Agreement and not in its individual capacity and that the Trust Company shall not be liable or accountable under any circumstances whatsoever in its individual capacity for or on account of any statements, representations, warranties, covenants or obligations stated to be those of the Owner Trustee, except for its own gross negligence or willful misconduct and as otherwise expressly provided herein or in the other Operative Agreements. (b) Anything to the contrary contained in this Agreement, the Credit Agreement, the Notes or in any other Operative DocumentAgreement notwithstanding, no Certificate Holder officer, director or Owner Trustee shall have shareholder (other than any personal liability whatsoever Credit Party) of any party to any Participant or Operative Agreement (but excluding all Credit Parties which shall be fully liable for all their respective successors and assigns obligations under the Operative Agreements) shall be personally liable in any respect for any claim based on liability or obligation arising hereunder or in respect hereof any other Operative Agreement including without limitation the payment of the principal of, or interest on, the Notes, or for monetary damages for the breach of performance of any of the covenants contained in the Credit Agreement, the Notes, this Agreement, the Security Agreement or any of the other Operative Documents Agreements. The Lenders, the Holders and the Agent agree that, in the event any remedies under any Operative Agreement are pursued, neither the Lenders, the Holders nor the Agent shall have any recourse against any officer, director or shareholder (other than any Credit Party) of any party to any Operative Agreement (but excluding all Credit Parties which shall be fully liable for all their obligations under the Operative Agreements), for any deficiency, loss or Claim for monetary damages or otherwise resulting therefrom and recourse shall be had solely and exclusively against the Trust Estate (excluding Excepted Payments) and the Credit Parties (with respect to the Credit Parties' obligations under the Operative Agreements); but nothing contained herein shall be taken to prevent recourse against or the enforcement of remedies against the Trust Estate (excluding Excepted Payments) in respect of any and all liabilities, obligations and undertakings contained herein and/or in any other Operative Agreement. Notwithstanding the provisions of this Section, nothing in any Operative Agreement shall: (i) constitute a waiver, release or discharge of any indebtedness or obligation evidenced by the Notes and/or the Certificates arising under any Operative Agreement or (A) except for Excepted Payments, misappropriation or misapplication by the Lessor (i.e., application in a manner contrary to any of the Operative Agreements) of any insurance proceeds or condemnation award paid or delivered to the Lessor by any Person other than the Agent, or (B) except for Excepted Payments, any rent or other income received by the Lessor from any Credit Party that is not turned over to the Agent; or (iv) affect or in any way from limit the transactions contemplated hereby Agent's rights and remedies under any Operative Agreement with respect to the Rents and rights and powers of the Agent under the Operative Agreements or thereby and recourse, if any, shall be solely had to obtain a judgment against such Certificate Holderthe Lessee's interest in the Properties or the Agent's rights and powers to obtain a judgment against the Lessor Trust; or any Credit Party (provided, however, that each Certificate Holder and Owner Trustee no deficiency judgment or other money -------- judgment shall be liable in its individual capacity (a) for its own willful misconduct or gross negligence, (b) breach of enforced against any of its representations, warranties or covenants under the Operative Documents, (c) with respect to Certificate Holders, for any Tax based on or measured by any fees, commission or compensation received by a Certificate Holder for acting as a Certificate Holder as contemplated by the Operative Documents, or (d) any Lessor Liens attributable to it. It is understood and agreed that, except as provided in the preceding sentence: (i) no Certificate Holder or Owner Trustee shall have any personal liability under any of the Operative Documents as a result of acting pursuant to and consistent with any of the Operative Documents; (ii) all obligations of each Certificate Holder and Owner Trustee to any Lender are solely nonrecourse obligations Exculpated Person except to the extent that such Certificate Holder of the Lessor's interest in the Trust Estate (excluding Excepted Payments) or Owner Trustee has received payment from others (including, without limitation, obligations with respect to the Loans); extent the Lessor may be liable as otherwise contemplated in clauses (ii) and (iii) all such personal liability of any Certificate Holder and Owner Trustee is expressly waived and released as a condition of, and as consideration for, the execution and delivery of the Operative Documents by such Certificate Holder and Owner Trusteethis Section 12.9(b)). (b) No Participant shall have any obligation to any other Participant or to the Lessee, the Certificate Holders or the Lenders with respect to transactions contemplated by the Operative Documents, except those obligations of such Participant expressly set forth in the Operative Documents or except as set forth in the instruments delivered in connection therewith, and no Participant shall be liable for performance by any other party hereto of such other party's obligations under the Operative Documents except as otherwise so set forth.

Appears in 1 contract

Samples: Participation Agreement (Us Oncology Inc)

Liability Limited. (a) The Except as expressly provided herein, the parties hereto agree that except this Agreement is executed by WTC not individually but solely as specifically set forth herein or in any other Operative Document, no Certificate Holder or Owner Trustee under the Trust Agreement, and by WT-FSB not individually but solely as Co-Owner Trustee under the Trust Agreement, in the exercise of the power and authority conferred and vested in each as such Owner Trustee and Co-Owner Trustee respectively, that each and all of the representations, undertakings and agreements by the Lessor herein are for the purpose and with the intention of binding only the Trust Estate, and that in no case whatsoever shall have WTC, WT-FSB or any personal liability whatsoever to any Participant or their respective successors and assigns Investor be personally liable for any claim based on or loss in respect hereof or any of such representations, undertakings and agreements, that actions to be taken by the Lessor pursuant to its obligations hereunder may, in certain instances, be taken by the Lessor only upon specific authority of the other Operative Documents Investors, that nothing herein contained shall be construed as creating any liability on WTC or arising in WT-FSB, individually or personally, to perform any way from the transactions contemplated hereby covenant, either express or thereby and recourseimplied, herein, all such liability, if any, being expressly waived by the parties hereto and by each and every Person now or hereafter claiming by, through or under the parties hereto except with respect to the gross negligence or willful misconduct of WTC or WT-FSB, and that so far as WTC or WT-FSB, individually or personally is concerned, the parties hereto and any Person claiming by, through or under the parties hereto shall be look solely had against such Certificate Holder's interest in to the Trust Estate for the performance by the Lessor Trustof any of its obligations under this Agreement and the other Operative Agreements; provided, however, that each Certificate Holder and Owner Trustee nothing in this Section 16.11 shall be liable construed to limit in scope or substance those representations and warranties of WTC or WT-FSB in its individual capacity (a) for its own willful misconduct or gross negligence, (b) breach of any of its representations, warranties or covenants under the Operative Documents, (c) with respect to Certificate Holders, for any Tax based on or measured by any fees, commission or compensation received by a Certificate Holder for acting as a Certificate Holder as contemplated by the Operative Documents, or (d) any Lessor Liens attributable to it. It is understood and agreed that, except as provided in the preceding sentence: (i) no Certificate Holder or Owner Trustee shall have any personal liability under any of the Operative Documents as a result of acting pursuant to and consistent with any of the Operative Documents; (ii) all obligations of each Certificate Holder and Owner Trustee to any Lender are solely nonrecourse obligations except to the extent that such Certificate Holder or Owner Trustee has received payment from others (including, without limitation, obligations with respect to the Loans); and (iii) all such personal liability of any Certificate Holder and Owner Trustee is expressly waived and released as a condition of, and as consideration for, the execution and delivery of the Operative Documents by such Certificate Holder and Owner Trustee. (b) No Participant shall have any obligation to any other Participant or to the Lessee, the Certificate Holders or the Lenders with respect to transactions contemplated by the Operative Documents, except those obligations of such Participant expressly set forth in the Operative Documents Participation Agreement and the Trust Agreement. The term "Lessor" as used in this Agreement shall include any trustee succeeding WTC as Owner Trustee under the Trust Agreement or except any co-owner trustee appointed as set forth in a co-owner trustee under the instruments delivered in connection therewithTrust Agreement. Any obligation of the Lessor hereunder may be performed by any Investor, and no Participant any such performance shall not be liable for performance construed as revocation of the trust created by any other party hereto the Trust Agreement. Nothing contained in this Agreement shall restrict the operation of such other party's obligations under the Operative Documents except as otherwise so set forthprovisions of the Trust Agreement with respect to its revocation of the resignation or removal of the Owner Trustee hereunder.

Appears in 1 contract

Samples: Participation Agreement (Inktomi Corp)

Liability Limited. (a) The parties hereto agree that except as specifically set forth herein [Reserved]. (b) Anything to the contrary contained in this Agreement, the Credit Note Loan Agreement, the Mortgage Note Loan Agreement, the Notes or in any other Operative DocumentAgreement notwithstanding, no Certificate Holder or Owner Trustee Exculpated Person shall have be personally liable in any personal liability whatsoever to any Participant or their respective successors and assigns respect for any claim based on liability or obligation arising hereunder or in respect hereof any other Operative Agreement including without limitation the payment of the principal of, or interest on, the Notes, or for monetary damages for the breach of performance of any of the covenants contained in the Credit Note Loan Agreement, the Mortgage Note Loan Agreement, the Notes, this Agreement, the Security Agreement or any of the other Operative Documents or arising in any way from Agreements. The Primary Financing Parties and the transactions contemplated hereby or thereby and recourseAgent agree that, if any, shall be solely had against such Certificate Holder's interest in the Lessor Trust; providedevent any remedies under any Operative Agreement are pursued, however, that each Certificate Holder and Owner Trustee neither the Primary Financing Parties nor the Agent shall be liable in its individual capacity (a) for its own willful misconduct or gross negligence, (b) breach of have any of its representations, warranties or covenants under the Operative Documents, (c) with respect to Certificate Holdersrecourse against any Exculpated Person, for any Tax based on deficiency, loss or measured by any fees, commission Claim for monetary damages or compensation received by a Certificate Holder for acting as a Certificate Holder as contemplated by otherwise resulting therefrom and recourse shall be had solely and exclusively against the Operative Documents, or Lessor's Interest (dexcluding Excepted Payments) any Lessor Liens attributable to it. It is understood and agreed that, except as provided in the preceding sentence: Lessee (i) no Certificate Holder or Owner Trustee shall have any personal liability under any of the Operative Documents as a result of acting pursuant to and consistent with any of the Operative Documents; (ii) all obligations of each Certificate Holder and Owner Trustee to any Lender are solely nonrecourse obligations except to the extent that such Certificate Holder or Owner Trustee has received payment from others (including, without limitation, obligations with respect to the Loans); and (iii) all such personal liability of any Certificate Holder and Owner Trustee is expressly waived and released as a condition of, and as consideration for, the execution and delivery of the Operative Documents by such Certificate Holder and Owner Trustee. (b) No Participant shall have any obligation to any other Participant or to the Lessee, the Certificate Holders or the Lenders with respect to transactions contemplated by the Operative Documents, except those obligations of such Participant expressly set forth in the Operative Documents or except as set forth in the instruments delivered in connection therewith, and no Participant shall be liable for performance by any other party hereto of such other party's obligations under the Operative Documents Agreements); but nothing contained herein shall be taken to prevent recourse against or the enforcement of remedies against the Lessor's Interest (excluding Excepted Payments) in respect of any and all liabilities, obligations and undertakings contained herein and/or in any other Operative Agreement. Notwithstanding the provisions of this Section, nothing in any Operative Agreement shall: (i) constitute a waiver, release or discharge of any indebtedness or obligation evidenced by the Notes arising under any Operative Agreement or secured by any Operative Agreement, but the same shall continue until paid or discharged; (ii) relieve any Exculpated Person from liability and responsibility for (but only to the extent of the damages arising by reason of): active waste knowingly committed by any Exculpated Person with respect to any Property, any fraud, gross negligence or willful misconduct on the part of any Exculpated Person; (iii) relieve any Exculpated Person from liability and responsibility for (but only to the extent of the moneys misappropriated, misapplied or not turned over) (A) except for Excepted Payments, misappropriation or misapplication by the Lessor (i.e., application in a manner contrary to any of the Operative Agreements) of any insurance proceeds or condemnation award paid or delivered to the Lessor by any Person other than the Agent, (B) except for Excepted Payments, any deposits or any escrows or amounts owed by the Lessee held by the Lessor or (C) except for Excepted Payments, any rent or other income or funds received by the Lessor from the Lessee that is not turned over to the Agent; or (iv) affect or in any way limit the Agent's rights and remedies under any Operative Agreement with respect to the Rents and rights and powers of the Agent under the Operative Agreements to obtain a judgment against the Lessee's interest in any Property pursuant to the terms of the Operative Agreements or the Agent's rights and powers to obtain a judgment against the Lessor or the Lessee (provided, that no deficiency judgment or other money judgment shall be enforced against any Exculpated Person except to the extent of the Lessor's interest in the Lessor's Interest (excluding Excepted Payments) or to the extent the Lessor may be liable as otherwise so set forthcontemplated in clauses (ii) and (iii) of this Section 12.9(b)).

Appears in 1 contract

Samples: Participation Agreement (Cypress Semiconductor Corp /De/)

Liability Limited. (a) The parties hereto Lessee and each Investor each ----------------- acknowledge and agree that the Trust Company is (except as specifically set forth otherwise expressly provided herein or in any other Operative Document, no Certificate Holder or Owner Trustee shall have any personal liability whatsoever to any Participant or their respective successors therein) entering into this Agreement and assigns for any claim based on or in respect hereof or any of the other Operative Documents or arising to which it is a party (other than the Trust Agreement), solely in any way from its capacity as trustee under the transactions contemplated hereby or thereby Trust Agreement and recoursenot in its individual capacity, if any, and that Trust Company shall be solely had against such Certificate Holder's interest in the Lessor Trust; provided, however, that each Certificate Holder and Owner Trustee shall not be liable or accountable under any circumstances whatsoever in its individual capacity (a) for or on account of any statements, representations, warranties, covenants or obligations stated to be those of the Trustee, except for its own gross negligence or willful misconduct and as otherwise expressly provided herein or gross negligence, (b) breach of any of its representations, warranties or covenants under in the other Operative Documents, (c) with respect to Certificate Holders, for any Tax based on or measured by any fees, commission or compensation received by a Certificate Holder for acting . Except as a Certificate Holder as contemplated by the Operative Documents, or (d) any Lessor Liens attributable to it. It is understood and agreed that, except as specifically provided in the preceding sentence: (i) no Certificate Holder or Owner Trustee shall have any personal liability under any of the Operative Documents as a result of acting pursuant to Trust Agreement and consistent with any of the Operative Documents; (ii) all obligations of each Certificate Holder and Owner Trustee to any Lender are solely nonrecourse obligations except to the extent that such Certificate Holder the Trust Company shall have acted in its individual capacity, all Persons having any claim against the Lessor or Owner the Trust Company acting in its capacity as Trustee has received by reason of the transactions contemplated hereby shall look only to the Trust Estate for payment from others or satisfaction thereof (includingand, without limitationlimiting the foregoing, obligations with respect no Investor shall have any liability for payment or satisfaction of claims against the Lessor or the Trustee except to the Loans); and (iii) all extent any such personal liability claim arises out of any Certificate Holder and Owner Trustee is expressly waived and released as a condition of, and as consideration for, or results from the execution and delivery of the Operative Documents breach by such Certificate Holder and Owner TrusteeInvestor of its obligations hereunder or under any other Operative Document). (b) No Participant Except as otherwise expressly provided in this Agreement and the other Transaction Documents, each of the parties hereto other than the Lessee (the "Non-Lessee Parties") agrees that all obligations ------------------- of the Lessee under the Transaction Documents shall be obligations solely of the Lessee, and each Non-Lessee Party shall have recourse only to the assets of the Lessee in enforcing such obligations. Except as otherwise expressly provided in the Participation Agreement and the other Transaction Documents, each Non-Lessee Party hereby acknowledges and agrees that none of the partners of the Lessee, their respective Affiliates and their past, present or future officers, directors, employees, shareholders, agents or representatives (collectively, the "Nonrecourse Parties") shall have any obligation liability to any ------------------- Non-Lessee Party for the payment of any sums now or hereafter owing by the Lessee under the Transaction Documents or for the performance of any of the obligations of the Lessee contained therein or shall otherwise be liable or responsible with respect thereto (such liability, including such as may arise by operation of law, being hereby expressly waived). Except as otherwise expressly provided in the other Participant Transaction Documents, if any Event of Default shall occur and be continuing or if any claim of any Non-Lessee Party against, or alleged liability to the Lesseeany Non-Lessee Party of, the Certificate Holders Lessee shall be asserted under the Participation Agreement or the Lenders with respect to transactions contemplated by the Operative other Transaction Documents, except those each Non-Lessee Party agrees that it shall not have the right to proceed directly or indirectly against the Nonrecourse Parties or against their respective properties and assets for the satisfaction of any of the obligations of such Participant expressly set forth in the Operative Lessee under the Participation Agreement or the other Transaction Documents or except as set forth of any such claim or liability or for any deficiency judgment in the instruments delivered respect of such obligation or any such claim or liability or for any deficiency judgment in connection therewithrespect of such obligation or any such claim or liability. The foregoing notwithstanding, it is expressly understood and no Participant agreed that nothing contained in this Section 8.8(b) shall be liable deemed to release any Nonrecourse Party from liability for performance its fraudulent actions or willful misconduct. The foregoing acknowledgments, agreements and waiver shall be enforceable by any other party hereto of such other party's obligations under the Operative Documents except as otherwise so set forthNonrecourse Party.

Appears in 1 contract

Samples: Participation Agreement (KMC Telecom Holdings Inc)

Liability Limited. (a) The parties hereto Lenders, the Agent, the Lessee, the Trust Companies, the Trust and the Holders each acknowledge and agree that the Trust Companies shall not be liable or accountable under any circumstances whatsoever for or on account of any statements, representations, warranties, covenants or obligations stated to be those of the Trust, Borrower or Lessor except for their own gross negligence or willful misconduct and as specifically set forth otherwise expressly provided herein or in the other Operative Agreements. (b) Anything to the contrary contained in this Agreement, the Credit Agreement, the Notes or in any other Operative DocumentAgreement notwithstanding, no Certificate Holder or Owner Trustee Exculpated Person shall have be personally liable in any personal liability whatsoever to any Participant or their respective successors and assigns respect for any claim based on liability or obligation arising hereunder or in respect hereof any other Operative Agreement including the payment of the principal of, or interest on, the Notes, or for monetary damages for the breach of performance of any of the covenants contained in the Credit Agreement, the Notes, this Agreement, the Security Documents or any of the other Operative Documents or arising in any way from Agreements. The Lenders, the transactions contemplated hereby or thereby Holders and recoursethe Agent agree that, if any, shall be solely had against such Certificate Holder's interest in the Lessor Trust; providedevent any remedies under any Operative Agreement are pursued, howeverneither the Lenders, that each Certificate Holder and Owner Trustee the Holders nor the Agent shall be liable in its individual capacity (a) for its own willful misconduct or gross negligence, (b) breach of have any of its representations, warranties or covenants under the Operative Documents, (c) with respect to Certificate Holdersrecourse against any Exculpated Person, for any Tax based on deficiency, loss or measured by any fees, commission Claim for monetary damages or compensation received by a Certificate Holder for acting as a Certificate Holder as contemplated by otherwise resulting therefrom and recourse shall be had solely and exclusively against the Operative Documents, or Trust Estate (dexcluding Excepted Payments) any Lessor Liens attributable to it. It is understood and agreed that, except as provided in the preceding sentence: Lessee (i) no Certificate Holder or Owner Trustee shall have any personal liability under any of the Operative Documents as a result of acting pursuant to and consistent with any of the Operative Documents; (ii) all obligations of each Certificate Holder and Owner Trustee to any Lender are solely nonrecourse obligations except to the extent that such Certificate Holder or Owner Trustee has received payment from others (including, without limitation, obligations with respect to the Loans); and (iii) all such personal liability of any Certificate Holder and Owner Trustee is expressly waived and released as a condition of, and as consideration for, the execution and delivery of the Operative Documents by such Certificate Holder and Owner Trustee. (b) No Participant shall have any obligation to any other Participant or to the Lessee, the Certificate Holders or the Lenders with respect to transactions contemplated by the Operative Documents, except those obligations of such Participant expressly set forth in the Operative Documents or except as set forth in the instruments delivered in connection therewith, and no Participant shall be liable for performance by any other party hereto of such other party's obligations under the Operative Documents except as otherwise so set forth.Agreements); but nothing contained herein shall be taken to prevent recourse against or the enforcement of remedies against the Trust Estate (excluding Excepted Payments) in respect of any and all liabilities, obligations and undertakings contained herein and/or in any other Operative Agreement. Notwithstanding the provisions of this Section, nothing in any Operative Agreement shall: (i) constitute a waiver, release or discharge of any indebtedness or obligation evidenced by the Notes and/or the Certificates arising under any Operative Agreement or secured by any Operative Agreement, but the same shall continue until paid or discharged; (ii) relieve any Exculpated Person from liability and responsibility for (but only to the extent of the damages arising by reason of): active waste knowingly committed by any Exculpated Person with respect to any Property, any fraud, gross negligence or willful misconduct on the part of any Exculpated Person; (iii) relieve any

Appears in 1 contract

Samples: Participation Agreement (Symantec Corp)

Liability Limited. (a) The parties hereto agree that except as specifically set forth herein Anything to the contrary contained in this Agreement, the Credit Agreement, the Notes or in any other Operative DocumentAgreement notwithstanding, no Certificate Holder neither the Lessor nor any officer, director, shareholder, affiliate or Owner Trustee partner thereof, nor any of the successors or assigns of the foregoing (all such Persons being hereinafter referred to collectively as the “Exculpated Persons”), shall have be personally liable in any personal liability whatsoever to any Participant or their respective successors and assigns respect for any claim based on liability or obligation hereunder or under any other Operative Agreement, including the payment of the principal of, or interest on, the Notes, or for monetary damages for the breach of performance of any of the covenants contained in respect hereof the Credit Agreement, the Notes, this Agreement, the Security Agreement or any of the other Operative Documents Agreements. The Agent (for itself and on behalf of the Lenders) agrees that, in the event the Agent or arising in any way from Lender pursues any remedies available to them under the transactions contemplated hereby Credit Agreement, the Notes, this Agreement, the Security Agreement, the Mortgage Instruments or thereby under any other Operative Agreement, neither the Lenders nor the Agent shall have any recourse against any Exculpated Person, for any deficiency, loss or Claim for monetary damages or otherwise resulting therefrom, and recourse, if any, recourse shall be had solely had and exclusively against such Certificate Holder's interest in the Lessor Trust; provided, however, that each Certificate Holder Collateral and Owner Trustee shall be liable in its individual capacity the Lessee (a) for its own willful misconduct or gross negligence, (b) breach of any of its representations, warranties or covenants under the Operative Documents, (c) with respect to Certificate Holdersthe Lessee’s obligations under the Lease, for this Agreement and the other Operative Agreements); but nothing contained herein shall be taken to prevent recourse against or the enforcement of remedies against the Collateral in respect of any Tax based on or measured by any feesand all liabilities, commission or compensation received by a Certificate Holder for acting as a Certificate Holder as contemplated by the Operative Documentsobligations and undertakings contained herein, or (d) any Lessor Liens attributable to it. It is understood and agreed that, except as provided in the preceding sentenceCredit Agreement, in the Notes, in the Security Agreement, the Mortgage Instruments or in any other Operative Agreement. Notwithstanding the provisions of this Section, nothing in this Agreement, the Credit Agreement, the Notes, the Security Agreement, the Mortgage Instruments or any other Operative Agreement shall: (i) no Certificate Holder constitute a waiver, release or Owner Trustee discharge of any indebtedness or obligation evidenced by the Notes or arising under this Agreement, the Security Agreement, the Mortgage Instruments or the Credit Agreement or secured by the Security Agreement, the Mortgage Instruments or any other Operative Agreement, but the same shall have any personal liability under any of the Operative Documents as a result of acting pursuant to and consistent with any of the Operative Documentscontinue until paid or discharged; (ii) all obligations of each Certificate Holder relieve the Lessor or any Exculpated Person from liability and Owner Trustee to any Lender are solely nonrecourse obligations except responsibility for (but only to the extent that of the damages arising by reason of): (a) active waste knowingly committed by such Certificate Holder Lessor or Owner Trustee has received payment from others (including, without limitation, obligations such Exculpated Person with respect to the Loans)Properties or (b) any fraud, gross negligence, willful misconduct or willful breach on the part of the Lessor or such Exculpated Person; and (iii) all relieve the Lessor or such personal Exculpated Person from liability and responsibility for (but only to the extent of the moneys misappropriated, misapplied or not turned over) (a) misappropriation or misapplication by the Lessor (i.e., application in a manner contrary to any Operative Agreement) of any Certificate Holder and Owner Trustee is expressly waived and released as a condition ofinsurance proceeds or condemnation award paid or delivered to the Lessor by any Person other than the Agent, and as consideration for, the execution and delivery of the Operative Documents by such Certificate Holder and Owner Trustee. or (b) No Participant shall have any obligation to any rents or other Participant or income received by the Lessor from the Lessee that are not turned over to the Lessee, Agent (other than indemnities payable to the Certificate Holders Lessor for its own account); or (iv) affect or in any way limit the Lenders Agent’s rights and remedies under any Operative Agreement with respect to transactions contemplated by the Operative Documents, except those obligations of such Participant expressly set forth Rents and its rights thereunder or its right to obtain a judgment against the Lessor’s interest in the Operative Documents or except as set forth in the instruments delivered in connection therewith, and no Participant shall be liable for performance by any other party hereto of such other party's obligations under the Operative Documents except as otherwise so set forthProperties.

Appears in 1 contract

Samples: Participation Agreement (Tech Data Corp)

Liability Limited. (a) The parties hereto agree that except as specifically set forth herein or in any other Operative Document, no Certificate Holder or Owner Trustee shall have any personal liability whatsoever to any Participant or their respective successors and assigns for any claim based on or in respect hereof or any of the other Operative Documents or arising in any way from the transactions contemplated hereby or thereby and recourse, if any, shall be solely had against such Certificate Holder's interest in the Lessor Trust; provided, however, that each Certificate Holder and Owner Trustee shall be liable in its individual capacity (a) for its own willful misconduct or gross negligence, (b) breach of any of its representations, warranties or covenants under the Operative Documents, (c) with respect to Certificate Holders, for any Tax based on or measured by any fees, commission or compensation received by a Certificate Holder for acting as a Certificate Holder as contemplated by the Operative Documents, or (d) any Lessor Liens attributable to it. It is understood and agreed that, except as provided in the preceding sentence: (i) no Certificate Holder or Owner Trustee shall have any personal liability under any of the Operative Documents as a result of acting pursuant to and consistent with any of the Operative Documents; (ii) all obligations of each Certificate Holder and Owner Trustee to any Lender are solely nonrecourse obligations except to the extent that such Certificate Holder or Owner Trustee has received payment from others (including, without limitation, obligations with respect to the Loans); and (iii) all such personal liability of any Certificate Holder and Owner Trustee is expressly waived and released as a condition of, and as consideration for, the execution and delivery of the Operative Documents by such Certificate Holder and Owner Trustee. (b) No Participant shall have any obligation to any other Participant or to Lessee Agent, the Lessee, the Certificate Holders or the Lenders with respect to transactions contemplated by the Operative Documents, except those obligations of such Participant expressly set forth in the Operative Documents or except as set forth in the instruments delivered in connection therewith, and no Participant shall be liable for performance by any other party hereto of such other party's obligations under the Operative Documents except as otherwise so set forth.

Appears in 1 contract

Samples: Participation Agreement (Truserv Corp)

Liability Limited. (a) The parties hereto agree that except as specifically set forth herein [Reserved]. (b) Anything to the contrary contained in this Agreement or in any other Operative DocumentAgreement notwithstanding, no Certificate Holder or Owner Trustee Exculpated Person shall have be personally liable in any personal liability whatsoever to any Participant or their respective successors and assigns respect for any claim based on liability or obligation arising hereunder or in respect hereof any other Operative Agreement including without limitation the payment of the principal of, or Interest on, the Notes, or for monetary damages for the breach of performance of any of the covenants contained in this Agreement or any of the other Operative Documents Agreements. The Primary Financing Parties and the Agent agree that, in the event any remedies under any Operative Agreement are pursued, neither the Primary Financing Parties nor the Agent shall have any recourse against any Exculpated Person, for any deficiency, loss or Claim for monetary damages or otherwise resulting therefrom and recourse shall be had solely and exclusively against the Borrower’s Interest (excluding Excepted Payments) and the Lessee (with respect to the Lessee’s obligations under the Operative Agreements); but nothing contained herein shall be taken to prevent recourse against or the enforcement of remedies against the Borrower’s Interest (excluding Excepted Payments) in respect of any and all liabilities, obligations and undertakings contained herein and/or in any other Operative Agreement. Notwithstanding the provisions of this Section, nothing in any Operative Agreement shall: (i) constitute a waiver, release or discharge of any indebtedness or obligation evidenced by the Notes arising under any Operative Agreement or secured by any Operative Agreement, but the same shall continue until paid or discharged; (ii) relieve any Exculpated Person from liability and responsibility for (but only to the extent of the damages arising by reason of): active waste knowingly committed by any Exculpated Person with respect to the Property, any fraud, gross negligence or willful misconduct on the part of any Exculpated Person; (iii) relieve any Exculpated Person from liability and responsibility for (but only to the extent of the moneys misappropriated, misapplied or not turned over) (A) except for Excepted Payments, misappropriation or misapplication by the Lessor (i.e., application in a manner contrary to any of the Operative Agreements) of any insurance proceeds or condemnation award paid or delivered to the Lessor by any Person other than the Agent, (B) except for Excepted Payments, any deposits or any escrows or amounts owed by the Construction Agent under the Agency Agreement held by the Lessor or (C) except for Excepted Payments, any rent or other income or funds received by the Lessor from the Lessee that is not turned over to the Agent; (iv) affect or in any way from limit the transactions contemplated hereby Agent’s rights and remedies under any Operative Agreement with respect to the Rents and rights and powers of the Agent under the Operative Agreements or thereby and recourse, if any, shall be solely had to obtain a judgment against such Certificate Holder's the Lessee’s interest in the Lessor Trust; provided, however, that each Certificate Holder and Owner Trustee shall be liable in its individual capacity (a) for its own willful misconduct or gross negligence, (b) breach Property pursuant to the terms of any of its representations, warranties or covenants under the Operative Documents, Agreements or the Agent’s rights and powers to obtain a judgment against the Lessor or the Lessee; or (cv) relieve any Exculpated Person from liability and responsibility (A) with respect to Certificate Holders, for any Tax based on or measured by any fees, commission or compensation received by a Certificate Holder for acting as a Certificate Holder as contemplated by such Person’s obligations concerning Lessor Liens pursuant to Section 8.2(a) and the Operative Documents, last sentence of Section 8.9(a) hereof or (dB) any Lessor Liens to the extent such liability or responsibility is attributable to it. It is understood and agreed thatany representation or warranty of any Exculpated Person contained in Section 6.1 hereof that was false or inaccurate in any material way when made (provided, except as provided in the preceding sentence: (i) that no Certificate Holder deficiency judgment or Owner Trustee other money judgment shall have be enforced against any personal liability under any of the Operative Documents as a result of acting pursuant to and consistent with any of the Operative Documents; (ii) all obligations of each Certificate Holder and Owner Trustee to any Lender are solely nonrecourse obligations Exculpated Person except to the extent that such Certificate Holder of the Lessor’s interest in the Borrower’s Interest (excluding Excepted Payments) or Owner Trustee has received payment from others (including, without limitation, obligations with respect to the Loansextent the Lessor may be liable as otherwise contemplated in clauses (ii); and , (iii) all such personal liability or (v) of any Certificate Holder and Owner Trustee is expressly waived and released as a condition of, and as consideration for, the execution and delivery of the Operative Documents by such Certificate Holder and Owner Trusteethis Section 12.9(b)). (b) No Participant shall have any obligation to any other Participant or to the Lessee, the Certificate Holders or the Lenders with respect to transactions contemplated by the Operative Documents, except those obligations of such Participant expressly set forth in the Operative Documents or except as set forth in the instruments delivered in connection therewith, and no Participant shall be liable for performance by any other party hereto of such other party's obligations under the Operative Documents except as otherwise so set forth.

Appears in 1 contract

Samples: Participation Agreement (United Therapeutics Corp)

Liability Limited. (a) The parties hereto Lenders, the Agent, the Credit Parties, the Owner Trustee and the Holders each acknowledge and agree that the Owner Trustee is (except as specifically set forth otherwise expressly provided herein or therein) entering into this Agreement and the other Operative Agreements to which it is a party (other than the Trust Agreement and to the extent otherwise provided in Section 6.1 of this Agreement), solely in its capacity as trustee under the Trust Agreement and not in its individual capacity and that the Trust Company shall not be liable or accountable under any circumstances whatsoever in its individual capacity for or on account of any statements, representations, warranties, covenants or obligations stated to be those of the Owner Trustee, except for its own gross negligence or willful misconduct and as otherwise expressly provided herein or in the other Operative Agreements. (b) Anything to the contrary contained in this Agreement, the Credit Agreement, the Notes or in any other Operative DocumentAgreement notwithstanding, no Certificate Holder or Owner Trustee Exculpated Person shall have be personally liable in any personal liability whatsoever to any Participant or their respective successors and assigns respect for any claim based on liability or obligation arising hereunder or in respect hereof any other Operative Agreement including without limitation the payment of the principal of, or interest on, the Notes, or for monetary damages for the breach of performance of any of the covenants contained in the Credit Agreement, the Notes, this Agreement, the Security Agreement or any of the other Operative Documents Agreements. The Lenders, the Holders and the Agent agree that, in the event any remedies under any Operative Agreement are pursued, neither the Lenders, the Holders nor the Agent shall have any recourse against any Exculpated Person, for any deficiency, loss or Claim for monetary damages or otherwise resulting therefrom and recourse shall be had solely and exclusively against the Trust Estate (excluding Excepted Payments) and the Credit Parties (with respect to the Credit Parties' obligations under the Operative Agreements); but nothing contained herein shall be taken to prevent recourse against or the enforcement of remedies against the Trust Estate (excluding Excepted Payments) in respect of any and all liabilities, obligations and undertakings contained herein and/or in any other Operative Agreement. Notwithstanding the provisions of this Section, nothing in any Operative Agreement shall: (i) constitute a waiver, release or discharge of any indebtedness or obligation evidenced by the Notes and/or the Certificates arising under any Operative Agreement or secured by any Operative Agreement, but the same shall continue until paid or discharged; (ii) relieve any Exculpated Person from liability and responsibility for (but only to the extent of the damages arising by reason of): active waste knowingly committed by any Exculpated Person with respect to any Property, any fraud, gross negligence or willful misconduct on the part of any Exculpated Person; (iii) relieve any Exculpated Person from liability and responsibility for (but only to the extent of the moneys misappropriated, misapplied or not turned over) (A) except for Excepted Payments, misappropriation or misapplication by the Lessor (i.e., application in a manner contrary to any of the Operative Agreements) of any insurance proceeds or condemnation award paid or delivered to the Lessor by any Person other than the Agent, (B) except for Excepted Payments, any deposits or any escrows or amounts owed by the Construction Agent under the Agency Agreement held by the Lessor or (C) except for Excepted Payments, any rent or other income received by the Lessor from any Credit Party that is not turned over to the Agent; or (iv) affect or in any way from limit the transactions contemplated hereby Agent's rights and remedies under any Operative Agreement with respect to the Rents and rights and powers of the Agent under the Operative Agreements or thereby and recourse, if any, shall be solely had to obtain a judgment against such Certificate Holderthe Lessee's interest in the Properties or the Agent's rights and powers to obtain a judgment against the Lessor Trust; or any Credit Party (provided, however, that each Certificate Holder and Owner Trustee no deficiency judgment or other money -------- judgment shall be liable in its individual capacity (a) for its own willful misconduct or gross negligence, (b) breach of enforced against any of its representations, warranties or covenants under the Operative Documents, (c) with respect to Certificate Holders, for any Tax based on or measured by any fees, commission or compensation received by a Certificate Holder for acting as a Certificate Holder as contemplated by the Operative Documents, or (d) any Lessor Liens attributable to it. It is understood and agreed that, except as provided in the preceding sentence: (i) no Certificate Holder or Owner Trustee shall have any personal liability under any of the Operative Documents as a result of acting pursuant to and consistent with any of the Operative Documents; (ii) all obligations of each Certificate Holder and Owner Trustee to any Lender are solely nonrecourse obligations Exculpated Person except to the extent that such Certificate Holder of the Lessor's interest in the Trust Estate (excluding Excepted Payments) or Owner Trustee has received payment from others (including, without limitation, obligations with respect to the Loans); extent the Lessor may be liable as otherwise contemplated in clauses (ii) and (iii) all such personal liability of any Certificate Holder and Owner Trustee is expressly waived and released as a condition of, and as consideration for, the execution and delivery of the Operative Documents by such Certificate Holder and Owner Trusteethis Section 12.9(b)). (b) No Participant shall have any obligation to any other Participant or to the Lessee, the Certificate Holders or the Lenders with respect to transactions contemplated by the Operative Documents, except those obligations of such Participant expressly set forth in the Operative Documents or except as set forth in the instruments delivered in connection therewith, and no Participant shall be liable for performance by any other party hereto of such other party's obligations under the Operative Documents except as otherwise so set forth.

Appears in 1 contract

Samples: Participation Agreement (Smart & Final Inc/De)

Liability Limited. (a) The parties hereto agree that except Anything therein to the contrary notwithstanding, all and each of the representations, warranties, undertakings and agreements herein made on the part of Owner Trustee are made and intended not as specifically set forth herein personal representations, warranties, undertakings and agreements by or for the purpose or with the intention of binding Bank or Georgia Bank -personally but are made and intended for the purpose of binding only the Trust Estate, and this Indenture is executed and delivered by the Owner Trustee solely in the exercise of the powers expressly conferred upon it as Owner Trustee under the Trust Agreement; and no personal liability or responsibility is assumed hereunder by or shall at any other Operative Documenttime be enforceable against Bank or Georgia Bank, no Certificate Holder or any predecessor or successor in trust, or Owner Trustee shall have Participant on account of any representation, warranty, undertaking or agreement hereunder of Owner Trustee, either expressed or implied, all such personal liability whatsoever to any Participant or their respective successors and assigns for any claim based on or in respect hereof or any of the other Operative Documents or arising in any way from the transactions contemplated hereby or thereby and recourseliability, if any, being expressly waived by Indenture Trustee and each Noteholder, except that Indenture Trustee or any Person claiming by, through or under it, making claim hereunder, may look to the Trust Estate for satisfaction of the same and Bank or Georgia Bank or their predecessors or successors in trust, as applicable, shall be solely had against personally liable for their individual gross negligence and willful misconduct. Each time a successor Owner Trustee is appointed in accordance with the terms of the Trust Agreement, such Certificate Holder's interest successor Owner Trustee shall, without further act, succeed to all the rights, duties, immunities and obligations of its predecessor Owner Trustee hereunder and under the other Operative Documents, and the predecessor Owner Trustee shall be released from all further duties and obligations hereunder and under the other Operative Documents, all without the necessity of any consent or approval by Indenture Trustee or any Noteholder and without in any way altering the Lessor Trustterms of this Indenture or such other Operative Documents; provided, however, that each Certificate Holder and the predecessor Owner Trustee shall be remain personally liable in its individual capacity (a) for its own gross negligence and willful misconduct or gross negligence, (b) breach misconduct. In the case of any appointment of its representationsa successor Owner Trustee in which Owner Trustee is not the surviving corporation, warranties or covenants under the Operative Documents, (c) with respect to Certificate Holders, for any Tax based on or measured by any fees, commission or compensation received by a Certificate Holder for acting as a Certificate Holder as contemplated by the Operative Documents, or (d) any Lessor Liens attributable to it. It is understood and agreed that, except as provided in the preceding sentence: (i) no Certificate Holder or successor Owner Trustee shall have any personal liability under any of the Operative Documents as a result of acting pursuant to and consistent with any of the Operative Documents; (ii) all obligations of each Certificate Holder and Owner Trustee to any Lender are solely nonrecourse obligations except give prompt written notice thereof to the extent that such Certificate Holder or Owner Trustee has received payment from others (including, without limitation, obligations with respect to the Loans); and (iii) all such personal liability of any Certificate Holder and Owner Trustee is expressly waived and released as a condition of, and as consideration forIndenture Trustee, the execution Lessee and delivery of the Operative Documents by such Certificate Holder and Owner TrusteeNoteholders. (b) No Participant shall have any obligation to any other Participant or to the Lessee, the Certificate Holders or the Lenders with respect to transactions contemplated by the Operative Documents, except those obligations of such Participant expressly set forth in the Operative Documents or except as set forth in the instruments delivered in connection therewith, and no Participant shall be liable for performance by any other party hereto of such other party's obligations under the Operative Documents except as otherwise so set forth.

Appears in 1 contract

Samples: Participation Agreement (Oglethorpe Power Corp)

Liability Limited. (a) The parties hereto Agent, the Lessee and the Holders each acknowledge and agree that the Owner Trustee is (except as specifically otherwise expressly provided herein or therein) entering into this Agreement and the other Operative Agreements to which it is a party (other than the Trust Agreement and other than as set forth in Section 7.2 of this Agreement), solely in its capacity as trustee under the Trust Agreement and not in its individual capacity and that Trust Company shall not be liable or accountable under any circumstances whatsoever in its individual capacity for or on account of any statements, representations, warranties, covenants or obligations stated to be those of the Owner Trustee, except for its own gross negligence or willful misconduct and except as otherwise expressly provided herein or in the other Operative Agreements. (b) Anything to the contrary contained in this Agreement, the Credit Agreement, the Notes or in any other Operative DocumentAgreement notwithstanding, no Certificate neither the Lessor nor any Holder (in its capacity as a Holder) nor any officer, director, shareholder, or Owner Trustee partner thereof, nor any of the successors or assigns of the foregoing (all such Persons being hereinafter referred to collectively as the "Exculpated Persons"), shall have be personally liable in any personal liability whatsoever to any Participant or their respective successors and assigns respect for any claim based on liability or obligation hereunder or under any other Operative Agreement including the payment of the principal of, or interest on, the Notes, or for monetary damages for the breach of performance of any of the covenants contained in respect hereof the Credit Agreement, the Notes, this Agreement, the Security Agreement or any of the other Operative Documents Agreements. The Agent (for itself and on behalf of the Lenders) agrees that, in the event the Agent or any Lender pursues any remedies available to them under the Credit Agreement, the Notes, this Agreement, the Security Agreement, the Mortgage Instruments or under any other Operative Agreement, neither the Lenders nor the Agent shall have any recourse against any Exculpated Person, for any deficiency, loss or Claim for monetary damages or otherwise resulting therefrom, and recourse shall be had solely and exclusively against the Trust Estate and the Lessee (with respect to the Lessee's obligations under the Lease, the Participation Agreement and the Agency Agreement); but nothing contained herein shall be taken to prevent recourse against or the enforcement of remedies against the Trust Estate in respect of any and all liabilities, obligations and undertakings contained herein, in the Credit Agreement, in the Notes, in the Security Agreement, the Mortgage Instruments or in any other Operative Agreement. Notwithstanding the provisions of this Section, nothing in this Agreement, the Credit Agreement, the Notes, the Security Agreement, the Mortgage Instruments or any other Operative Agreement shall: (i) constitute a waiver, release or discharge of any indebtedness or obligation evidenced by the Notes or arising under this Agreement, the Security Agreement, the Mortgage Instruments or the Credit Agreement or secured by the (a) misappropriation or misapplication by such Lessor (i.e., application in a manner contrary to any Operative Agreement) of any insurance proceeds or condemnation award paid or delivered to such Lessor by any Person other than the Agent, (b) any deposits or any escrows or amounts owed by the Lessee under the Agency Agreement held by such Lessor or (c) any rents or other income received by such Lessor from the Lessee that are not turned over to the Agent; or (iv) affect or in any way from limit the transactions contemplated hereby Agent's rights and remedies under any Operative Agreement with respect to the Rents and its rights thereunder or thereby and recourse, if any, shall be solely had its right to obtain a judgment against such Certificate Holderthe Lessor's interest in the Lessor Trust; provided, however, that each Certificate Holder and Owner Trustee shall be liable in its individual capacity (a) for its own willful misconduct or gross negligence, (b) breach of any of its representations, warranties or covenants under the Operative Documents, (c) with respect to Certificate Holders, for any Tax based on or measured by any fees, commission or compensation received by a Certificate Holder for acting as a Certificate Holder as contemplated by the Operative Documents, or (d) any Lessor Liens attributable to it. It is understood and agreed that, except as provided in the preceding sentence: (i) no Certificate Holder or Owner Trustee shall have any personal liability under any of the Operative Documents as a result of acting pursuant to and consistent with any of the Operative Documents; (ii) all obligations of each Certificate Holder and Owner Trustee to any Lender are solely nonrecourse obligations except to the extent that such Certificate Holder or Owner Trustee has received payment from others (including, without limitation, obligations with respect to the Loans); and (iii) all such personal liability of any Certificate Holder and Owner Trustee is expressly waived and released as a condition of, and as consideration for, the execution and delivery of the Operative Documents by such Certificate Holder and Owner TrusteeProperties. (b) No Participant shall have any obligation to any other Participant or to the Lessee, the Certificate Holders or the Lenders with respect to transactions contemplated by the Operative Documents, except those obligations of such Participant expressly set forth in the Operative Documents or except as set forth in the instruments delivered in connection therewith, and no Participant shall be liable for performance by any other party hereto of such other party's obligations under the Operative Documents except as otherwise so set forth.

Appears in 1 contract

Samples: Participation Agreement (Wackenhut Corrections Corp)

Liability Limited. (a) The parties hereto Lenders, the Agent, the Credit Parties, the Owner Trustee and the Holders each acknowledge and agree that the Owner Trustee is (except as specifically set forth otherwise expressly provided herein or therein) entering into this Agreement and the other Operative Agreements to which it is a party (other than the Trust Agreement and to the extent otherwise provided in Section 6.1 of this Agreement), solely in its capacity as trustee under the Trust Agreement and not in its individual capacity and that the Trust Company shall not be liable or accountable under any circumstances whatsoever in its individual capacity for or on account of any statements, representations, warranties, covenants or obligations stated to be those of the Owner Trustee, except for its own gross negligence or willful misconduct and as otherwise expressly provided herein or in the other Operative Agreements. (b) Anything to the contrary contained in this Agreement, the Credit Agreement, the Notes or in any other Operative DocumentAgreement notwithstanding, no Certificate Holder or Owner Trustee Exculpated Person shall have be personally liable in any personal liability whatsoever to any Participant or their respective successors and assigns respect for any claim based on liability or obligation arising hereunder or in respect hereof any other Operative Agreement including without limitation the payment of the principal of, or interest on, the Notes, or for monetary damages for the breach of performance of any of the covenants contained in the Credit Agreement, the Notes, this Agreement, the Security Agreement or any of the other Operative Documents Agreements. The Lenders, the Holders and the Agent agree that, in the event any remedies under any Operative Agreement are pursued, neither the Lenders, the Holders nor the Agent shall have any recourse against any Exculpated Person, for any deficiency, loss or arising in any way from the transactions contemplated hereby Claim for monetary damages or thereby otherwise resulting therefrom and recourse, if any, recourse shall be had solely had and exclusively against such Certificate Holder's interest in the Lessor Trust; provided, however, that each Certificate Holder Trust Estate (excluding Excepted Payments) and Owner Trustee shall be liable in its individual capacity the Credit Parties (a) for its own willful misconduct or gross negligence, (b) breach of any of its representations, warranties or covenants with respect to the Credit Parties' obligations under the Operative DocumentsAgreements); but nothing contained herein shall be taken to prevent recourse against or the enforcement of remedies against the Trust Estate (excluding Excepted Payments) in respect of any and all liabilities, (c) with respect to Certificate Holdersobligations and undertakings contained herein and/or in any other Operative Agreement. Notwithstanding the provisions of this Section, for nothing in any Tax based on or measured by any fees, commission or compensation received by a Certificate Holder for acting as a Certificate Holder as contemplated by the Operative Documents, or (d) any Lessor Liens attributable to it. It is understood and agreed that, except as provided in the preceding sentenceAgreement shall: (i) no Certificate Holder constitute a waiver, release or Owner Trustee discharge of any indebtedness or obligation evidenced by the Notes and/or the Certificates arising under any Operative Agreement or secured by any Operative Agreement, but the same shall have continue until paid or discharged; (ii) relieve any personal Exculpated Person from liability under and responsibility for (but only to the extent of the damages arising by reason of): active waste knowingly committed by any Exculpated Person with respect to any Property, any fraud, gross negligence or willful misconduct on the part of any Exculpated Person; (iii) relieve any Exculpated Person from liability and responsibility for (but only to the extent of the moneys misappropriated, misapplied or not turned over) (A) except for Excepted Payments, misappropriation or misapplication by the Lessor (i.e., application in a manner contrary to any of the Operative Documents as a result of acting pursuant to and consistent with any of the Operative Documents; (iiAgreements) all obligations of each Certificate Holder and Owner Trustee to any Lender are solely nonrecourse obligations except to the extent that such Certificate Holder or Owner Trustee has received payment from others (including, without limitation, obligations with respect to the Loans); and (iii) all such personal liability of any Certificate Holder and Owner Trustee is expressly waived and released as a condition of, and as consideration for, the execution and delivery of the Operative Documents by such Certificate Holder and Owner Trustee. (b) No Participant shall have any obligation to any other Participant insurance proceeds or to the Lessee, the Certificate Holders or the Lenders with respect to transactions contemplated by the Operative Documents, except those obligations of such Participant expressly set forth in the Operative Documents or except as set forth in the instruments delivered in connection therewith, and no Participant shall be liable for performance by any other party hereto of such other party's obligations under the Operative Documents except as otherwise so set forth.condemnation

Appears in 1 contract

Samples: Participation Agreement (Veritas Software Corp /De/)

Liability Limited. (a) The parties hereto agree that except as specifically set forth herein Anything to the contrary contained in this Agreement, the Credit Note Loan Agreement, Mortgage Note Loan Agreement, the Notes or in any other Operative DocumentAgreement notwithstanding, no Certificate Holder or Owner Trustee Exculpated Person shall have be personally liable in any personal liability whatsoever to any Participant or their respective successors and assigns respect for any claim based on liability or obligation arising hereunder or in respect hereof any other Operative Agreement including without limitation the payment of the principal of, or interest on, the Notes, or for monetary damages for the breach of performance of any of the covenants contained in the Credit Note Loan Agreement, Mortgage Note Loan Agreement, the Notes, this Agreement or any of the other Operative Documents Agreements. The Financing Parties agree that, in the event any remedies under any Operative Agreement are pursued, neither the Primary Financing Parties nor the Agent shall have any recourse against any Exculpated Person, for any deficiency, loss or arising in any way from the transactions contemplated hereby Claim for monetary damages or thereby otherwise resulting therefrom and recourse, if any, recourse shall be had solely had and exclusively against such Certificate Holder's interest in the Lessor Trust; provided, however, that each Certificate Holder Borrower’s Interest (excluding Excepted Payments) and Owner Trustee shall be liable in its individual capacity the Credit Parties (a) for its own willful misconduct or gross negligence, (b) breach of any of its representations, warranties or covenants with respect to the Credit Parties’ obligations under the Operative DocumentsAgreements); but nothing contained herein shall be taken to prevent recourse against or the enforcement of remedies against the Borrower’s Interest (excluding Excepted Payments) in respect of any and all liabilities, (c) with respect to Certificate Holdersobligations and undertakings contained herein and/or in any other Operative Agreement. Notwithstanding the provisions of this Section, for nothing in any Tax based on or measured by any fees, commission or compensation received by a Certificate Holder for acting as a Certificate Holder as contemplated by the Operative Documents, or (d) any Lessor Liens attributable to it. It is understood and agreed that, except as provided in the preceding sentenceAgreement shall: (i) no Certificate Holder constitute a waiver, release or Owner Trustee shall have discharge of any personal liability indebtedness or obligation evidenced by the Notes arising under any of Operative Agreement or secured by any Operative Agreement, but the Operative Documents as a result of acting pursuant to and consistent with any of the Operative Documentssame shall continue until paid or discharged; (ii) all obligations of each Certificate Holder relieve any Exculpated Person from liability and Owner Trustee to any Lender are solely nonrecourse obligations except responsibility for (but only to the extent that such Certificate Holder or Owner Trustee has received payment from others (including, without limitation, obligations of the damages arising by reason of): active waste knowingly committed by any Exculpated Person with respect to the Loans)Property, any fraud, gross negligence or willful misconduct on the part of any Exculpated Person; and (iii) all such personal relieve any Exculpated Person from liability of any Certificate Holder and Owner Trustee is expressly waived and released as a condition of, and as consideration for, responsibility for (but only to the execution and delivery extent of the Operative Documents by such Certificate Holder and Owner Trustee. (b) No Participant shall have any obligation to any other Participant moneys misappropriated, misapplied or to the Lessee, the Certificate Holders or the Lenders with respect to transactions contemplated by the Operative Documents, except those obligations of such Participant expressly set forth in the Operative Documents or except as set forth in the instruments delivered in connection therewith, and no Participant shall be liable for performance by any other party hereto of such other party's obligations under the Operative Documents except as otherwise so set forth.not turned over)

Appears in 1 contract

Samples: Participation Agreement (Convergys Corp)

Liability Limited. (a) The parties hereto agree that Anything to the contrary contained in any Operative Agreement notwithstanding, except as specifically set forth herein stated in this Section 12.9, no Exculpated Person shall be personally liable in any respect for any liability or obligation arising hereunder or in any other Operative DocumentAgreement including the payment of the advance amount or yield regarding the Lessor Advances, no Certificate Holder or Owner Trustee for monetary damages for the breach of performance of any of the covenants contained in the Operative Agreements. The Lessor Parties and the Agent agree that, in the event any remedies under any Operative Agreement are pursued, none of the Lessor Parties or the Agent shall have any personal liability whatsoever to recourse against any Participant or their respective successors and assigns Exculpated Person, for any claim based on deficiency, loss or in respect hereof Claim for monetary damages or any of the other Operative Documents or arising in any way from the transactions contemplated hereby or thereby otherwise resulting therefrom and recourse, if any, recourse shall be had solely had and exclusively against such Certificate Holder's the Lessor’s interest in the Lessor TrustTrust Property, and the assets of the Credit Parties (with respect to the Credit Parties’ obligations under the Operative Agreements); provided, however, that each Certificate Holder and Owner Trustee but nothing contained herein shall be liable in its individual capacity taken to prevent recourse against or the enforcement of remedies against (a) for its own willful misconduct or gross negligencethe Lessor’s interest in the Trust Property in respect of any and all liabilities, obligations and undertakings contained herein and/or in any other Operative Agreement; (b) breach of the Lessor Parties for any of its representations, warranties their obligations arising on a full recourse basis; or covenants under the Operative Documents, (c) the Lessor Parties or any other Person for gross negligence or willful misconduct (other than any gross negligence or willful misconduct imputed to any Lessor Party from any Person other than the Lessor Party or any Affiliate of the Lessor Party (excepting the Agent)). Notwithstanding the provisions of this Section 12.9, nothing in any Operative Agreement shall: (w) constitute a waiver, release or discharge of any indebtedness or obligation evidenced by or arising under any Operative Agreement or secured by any Operative Agreement, but the same shall continue until paid or discharged; (x) relieve any Exculpated Person from liability and responsibility for (but only to the extent of the damages arising by reason of): active waste knowingly committed by any Exculpated Person with respect to Certificate Holdersthe Property, any fraud, gross negligence or willful misconduct on the part of any Exculpated Person (other than any fraud, gross negligence or willful misconduct imputed to such Exculpated Person from any Person other than an Affiliate of such Exculpated Person (excepting the Agent)); (y) relieve any Exculpated Person from liability and responsibility for any Tax based on (but only to the extent of the moneys misappropriated, misapplied or measured by any fees, commission or compensation received by a Certificate Holder for acting as a Certificate Holder as contemplated by the Operative Documents, or (d) any Lessor Liens attributable to it. It is understood and agreed that, except as provided in the preceding sentence: not turned over) (i) no Certificate Holder except for Excepted Payments, misappropriation or Owner Trustee shall have misapplication by any personal liability under Lessor Party (i.e., application in a manner contrary to any of the Operative Documents as a result Agreements) of acting pursuant any insurance proceeds or condemnation award paid or delivered to and consistent with any of Lessor Party by any Person other than the Operative Documents; Agent, (ii) all obligations except for Excepted Payments, any rent or other income received by any Lessor Party from any Credit Party that is not turned over to the Agent, or (iii) except for Excepted Payments, any deposits or any escrows or amounts owed by the Construction Agent under the Agency Agreement held by any Lessor Party; or (z) affect or in any way limit the Agent’s rights and remedies under any Operative Agreement with respect to the Rents (other than Excepted Payments) and rights and powers of each Certificate Holder the Agent under the Operative Agreements or to obtain a judgment against the Lessee’s interest in the Property or the Agent’s rights and Owner Trustee powers to obtain a judgment against any Lender are solely nonrecourse obligations Lessor Party (but limited as to those matters specified in this Section 12.9) or any Credit Party (provided, that no deficiency judgment or other money judgment shall be enforced against any Exculpated Person except to the extent that such Certificate Holder of the Lessor’s interest in the Trust Property or Owner Trustee has received payment from others (including, without limitation, obligations with respect to the Loans); and (iii) all such personal liability of extent any Certificate Holder and Owner Trustee is expressly waived and released Lessor Party may be liable as a condition of, and as consideration for, the execution and delivery of the Operative Documents by such Certificate Holder and Owner Trustee. otherwise contemplated in clauses (b) No Participant shall have any obligation to any other Participant or to the Lessee, the Certificate Holders or the Lenders with respect to transactions contemplated by the Operative Documents, except those obligations and (c) of such Participant expressly set forth in the Operative Documents or except as set forth in the instruments delivered in connection therewith, and no Participant shall be liable for performance by any other party hereto of such other party's obligations under the Operative Documents except as otherwise so set forththis Section 12.9).

Appears in 1 contract

Samples: Participation Agreement (Big Lots Inc)

Liability Limited. (a) The parties hereto Agent, the Lessee and the Holders each acknowledge and agree that the Owner Trustee is (except as specifically otherwise expressly provided herein or therein) entering into this Agreement and the other Operative Agreements to which it is a party (other than the Trust Agreement and other than as set forth in Section 7.2 of this Agreement), solely in its capacity as trustee under the Trust Agreement and not in its individual capacity and that Trust Company shall not be liable or accountable under any circumstances whatsoever in its individual capacity for or on account of any statements, representations, warranties, covenants or obligations stated to be those of the Owner Trustee, except for its own gross negligence or willful misconduct and except as otherwise expressly provided herein or in the other Operative Agreements. (b) Anything to the contrary contained in this Agreement, the Credit Agreement, the Notes or in any other Operative DocumentAgreement notwithstanding, no Certificate neither the Lessor nor any Holder (in its capacity as a Holder) nor any officer, director, shareholder, or Owner Trustee partner thereof, nor any of the successors or assigns of the foregoing (all such Persons being hereinafter referred to collectively as the "Exculpated Persons"), shall have be personally liable in any personal liability whatsoever to any Participant or their respective successors and assigns respect for any claim based on liability or obligation hereunder or under any other Operative Agreement including the payment of the principal of, or interest on, the Notes, or for monetary damages for the breach of performance of any of the covenants contained in respect hereof the Credit Agreement, the Notes, this Agreement, the Security Agreement or any of the other Operative Documents or arising in any way from Agreements. The Agent (for itself and on behalf of the transactions contemplated hereby or thereby and recourseLenders) agrees that, if any, shall be solely had against such Certificate Holder's interest in the Lessor Trust; provided, however, that each Certificate Holder and Owner Trustee shall be liable in its individual capacity (a) for its own willful misconduct event the Agent or gross negligence, (b) breach of any of its representations, warranties or covenants Lender pursues any remedies available to them under the Credit Agreement, the Notes, this Agreement, the Security Agreement, the Mortgage Instruments or under any other Operative DocumentsAgreement, (c) with respect to Certificate Holdersneither the Lenders nor the Agent shall have any recourse against any Exculpated Person, for any Tax based on deficiency, loss or measured by any feesClaim for monetary damages or otherwise resulting therefrom, commission or compensation received by a Certificate Holder for acting as a Certificate Holder as contemplated by and recourse shall be had solely and exclusively against the Operative Documents, or Trust Estate and the Lessee (d) any Lessor Liens attributable to it. It is understood and agreed that, except as provided in the preceding sentence: (i) no Certificate Holder or Owner Trustee shall have any personal liability under any of the Operative Documents as a result of acting pursuant to and consistent with any of the Operative Documents; (ii) all obligations of each Certificate Holder and Owner Trustee to any Lender are solely nonrecourse obligations except to the extent that such Certificate Holder or Owner Trustee has received payment from others (including, without limitation, obligations with respect to the Loans); and (iii) all such personal liability of any Certificate Holder and Owner Trustee is expressly waived and released as a condition of, and as consideration for, the execution and delivery of the Operative Documents by such Certificate Holder and Owner Trustee. (b) No Participant shall have any obligation to any other Participant or to the Lessee, the Certificate Holders or the Lenders with respect to transactions contemplated by the Operative Documents, except those obligations of such Participant expressly set forth in the Operative Documents or except as set forth in the instruments delivered in connection therewith, and no Participant shall be liable for performance by any other party hereto of such other party's obligations under the Operative Documents except as otherwise so set forth.Lease, the Participation Agreement and the Agency Agreement); but nothing contained herein shall be taken to prevent recourse against or the enforcement of remedies against the Trust Estate in respect of any and all liabilities, obligations and undertakings contained herein, in the Credit Agreement, in the Notes, in the Security Agreement, the Mortgage

Appears in 1 contract

Samples: Participation Agreement (Wackenhut Corrections Corp)

Liability Limited. (a) The parties hereto Lenders, the Agent, the Lessee, the Owner Trustee and the Holders each acknowledge and agree that the Owner Trustee is (except as specifically set forth otherwise expressly provided herein or therein) entering into this Agreement and the other Operative Agreements to which it is a party (other than the Trust Agreement and to the extent otherwise provided in Section 6.1 of this Agreement), solely in its capacity as trustee under the Trust Agreement and not in its individual capacity and that the Trust Company shall not be liable or accountable under any circumstances whatsoever in its individual capacity for or on account of any statements, representations, warranties, covenants or obligations stated to be those of the Owner Trustee, except for its own gross negligence or willful misconduct and as otherwise expressly provided herein or in the other Operative Agreements. (b) Anything to the contrary contained in this Agreement, the Credit Agreement, the Notes or in any other Operative DocumentAgreement notwithstanding, no Certificate Holder or Owner Trustee Exculpated Person shall have be personally liable in any personal liability whatsoever to any Participant or their respective successors and assigns respect for any claim based on liability or obligation arising hereunder or in respect hereof any other Operative Agreement including without limitation the payment of the principal of, or interest on, the Notes, or for monetary damages for the breach of performance of any of the covenants contained in the Credit Agreement, the Notes, this Agreement, the Security Agreement or any of the other Operative Documents or arising in any way from Agreements. The Lenders, the transactions contemplated hereby or thereby Holders and recoursethe Agent agree that, if any, shall be solely had against such Certificate Holder's interest in the Lessor Trust; providedevent any remedies under any Operative Agreement are pursued, howeverneither the Lenders, that each Certificate Holder and Owner Trustee the Holders nor the Agent shall be liable in its individual capacity (a) for its own willful misconduct or gross negligence, (b) breach of have any of its representations, warranties or covenants under the Operative Documents, (c) with respect to Certificate Holdersrecourse against any Exculpated Person, for any Tax based on deficiency, loss or measured by any fees, commission Claim for monetary damages or compensation received by a Certificate Holder for acting as a Certificate Holder as contemplated by otherwise resulting therefrom and recourse shall be had solely and exclusively against the Operative Documents, or Trust Estate (dexcluding Excepted Payments) any Lessor Liens attributable to it. It is understood and agreed that, except as provided in the preceding sentence: Lessee (i) no Certificate Holder or Owner Trustee shall have any personal liability under any of the Operative Documents as a result of acting pursuant to and consistent with any of the Operative Documents; (ii) all obligations of each Certificate Holder and Owner Trustee to any Lender are solely nonrecourse obligations except to the extent that such Certificate Holder or Owner Trustee has received payment from others (including, without limitation, obligations with respect to the Loans); and (iii) all such personal liability of any Certificate Holder and Owner Trustee is expressly waived and released as a condition of, and as consideration for, the execution and delivery of the Operative Documents by such Certificate Holder and Owner Trustee. (b) No Participant shall have any obligation to any other Participant or to the Lessee, the Certificate Holders or the Lenders with respect to transactions contemplated by the Operative Documents, except those obligations of such Participant expressly set forth in the Operative Documents or except as set forth in the instruments delivered in connection therewith, and no Participant shall be liable for performance by any other party hereto of such other party's obligations under the Operative Documents Agreements); but nothing contained herein shall be taken to prevent recourse against or the enforcement of remedies against the Trust Estate (excluding Excepted Payments) in respect of any and all liabilities, obligations and undertakings contained herein and/or in any other Operative Agreement. Notwithstanding the provisions of this Section, nothing in any Operative Agreement shall: (i) constitute a waiver, release or discharge of any indebtedness or obligation evidenced by the Notes and/or the Certificates arising under any Operative Agreement or secured by any Operative Agreement, but the same shall continue until paid or discharged; (ii) relieve any Exculpated Person from liability and responsibility for (but only to the extent of the damages arising by reason of): active waste knowingly committed by any Exculpated Person with respect to any Property, any fraud, gross negligence or willful misconduct on the part of any Exculpated Person; (iii) relieve any Exculpated Person from liability and responsibility for (but only to the extent of the moneys misappropriated, misapplied or not turned over) (A) except for Excepted Payments, misappropriation or misapplication by the Lessor (i.e., application in a manner contrary to any of the Operative Agreements) of any insurance proceeds or condemnation award paid or delivered to the Lessor by any Person other than the Agent, (B) except for Excepted Payments, any deposits or any escrows or amounts owed by the Construction Agent under the Agency Agreement held by the Lessor or (C) except for Excepted Payments, any rent or other income received by the Lessor from the Lessee that is not turned over to the Agent; or (iv) affect or in any way limit the Agent's rights and remedies under any Operative Agreement with respect to the Rents and rights and powers of the Agent under the Operative Agreements or to obtain a judgment against the Lessee's interest in the Properties or the Agent's rights and powers to obtain a judgment against the Lessor (provided, that no deficiency judgment or other money judgment shall be enforced against any Exculpated Person except to the extent of the Lessor's interest in the Trust Estate (excluding Excepted Payments) or to the extent the Lessor may be liable as otherwise so set forthcontemplated in clauses (ii) and (iii) of this Section 12.9(b)).

Appears in 1 contract

Samples: Participation Agreement (Rf Micro Devices Inc)

Liability Limited. (a) The parties hereto Lenders, the Agent, the Credit Parties, the Owner Trustee and the Holders each acknowledge and agree that the Owner Trustee is (except as specifically set forth otherwise expressly provided herein or therein) entering into this Agreement and the other Operative Agreements to which it is a party (other than the Trust Agreement and to the extent otherwise provided in Section 6.1 of this Agreement), solely in its capacity as trustee under the Trust Agreement and not in its individual capacity and that the Trust Company shall not be liable or accountable under any circumstances whatsoever in its individual capacity for or on account of any statements, representations, warranties, covenants or obligations stated to be those of the Owner Trustee, except for its own gross negligence or willful misconduct and as otherwise expressly provided herein or in the other Operative Agreements. (b) Anything to the contrary contained in this Agreement, the Credit Agreement, the Notes or in any other Operative DocumentAgreement notwithstanding, no Certificate Holder or Owner Trustee Exculpated Person shall have be personally liable in any personal liability whatsoever to any Participant or their respective successors and assigns respect for any claim based on liability or obligation arising hereunder or in respect hereof any other Operative Agreement including without limitation the payment of the principal of, or interest on, the Notes, or for monetary damages for the breach of performance of any of the covenants contained in the Credit Agreement, the Notes, this Agreement, the Security Agreement or any of the other Operative Documents Agreements. The Lenders, the Holders and the Agent agree that, in the event any remedies under any Operative Agreement are pursued, neither the Lenders, the Holders nor the Agent shall have any recourse against any Exculpated Person, for any deficiency, loss or Claim for monetary damages or otherwise resulting therefrom and recourse shall be had solely and exclusively against the Trust Estate (excluding Excepted Payments) and the Credit Parties (with respect to the Credit Parties' obligations under the Operative Agreements); but nothing contained herein shall be taken to prevent recourse against or the enforcement of remedies against the Trust Estate (excluding Excepted Payments) in respect of any and all liabilities, obligations and undertakings contained herein and/or in any other Operative Agreement. Notwithstanding the provisions of this Section, nothing in any Operative Agreement shall: (i) constitute a waiver, release or discharge of any indebtedness or obligation evidenced by the Notes and/or the Certificates arising under any Operative Agreement or secured by any Operative Agreement, but the same shall continue until paid or discharged; (ii) relieve any Exculpated Person from liability and responsibility for (but only to the extent of the damages arising by reason of): active waste knowingly committed by any Exculpated Person with respect to any Property, any fraud, gross negligence or willful misconduct on the part of any Exculpated Person; (iii) relieve any Exculpated Person from liability and responsibility for (but only to the extent of the moneys misappropriated, misapplied or not turned over) (A) except for Excepted Payments, misappropriation or misapplication by the Lessor (i.e., application in a manner contrary to any of the Operative Agreements) of any insurance proceeds or condemnation award paid or delivered to the Lessor by any Person other than the Agent, (B) except for Excepted Payments, any deposits or any escrows or amounts owed by the Construction Agent under the Agency Agreement held by the Lessor or (C) except for Excepted Payments, any rent or other income received by the Lessor from any Credit Party that is not turned over to the Agent; or (iv) affect or in any way from limit the transactions contemplated hereby Agent's rights and remedies under any Operative Agreement with respect to the Rents and rights and powers of the Agent under the Operative Agreements or thereby and recourse, if any, shall be solely had to obtain a judgment against such Certificate Holderthe Lessee's interest in the Properties or the Agent's rights and powers to obtain a judgment against the Lessor Trust; or any Credit Party (provided, however, that each Certificate Holder and Owner Trustee no deficiency judgment or other money judgment shall be liable in its individual capacity (a) for its own willful misconduct or gross negligence, (b) breach of enforced against any of its representations, warranties or covenants under the Operative Documents, (c) with respect to Certificate Holders, for any Tax based on or measured by any fees, commission or compensation received by a Certificate Holder for acting as a Certificate Holder as contemplated by the Operative Documents, or (d) any Lessor Liens attributable to it. It is understood and agreed that, except as provided in the preceding sentence: (i) no Certificate Holder or Owner Trustee shall have any personal liability under any of the Operative Documents as a result of acting pursuant to and consistent with any of the Operative Documents; (ii) all obligations of each Certificate Holder and Owner Trustee to any Lender are solely nonrecourse obligations Exculpated Person except to the extent that such Certificate Holder of the Lessor's interest in the Trust Estate (excluding Excepted Payments) or Owner Trustee has received payment from others (including, without limitation, obligations with respect to the Loans); extent the Lessor may be liable as otherwise contemplated in clauses (ii) and (iii) all such personal liability of any Certificate Holder and Owner Trustee is expressly waived and released as a condition of, and as consideration for, the execution and delivery of the Operative Documents by such Certificate Holder and Owner Trusteethis Section 12.9(b)). (b) No Participant shall have any obligation to any other Participant or to the Lessee, the Certificate Holders or the Lenders with respect to transactions contemplated by the Operative Documents, except those obligations of such Participant expressly set forth in the Operative Documents or except as set forth in the instruments delivered in connection therewith, and no Participant shall be liable for performance by any other party hereto of such other party's obligations under the Operative Documents except as otherwise so set forth.

Appears in 1 contract

Samples: Participation Agreement (Centennial Healthcare Corp)

Liability Limited. (a) The parties hereto Lenders, the Agent, the Lessee, the Owner Trustee and the Holders each acknowledge and agree that the Owner Trustee is (except as specifically set forth otherwise expressly provided herein or therein) entering into this Agreement and the other Operative Agreements to which it is a party (other than the Trust Agreement and to the extent otherwise provided in Section 6.1 of this Agreement), solely in its capacity as trustee under the Trust Agreement and not in its individual capacity and that the Trust Company shall not be liable or accountable under any circumstances whatsoever in its individual capacity for or on account of any statements, representations, warranties, covenants or obligations stated to be those of the Owner Trustee, except for its own gross negligence or willful misconduct and as otherwise expressly provided herein or in the other Operative Agreements. (b) Anything to the contrary contained in this Agreement, the Credit Agreement, the Notes or in any other Operative DocumentAgreement notwithstanding, no Certificate Holder or Owner Trustee Exculpated Person shall have be personally liable in any personal liability whatsoever to any Participant or their respective successors and assigns respect for any claim based on liability or obligation arising hereunder or in respect hereof any other Operative Agreement including without limitation the payment of the principal of, or interest on, the Notes, or for monetary damages for the breach of performance of any of the covenants contained in the Credit Agreement, the (A) except for Excepted Payments, misappropriation or misapplication by the Lessor (i.e., application in a manner contrary to any of the Operative Agreements) of any insurance proceeds or condemnation award paid or delivered to the Lessor by any Person other Operative Documents than the Agent, (B) except for Excepted Payments, any deposits or arising any escrows or amounts owed by the Construction Agent under the Agency Agreement held by the Lessor or (C) except for Excepted Payments, any rent or other income received by the Lessor from the Lessee that is not turned over to the Agent; or (iv) affect or in any way from limit the transactions contemplated hereby Agent's rights and remedies under any Operative Agreement with respect to the Rents and rights and powers of the Agent under the Operative Agreements or thereby and recourse, if any, shall be solely had to obtain a judgment against such Certificate Holderthe Lessee's interest in the Properties or the Agent's rights and powers to obtain a judgment against the Lessor Trust; (provided, however, that each Certificate Holder and Owner Trustee no deficiency judgment or other money judgment shall be liable in its individual capacity (a) for its own willful misconduct or gross negligence, (b) breach of enforced against any of its representations, warranties or covenants under the Operative Documents, (c) with respect to Certificate Holders, for any Tax based on or measured by any fees, commission or compensation received by a Certificate Holder for acting as a Certificate Holder as contemplated by the Operative Documents, or (d) any Lessor Liens attributable to it. It is understood and agreed that, except as provided in the preceding sentence: (i) no Certificate Holder or Owner Trustee shall have any personal liability under any of the Operative Documents as a result of acting pursuant to and consistent with any of the Operative Documents; (ii) all obligations of each Certificate Holder and Owner Trustee to any Lender are solely nonrecourse obligations Exculpated Person except to the extent that such Certificate Holder of the Lessor's interest in the Trust Estate (excluding Excepted Payments) or Owner Trustee has received payment from others (including, without limitation, obligations with respect to the Loans); extent the Lessor may be liable as otherwise contemplated in clauses (ii) and (iii) all such personal liability of any Certificate Holder and Owner Trustee is expressly waived and released as a condition of, and as consideration for, the execution and delivery of the Operative Documents by such Certificate Holder and Owner Trusteethis Section 12.9(b)). (b) No Participant shall have any obligation to any other Participant or to the Lessee, the Certificate Holders or the Lenders with respect to transactions contemplated by the Operative Documents, except those obligations of such Participant expressly set forth in the Operative Documents or except as set forth in the instruments delivered in connection therewith, and no Participant shall be liable for performance by any other party hereto of such other party's obligations under the Operative Documents except as otherwise so set forth.

Appears in 1 contract

Samples: Participation Agreement (Rf Micro Devices Inc)

Liability Limited. (a) The parties hereto Agent, the Lessee and the Holders each acknowledge and agree that the Owner Trustee is (except as specifically otherwise expressly provided herein or therein) entering into this Agreement and the other Operative Agreements to which it is a party (other than the Trust Agreement and other than as set forth in Section 7.2 of this Agreement), solely in its capacity as trustee under the Trust Agreement and not in its individual capacity and that Trust Company shall not be liable or accountable under any circumstances whatsoever in its individual capacity for or on account of any statements, representations, warranties, covenants or obligations stated to be those of the Owner Trustee, except for its own gross negligence or willful misconduct and except as otherwise expressly provided herein or in the other Operative Agreements. (b) Anything to the contrary contained in this Agreement, the Credit Agreement, the Notes or in any other Operative DocumentAgreement notwithstanding, no Certificate neither the Lessor nor any Holder (in its capacity as a Holder) nor any officer, director, shareholder, or Owner Trustee partner thereof, nor any of the successors or assigns of the foregoing (all such Persons being hereinafter referred to collectively as the "Exculpated Persons"), shall have be personally liable in any personal liability whatsoever to any Participant or their respective successors and assigns respect for any claim based on liability or obligation hereunder or under any other Operative Agreement including the payment of the principal of, or interest on, the Notes, or for monetary damages for the breach of performance of any of the covenants contained in respect hereof the Credit Agreement, the Notes, this Agreement, the Security Agreement or any of the other Operative Documents Agreements. The Agent (for itself and on behalf of the Lenders) agrees that, in the event the Agent or any Lender pursues any remedies available to them under the Credit Agreement, the Notes, this Agreement, the Security Agreement, the Mortgage Instruments or under any other Operative Agreement, neither the Lenders nor the Agent shall have any recourse against any Exculpated Person, for any deficiency, loss or Claim for monetary damages or otherwise resulting therefrom, and recourse shall be had solely and exclusively against the Trust Estate and the Lessee (with respect to the Lessee's obligations under the Lease, and the Participation Agreement); but nothing contained herein shall be taken to prevent recourse against or the enforcement of remedies against the Trust Estate in respect of any and all liabilities, obligations and undertakings contained herein, in the Credit Agreement, in the Notes, in the Security Agreement, the Mortgage Instruments or in any other Operative Agreement. Notwithstanding the provisions of this Section, nothing in this Agreement, the Credit Agreement, the Notes, the Security Agreement, the Mortgage Instruments or any other Operative Agreement shall: (i) constitute a waiver, release or discharge of any indebtedness or obligation evidenced by the Notes or arising under this Agreement, the Security Agreement, the Mortgage Instruments or the Credit Agreement or secured by the Security Agreement, the Mortgage Instruments or any other Operative Agreement, but the same shall continue until paid or discharged; (ii) relieve the Lessor or any Exculpated Person from liability and responsibility for (but only to the extent of the damages arising by reason of): (a) active waste knowingly committed by such Lessor or such Exculpated Person with respect to the Properties or (b) any fraud, gross negligence, willful misconduct or willful breach on the part of such Lessor or such Exculpated Person; (iii) relieve such Lessor or such Exculpated Person from liability and responsibility for (but only to the extent of the moneys misappropriated, misapplied or not turned over) (a) misappropriation or misapplication by such Lessor (i.e., application in a manner contrary to any Operative Agreement) of any insurance proceeds or condemnation award paid or delivered to such Lessor by any Person other than the Agent, or (b) any rents or other income received by such Lessor from the Lessee that are not turned over to the Agent; or (iv) affect or in any way from limit the transactions contemplated hereby Agent's rights and remedies under any Operative Agreement with respect to the Rents and its rights thereunder or thereby and recourse, if any, shall be solely had its right to obtain a judgment against such Certificate Holderthe Lessor's interest in the Lessor Trust; provided, however, that each Certificate Holder and Owner Trustee shall be liable in its individual capacity (a) for its own willful misconduct or gross negligence, (b) breach of any of its representations, warranties or covenants under the Operative Documents, (c) with respect to Certificate Holders, for any Tax based on or measured by any fees, commission or compensation received by a Certificate Holder for acting as a Certificate Holder as contemplated by the Operative Documents, or (d) any Lessor Liens attributable to it. It is understood and agreed that, except as provided in the preceding sentence: (i) no Certificate Holder or Owner Trustee shall have any personal liability under any of the Operative Documents as a result of acting pursuant to and consistent with any of the Operative Documents; (ii) all obligations of each Certificate Holder and Owner Trustee to any Lender are solely nonrecourse obligations except to the extent that such Certificate Holder or Owner Trustee has received payment from others (including, without limitation, obligations with respect to the Loans); and (iii) all such personal liability of any Certificate Holder and Owner Trustee is expressly waived and released as a condition of, and as consideration for, the execution and delivery of the Operative Documents by such Certificate Holder and Owner TrusteeProperties. (b) No Participant shall have any obligation to any other Participant or to the Lessee, the Certificate Holders or the Lenders with respect to transactions contemplated by the Operative Documents, except those obligations of such Participant expressly set forth in the Operative Documents or except as set forth in the instruments delivered in connection therewith, and no Participant shall be liable for performance by any other party hereto of such other party's obligations under the Operative Documents except as otherwise so set forth.

Appears in 1 contract

Samples: Participation Agreement (Pactiv Corp)

Liability Limited. (a) The parties hereto Lenders, the Agent, the Credit Parties, the Owner Trustee and the Holders each acknowledge and agree that the Owner Trustee is (except as specifically set forth otherwise expressly provided herein or therein) entering into this Agreement and the other Operative Agreements to which it is a party (other than the Trust Agreement and to the extent otherwise provided in Section 6.1 of this Agreement), solely in its capacity as trustee under the Trust Agreement and not in its individual capacity and that the Trust Company shall not be liable or accountable under any circumstances whatsoever in its individual capacity for or on account of any statements, representations, warranties, covenants or obligations stated to be those of the Owner Trustee, except for its own gross negligence or willful misconduct and as otherwise expressly provided herein or in the other Operative Agreements. (b) Anything to the contrary contained in this Agreement, the Credit Agreement, the Notes or in any other Operative DocumentAgreement notwithstanding, no Certificate Holder or Owner Trustee Exculpated Person shall have be personally liable in any personal liability whatsoever to any Participant or their respective successors and assigns respect for any claim based on liability or obligation arising hereunder or in respect hereof any other Operative Agreement including without limitation the payment of the principal of, or interest on, the Notes, or for monetary damages for the breach of performance of any of the covenants contained in the Credit Agreement, the Notes, this Agreement, the Security Agreement or any of the other Operative Documents Agreements. The Lenders, the Holders and the Agent agree that, in the event any remedies under any Operative Agreement are pursued, neither the Lenders, the Holders nor the Agent shall have any recourse against any Exculpated Person, for any deficiency, loss or Claim for monetary damages or otherwise resulting therefrom and recourse shall be had solely and exclusively against the Trust Estate (excluding Excepted Payments) and the Credit Parties (with respect to the Credit Parties' obligations under the Operative Agreements); but nothing contained herein shall be taken to prevent recourse against or the enforcement of remedies against the Trust Estate (excluding Excepted Payments) in respect of any and all liabilities, obligations and undertakings contained herein and/or in any other Operative Agreement. Notwithstanding the provisions of this Section, nothing in any Operative Agreement shall: (i) constitute a waiver, release or discharge of any indebtedness or obligation evidenced by the Notes and/or the Certificates arising under any Operative Agreement or secured by any Operative Agreement, but the same shall continue until paid or discharged; (ii) relieve any Exculpated Person from liability and responsibility for (but only to the extent of the damages arising by reason of): active waste knowingly committed by any Exculpated Person with respect to any Property, any fraud, gross (A) except for Excepted Payments, misappropriation or misapplication by the Lessor (i.e., application in a manner contrary to any of the Operative Agreements) of any insurance proceeds or condemnation award paid or delivered to the Lessor by any Person other than the Agent, (B) except for Excepted Payments, any deposits or any escrows or amounts owed by the Construction Agent under the Agency Agreement held by the Lessor or (C) except for Excepted Payments, any rent or other income received by the Lessor from any Credit Party that is not turned over to the Agent; or (iv) affect or in any way from limit the transactions contemplated hereby Agent's rights and remedies under any Operative Agreement with respect to the Rents and rights and powers of the Agent under the Operative Agreements or thereby and recourse, if any, shall be solely had to obtain a judgment against such Certificate Holderthe Lessee's interest in the Properties or the Agent's rights and powers to obtain a judgment against the Lessor Trust; or any Credit Party (provided, however, that each Certificate Holder and Owner Trustee no deficiency judgment or other money judgment shall be liable in its individual capacity (a) for its own willful misconduct or gross negligence, (b) breach of enforced against any of its representations, warranties or covenants under the Operative Documents, (c) with respect to Certificate Holders, for any Tax based on or measured by any fees, commission or compensation received by a Certificate Holder for acting as a Certificate Holder as contemplated by the Operative Documents, or (d) any Lessor Liens attributable to it. It is understood and agreed that, except as provided in the preceding sentence: (i) no Certificate Holder or Owner Trustee shall have any personal liability under any of the Operative Documents as a result of acting pursuant to and consistent with any of the Operative Documents; (ii) all obligations of each Certificate Holder and Owner Trustee to any Lender are solely nonrecourse obligations Exculpated Person except to the extent that such Certificate Holder of the Lessor's interest in the Trust Estate (excluding Excepted Payments) or Owner Trustee has received payment from others (including, without limitation, obligations with respect to the Loans); extent the Lessor may be liable as otherwise contemplated in clauses (ii) and (iii) all such personal liability of any Certificate Holder and Owner Trustee is expressly waived and released as a condition of, and as consideration for, the execution and delivery of the Operative Documents by such Certificate Holder and Owner Trusteethis Section 12.9(b)). (b) No Participant shall have any obligation to any other Participant or to the Lessee, the Certificate Holders or the Lenders with respect to transactions contemplated by the Operative Documents, except those obligations of such Participant expressly set forth in the Operative Documents or except as set forth in the instruments delivered in connection therewith, and no Participant shall be liable for performance by any other party hereto of such other party's obligations under the Operative Documents except as otherwise so set forth.

Appears in 1 contract

Samples: Participation Agreement (Convergys Corp)

Liability Limited. (a) The parties hereto Lenders, the Agent, the Credit Parties, the Owner Trustee and the Holders each acknowledge and agree that the Owner Trustee is (except as specifically set forth otherwise expressly provided herein or therein) entering into this Agreement and the other Operative Agreements to which it is a party (other than the Trust Agreement and to the extent otherwise provided in Section 6.1 of this Agreement), solely in its capacity as trustee under the Trust Agreement and not in its individual capacity and that the Trust Company shall not be liable or accountable under any circumstances whatsoever in its individual capacity for or on account of any statements, representations, warranties, covenants or obligations stated to be those of the Owner Trustee, except for its own gross negligence or willful misconduct and as otherwise expressly provided herein or in the other Operative Agreements. (b) Anything to the contrary contained in this Agreement, the Credit Agreement, the Notes or in any other Operative DocumentAgreement notwithstanding, no Certificate Holder or Owner Trustee Exculpated Person shall have be personally liable in any personal liability whatsoever to any Participant or their respective successors and assigns respect for any claim based on liability or obligation arising hereunder or in respect hereof any other Operative Agreement including without limitation the payment of the principal of, or interest on, the Notes, or for monetary damages for the breach of performance of any of the covenants contained in the Credit Agreement, the Notes, this Agreement, the Security Agreement or any of the other Operative Documents Agreements. The Lenders, the Holders and the Agent agree that, in the event any remedies under any Operative Agreement are pursued, neither the Lenders, the Holders nor the Agent shall have any recourse against any Exculpated Person, for any deficiency, loss or Claim for monetary damages or otherwise resulting therefrom and recourse shall be had solely and exclusively against the Trust Estate (excluding Excepted Payments) and the Credit Parties (with respect to the Credit Parties' obligations under the Operative Agreements); but nothing contained herein shall be taken to prevent recourse against or the enforcement of remedies against the Trust Estate (excluding Excepted Payments) in respect of any and all liabilities, obligations and undertakings contained herein and/or in any other Operative Agreement. Notwithstanding the provisions of this Section, nothing in any Operative Agreement shall: (i) constitute a waiver, release or discharge of any indebtedness or obligation evidenced by the Notes and/or the Certificates arising under any Operative Agreement or secured by any Operative Agreement, but the same shall continue until paid or discharged; (ii) relieve any Exculpated Person from liability and responsibility for (but only to the extent of the damages arising by reason of): active waste knowingly committed by any Exculpated Person with respect to any Property, any fraud, gross negligence or willful misconduct on the part of any Exculpated Person; (iii) relieve any Exculpated Person from liability and responsibility for (but only to the extent of the moneys misappropriated, misapplied or not turned over) (A) except for Excepted Payments, misappropriation or misapplication by the Lessor (i.e., application in a manner contrary to any of the Operative Agreements) of any insurance proceeds or condemnation award paid or delivered to the Lessor by any Person other than the Agent, (B) except for Excepted Payments, any deposits or any escrows or amounts owed by Lessee held by the Lessor or (C) except for Excepted Payments, any rent or other income received by the Lessor from any Credit Party that is not turned over to the Agent; or (iv) affect or in any way from limit the transactions contemplated hereby Agent's rights and remedies under any Operative Agreement with respect to the Rents and rights and powers of the Agent under the Operative Agreements or thereby and recourse, if any, shall be solely had to obtain a judgment against such Certificate Holderthe Lessee's interest in the Properties or the Agent's rights and powers to obtain a judgment against the Lessor Trust; or any Credit Party (provided, however, that each Certificate Holder and Owner Trustee no deficiency judgment or other money judgment shall be liable in its individual capacity (a) for its own willful misconduct or gross negligence, (b) breach of enforced against any of its representations, warranties or covenants under the Operative Documents, (c) with respect to Certificate Holders, for any Tax based on or measured by any fees, commission or compensation received by a Certificate Holder for acting as a Certificate Holder as contemplated by the Operative Documents, or (d) any Lessor Liens attributable to it. It is understood and agreed that, except as provided in the preceding sentence: (i) no Certificate Holder or Owner Trustee shall have any personal liability under any of the Operative Documents as a result of acting pursuant to and consistent with any of the Operative Documents; (ii) all obligations of each Certificate Holder and Owner Trustee to any Lender are solely nonrecourse obligations Exculpated Person except to the extent that such Certificate Holder of the Lessor's interest in the Trust Estate (excluding Excepted Payments) or Owner Trustee has received payment from others (including, without limitation, obligations with respect to the Loans); extent the Lessor may be liable as otherwise contemplated in clauses (ii) and (iii) all such personal liability of any Certificate Holder and Owner Trustee is expressly waived and released as a condition of, and as consideration for, the execution and delivery of the Operative Documents by such Certificate Holder and Owner Trusteethis Section 12.9(b)). (b) No Participant shall have any obligation to any other Participant or to the Lessee, the Certificate Holders or the Lenders with respect to transactions contemplated by the Operative Documents, except those obligations of such Participant expressly set forth in the Operative Documents or except as set forth in the instruments delivered in connection therewith, and no Participant shall be liable for performance by any other party hereto of such other party's obligations under the Operative Documents except as otherwise so set forth.

Appears in 1 contract

Samples: Participation Agreement (Pep Boys Manny Moe & Jack)

Liability Limited. (a) The parties hereto Bank, the Lessee and the Owner Trustee each acknowledge and agree that the Owner Trustee is (except as specifically set forth otherwise expressly provided herein or therein) entering into this Agreement and the other Operative Agreements to which it is a party (other than the Trust Agreement and to the extent otherwise provided in Section 6.1 of this Agreement), solely in its capacity as trustee under the Trust Agreement and not in its individual capacity and that the Trust Company shall not be liable or accountable under any circumstances whatsoever in its individual capacity for or on account of any statements, representations, warranties, covenants or obligations stated to be those of the Owner Trustee, except for its own gross negligence or willful misconduct and as otherwise expressly provided herein or in the other Operative Agreements. (b) Anything to the contrary contained in this Agreement, the Credit Agreement, the Notes or in any other Operative DocumentAgreement notwithstanding, no Certificate Holder or Owner Trustee Exculpated Person shall have be personally liable in any personal liability whatsoever to any Participant or their respective successors and assigns respect for any claim based on liability or obligation arising hereunder or in respect hereof any other Operative Agreement including without limitation the payment of the principal of, or interest on, the Notes, or for monetary damages for the breach of performance of any of the covenants contained in the Credit Agreement, the Notes, this Agreement, the Security Agreement or any of the other Operative Documents or arising in any way from the transactions contemplated hereby or thereby and recourseAgreements. The Bank agrees that, if any, shall be solely had against such Certificate Holder's interest in the Lessor Trust; providedevent any remedies under any Operative Agreement are pursued, however, that each Certificate Holder and Owner Trustee the Bank shall be liable in its individual capacity (a) for its own willful misconduct or gross negligence, (b) breach of have no recourse against any of its representations, warranties or covenants under the Operative Documents, (c) with respect to Certificate HoldersExculpated Person, for any Tax based on deficiency, loss or measured by any fees, commission Claim for monetary damages or compensation received by a Certificate Holder for acting as a Certificate Holder as contemplated by otherwise resulting therefrom and recourse shall be had solely and exclusively against the Operative Documents, or Trust Estate (dexcluding Excepted Payments) any Lessor Liens attributable to it. It is understood and agreed that, except as provided in the preceding sentence: Lessee (i) no Certificate Holder or Owner Trustee shall have any personal liability under any of the Operative Documents as a result of acting pursuant to and consistent with any of the Operative Documents; (ii) all obligations of each Certificate Holder and Owner Trustee to any Lender are solely nonrecourse obligations except to the extent that such Certificate Holder or Owner Trustee has received payment from others (including, without limitation, obligations with respect to the Loans); and (iii) all such personal liability of any Certificate Holder and Owner Trustee is expressly waived and released as a condition of, and as consideration for, the execution and delivery of the Operative Documents by such Certificate Holder and Owner Trustee. (b) No Participant shall have any obligation to any other Participant or to the Lessee, the Certificate Holders or the Lenders with respect to transactions contemplated by the Operative Documents, except those obligations of such Participant expressly set forth in the Operative Documents or except as set forth in the instruments delivered in connection therewith, and no Participant shall be liable for performance by any other party hereto of such other party's obligations under the Operative Documents Agreements); but nothing contained herein shall be taken to prevent recourse against or the enforcement of remedies against the Trust Estate (excluding Excepted Payments) in respect of any and all liabilities, obligations and undertakings contained herein and/or in any other Operative Agreement. Notwithstanding the provisions of this Section, nothing in any Operative Agreement shall: (i) constitute a waiver, release or discharge of any indebtedness or obligation evidenced by the Notes and/or the Certificates arising under any Operative Agreement or secured by any Operative Agreement, but the same shall continue until paid or discharged; (ii) relieve any (A) except for Excepted Payments, misappropriation or misapplication by the Lessor (i.e., application in a manner contrary to any of the Operative Agreements) of any insurance proceeds or condemnation award paid or delivered to the Lessor by any Person other than the Bank, (B) except for Excepted Payments, any deposits or any escrows or amounts owed by the Construction Agent under the Agency Agreement held by the Lessor or (C) except for Excepted Payments, any rent or other income received by the Lessor from the Lessee that is not turned over to the Bank; or (iv) affect or in any way limit the Bank's rights and remedies under any Operative Agreement with respect to the Rents and rights and powers of the Bank under the Operative Agreements or to obtain a judgment against the Lessee's interest in the Properties or the Bank's rights and powers to obtain a judgment against the Lessor or the Lessee (provided, that no deficiency judgment or other money judgment shall be enforced against any Exculpated Person except to the extent of the Lessor's interest in the Trust Estate (excluding Excepted Payments) or to the extent the Lessor may be liable as otherwise so set forthcontemplated in clauses (ii) and (iii) of this Section 12.9(b)).

Appears in 1 contract

Samples: Participation Agreement (Sterile Recoveries Inc)

Liability Limited. (a) The parties hereto Lenders, the Agent, the Credit Parties, the Owner Trustee and the Holders each acknowledge and agree that the Owner Trustee is (except as specifically set forth otherwise expressly provided herein or therein) entering into this Agreement and the other Operative Agreements to which it is a party (other than the Trust Agreement and to the extent otherwise provided in Section 6.1 of this Agreement), solely in its capacity as trustee under the Trust Agreement and not in its individual capacity and that the Trust Company shall not be liable or accountable under any circumstances whatsoever in its individual capacity for or on account of any statements, representations, warranties, covenants or obligations stated to be those of the Owner Trustee, except for its own gross negligence or willful misconduct and as otherwise expressly provided herein or in the other Operative Agreements. (b) Anything to the contrary contained in this Agreement, the Credit Agreement, the Notes or in any other Operative DocumentAgreement notwithstanding, no Certificate Holder or Owner Trustee Exculpated Person shall have be personally liable in any personal liability whatsoever to any Participant or their respective successors and assigns respect for any claim based on liability or obligation arising hereunder or in respect hereof any other Operative Agreement including without limitation the payment of, or interest on, the Notes, or for monetary damages for the breach of performance of any of the covenants contained in the Credit Agreement, the Notes, this Agreement, the Security Agreement or any of the other Operative Documents Agreements. The Lenders, the Holders and the Agent agree that, in the event any remedies under any Operative Agreement are pursued, neither the Lenders, the Holders nor the Agent shall have any recourse against any Exculpated Person, for any deficiency, loss or arising Claim for monetary damages or otherwise resulting therefrom and recourse shall be had solely and exclusively against the Trust Estate (excluding Excepted Payments) and the Credit Parties (with respect to the Credit Parties' obligations under the Operative Agreements); but nothing contained herein shall be taken to prevent recourse against or the enforcement of remedies against the Trust Estate (excluding Excepted Payments) in (A) except for Excepted Payments, misappropriation or misapplication by the Lesser (i.e., application in a manner contrary to any of the Operative Agreements) of any insurance proceeds or condemnation award paid or delivered to the Lesser by any Person other than the Agent, (B) except for Excepted Payments, any deposits or any escrows or amounts owed by the Construction Agent under the Agency Agreement held by the Lesser or (C) except for Excepted Payments, any rent or other income received by the Lessor from any Credit Party that is not turned over to the Agent; or (iv) affect or in any way from limit the transactions contemplated hereby Agent's rights and remedies under any Operative Agreement with respect to the Rents and rights and powers of the Agent under the Operative Agreements or thereby and recourse, if any, shall be solely had to obtain a judgment against such Certificate Holderthe Lessee's interest in the Properties or the Agent's rights and powers to obtain a judgment against the Lessor Trust; or any Credit Party (provided, however, that each Certificate Holder and Owner Trustee no deficiency judgment or other money judgment shall be liable in its individual capacity (a) for its own willful misconduct or gross negligence, (b) breach of enforced against any of its representations, warranties or covenants under the Operative Documents, (c) with respect to Certificate Holders, for any Tax based on or measured by any fees, commission or compensation received by a Certificate Holder for acting as a Certificate Holder as contemplated by the Operative Documents, or (d) any Lessor Liens attributable to it. It is understood and agreed that, except as provided in the preceding sentence: (i) no Certificate Holder or Owner Trustee shall have any personal liability under any of the Operative Documents as a result of acting pursuant to and consistent with any of the Operative Documents; (ii) all obligations of each Certificate Holder and Owner Trustee to any Lender are solely nonrecourse obligations Exculpated Person except to the extent that such Certificate Holder of the Lessor's interest in the Trust Estate (excluding Excepted Payments) or Owner Trustee has received payment from others (including, without limitation, obligations with respect to the Loans); extent the Lessor may be liable as otherwise contemplated in clauses (ii) and (iii) all such personal liability of any Certificate Holder and Owner Trustee is expressly waived and released as a condition of, and as consideration for, the execution and delivery of the Operative Documents by such Certificate Holder and Owner Trusteethis Section 12.9(b)). (b) No Participant shall have any obligation to any other Participant or to the Lessee, the Certificate Holders or the Lenders with respect to transactions contemplated by the Operative Documents, except those obligations of such Participant expressly set forth in the Operative Documents or except as set forth in the instruments delivered in connection therewith, and no Participant shall be liable for performance by any other party hereto of such other party's obligations under the Operative Documents except as otherwise so set forth.

Appears in 1 contract

Samples: Participation Agreement (Veritas Software Corp /De/)

Liability Limited. (a) The parties hereto agree that Anything to the contrary contained in any Operative Agreement notwithstanding, except as specifically set forth herein stated in this Section 12.9, no Exculpated Person shall be personally liable in any respect for any liability or obligation arising hereunder or in any other Operative DocumentAgreement including the payment of the advance amount or yield regarding the Lessor Advances, no Certificate Holder or Owner Trustee for monetary damages for the breach of performance of any of the covenants contained in the Operative Agreements. The Lessor Parties and the Agent agree that, in the event any remedies under any Operative Agreement are pursued, none of the Lessor Parties or the Agent shall have any personal liability whatsoever to recourse against any Participant or their respective successors and assigns Exculpated Person, for any claim based on deficiency, loss or in respect hereof Claim for monetary damages or any of the other Operative Documents or arising in any way from the transactions contemplated hereby or thereby otherwise resulting therefrom and recourse, if any, recourse shall be had solely had and exclusively against such Certificate Holder's the Lessor’s interest in the Lessor TrustTrust Property, and the assets of the Credit Parties (with respect to the Credit Parties’ obligations under the Operative Agreements); provided, however, that each Certificate Holder and Owner Trustee but nothing contained herein shall be liable in its individual capacity taken to prevent recourse against or the enforcement of remedies against (a) for its own willful misconduct or gross negligencethe Lessor’s interest in the Trust Property in respect of any and all liabilities, obligations and undertakings contained herein and/or in any other Operative Agreement; (b) breach of the Lessor Parties for any of its representations, warranties their obligations arising on a full recourse basis; or covenants under the Operative Documents, (c) the Lessor Parties or any other Person for gross negligence or willful misconduct (other than any gross negligence or willful misconduct imputed to any Lessor Party from any Person other than the Lessor Party or any Affiliate of the Lessor Party (excepting the Agent)). Notwithstanding the provisions of this Section 12.9, nothing in any Operative Agreement shall: (w) constitute a waiver, release or discharge of any indebtedness or obligation evidenced by or arising under any Operative Agreement or secured by any Operative Agreement, but the same shall continue until paid or discharged; (x) relieve any Exculpated Person from liability and responsibility for (but only to the extent of the damages arising by reason of): active waste knowingly committed by any Exculpated Person with respect to Certificate Holdersthe Property, any fraud, gross negligence or willful misconduct on the part of any Exculpated Person (other than any fraud, gross negligence or willful misconduct imputed to such Exculpated Person from any Person other than an Affiliate of such Exculpated Person (excepting the Agent)); (y) relieve any Exculpated Person from liability and responsibility for any Tax based on (but only to the extent of the moneys misappropriated, misapplied or measured by any fees, commission or compensation received by a Certificate Holder for acting as a Certificate Holder as contemplated by the Operative Documents, or (d) any Lessor Liens attributable to it. It is understood and agreed that, except as provided in the preceding sentence: not turned over) (i) no Certificate Holder except for Excepted Payments, misappropriation or Owner Trustee shall have misapplication by any personal liability under Lessor Party (i.e., application in a manner contrary to any of the Operative Documents as a result Agreements) of acting pursuant any insurance proceeds or condemnation award paid or delivered to and consistent with any of Lessor Party by any Person other than the Operative Documents; Agent, (ii) all obligations of each Certificate Holder and Owner Trustee to except for Excepted Payments, any Lender are solely nonrecourse obligations except rent or other income received by any Lessor Party from any Credit Party that is not turned over to the extent that such Certificate Holder Agent, or Owner Trustee has received payment from others (including, without limitation, obligations with respect to the Loans); and (iii) all such personal liability of except for Excepted Payments, any Certificate Holder and Owner Trustee is expressly waived and released as a condition of, and as consideration for, the execution and delivery of the Operative Documents by such Certificate Holder and Owner Trustee. (b) No Participant shall have any obligation to any other Participant deposits or to the Lessee, the Certificate Holders or the Lenders with respect to transactions contemplated by the Operative Documents, except those obligations of such Participant expressly set forth in the Operative Documents or except as set forth in the instruments delivered in connection therewith, and no Participant shall be liable for performance by any other party hereto of such other party's obligations under the Operative Documents except as otherwise so set forth.any

Appears in 1 contract

Samples: Fourth Amendment to Certain Operative Agreements (Big Lots Inc)

Liability Limited. (a) The parties hereto Lenders, the Agent, the Credit Parties, the Owner Trustee and the Holders each acknowledge and agree that the Owner Trustee is (except as specifically set forth otherwise expressly provided herein or therein) entering into this Agreement and the other Operative Agreements to which it is a party (other than the Trust Agreement and to the extent otherwise provided in Section 6.1 of this Agreement), solely in its capacity as trustee under the Trust Agreement and not in its individual capacity and that the Trust Company shall not be liable or accountable under any circumstances whatsoever in its individual capacity for or on account of any statements, representations, warranties, covenants or obligations stated to be those of the Owner Trustee, except for its own gross negligence or willful misconduct and as otherwise expressly provided herein or in the other Operative Agreements. (b) Anything to the contrary contained in this Agreement, the Credit Agreement, the Notes or in any other Operative DocumentAgreement notwithstanding, no Certificate Holder or Owner Trustee Exculpated Person shall have be personally liable in any personal liability whatsoever to any Participant or their respective successors and assigns respect for any claim based on liability or obligation arising hereunder or in respect hereof any other Operative Agreement including without limitation the payment of the principal of, or interest on, the Notes, or for monetary damages (A) except for Excepted Payments, misappropriation or misapplication by the Lessor (i.e., application in a manner contrary to any of the Operative Agreements) of any insurance proceeds or condemnation award paid or delivered to the Lessor by any Person other Operative Documents than the Agent, (B) except for Excepted Payments, any deposits or arising any escrows or amounts owed by the Construction Agent under the Agency Agreement held by the Lessor or (C) except for Excepted Payments, any rent or other income received by the Lessor from any Credit Party that is not turned over to the Agent; or (iv) affect or in any way from limit the transactions contemplated hereby Agent's rights and remedies under any Operative Agreement with respect to the Rents and rights and powers of the Agent under the Operative Agreements or thereby and recourse, if any, shall be solely had to obtain a judgment against such Certificate Holderthe Lessee's interest in the Properties or the Agent's rights and powers to obtain a judgment against the Lessor Trust; or any Credit Party (provided, however, that each Certificate Holder and Owner Trustee no deficiency judgment or other money judgment shall be liable in its individual capacity (a) for its own willful misconduct or gross negligence, (b) breach of enforced against any of its representations, warranties or covenants under the Operative Documents, (c) with respect to Certificate Holders, for any Tax based on or measured by any fees, commission or compensation received by a Certificate Holder for acting as a Certificate Holder as contemplated by the Operative Documents, or (d) any Lessor Liens attributable to it. It is understood and agreed that, except as provided in the preceding sentence: (i) no Certificate Holder or Owner Trustee shall have any personal liability under any of the Operative Documents as a result of acting pursuant to and consistent with any of the Operative Documents; (ii) all obligations of each Certificate Holder and Owner Trustee to any Lender are solely nonrecourse obligations Exculpated Person except to the extent that such Certificate Holder of the Lessor's interest in the Trust Estate (excluding Excepted Payments) or Owner Trustee has received payment from others (including, without limitation, obligations with respect to the Loans); extent the Lessor may be liable as otherwise contemplated in clauses (ii) and (iii) all such personal liability of any Certificate Holder and Owner Trustee is expressly waived and released as a condition of, and as consideration for, the execution and delivery of the Operative Documents by such Certificate Holder and Owner Trusteethis Section 12.9(b)). (b) No Participant shall have any obligation to any other Participant or to the Lessee, the Certificate Holders or the Lenders with respect to transactions contemplated by the Operative Documents, except those obligations of such Participant expressly set forth in the Operative Documents or except as set forth in the instruments delivered in connection therewith, and no Participant shall be liable for performance by any other party hereto of such other party's obligations under the Operative Documents except as otherwise so set forth.

Appears in 1 contract

Samples: Participation Agreement (Healthsouth Corp)

Liability Limited. (a) The parties hereto Bank, the Credit Parties and the Owner Trustee each acknowledge and agree that the Owner Trustee is (except as specifically set forth otherwise expressly provided herein or therein) entering into this Agreement and the other Operative Agreements to which it is a party (other than the Trust Agreement and to the extent otherwise provided in Section 6.1 of this Agreement), solely in its capacity as trustee under the Trust Agreement and not in its individual capacity and that the Trust Company shall not be liable or accountable under any circumstances whatsoever in its individual capacity for or on account of any statements, representations, warranties, covenants or obligations stated to be those of the Owner Trustee, except for its own gross negligence or willful misconduct and as otherwise expressly provided herein or in the other Operative Agreements. (b) Anything to the contrary contained in this Agreement, the Credit Agreement, the Notes or in any other Operative DocumentAgreement notwithstanding, no Certificate Holder or Owner Trustee Exculpated Person shall have be personally liable in any personal liability whatsoever to any Participant or their respective successors and assigns respect for any claim based on liability or obligation arising hereunder or in respect hereof any other Operative Agreement including without limitation the payment of the principal of, or interest on, the Notes, or for monetary damages for the breach of performance of any of the covenants contained in the Credit Agreement, the Notes, this Agreement, the Security Agreement or any of the other Operative Documents Agreements. The Bank agrees that, in the event any remedies under any Operative Agreement are pursued, the Bank shall have no recourse against any Exculpated Person, for any deficiency, loss or arising Claim for monetary damages or otherwise resulting therefrom and recourse shall be had solely and exclusively against the Trust Estate (excluding (A) except for Excepted Payments, misappropriation or misapplication by the Lessor (i.e., application in a manner contrary to any of the Operative Agreements) of any insurance proceeds or condemnation award paid or delivered to the Lessor by any Person other than the Bank, (B) except for Excepted Payments, any deposits or any escrows or amounts owed by the Construction Agent under the Agency Agreement held by the Lessor or (C) except for Excepted Payments, any rent or other income received by the Lessor from any Credit Party that is not turned over to the Bank; or (iv) affect or in any way from limit the transactions contemplated hereby Bank's rights and remedies under any Operative Agreement with respect to the Rents and rights and powers of the Bank under the Operative Agreements or thereby and recourse, if any, shall be solely had to obtain a judgment against such Certificate Holderthe Lessee's interest in the Properties or the Bank's rights and powers to obtain a judgment against the Lessor Trust; or any Credit Party (provided, however, that each Certificate Holder and Owner Trustee no deficiency judgment or other money judgment shall be liable in its individual capacity (a) for its own willful misconduct or gross negligence, (b) breach of enforced against any of its representations, warranties or covenants under the Operative Documents, (c) with respect to Certificate Holders, for any Tax based on or measured by any fees, commission or compensation received by a Certificate Holder for acting as a Certificate Holder as contemplated by the Operative Documents, or (d) any Lessor Liens attributable to it. It is understood and agreed that, except as provided in the preceding sentence: (i) no Certificate Holder or Owner Trustee shall have any personal liability under any of the Operative Documents as a result of acting pursuant to and consistent with any of the Operative Documents; (ii) all obligations of each Certificate Holder and Owner Trustee to any Lender are solely nonrecourse obligations Exculpated Person except to the extent that such Certificate Holder of the Lessor's interest in the Trust Estate (excluding Excepted Payments) or Owner Trustee has received payment from others (including, without limitation, obligations with respect to the Loans); extent the Lessor may be liable as otherwise contemplated in clauses (ii) and (iii) all such personal liability of any Certificate Holder and Owner Trustee is expressly waived and released as a condition of, and as consideration for, the execution and delivery of the Operative Documents by such Certificate Holder and Owner Trusteethis Section 12.9(b)). (b) No Participant shall have any obligation to any other Participant or to the Lessee, the Certificate Holders or the Lenders with respect to transactions contemplated by the Operative Documents, except those obligations of such Participant expressly set forth in the Operative Documents or except as set forth in the instruments delivered in connection therewith, and no Participant shall be liable for performance by any other party hereto of such other party's obligations under the Operative Documents except as otherwise so set forth.

Appears in 1 contract

Samples: Participation Agreement (Dollar Tree Stores Inc)

Liability Limited. (a) The parties hereto Lenders, the Agent, the Credit Parties, the Owner Trustee and the Holders each acknowledge and agree that the Owner Trustee is (except as specifically set forth otherwise expressly provided herein or therein) entering into this Agreement and the other Operative Agreements to which it is a party (other than the Trust Agreement and to the extent otherwise provided in Section 6.1 of this Agreement), solely in its capacity as trustee under the Trust Agreement and not in its individual capacity and that the Trust Company shall not be liable or accountable under any circumstances whatsoever in its individual capacity for or on account of any statements, representations, warranties, covenants or obligations stated to be those of the Owner Trustee, except for its own gross negligence or willful misconduct and as otherwise expressly provided herein or in the other Operative Agreements. (b) Anything to the contrary contained in this Agreement, the Credit Agreement, the Notes or in any other Operative DocumentAgreement notwithstanding, no Certificate Holder or Owner Trustee Exculpated Person shall have be personally liable in any personal liability whatsoever to any Participant or their respective successors and assigns respect for any claim based on liability or obligation arising hereunder or in respect hereof any other Operative Agreement including without limitation the payment of the principal of, or interest on, the Notes, or for monetary damages for the breach of performance of any of the covenants contained in the Credit Agreement, the Notes, this Agreement, the Security Agreement or any of the other Operative Documents Agreements. The Lenders, the Holders and the Agent agree that, in the event any remedies under any Operative Agreement are pursued, neither the Lenders, the Holders nor the Agent shall have any recourse against any Exculpated Person, for any deficiency, loss or Claim for monetary damages or otherwise resulting therefrom and recourse shall be had solely and exclusively against the Trust Estate (excluding Excepted Payments) and the Credit Parties (with respect to the Credit Parties' obligations under the Operative Agreements); but nothing contained herein shall be taken to prevent recourse against or the enforcement of remedies against the Trust Estate (excluding Excepted Payments) in respect of any and all liabilities, obligations and undertakings contained herein and/or in any other Operative Agreement. Notwithstanding the provisions of this Section, nothing in any Operative Agreement shall: (i) constitute a waiver, release or discharge of any indebtedness or obligation evidenced by the Notes and/or the Certificates arising under any Operative Agreement or secured by any Operative Agreement, but the same shall continue until paid or discharged; (ii) relieve any Exculpated Person from liability and responsibility for (but only to the extent of the damages arising by reason of): active waste knowingly committed by any Exculpated Person with respect to any Property, any fraud, gross negligence or willful misconduct on the part of any Exculpated Person; (iii) relieve any Exculpated Person from liability and responsibility for (but (A) except for Excepted Payments, misappropriation or misapplication by the Lessor (i.e., application in a manner contrary to any of the Operative Agreements) of any insurance proceeds or condemnation award paid or delivered to the Lessor by any Person other than the Agent, (B) [not used] or (C) except for Excepted Payments, any rent or other income received by the Lessor from any Credit Party that is not turned over to the Agent; or (iv) affect or in any way from limit the transactions contemplated hereby Agent's rights and remedies under any Operative Agreement with respect to the Rents and rights and powers of the Agent under the Operative Agreements or thereby and recourse, if any, shall be solely had to obtain a judgment against such Certificate Holderthe Lessee's interest in the Properties or the Agent's rights and powers to obtain a judgment against the Lessor Trust; or any Credit Party (provided, however, that each Certificate Holder and Owner Trustee no deficiency judgment or other money judgment shall be liable in its individual capacity (a) for its own willful misconduct or gross negligence, (b) breach of -------- enforced against any of its representations, warranties or covenants under the Operative Documents, (c) with respect to Certificate Holders, for any Tax based on or measured by any fees, commission or compensation received by a Certificate Holder for acting as a Certificate Holder as contemplated by the Operative Documents, or (d) any Lessor Liens attributable to it. It is understood and agreed that, except as provided in the preceding sentence: (i) no Certificate Holder or Owner Trustee shall have any personal liability under any of the Operative Documents as a result of acting pursuant to and consistent with any of the Operative Documents; (ii) all obligations of each Certificate Holder and Owner Trustee to any Lender are solely nonrecourse obligations Exculpated Person except to the extent that such Certificate Holder of the Lessor's interest in the Trust Estate (excluding Excepted Payments) or Owner Trustee has received payment from others (including, without limitation, obligations with respect to the Loans); extent the Lessor may be liable as otherwise contemplated in clauses (ii) and (iii) all such personal liability of any Certificate Holder and Owner Trustee is expressly waived and released as a condition of, and as consideration for, the execution and delivery of the Operative Documents by such Certificate Holder and Owner Trusteethis Section 12.9(b)). (b) No Participant shall have any obligation to any other Participant or to the Lessee, the Certificate Holders or the Lenders with respect to transactions contemplated by the Operative Documents, except those obligations of such Participant expressly set forth in the Operative Documents or except as set forth in the instruments delivered in connection therewith, and no Participant shall be liable for performance by any other party hereto of such other party's obligations under the Operative Documents except as otherwise so set forth.

Appears in 1 contract

Samples: Participation Agreement (Smart & Final Inc/De)

Liability Limited. (a) The parties hereto agree that except as specifically set forth herein or in any other Operative Document, no Certificate Holder or Owner Trustee the Lessor shall have any no personal liability whatsoever to any Participant other Participant, the Lessee or their respective successors and assigns for any claim or obligation based on or in respect hereof or any of the other Operative Documents (including, without limitation, the repayment of the Loans) or arising in any way from the transactions contemplated hereby or thereby and recourse, if any, shall be solely had against such Certificate Holder's the Lessor’s interest in any Property or from payments (other than payments due to the Lessor Trustwith respect to indemnities, reimbursement of expenses or fees, in each case payable to the Lessor for its own account) received from the Lessee (it being acknowledged and agreed by each party hereto that all such personal liability of the Lessor is expressly waived and released as a condition of, and as consideration for, the execution and delivery of the Operative Documents by the Lessor); provided, however, that each Certificate Holder and Owner Trustee the Lessor shall be liable in its individual capacity (a) for its own willful misconduct or gross negligence, (b) breach of any of its representations, warranties or covenants under the Operative Documents, or (c) with respect to Certificate Holders, for any Tax based on or measured by any fees, commission or compensation received by a Certificate Holder it for acting as a Certificate Holder the Lessor as contemplated by the Operative Documents, or (d) any Lessor Liens attributable to it. It is understood and agreed that, except as provided in that the preceding sentence: (i) no Certificate Holder or Owner Trustee Lessor shall have any no personal liability under any of the Operative Documents as a result of acting pursuant to and consistent with any of the Operative Documents; (ii) all obligations of each Certificate Holder and Owner Trustee to any Lender are solely nonrecourse obligations except to the extent that such Certificate Holder or Owner Trustee has received payment from others (including, without limitation, obligations with respect to the Loans); and (iii) all such personal liability of any Certificate Holder and Owner Trustee is expressly waived and released as a condition of, and as consideration for, the execution and delivery of the Operative Documents by such Certificate Holder and Owner Trustee. (b) No Participant shall have any obligation to any the other Participant or to the Lessee, the Certificate Holders or the Lenders Lessee with respect to transactions contemplated by the Operative Documents, except those obligations of such Participant expressly set forth in the Operative Documents or except as set forth in the instruments delivered in connection therewith, and no Participant shall be liable for performance by any other party hereto of such other party's ’s obligations under the Operative Documents except as otherwise so set forth.

Appears in 1 contract

Samples: Participation Agreement (Citrix Systems Inc)

Liability Limited. (a) The parties hereto Lenders, the Agent, the Credit Parties, the Owner Trustee and the Holders each acknowledge and agree that the Owner Trustee is (except as specifically set forth otherwise expressly provided herein or therein) entering into this Agreement and the other Operative Agreements to which it is a party (other than the Trust Agreement and to the extent otherwise provided in Section 6.1 of this Agreement), solely in its capacity as Owner Trustee under the Trust Agreement and not in its individual capacity and that the Trust Company shall not be liable or accountable under any circumstances whatsoever in its individual capacity for or on account of any statements, representations, warranties, covenants or obligations stated to be those of the Owner Trustee, except for its own gross negligence or willful misconduct and as otherwise expressly provided herein or in the other Operative Agreements. (b) Anything to the contrary contained in this Agreement, the Credit Agreement, the Notes or in any other Operative DocumentAgreement notwithstanding, no Certificate Holder Exculpated Person shall be personally liable in any respect for any liability or obligation of the Owner Trustee shall have any personal liability whatsoever to any Participant or their respective successors and assigns for any claim based on arising hereunder or in respect hereof any other Operative Agreement including without limitation the payment of the principal of, or interest on, the Notes, or for monetary damages for the breach of performance by the Owner Trustee of any of the covenants contained in the Credit Agreement, the Notes, this Agreement, the Security Agreement or any of the other Operative Documents Agreements. The Lenders, the Holders and the Agent agree that, in the event they pursue any remedies under any Operative Agreement, neither the Lenders, the Holders nor the Agent shall have any recourse against any Exculpated Person, for any deficiency, loss or Claim for monetary damages or otherwise resulting from a breach thereof by the Owner Trustee and recourse shall be had solely and exclusively against the Trust Estate (excluding Excepted Payments) and the Credit Parties (with respect to the Credit Parties' obligations under the Operative Agreements); but nothing contained herein shall be taken to prevent recourse against or the enforcement of remedies against the Trust Estate (excluding Excepted Payments) in respect of any and all liabilities, obligations and undertakings contained herein and/or in any other Operative Agreement. The Lenders, Holders and Agent further agree that, notwithstanding the provisions of this Section, nothing in any Operative Agreement shall: (i) constitute a waiver, release or discharge of any indebtedness or obligation evidenced by the Notes and/or the Certificates arising under any Operative Agreement or secured by any Operative Agreement, but the same shall continue until paid or discharged; (ii) relieve any Exculpated Person from liability and responsibility for (but only to the extent of the damages arising by reason of): active waste knowingly committed by any Exculpated Person with respect to any Property, or any fraud, gross negligence or willful misconduct on the part of any Exculpated Person; (iii) relieve any Exculpated Person from liability and responsibility for (but only to the extent of the moneys misappropriated, misapplied or not turned over) (A) misappropriation or misapplication by the Lessor (i.e., application in a manner contrary to any of the Operative Agreements) of any insurance proceeds or condemnation award paid or delivered to the Lessor by any Person other than the Agent, (B) any deposits or any escrows or amounts owed by the Construction Agent under the Agency Agreement held by the Lessor or (C) any Rent or other income received by the Lessor from any Credit Party that is not turned over to the Agent in accordance with the Operative Agreements; (iv) affect or in any way from limit the transactions contemplated hereby Agent's rights and remedies under any Operative Agreement with respect to the Rent and rights and powers of the Agent under the Operative Agreements or thereby and recourse, if any, shall be solely had to obtain a judgment against such Certificate Holderthe Lessee's or Lessor's interest in the Properties or the Agent's rights and powers to obtain a judgment against the Lessor Trust; or any Credit Party (provided, however, that each Certificate Holder and Owner Trustee no deficiency judgment or other money judgment shall be enforced against any Exculpated Person except to the extent of the Lessor's interest in the Trust Estate (excluding Excepted Payments) or to the extent the Lessor may be liable as otherwise contemplated in Section 12.9(a) or clauses (ii) and (iii) of this Section 12.9(b)); (v) relieve any Exculpated Person from liability for its obligations undertaken in its individual capacity capacity; (avi) for its own willful misconduct or gross negligence, (b) breach of relieve the Owner Trustee from any of its representations, warranties or covenants obligations under the Operative Documents, (c) with respect to Certificate Holders, for any Tax based on Trust Agreement or measured by any fees, commission or compensation received by a Certificate Holder for acting as a Certificate Holder as contemplated by under Section 5.8 of the Operative Documents, Credit Agreement; or (dvii) relieve any Lessor Liens attributable Exculpated Person from any obligation to it. It is understood and agreed that, except as provided in the preceding sentence: (i) no Certificate Holder or Owner Trustee shall have make any personal liability payment under any provision of the Operative Documents Agreements if such payment is due as a result of acting a Claim against such Exculpated Person for which Lessee has no indemnification obligation pursuant to Sections 11.1, 11.2 or 11.7 and consistent with for which such Exculpated Person has not been exculpated pursuant to the provisions of this Section 12.9 or any other provision of the Operative Documents; (ii) all obligations of each Certificate Holder and Owner Trustee to any Lender are solely nonrecourse obligations except to the extent that such Certificate Holder or Owner Trustee has received payment from others (including, without limitation, obligations with respect to the Loans); and (iii) all such personal liability of any Certificate Holder and Owner Trustee is expressly waived and released as a condition of, and as consideration for, the execution and delivery of the Operative Documents by such Certificate Holder and Owner TrusteeAgreements. (b) No Participant shall have any obligation to any other Participant or to the Lessee, the Certificate Holders or the Lenders with respect to transactions contemplated by the Operative Documents, except those obligations of such Participant expressly set forth in the Operative Documents or except as set forth in the instruments delivered in connection therewith, and no Participant shall be liable for performance by any other party hereto of such other party's obligations under the Operative Documents except as otherwise so set forth.

Appears in 1 contract

Samples: Participation Agreement (Franklin Resources Inc)

Liability Limited. (a) The parties hereto Lenders, the Agent, the Credit Parties, the Owner Trustee and the Holders each acknowledge and agree that the Owner Trustee is (except as specifically set forth otherwise expressly provided herein or therein) entering into this Agreement and the other Operative Agreements to which it is a party (other than the Trust Agreement and to the extent otherwise provided in Section 6.1 of this Agreement), solely in its capacity as trustee under the Trust Agreement and not in its individual capacity and that the Trust Company shall not be liable or accountable under any circumstances whatsoever in its individual capacity for or on account of any statements, representations, warranties, covenants or obligations stated to be those of the Owner Trustee, except for its own gross negligence or willful misconduct and as otherwise expressly provided herein or in the other Operative Agreements. (b) Anything to the contrary contained in this Agreement, the Credit Agreement, the Notes or in any other Operative DocumentAgreement notwithstanding, no Certificate Holder or Owner Trustee Exculpated Person shall have be personally liable in any personal liability whatsoever to any Participant or their respective successors and assigns respect for any claim based on liability or obligation arising hereunder or in respect hereof any other Operative Agreement including without limitation the payment of the principal of, or interest on, the Notes, or for monetary damages for the breach of performance of any of the covenants contained in the Credit Agreement, the Notes, this Agreement, the Security Agreement or any of the other Operative Documents Agreements. The Lenders, the Holders and the Agent agree that, in the event any remedies under any Operative Agreement are pursued, neither the Lenders, the Holders nor the Agent shall have any recourse against any Exculpated Person, for any deficiency, loss or Claim for monetary damages or otherwise resulting therefrom and recourse shall be had solely and exclusively against the Trust Estate (excluding Excepted Payments) and the Credit Parties (with respect to the Credit Parties' obligations under the Operative Agreements); but nothing contained herein shall be taken to prevent recourse against or the enforcement of remedies against the Trust Estate (excluding Excepted Payments) in respect of any and all liabilities, obligations and undertakings contained herein and/or in any other Operative Agreement. Notwithstanding the provisions of this Section, nothing in any Operative Agreement shall: (i) constitute a waiver, release or discharge of any indebtedness or obligation evidenced by the Notes and/or the Certificates arising under any Operative Agreement or secured by any Operative Agreement, but the same shall continue until paid or discharged; (ii) relieve any Exculpated Person from liability and responsibility for (but only to the extent of the damages arising by reason of): active waste knowingly committed by any Exculpated Person with respect to any Property, any fraud, gross negligence or willful misconduct on the part of any Exculpated Person; (iii) relieve any Exculpated Person from liability and responsibility for (but only to the extent of the moneys misappropriated, misapplied or not turned over) (A) except for Excepted Payments, misappropriation or misapplication by the Lessor (i.e., application in a manner contrary to any of the Operative Agreements) of any insurance proceeds or condemnation award paid or delivered to the Lessor by any Person other than the Agent, (B) except for Excepted Payments, any deposits or any escrows or amounts owed by any Construction Agent under the Agency Agreement held by the Lessor or (C) except for Excepted Payments, any rent or other income received by the Lessor from any Credit Party that is not turned over to the Agent; or (iv) affect or in any way from limit the transactions contemplated hereby Agent's rights and remedies under any Operative Agreement with respect to the Rents and rights and powers of the Agent under the Operative Agreements or thereby to obtain a judgment against any Lessee's interest in any Property or the Agent's rights and recoursepowers to obtain a judgment against the Lessor or any Credit Party (provided, if any, that no deficiency judgment or other money judgment shall be solely had enforced against such Certificate Holderany Exculpated Person except to the extent of the Lessor's interest in the Trust Estate (excluding Excepted Payments) or to the extent the Lessor Trust; provided, however, that each Certificate Holder and Owner Trustee shall may be liable as otherwise contemplated in its individual capacity (a) for its own willful misconduct or gross negligence, (b) breach of any of its representations, warranties or covenants under the Operative Documents, (c) with respect to Certificate Holders, for any Tax based on or measured by any fees, commission or compensation received by a Certificate Holder for acting as a Certificate Holder as contemplated by the Operative Documents, or (d) any Lessor Liens attributable to it. It is understood and agreed that, except as provided in the preceding sentence: (i) no Certificate Holder or Owner Trustee shall have any personal liability under any of the Operative Documents as a result of acting pursuant to and consistent with any of the Operative Documents; clauses (ii) all obligations of each Certificate Holder and Owner Trustee to any Lender are solely nonrecourse obligations except to the extent that such Certificate Holder or Owner Trustee has received payment from others (including, without limitation, obligations with respect to the Loans); and (iii) all such personal liability of any Certificate Holder and Owner Trustee is expressly waived and released as a condition of, and as consideration for, the execution and delivery of the Operative Documents by such Certificate Holder and Owner Trusteethis Section 12.9(b)). (b) No Participant shall have any obligation to any other Participant or to the Lessee, the Certificate Holders or the Lenders with respect to transactions contemplated by the Operative Documents, except those obligations of such Participant expressly set forth in the Operative Documents or except as set forth in the instruments delivered in connection therewith, and no Participant shall be liable for performance by any other party hereto of such other party's obligations under the Operative Documents except as otherwise so set forth.

Appears in 1 contract

Samples: Participation Agreement (Performance Food Group Co)

Liability Limited. (a) The parties hereto Lenders, the Agent, the Credit Parties, the Owner Trustee and the Holders each acknowledge and agree that the Owner Trustee is (except as specifically set forth otherwise expressly provided herein or therein) entering into this Agreement and the other Operative Agreements to which it is a party (other than the Trust Agreement and to the extent otherwise provided in Section 6.1 of this Agreement), solely in its capacity as trustee under the Trust Agreement and not in its individual capacity and that the Trust Company shall not be liable or accountable under any circumstances whatsoever in its individual capacity for or on account of any statements, representations, warranties, covenants or obligations stated to be those of the Owner Trustee, except for its own gross negligence or willful misconduct and as otherwise expressly provided herein or in the other Operative Agreements. (b) Anything to the contrary contained in this Agreement, the Credit Agreement, the Notes or in any other Operative DocumentAgreement notwithstanding, no Certificate Holder or Owner Trustee Exculpated Person shall have be personally liable in any personal liability whatsoever to any Participant or their respective successors and assigns respect for any claim based on liability or obligation arising hereunder or in respect hereof any other Operative Agreement including without limitation the payment of the principal of, or interest on, the Notes, or for monetary damages for the breach of performance of any of the covenants contained in the Credit Agreement, the Notes, this Agreement, the Security Agreement or any of the other Operative Documents Agreements. The Lenders, the Holders and the Agent agree that, in the event any remedies under any Operative Agreement are pursued, neither the Lenders, the Holders nor the Agent shall have any recourse against any Exculpated Person, for any deficiency, loss or arising in any way from the transactions contemplated hereby Claim for monetary damages or thereby otherwise resulting therefrom and recourse, if any, recourse shall be had solely had and exclusively against such Certificate Holder's interest in the Lessor Trust; provided, however, that each Certificate Holder Trust Estate (excluding Excepted Payments) and Owner Trustee shall be liable in its individual capacity the Credit Parties (a) for its own willful misconduct or gross negligence, (b) breach of any of its representations, warranties or covenants with respect to the Credit Parties' obligations under the Operative DocumentsAgreements); but nothing contained herein shall be taken to prevent recourse against or the enforcement of remedies against the Trust Estate (excluding Excepted Payments) in respect of any and all liabilities, (c) with respect to Certificate Holdersobligations and undertakings contained herein and/or in any other Operative Agreement. Notwithstanding the provisions of this Section, for nothing in any Tax based on or measured by any fees, commission or compensation received by a Certificate Holder for acting as a Certificate Holder as contemplated by the Operative Documents, or (d) any Lessor Liens attributable to it. It is understood and agreed that, except as provided in the preceding sentenceAgreement shall: (i) no Certificate Holder constitute a waiver, release or Owner Trustee discharge of any indebtedness or obligation evidenced by the Notes and/or the Certificates arising under any Operative Agreement or secured by any Operative Agreement, but the same shall have continue until paid or discharged; (ii) relieve any personal Exculpated Person from liability under and responsibility for (but only to the extent of the damages arising by reason of): active waste knowingly committed by any Exculpated Person with respect to any Property, any fraud, gross negligence or willful misconduct on the part of any Exculpated Person; (iii) relieve any Exculpated Person from liability and responsibility for (but only to the extent of the moneys misappropriated, misapplied or not turned over) (A) except for Excepted Payments, misappropriation or misapplication by the Lessor (i.e., application in a manner contrary to any of the Operative Documents as a result Agreements) of acting pursuant to and consistent with any of the Operative Documents; (ii) all obligations of each Certificate Holder and Owner Trustee to any Lender are solely nonrecourse obligations except insurance proceeds or condemnation award paid or delivered to the extent that such Certificate Holder Lessor by any Person other than the Agent, (B) except for Excepted Payments, any deposits or Owner Trustee has received payment from others (including, without limitation, obligations with respect to the Loans); and (iii) all such personal liability of any Certificate Holder and Owner Trustee is expressly waived and released as a condition of, and as consideration for, the execution and delivery of the Operative Documents by such Certificate Holder and Owner Trustee. (b) No Participant shall have any obligation to any other Participant escrows or to the Lessee, the Certificate Holders or the Lenders with respect to transactions contemplated amounts owed by the Operative Documents, except those obligations of such Participant expressly set forth in the Operative Documents or except as set forth in the instruments delivered in connection therewith, and no Participant shall be liable for performance by any other party hereto of such other party's obligations Construction Agent under the Operative Documents Agency Agreement held by the Lessor or (C) except as otherwise so set forth.for Excepted Payments, any rent or other income

Appears in 1 contract

Samples: Participation Agreement (Sunrise Assisted Living Inc)

Liability Limited. (a) The parties hereto Lenders, the Agent, the Lessee and the Holders each acknowledge and agree that the Owner Trustee is (except as specifically set forth otherwise expressly provided herein or therein) entering into this Agreement and the other Operative Agreements to which it is a party (other than the Trust Agreement and to the extent otherwise provided in Section 7.2 of this Agreement), solely in its capacity as trustee under the Trust Agreement and not in its individual capacity and that the Trust Company shall not be liable or accountable under any circumstances whatsoever in its individual capacity for or on account of any statements, representations, warranties, covenants or obligations stated to be those of the Owner Trustee, except for its own gross negligence or willful misconduct and as otherwise expressly provided herein or in the other Operative Agreements. (b) Anything to the contrary contained in this Agreement, the Credit Agreement, the Notes or in any other Operative DocumentAgreement notwithstanding, no Certificate Holder or Owner Trustee Exculpated Person shall have be personally liable in any personal liability whatsoever to any Participant or their respective successors and assigns respect for any claim based on liability or obligation hereunder or in respect hereof any other Operative Agreement including without limitation the payment of the principal of, or interest on, the Notes, or for monetary damages for the breach of performance of any of the covenants contained in the Credit Agreement, the Notes, this Agreement, the Security Agreement, the Mortgage Instruments or any of the other Operative Documents or arising in any way from Agreements. The Lenders and the transactions contemplated hereby or thereby and recourseAgent agree that, if any, shall be solely had against such Certificate Holder's interest in the Lessor Trust; provided, however, that each Certificate Holder and Owner Trustee shall be liable in its individual capacity (a) for its own willful misconduct event the Agent or gross negligence, (b) breach of any of its representations, warranties or covenants Lender pursues any remedies available to them under the Operative DocumentsCredit Agreement, (c) with respect to Certificate Holdersthe Notes, for any Tax based on this Agreement, the Security Agreement, the Mortgage Instruments or measured by any fees, commission or compensation received by a Certificate Holder for acting as a Certificate Holder as contemplated by the Operative Documents, or (d) any Lessor Liens attributable to it. It is understood and agreed that, except as provided in the preceding sentence: (i) no Certificate Holder or Owner Trustee shall have any personal liability under any of other Operative Agreement, neither the Operative Documents as a result of acting pursuant to and consistent with any of the Operative Documents; (ii) all obligations of each Certificate Holder and Owner Trustee to any Lender are solely nonrecourse obligations except to the extent that such Certificate Holder or Owner Trustee has received payment from others (including, without limitation, obligations with respect to the Loans); and (iii) all such personal liability of any Certificate Holder and Owner Trustee is expressly waived and released as a condition of, and as consideration for, the execution and delivery of the Operative Documents by such Certificate Holder and Owner Trustee. (b) No Participant shall have any obligation to any other Participant or to the Lessee, the Certificate Holders or the Lenders with respect to transactions contemplated by the Operative Documents, except those obligations of such Participant expressly set forth in the Operative Documents or except as set forth in the instruments delivered in connection therewith, and no Participant shall be liable for performance by any other party hereto of such other party's obligations under the Operative Documents except as otherwise so set forth.Lenders

Appears in 1 contract

Samples: Participation Agreement (Lci International Inc /Va/)

Liability Limited. (a) The parties hereto agree that Anything to the contrary contained in any Operative Agreement notwithstanding, except as specifically set forth herein stated in this Section 12.9, no Exculpated Person shall be personally liable in any respect for any liability or obligation arising hereunder or in any other Operative DocumentAgreement including the payment of the advance amount or yield regarding the Lessor Advances, no Certificate Holder or Owner Trustee for monetary damages for the breach of performance of any of the covenants contained in the Operative Agreements. The Lessor Parties and the Agent agree that, in the event any remedies under any Operative Agreement are pursued, none of the Lessor Parties or the Agent shall have any personal liability whatsoever to recourse against any Participant or their respective successors and assigns Exculpated Person, for any claim based on deficiency, loss or in respect hereof Claim for monetary damages or any of the other Operative Documents or arising in any way from the transactions contemplated hereby or thereby otherwise resulting therefrom and recourse, if any, recourse shall be had solely had and exclusively against such Certificate Holder's the Lessor’s interest in the Lessor TrustTrust Property, and the assets of the Credit Parties (with respect to the Credit Parties’ obligations under the Operative Agreements); provided, however, that each Certificate Holder and Owner Trustee but nothing contained herein shall be liable in its individual capacity taken to prevent recourse against or the enforcement of remedies against (a) for its own willful misconduct or gross negligencethe Lessor’s interest in the Trust Property in respect of any and all liabilities, obligations and undertakings contained herein and/or in any other Operative Agreement; (b) breach of the Lessor Parties for any of its representations, warranties their obligations arising on a full recourse basis; or covenants under the Operative Documents, (c) with respect the Lessor Parties or any other Person for gross negligence or willful misconduct (other than any gross negligence or willful misconduct imputed to Certificate Holders, for any Tax based on or measured by any fees, commission or compensation received by a Certificate Holder for acting as a Certificate Holder as contemplated by the Operative Documents, or (d) any Lessor Liens attributable to it. It is understood and agreed that, except as provided in Party from any Person other than the preceding sentence: Lessor Party or any Affiliate of the Lessor Party (i) no Certificate Holder except for Excepted Payments, misappropriation or Owner Trustee shall have misapplication by any personal liability under Lessor Party (i.e., application in a manner contrary to any of the Operative Documents as a result Agreements) of acting pursuant any insurance proceeds or condemnation award paid or delivered to and consistent with any of Lessor Party by any Person other than the Operative Documents; Agent, (ii) all obligations except for Excepted Payments, any rent or other income received by any Lessor Party from any Credit Party that is not turned over to the Agent, or (iii) except for Excepted Payments, any deposits or any escrows or amounts owed by the Construction Agent under the Agency Agreement held by any Lessor Party; or (z) affect or in any way limit the Agent’s rights and remedies under any Operative Agreement with respect to the Rents (other than Excepted Payments) and rights and powers of each Certificate Holder the Agent under the Operative Agreements or to obtain a judgment against the Lessee’s interest in the Property or the Agent’s rights and Owner Trustee powers to obtain a judgment against any Lender are solely nonrecourse obligations Lessor Party (but limited as to those matters specified in this Section 12.9) or any Credit Party (provided, that no deficiency judgment or other money judgment shall be enforced against any Exculpated Person except to the extent that such Certificate Holder of the Lessor’s interest in the Trust Property or Owner Trustee has received payment from others (including, without limitation, obligations with respect to the Loans); and (iii) all such personal liability of extent any Certificate Holder and Owner Trustee is expressly waived and released Lessor Party may be liable as a condition of, and as consideration for, the execution and delivery of the Operative Documents by such Certificate Holder and Owner Trustee. otherwise contemplated in clauses (b) No Participant shall have any obligation to any other Participant or to the Lessee, the Certificate Holders or the Lenders with respect to transactions contemplated by the Operative Documents, except those obligations and (c) of such Participant expressly set forth in the Operative Documents or except as set forth in the instruments delivered in connection therewith, and no Participant shall be liable for performance by any other party hereto of such other party's obligations under the Operative Documents except as otherwise so set forththis Section 12.9).

Appears in 1 contract

Samples: Operative Agreements (Big Lots Inc)

Liability Limited. (a) The parties hereto agree that except as specifically set forth herein [Reserved]. (b) Anything to the contrary contained in this Agreement, the Tranche B Credit Agreement, the Cash Collateral Credit Agreement, the Note Purchase Agreement, the Notes or in any other Operative DocumentAgreement notwithstanding, no Certificate Holder or Owner Trustee Exculpated Person shall have be personally liable in any personal liability whatsoever to any Participant or their respective successors and assigns respect for any claim based on liability or obligation arising hereunder or in respect hereof any other Operative Agreement including without limitation the payment of the principal of, or interest on, the Notes, or for monetary damages for the breach of performance of any of the covenants contained in the Tranche B Credit Agreement, the Cash Collateral Credit Agreement, the Note Purchase Agreement, the Notes, this Agreement, the Security Agreement or any of the other Operative Documents or arising in any way from Agreements. The Primary Financing Parties and the transactions contemplated hereby or thereby and recourseAgent agree that, if any, shall be solely had against such Certificate Holder's interest in the Lessor Trust; providedevent any remedies under any Operative Agreement are pursued, however, that each Certificate Holder and Owner Trustee neither the Primary Financing Parties nor the Agent shall be liable in its individual capacity (a) for its own willful misconduct or gross negligence, (b) breach of have any of its representations, warranties or covenants under the Operative Documents, (c) with respect to Certificate Holdersrecourse against any Exculpated Person, for any Tax based on deficiency, loss or measured by any fees, commission Claim for monetary damages or compensation received by a Certificate Holder for acting as a Certificate Holder as contemplated by otherwise resulting therefrom and recourse shall be had solely and exclusively against the Operative Documents, or Borrower's Interest (dexcluding Excepted Payments) any Lessor Liens attributable to it. It is understood and agreed that, except as provided in the preceding sentence: Lessee (i) no Certificate Holder or Owner Trustee shall have any personal liability under any of the Operative Documents as a result of acting pursuant to and consistent with any of the Operative Documents; (ii) all obligations of each Certificate Holder and Owner Trustee to any Lender are solely nonrecourse obligations except to the extent that such Certificate Holder or Owner Trustee has received payment from others (including, without limitation, obligations with respect to the Loans); and (iii) all such personal liability of any Certificate Holder and Owner Trustee is expressly waived and released as a condition of, and as consideration for, the execution and delivery of the Operative Documents by such Certificate Holder and Owner Trustee. (b) No Participant shall have any obligation to any other Participant or to the Lessee, the Certificate Holders or the Lenders with respect to transactions contemplated by the Operative Documents, except those obligations of such Participant expressly set forth in the Operative Documents or except as set forth in the instruments delivered in connection therewith, and no Participant shall be liable for performance by any other party hereto of such other party's obligations under the Operative Documents Agreements); but (A) except for Excepted Payments, misappropriation or misapplication by the Lessor (i.e., application in a manner contrary to any of the Operative Agreements) of any insurance proceeds or condemnation award paid or delivered to the Lessor by any Person other than the Agent, (B) except for Excepted Payments, any deposits or any escrows or amounts owed by the Construction Agent under the Agency Agreement held by the Lessor or (C) except for Excepted Payments, any rent or other income or funds received by the Lessor from the Lessee that is not turned over to the Agent; (iv) affect or in any way limit the Agent's rights and remedies under any Operative Agreement with respect to the Rents and rights and powers of the Agent under the Operative Agreements or to obtain a judgment against the Lessee's interest in the Property pursuant to the terms of the Operative Agreements or the Agent's rights and powers to obtain a judgment against the Lessor or the Lessee; or (v) relieve any Exculpated Person from liability and responsibility (A) with respect to such Person's obligations concerning Lessor Liens pursuant to Section 8.2(a) and the last sentence of Section 8.9(a) hereof or (B) to the extent such liability or responsibility is attributable to any representation or warranty of any Exculpated Person contained in Section 6.1 hereof that was false or inaccurate in any material way when made (provided, that no deficiency judgment or other money judgment shall be enforced against any Exculpated Person except to the extent of the Lessor's interest in the Borrower's Interest (excluding Excepted Payments) or to the extent the Lessor may be liable as otherwise so set forthcontemplated in clauses (ii), (iii) or (v) of this Section 12.9(b)).

Appears in 1 contract

Samples: Participation Agreement (Toys R Us Inc)

Liability Limited. (a) The parties hereto agree that except as specifically set forth herein Anything to the contrary contained in this Agreement, the Credit Agreement, the Notes or in any other Operative DocumentAgreement notwithstanding, no Certificate Holder or Owner Trustee Exculpated Person shall have be personally liable in any personal liability whatsoever to any Participant or their respective successors and assigns respect for any claim based on liability or obligation arising hereunder or in respect hereof any other Operative Agreement including without limitation the payment of the principal of, or interest on, the Notes, or for monetary damages for the breach of performance of any of the covenants contained in the Credit Agreement, the Notes, this Agreement, the Security Agreement or any of the other Operative Documents Agreements. The Lenders, the Lessor and the Agent agree that, in the event any remedies under any Operative Agreement are pursued, neither the Lenders, the Lessor nor the Agent shall have any recourse against any Exculpated Person, for any deficiency, loss or Claim for monetary damages or otherwise resulting therefrom and recourse shall be had solely and exclusively against the Borrower's Interest (excluding Excepted Payments) and the Credit Parties (with respect to the Credit Parties' obligations under the Operative Agreements); but nothing contained herein shall be taken to prevent recourse against or the enforcement of remedies against the Borrower's Interest (excluding Excepted Payments) in respect of any and all liabilities, obligations and undertakings contained herein and/or in any other Operative Agreement. Notwithstanding the provisions of this Section, nothing in any Operative Agreement shall: (i) constitute a waiver, release or discharge of any indebtedness or obligation evidenced by the Notes arising under any Operative Agreement or secured by any Operative Agreement, but the same shall continue until paid or discharged; (ii) relieve any Exculpated Person from liability and responsibility for (but only to the extent of the damages arising by reason of): active waste knowingly committed by any Exculpated Person with respect to any Property, any fraud, gross negligence or willful misconduct on the part of any Exculpated Person; (iii) relieve any Exculpated Person from liability and responsibility for (but only to the extent of the moneys misappropriated, misapplied or not turned over) (A) except for Excepted Payments, misappropriation or misapplication by the Lessor (i.e., application in a manner contrary to any of the Operative Agreements) of any insurance proceeds or condemnation award paid or delivered to the Lessor by any Person other than the Agent, (B) except for Excepted Payments, any deposits or any escrows or amounts owed by Lessee held by the Lessor or (C) except for Excepted Payments, any rent or other income received by the Lessor from any Credit Party that is not turned over to the Agent; or (iv) affect or in any way from limit the transactions contemplated hereby Agent's rights and remedies under any Operative Agreement with respect to the Rents and rights and powers of the Agent under the Operative Agreements or thereby and recourse, if any, shall be solely had to obtain a judgment against such Certificate Holderthe Lessee's interest in the Properties or the Agent's rights and powers to obtain a judgment against the Lessor Trust; or any Credit Party (provided, however, that each Certificate Holder and Owner Trustee no deficiency judgment or other money judgment shall be liable in its individual capacity (a) for its own willful misconduct or gross negligence, (b) breach of enforced against any of its representations, warranties or covenants under the Operative Documents, (c) with respect to Certificate Holders, for any Tax based on or measured by any fees, commission or compensation received by a Certificate Holder for acting as a Certificate Holder as contemplated by the Operative Documents, or (d) any Lessor Liens attributable to it. It is understood and agreed that, except as provided in the preceding sentence: (i) no Certificate Holder or Owner Trustee shall have any personal liability under any of the Operative Documents as a result of acting pursuant to and consistent with any of the Operative Documents; (ii) all obligations of each Certificate Holder and Owner Trustee to any Lender are solely nonrecourse obligations Exculpated Person except to the extent that such Certificate Holder of Borrower's Interest (excluding Excepted Payments) or Owner Trustee has received payment from others (including, without limitation, obligations with respect to the Loans); extent the Lessor may be liable as otherwise contemplated in clauses (ii) and (iii) all such personal liability of any Certificate Holder and Owner Trustee is expressly waived and released as a condition of, and as consideration for, the execution and delivery of the Operative Documents by such Certificate Holder and Owner Trusteethis Section 12.9(b)). (b) No Participant shall have any obligation to any other Participant or to the Lessee, the Certificate Holders or the Lenders with respect to transactions contemplated by the Operative Documents, except those obligations of such Participant expressly set forth in the Operative Documents or except as set forth in the instruments delivered in connection therewith, and no Participant shall be liable for performance by any other party hereto of such other party's obligations under the Operative Documents except as otherwise so set forth.

Appears in 1 contract

Samples: Participation Agreement (Pep Boys Manny Moe & Jack)

Liability Limited. (a) The parties hereto Lenders, the Agent, the Lessee, the Owner Trustee and the Holders each acknowledge and agree that the Owner Trustee is (except as specifically set forth otherwise expressly provided herein or therein) entering into this Agreement and the other Operative Agreements to which it is a party (other than the Trust Agreement and to the extent otherwise provided in Section 7.2 of this Agreement), solely in its capacity as trustee under the Trust Agreement and not in its individual capacity and that the Trust Company shall not be liable or accountable under any circumstances whatsoever in its individual capacity for or on account of any statements, representations, warranties, covenants or obligations stated to be those of the Owner Trustee, except for its own gross negligence or willful misconduct and as otherwise expressly provided herein or in the other Operative Agreements. (b) Anything to the contrary contained in this Agreement, the Credit Agreement, the Notes or in any other Operative DocumentAgreement notwithstanding, no Certificate Holder or Owner Trustee Exculpated Person shall have be personally liable in any personal liability whatsoever to any Participant or their respective successors and assigns respect for any claim based on liability or obligation arising hereunder or in respect hereof any other Operative Agreement including without limitation the payment of the principal of, or interest on, the Notes, or for monetary damages for the breach of performance of any of the covenants contained in the Credit Agreement, the Notes, this Agreement, the Security Agreement or any of the other Operative Documents or arising in any way from Agreements. The Lenders, the transactions contemplated hereby or thereby Holders and recoursethe Agent agree that, if any, shall be solely had against such Certificate Holder's interest in the Lessor Trust; providedevent any remedies under any Operative Agreement are pursued, howeverneither the Lenders, that each Certificate Holder and Owner Trustee the Holders nor the Agent shall be liable in its individual capacity (a) for its own willful misconduct or gross negligence, (b) breach of have any of its representations, warranties or covenants under the Operative Documents, (c) with respect to Certificate Holdersrecourse against any Exculpated Person, for any Tax based on deficiency, loss or measured by any fees, commission Claim for monetary damages or compensation received by a Certificate Holder for acting as a Certificate Holder as contemplated by otherwise resulting therefrom and recourse shall be had solely and exclusively against the Operative Documents, or Trust Estate (dexcluding Excepted Payments) any Lessor Liens attributable to it. It is understood and agreed that, except as provided in the preceding sentence: Lessee (i) no Certificate Holder or Owner Trustee shall have any personal liability under any of the Operative Documents as a result of acting pursuant to and consistent with any of the Operative Documents; (ii) all obligations of each Certificate Holder and Owner Trustee to any Lender are solely nonrecourse obligations except to the extent that such Certificate Holder or Owner Trustee has received payment from others (including, without limitation, obligations with respect to the Loans); and (iii) all such personal liability of any Certificate Holder and Owner Trustee is expressly waived and released as a condition of, and as consideration for, the execution and delivery of the Operative Documents by such Certificate Holder and Owner Trustee. (b) No Participant shall have any obligation to any other Participant or to the Lessee, the Certificate Holders or the Lenders with respect to transactions contemplated by the Operative Documents, except those obligations of such Participant expressly set forth in the Operative Documents or except as set forth in the instruments delivered in connection therewith, and no Participant shall be liable for performance by any other party hereto of such other party's obligations under the Operative Documents Agreements); but nothing contained herein shall be taken to prevent recourse against or the enforcement of remedies against the Trust Estate (excluding Excepted Payments) in respect of any and all liabilities, obligations and undertakings contained herein and/or in any other Operative Agreement. Notwithstanding the provisions of this Section, nothing in any Operative Agreement shall: (i) constitute a waiver, release or discharge of any indebtedness or obligation evidenced by the Notes and/or the Certificates arising under any Operative Agreement or secured by any Operative Agreement, but the same shall continue until paid or discharged; (ii) relieve any Exculpated Person from liability and responsibility for (but only to the extent of the damages arising by reason of): active waste knowingly committed by any Exculpated Person with respect to any Property, any fraud, gross negligence or willful misconduct on the part of any Exculpated Person; (iii) relieve any Exculpated Person from liability and responsibility for (but only to the extent of the moneys misappropriated, misapplied or not turned over) (A) except for Excepted Payments, misappropriation or misapplication by the Lessor (i.e., application in a manner contrary to any of the Operative Agreements) of any insurance proceeds or condemnation award paid or delivered to the Lessor by any Person other than the Agent, (B) except for Excepted Payments, any deposits or any escrows or amounts owed by the Construction Agent under the Agency Agreement held by the Lessor or (C) except for Excepted Payments, any rent or other income received by the Lessor from the Lessee that is not turned over to the Agent; or (iv) affect or in any way limit the Agent's rights and remedies under any Operative Agreement with respect to the Rents and rights and powers of the Agent under the Operative Agreements or to obtain a judgment against the Lessee's interest in the Properties or the Agent's rights and powers to obtain a judgment against the Lessor (provided, that no deficiency judgment or other money judgment shall be enforced against any Exculpated Person except to the extent of the Lessor's interest in the Trust Estate (excluding Excepted Payments) or to the extent the Lessor may be liable as otherwise so set forthcontemplated in clauses (ii) and (iii) of this Section 14.10(b)).

Appears in 1 contract

Samples: Participation Agreement (Performance Food Group Co)

Liability Limited. (a) The parties hereto Lenders, the Agent, the Lessee, the Owner Trustee and the Holders each acknowledge and agree that the Owner Trustee is (except as specifically set forth otherwise expressly provided herein or therein) entering into this Agreement and the other Operative Agreements to which it is a party (other than the Trust Agreement and to the extent otherwise provided in Section 6.1 of this Agreement), solely in its capacity as trustee under the Trust Agreement and not in its individual capacity and that the Trust Company shall not be liable or accountable under any circumstances whatsoever in its individual capacity for or on account of any statements, representations, warranties, covenants or obligations stated to be those of the Owner Trustee, except for its own gross negligence or willful misconduct and as otherwise expressly provided herein or in the other Operative Agreements. (b) Anything to the contrary contained in this Agreement, the Credit Agreement, the Notes or in any other Operative DocumentAgreement notwithstanding, no Certificate Holder or Owner Trustee Exculpated Person shall have be personally liable in any personal liability whatsoever to any Participant or their respective successors and assigns respect for any claim based on liability or obligation arising hereunder or in respect hereof any other Operative Agreement including without limitation the payment of the principal of, or interest on, the Notes, or for monetary damages for the breach of performance of any of the covenants contained in the Credit Agreement, the Notes, this Agreement, the Security Agreement or any of the other Operative Documents or arising in any way from Agreements. The Lenders, the transactions contemplated hereby or thereby Holders and recoursethe Agent agree that, if any, shall be solely had against such Certificate Holder's interest in the Lessor Trust; providedevent any remedies under any Operative Agreement are pursued, howeverneither the Lenders, that each Certificate Holder and Owner Trustee the Holders nor the Agent shall be liable in its individual capacity (a) for its own willful misconduct or gross negligence, (b) breach of have any of its representations, warranties or covenants under the Operative Documents, (c) with respect to Certificate Holdersrecourse against any Exculpated Person, for any Tax based on deficiency, loss or measured by any fees, commission Claim for monetary damages or compensation received by a Certificate Holder for acting as a Certificate Holder as contemplated by otherwise resulting therefrom and recourse shall be had solely and exclusively against the Operative Documents, or Trust Estate (dexcluding Excepted Payments) any Lessor Liens attributable to it. It is understood and agreed that, except as provided in the preceding sentence: Lessee (i) no Certificate Holder or Owner Trustee shall have any personal liability under any of the Operative Documents as a result of acting pursuant to and consistent with any of the Operative Documents; (ii) all obligations of each Certificate Holder and Owner Trustee to any Lender are solely nonrecourse obligations except to the extent that such Certificate Holder or Owner Trustee has received payment from others (including, without limitation, obligations with respect to the Loans); and (iii) all such personal liability of any Certificate Holder and Owner Trustee is expressly waived and released as a condition of, and as consideration for, the execution and delivery of the Operative Documents by such Certificate Holder and Owner Trustee. (b) No Participant shall have any obligation to any other Participant or to the Lessee, the Certificate Holders or the Lenders with respect to transactions contemplated by the Operative Documents, except those obligations of such Participant expressly set forth in the Operative Documents or except as set forth in the instruments delivered in connection therewith, and no Participant shall be liable for performance by any other party hereto of such other party's obligations under the Operative Documents Agreements); but nothing contained herein shall be taken to prevent recourse against or the enforcement of remedies against the Trust Estate (excluding Excepted Payments) in respect of any and all liabilities, obligations and undertakings contained herein and/or in any other Operative Agreement. Notwithstanding the provisions of this Section, nothing in any Operative Agreement shall: (i) constitute a waiver, release or discharge of any indebtedness or (A) except for Excepted Payments, misappropriation or misapplication by the Lessor (i.e., application in a manner contrary to any of the Operative Agreements) of any insurance proceeds or condemnation award paid or delivered to the Lessor by any Person other than the Agent, (B) except for Excepted Payments, any deposits or any escrows or amounts owed by the Construction Agent under the Agency Agreement held by the Lessor or (C) except for Excepted Payments, any rent or other income received by the Lessor from the Lessee that is not turned over to the Agent; or (iv) affect or in any way limit the Agent's rights and remedies under any Operative Agreement with respect to the Rents and rights and powers of the Agent under the Operative Agreements or to obtain a judgment against the Lessee's interest in the Properties or the Agent's rights and powers to obtain a judgment against the Lessor (provided, that no deficiency judgment or other money judgment shall be enforced against any Exculpated Person except to the extent of the Lessor's interest in the Trust Estate (excluding Excepted Payments) or to the extent the Lessor may be liable as otherwise so set forthcontemplated in clauses (ii) and (iii) of this Section 12.9(b)).

Appears in 1 contract

Samples: Participation Agreement (Applied Analytical Industries Inc)

Liability Limited. (a) The parties hereto Lenders, the Agent, the Credit Parties, the Owner Trustee and the Holders each acknowledge and agree that the Owner Trustee is (except as specifically set forth otherwise expressly provided herein or therein) entering into this Agreement and the other Operative Agreements to which it is a party (other than the Trust Agreement and in Sections 6.1 and 12.16 of this Agreement, which the Trust Company is entering into in its individual capacity), solely in its capacity as trustee under the Trust Agreement and not in its individual capacity and that the Trust Company shall not be liable or accountable under any circumstances whatsoever in its individual capacity for or on account of any statements, representations, warranties, covenants or obligations stated to be those of the Owner Trustee, except (i) for its own gross negligence or willful misconduct and (ii) as otherwise expressly provided in the Trust Agreement, Sections 6.1 and 12.16 or in the other Operative Agreements. (b) Subject to Section 12.16, anything to the contrary contained in this Agreement, the Credit Agreement, the Notes or in any other Operative DocumentAgreement notwithstanding (except for such Section 12.16), no Certificate Holder or Owner Trustee Exculpated Person shall have be personally liable in any personal liability whatsoever to any Participant or their respective successors and assigns respect for any claim based on liability or obligation arising hereunder or in respect hereof any other Operative Agreement including without limitation the payment of the principal of, or interest on, the Notes, or for monetary damages for the breach of performance of any of the covenants contained in the Credit Agreement, the Notes, this Agreement, the Security Agreement or any of the other Operative Documents Agreements. The Lenders, the Holders and the Agent agree that, in the event any remedies under any Operative Agreement are pursued, neither the Lenders, the Holders nor the Agent shall have any recourse against any Exculpated Person, for any deficiency, loss or arising Claim for monetary damages or otherwise resulting therefrom and recourse shall be had solely and exclusively against the Trust Estate (excluding Excepted Payments) and the Credit Parties (with respect to the Credit Parties' obligations under the Operative Agreements); (A) except for Excepted Payments, misappropriation or misapplication by the Lessor (i.e., application in a manner contrary to any of the Operative Agreements) of any insurance proceeds or condemnation award paid or delivered to the Lessor by any Person other than the Agent, (B) except for Excepted Payments, any deposits or any escrows or amounts owed by the Construction Agent under the Agency Agreement held by the Lessor or (C) except for Excepted Payments, any rent or other income received by the Lessor from any Credit Party that is not turned over to the Agent; or (iv) affect or in any way from limit the transactions contemplated hereby Agent's rights and remedies under any Operative Agreement with respect to the Rents and rights and powers of the Agent under the Operative Agreements or thereby and recourse, if any, shall be solely had to obtain a judgment against such Certificate Holderthe Lessee's interest in the Properties or the Agent's rights and powers to obtain a judgment against the Lessor Trust; or any Credit Party (provided, however, that each Certificate Holder and Owner Trustee no deficiency judgment or other money judgment -------- shall be liable in its individual capacity (a) for its own willful misconduct or gross negligence, (b) breach of enforced against any of its representations, warranties or covenants under the Operative Documents, (c) with respect to Certificate Holders, for any Tax based on or measured by any fees, commission or compensation received by a Certificate Holder for acting as a Certificate Holder as contemplated by the Operative Documents, or (d) any Lessor Liens attributable to it. It is understood and agreed that, except as provided in the preceding sentence: (i) no Certificate Holder or Owner Trustee shall have any personal liability under any of the Operative Documents as a result of acting pursuant to and consistent with any of the Operative Documents; (ii) all obligations of each Certificate Holder and Owner Trustee to any Lender are solely nonrecourse obligations Exculpated Person except to the extent that such Certificate Holder of the Lessor's interest in the Trust Estate (excluding Excepted Payments) or Owner Trustee has received payment from others (including, without limitation, obligations with respect to the Loans); extent the Lessor may be liable as otherwise contemplated in clauses (ii) and (iii) all such personal liability of any Certificate Holder and Owner Trustee is expressly waived and released as a condition of, and as consideration for, the execution and delivery of the Operative Documents by such Certificate Holder and Owner Trusteethis Section 12.9(b)). (b) No Participant shall have any obligation to any other Participant or to the Lessee, the Certificate Holders or the Lenders with respect to transactions contemplated by the Operative Documents, except those obligations of such Participant expressly set forth in the Operative Documents or except as set forth in the instruments delivered in connection therewith, and no Participant shall be liable for performance by any other party hereto of such other party's obligations under the Operative Documents except as otherwise so set forth.

Appears in 1 contract

Samples: Participation Agreement (Us Foodservice/Md/)

Liability Limited. (a) The parties hereto Lenders, the Agent, the Lessee, the Owner Trustee and the Holders each acknowledge and agree that the Owner Trustee is (except as specifically set forth otherwise expressly provided herein or therein) entering into this Agreement and the other Operative Agreements to which it is a party (other than the Trust Agreement and to the extent otherwise provided in Section 6.1 of this Agreement), solely in its capacity as trustee under the Trust Agreement and not in its individual capacity and that the Trust Company shall not be liable or accountable under any circumstances whatsoever in its individual capacity for or on account of any statements, representations, warranties, covenants or obligations stated to be those of the Owner Trustee, except for its own gross negligence or willful misconduct and as otherwise expressly provided herein or in the other Operative Agreements. (b) Anything to the contrary contained in this Agreement, the Credit Agreement, the Notes or in any other Operative DocumentAgreement notwithstanding, no Certificate Holder or Owner Trustee Exculpated Person shall have be personally liable in any personal liability whatsoever to any Participant or their respective successors and assigns respect for any claim based on liability or obligation arising hereunder or in respect hereof any other Operative Agreement including without limitation the payment of the principal of, or interest on, the Notes, or for monetary damages for the breach of performance of any of the covenants contained in the Credit Agreement, the Notes, this Agreement, the Security Agreement or any of the other Operative Documents or arising in any way from Agreements. The Lenders, the transactions contemplated hereby or thereby Holders and recoursethe Agent agree that, if any, shall be solely had against such Certificate Holder's interest in the Lessor Trust; providedevent any remedies under any Operative Agreement are pursued, howeverneither the Lenders, that each Certificate Holder and Owner Trustee the Holders nor the Agent shall be liable in its individual capacity (a) for its own willful misconduct or gross negligence, (b) breach of have any of its representations, warranties or covenants under the Operative Documents, (c) with respect to Certificate Holdersrecourse against any Exculpated Person, for any Tax based on deficiency, loss or measured by any fees, commission Claim for monetary damages or compensation received by a Certificate Holder for acting as a Certificate Holder as contemplated by otherwise resulting therefrom and recourse shall be had solely and exclusively against the Operative Documents, or Trust Estate (dexcluding Excepted Payments) any Lessor Liens attributable to it. It is understood and agreed that, except as provided in the preceding sentence: Lessee (i) no Certificate Holder or Owner Trustee shall have any personal liability under any of the Operative Documents as a result of acting pursuant to and consistent with any of the Operative Documents; (ii) all obligations of each Certificate Holder and Owner Trustee to any Lender are solely nonrecourse obligations except to the extent that such Certificate Holder or Owner Trustee has received payment from others (including, without limitation, obligations with respect to the Loans); and (iii) all such personal liability of any Certificate Holder and Owner Trustee is expressly waived and released as a condition of, and as consideration for, the execution and delivery of the Operative Documents by such Certificate Holder and Owner Trustee. (b) No Participant shall have any obligation to any other Participant or to the Lessee, the Certificate Holders or the Lenders with respect to transactions contemplated by the Operative Documents, except those obligations of such Participant expressly set forth in the Operative Documents or except as set forth in the instruments delivered in connection therewith, and no Participant shall be liable for performance by any other party hereto of such other party's obligations under the Operative Documents Agreements); but nothing contained herein shall be taken to prevent recourse against or the enforcement of remedies against the Trust Estate (excluding Excepted Payments) in respect of any and all liabilities, obligations and undertakings contained herein and/or in any other Operative Agreement. Notwithstanding the provisions of this Section, nothing in any Operative Agreement shall: (i) constitute a waiver, release or discharge of any indebtedness or obligation evidenced by the Notes and/or the Certificates arising under any Operative Agreement or secured by any Operative Agreement, but the same shall continue until paid or discharged; (ii) relieve any Exculpated Person from liability and responsibility for (but only to the extent of the damages arising by reason of): active waste knowingly committed by any Exculpated Person with respect to any Property, any (A) except for Excepted Payments, misappropriation or misapplication by the Lessor (i.e., application in a manner contrary to any of the Operative Agreements) of any insurance proceeds or condemnation award paid or delivered to the Lessor by any Person other than the Agent, (B) except for Excepted Payments, any deposits or any escrows or amounts owed by the Construction Agent under the Agency Agreement held by the Lessor or (C) except for Excepted Payments, any rent or other income received by the Lessor from the Lessee that is not turned over to the Agent; or (iv) affect or in any way limit the Agent's rights and remedies under any Operative Agreement with respect to the Rents and rights and powers of the Agent under the Operative Agreements or to obtain a judgment against the Lessee's interest in the Properties or the Agent's rights and powers to obtain a judgment against the Lessor (provided, that no deficiency judgment or other money judgment shall be enforced against any Exculpated Person except to the extent of the Lessor's interest in the Trust Estate (excluding Excepted Payments) or to the extent the Lessor may be liable as otherwise so set forthcontemplated in clauses (ii) and (iii) of this Section 12.9(b)).

Appears in 1 contract

Samples: Participation Agreement (Lexicon Genetics Inc/Tx)

Liability Limited. (a) The parties hereto agree that except as specifically set forth herein [Reserved]. (b) Anything to the contrary contained in this Agreement, the Credit Agreement, the Notes or in any other Operative DocumentAgreement notwithstanding, no Certificate Holder or Owner Trustee Exculpated Person shall have be personally liable in any personal liability whatsoever to any Participant or their respective successors and assigns respect for any claim based on liability or obligation arising hereunder or in respect hereof any other Operative Agreement including without limitation the payment of the principal of, or interest on, the Notes, or for monetary damages for the breach of performance of any of the covenants contained in the Credit Agreement, the Notes, this Agreement, the Security Agreement or any of the other Operative Documents Agreements. The Primary Financing Parties and the Agent agree that, in the event any remedies under any Operative Agreement are pursued, neither the Primary Financing Parties nor the Agent shall have any recourse against any Exculpated Person, for any deficiency, loss or arising Claim for monetary damages or otherwise resulting therefrom and recourse shall be had solely and exclusively against the Borrower's Interest (excluding Excepted Payments) and the Credit Parties (with respect to the Credit Parties' obligations under the Operative Agreements); but nothing contained herein shall be taken to prevent (A) except for Excepted Payments, misappropriation or misapplication by the Lessor (i.e., application in a manner contrary to any of the Operative Agreements) of any insurance proceeds or condemnation award paid or delivered to the Lessor by any Person other than the Agent, (B) except for Excepted Payments, any deposits or any escrows or amounts owed by the Construction Agent under the Agency Agreement held by the Lessor or (C) except for Excepted Payments, any rent or other income or funds received by the Lessor from any Credit Party that is not turned over to the Agent; or (iv) affect or in any way from limit the transactions contemplated hereby Agent's rights and remedies under any Operative Agreement with respect to the Rents and rights and powers of the Agent under the Operative Agreements or thereby and recourse, if any, shall be solely had to obtain a judgment against such Certificate Holderthe Lessee's interest in the Lessor Trust; provided, however, that each Certificate Holder and Owner Trustee shall be liable in its individual capacity (a) for its own willful misconduct or gross negligence, (b) breach of any of its representations, warranties or covenants under Property pursuant to the Operative Documents, (c) with respect to Certificate Holders, for any Tax based on or measured by any fees, commission or compensation received by a Certificate Holder for acting as a Certificate Holder as contemplated by the Operative Documents, or (d) any Lessor Liens attributable to it. It is understood and agreed that, except as provided in the preceding sentence: (i) no Certificate Holder or Owner Trustee shall have any personal liability under any terms of the Operative Documents as Agreements or the Agent's rights and powers to obtain a result of acting pursuant to and consistent with judgment against the Lessor or any of the Operative Documents; Credit Party (ii) all obligations of each Certificate Holder and Owner Trustee to provided, that no deficiency judgment or other money judgment shall be -------- enforced against any Lender are solely nonrecourse obligations Exculpated Person except to the extent that such Certificate Holder of the Lessor's interest in the Borrower's Interest (excluding Excepted Payments) or Owner Trustee has received payment from others (including, without limitation, obligations with respect to the Loans); extent the Lessor may be liable as otherwise contemplated in clauses (ii) and (iii) all such personal liability of any Certificate Holder and Owner Trustee is expressly waived and released as a condition of, and as consideration for, the execution and delivery of the Operative Documents by such Certificate Holder and Owner Trusteethis Section 12.9(b)). (b) No Participant shall have any obligation to any other Participant or to the Lessee, the Certificate Holders or the Lenders with respect to transactions contemplated by the Operative Documents, except those obligations of such Participant expressly set forth in the Operative Documents or except as set forth in the instruments delivered in connection therewith, and no Participant shall be liable for performance by any other party hereto of such other party's obligations under the Operative Documents except as otherwise so set forth.

Appears in 1 contract

Samples: Participation Agreement (Capital One Financial Corp)

Liability Limited. (a) The parties hereto agree that except as specifically set forth herein Anything to the contrary contained in this Agreement, the Credit Agreement, the Notes or in any other Operative DocumentAgreement notwithstanding, no Certificate Holder or Owner Trustee Exculpated Person shall have be personally liable in any personal liability whatsoever to any Participant or their respective successors and assigns respect for any claim based on liability or obligation arising hereunder or in respect hereof any other Operative Agreement including without limitation the payment of the principal of, or interest on, the Notes, or for monetary damages for the breach of performance of any of the covenants contained in the Credit Agreement, the Notes, this Agreement, the Security Agreement or any of the other Operative Documents or arising in any way from the transactions contemplated hereby or thereby and recourseAgreements. The Primary Financing Parties agree that, if any, shall be solely had against such Certificate Holder's interest in the Lessor Trust; providedevent any remedies under any Operative Agreement are pursued, however, that each Certificate Holder and Owner Trustee neither the Primary Financing Parties nor the Agent shall be liable in its individual capacity (a) for its own willful misconduct or gross negligence, (b) breach of have any of its representations, warranties or covenants under the Operative Documents, (c) with respect to Certificate Holdersrecourse against any Exculpated Person, for any Tax based on deficiency, loss or measured by any fees, commission Claim for monetary damages or compensation received by a Certificate Holder for acting as a Certificate Holder as contemplated by otherwise resulting therefrom and recourse shall be had solely and exclusively against the Operative Documents, or Borrower's Interest (dexcluding Excepted Payments) any Lessor Liens attributable to it. It is understood and agreed that, except as provided in the preceding sentence: Lessee (i) no Certificate Holder or Owner Trustee shall have any personal liability under any of the Operative Documents as a result of acting pursuant to and consistent with any of the Operative Documents; (ii) all obligations of each Certificate Holder and Owner Trustee to any Lender are solely nonrecourse obligations except to the extent that such Certificate Holder or Owner Trustee has received payment from others (including, without limitation, obligations with respect to the Loans); and (iii) all such personal liability of any Certificate Holder and Owner Trustee is expressly waived and released as a condition of, and as consideration for, the execution and delivery of the Operative Documents by such Certificate Holder and Owner Trustee. (b) No Participant shall have any obligation to any other Participant or to the Lessee, the Certificate Holders or the Lenders with respect to transactions contemplated by the Operative Documents, except those obligations of such Participant expressly set forth in the Operative Documents or except as set forth in the instruments delivered in connection therewith, and no Participant shall be liable for performance by any other party hereto of such other party's obligations under the Operative Documents Agreements); but nothing contained herein shall be taken to prevent recourse against or the enforcement of remedies against the (A) except for Excepted Payments, misappropriation or misapplication by the Lessor (i.e., application in a manner contrary to any of the Operative Agreements) of any insurance proceeds or condemnation award paid or delivered to the Lessor by any Person other than the Agent, (B) except for Excepted Payments, any deposits or any escrows or amounts owed by the Lessee held by the Lessor or (C) except for Excepted Payments, any rent or other income received by the Lessor from the Lessee that is not turned over to the Agent; or (iv) affect or in any way limit the Agent's rights and remedies under any Operative Agreement with respect to the Rents and rights and powers of the Agent under the Operative Agreements or to obtain a judgment against the Lessee's interest in the Properties or the Agent's rights and powers to obtain a judgment against the Lessor or the Lessee (provided, that no deficiency judgment or other money judgment shall be enforced against any Exculpated Person except to the extent of the Lessor's interest in the Borrower's Interest (excluding Excepted Payments) or to the extent the Lessor may be liable as otherwise so set forthcontemplated in clauses (ii) and (iii) of this Section 12.9).

Appears in 1 contract

Samples: Participation Agreement (West Corp)

Liability Limited. (a) The parties hereto Lenders, the Agent, the Credit Parties, the Owner Trustee and the Holders each acknowledge and agree that the Owner Trustee is (except as specifically set forth otherwise expressly provided herein or therein) entering into this Agreement and the other Operative Agreements to which it is a party (other than the Trust Agreement and to the extent otherwise provided in Section 6.1 of this Agreement), solely in its capacity as trustee under the Trust Agreement and not in its individual capacity and that the Trust Company shall not be liable or accountable under any circumstances whatsoever in its individual capacity for or on account of any statements, representations, warranties, covenants or obligations stated to be those of the Owner Trustee, except for its own gross negligence or willful misconduct and as otherwise expressly provided herein or in the other Operative Agreements. (b) Anything to the contrary contained in this Agreement, the Credit Agreement, the Notes or in any other Operative DocumentAgreement notwithstanding, no Certificate Holder or Owner Trustee Exculpated Person shall have be personally liable in any personal liability whatsoever to any Participant or their respective successors and assigns respect for any claim based on liability or obligation arising hereunder or in respect hereof or any other Operative Agreement including without limitation the payment of the other Operative Documents principal of, or arising in any way from interest on, the transactions contemplated hereby Notes, or thereby and recoursefor monetary damages for the (A) except for Excepted Payments, if any, shall be solely had against such Certificate Holder's interest in misappropriation or misapplication by the Lessor Trust; provided(i.e., however, that each Certificate Holder and Owner Trustee shall be liable application in its individual capacity (a) for its own willful misconduct or gross negligence, (b) breach of any of its representations, warranties or covenants under the Operative Documents, (c) with respect a manner contrary to Certificate Holders, for any Tax based on or measured by any fees, commission or compensation received by a Certificate Holder for acting as a Certificate Holder as contemplated by the Operative Documents, or (d) any Lessor Liens attributable to it. It is understood and agreed that, except as provided in the preceding sentence: (i) no Certificate Holder or Owner Trustee shall have any personal liability under any of the Operative Documents as a result Agreements) of acting pursuant any insurance proceeds or condemnation award paid or delivered to the Lessor by any Person other than the Agent, (B) except for Excepted Payments, any deposits or any escrows or amounts owed by the Construction Agent under the Agency Agreement held by the Lessor or (C) except for Excepted Payments, any rent or other income received by the Lessor from any Credit Party that is not turned over to the Agent; or (iv) affect or in any way limit the Agent’s rights and consistent remedies under any Operative Agreement with any respect to the Rents and rights and powers of the Agent under the Operative Documents; Agreements or to obtain a judgment against the Lessee’s interest in the Properties or the Agent’s rights and powers to obtain a judgment against the Lessor or any Credit Party (ii) all obligations of each Certificate Holder and Owner Trustee to provided, that no deficiency judgment or other money judgment shall be enforced against any Lender are solely nonrecourse obligations Exculpated Person except to the extent that such Certificate Holder of the Lessor’s interest in the Trust Estate (excluding Excepted Payments) or Owner Trustee has received payment from others (including, without limitation, obligations with respect to the Loans); extent the Lessor may be liable as otherwise contemplated in clauses (ii) and (iii) all such personal liability of any Certificate Holder and Owner Trustee is expressly waived and released as a condition of, and as consideration for, the execution and delivery of the Operative Documents by such Certificate Holder and Owner Trusteethis Section 12.9(b)). (b) No Participant shall have any obligation to any other Participant or to the Lessee, the Certificate Holders or the Lenders with respect to transactions contemplated by the Operative Documents, except those obligations of such Participant expressly set forth in the Operative Documents or except as set forth in the instruments delivered in connection therewith, and no Participant shall be liable for performance by any other party hereto of such other party's obligations under the Operative Documents except as otherwise so set forth.

Appears in 1 contract

Samples: Participation Agreement (Healthsouth Corp)

Liability Limited. (a) The parties hereto Lenders, the Agent, the Credit Parties, the Owner Trustee, the Trustee and the Holders each acknowledge and agree that each of the Owner Trustee and the Trustee is (except as specifically set forth otherwise expressly provided herein or therein) entering into this Agreement, the other Operative Agreements, the Bond Loan Documents, and the Bond Documents to which it is a party (other than the Trust Agreement and to the extent otherwise provided in Section 6.1 of this Agreement, with respect to the Owner Trustee and the Trust Agreement (AC Trust 2000-2) and to the extent provided in Section 6.1.A. of this Agreement), solely in its capacity as trustee under the respective trust agreement and not in its individual capacity and that neither the Trust Company nor FSN shall be liable or accountable under any circumstances whatsoever in its individual capacity for or on account of any statements, representations, warranties, covenants or obligations stated to be those of the Owner Trustee or Trustee, as applicable, except for its own gross negligence or willful misconduct and as otherwise expressly provided herein, in the other Operative Agreements, the Bond Loan Documents, and the Bond Documents. In addition, the Lessee shall not have any recourse to the Owner Trustee as a result of the Owner Trustee's failure to fund any amounts under Section 7 hereof, except for the Owner Trustee's own gross negligence or willful misconduct. (b) Anything to the contrary contained in this Agreement, the Credit Agreement, the Notes, in any other Operative DocumentAgreement, the Bond Loan Documents or the Bond Documents notwithstanding, no Certificate Holder or Owner Trustee Exculpated Person shall have be personally liable in any personal liability whatsoever to any Participant or their respective successors and assigns respect for any claim based on liability or obligation arising hereunder, in respect hereof any other Operative Agreement, the Bond Loan Documents or the Bond Documents, including without limitation the payment of the principal of, or interest on, the Notes, the Bond Loan Note, the Bonds, rent under the Head Lease, or for monetary damages for the breach of performance of any of the covenants contained in the Credit Agreement, the Notes, this Agreement, the Security Agreement, any of the other Operative Agreements, the Bond Loan Documents or Bond Documents. The Lenders, the Holders and the Agent agree that, in the event any remedies under any Operative Agreement, the Bond Loan Documents or the Bond Documents are pursued, neither the Lenders, the Holders nor the Agent shall have any recourse against any Exculpated Person, for any deficiency, loss or Claim for monetary damages or otherwise resulting therefrom and recourse shall be had solely and exclusively against the Trust Estate (excluding Excepted Payments) or the Trust Estate (AC Trust 2000-2), as applicable, and the Credit Parties (with respect to the Credit Parties' obligations under the Operative Agreements, the Bond Loan Documents and the Bond Documents); but nothing contained herein shall be taken to prevent recourse against or the enforcement of remedies against the Trust Estate (excluding Excepted Payments) or the Trust Estate (AC Trust 2000-2), as applicable, in respect of any and all liabilities, obligations and undertakings contained herein and/or in any other Operative Agreement, the Bond Loan Documents or the Bond Documents. Notwithstanding the provisions of this Section, nothing in any Operative Agreement, the Bond Loan Documents or the Bond Documents shall: (i) constitute a waiver, release or discharge of any indebtedness or obligation evidenced by the Notes and/or the Certificates arising under any Operative Agreement or secured by any Operative Agreement, but the same shall continue until paid or discharged; (ii) relieve any Exculpated Person from liability and responsibility for (but only to the extent of the damages arising by reason of): active waste knowingly committed by any Exculpated Person with respect to any Property or any fraud, gross negligence or willful misconduct on the part of any Exculpated Person; (iii) relieve any Exculpated Person from liability and responsibility for (but only to the extent of the moneys misappropriated, misapplied or not turned over) (A) except for Excepted Payments, misappropriation or misapplication by the Lessor (i.e., application in a manner contrary to any of the Operative Agreements) of any insurance proceeds or condemnation award paid or delivered to the Lessor by any Person other than the Agent, (B) except for Excepted Payments, any deposits or any escrows or amounts owed by the Construction Agent under the Construction Agency Agreement held by the Lessor or (C) except for Excepted Payments, any rent or other income received by the Lessor from any Credit Party that is not turned over to the Agent; or (iv) affect or in any way from limit the transactions contemplated hereby Agent's rights and remedies under any Operative Agreement with respect to the Rents and rights and powers of the Agent under the Operative Agreements or thereby and recourse, if any, shall be solely had to obtain a judgment against such Certificate Holderthe Lessee's interest in the Properties or the Agent's rights and powers to obtain a judgment against the Lessor Trust; or any Credit Party (provided, however, that each Certificate Holder and Owner Trustee no deficiency judgment or other money judgment shall be liable in its individual capacity (a) for its own willful misconduct or gross negligence, (b) breach of enforced against any of its representations, warranties or covenants under the Operative Documents, (c) with respect to Certificate Holders, for any Tax based on or measured by any fees, commission or compensation received by a Certificate Holder for acting as a Certificate Holder as contemplated by the Operative Documents, or (d) any Lessor Liens attributable to it. It is understood and agreed that, except as provided in the preceding sentence: (i) no Certificate Holder or Owner Trustee shall have any personal liability under any of the Operative Documents as a result of acting pursuant to and consistent with any of the Operative Documents; (ii) all obligations of each Certificate Holder and Owner Trustee to any Lender are solely nonrecourse obligations Exculpated Person except to the extent that such Certificate Holder of the Lessor's interest in the Trust Estate (excluding Excepted Payments) or Owner Trustee has received payment from others (including, without limitation, obligations with respect to the Loans); extent the Lessor may be liable as otherwise contemplated in clauses (ii) and (iii) all such personal liability of any Certificate Holder and Owner Trustee is expressly waived and released as a condition of, and as consideration for, the execution and delivery of the Operative Documents by such Certificate Holder and Owner Trusteethis Section 12.9(b)). (b) No Participant shall have any obligation to any other Participant or to the Lessee, the Certificate Holders or the Lenders with respect to transactions contemplated by the Operative Documents, except those obligations of such Participant expressly set forth in the Operative Documents or except as set forth in the instruments delivered in connection therewith, and no Participant shall be liable for performance by any other party hereto of such other party's obligations under the Operative Documents except as otherwise so set forth.

Appears in 1 contract

Samples: Participation Agreement (Acxiom Corp)

Liability Limited. (a) The parties hereto Lenders, the Agent, the Credit Parties, the Owner Trustee and the Holders each acknowledge and agree that the Owner Trustee is (except as specifically set forth otherwise expressly provided herein or therein) entering into this Agreement and the other Operative Agreements to which it is a party (other than the Trust Agreement and to the extent otherwise provided in Section 6.1 of this Agreement), solely in its capacity as trustee under the Trust Agreement and not in its individual capacity and that the Trust Company shall not be liable or accountable under any circumstances whatsoever in its individual capacity for or on account of any statements, representations, warranties, covenants or obligations stated to be those of the Owner Trustee, except for its own gross negligence or willful misconduct and as otherwise expressly provided herein or in the other Operative Agreements. (b) Anything to the contrary contained in this Agreement, the Credit Agreement, the Notes or in any other Operative DocumentAgreement notwithstanding, no Certificate Holder officer, director or Owner Trustee shall have shareholder (other than any personal liability whatsoever Credit Party) of any party to any Participant or Operative Agreement (but excluding all Credit Parties which shall be fully liable for all their respective successors and assigns obligations under the Operative Agreements) shall be personally liable in any respect for any claim based on liability or obligation arising hereunder or in respect hereof any other Operative Agreement including without limitation the payment of the principal of, or interest on, the Notes, or for monetary damages for the breach of performance of any of the covenants contained in the Credit Agreement, the Notes, this Agreement, the Security Agreement or any of the other Operative Documents Agreements. The Lenders, the Holders and the Agent agree that, in the event any remedies under any Operative Agreement are pursued, neither the Lenders, the Holders nor the Agent shall have any recourse against any officer, director or arising shareholder (other than any Credit Party) of any party to any Operative Agreement (but excluding all Credit Parties which shall be fully liable for all their obligations under the Operative Agreements), for any deficiency, loss or Claim for monetary damages or otherwise resulting therefrom and recourse shall be had solely and exclusively against the Trust Estate (excluding Excepted Payments) and the Credit Parties (with respect to the Credit Parties' obligations under the Operative Agreements); but nothing contained herein shall be taken to prevent recourse against or the enforcement of remedies against the Trust Estate (excluding Excepted Payments) in respect of any and all liabilities, obligations and undertakings contained herein and/or in any other Operative Agreement. Notwithstanding the provisions of this Section, nothing in any Operative Agreement shall: (i) constitute a waiver, release or discharge of any indebtedness or obligation 57 (A) except for Excepted Payments, misappropriation or misapplication by the Lessor (i.e., application in a manner contrary to any of the Operative Agreements) of any insurance proceeds or condemnation award paid or delivered to the Lessor by any Person other than the Agent, (B) except for Excepted Payments, any deposits or any escrows or amounts owed by the Construction Agent under the Agency Agreement held by the Lessor or (C) except for Excepted Payments, any rent or other income received by the Lessor from any Credit Party that is not turned over to the Agent; or (iv) affect or in any way from limit the transactions contemplated hereby Agent's rights and remedies under any Operative Agreement with respect to the Rents and rights and powers of the Agent under the Operative Agreements or thereby and recourse, if any, shall be solely had to obtain a judgment against such Certificate Holderthe Lessee's interest in the Properties or the Agent's rights and powers to obtain a judgment against the Lessor Trust; or any Credit Party (provided, however, that each Certificate Holder and Owner Trustee no deficiency judgment or other money judgment shall be liable in its individual capacity (a) for its own willful misconduct or gross negligence, (b) breach of enforced against any of its representations, warranties or covenants under the Operative Documents, (c) with respect to Certificate Holders, for any Tax based on or measured by any fees, commission or compensation received by a Certificate Holder for acting as a Certificate Holder as contemplated by the Operative Documents, or (d) any Lessor Liens attributable to it. It is understood and agreed that, except as provided in the preceding sentence: (i) no Certificate Holder or Owner Trustee shall have any personal liability under any of the Operative Documents as a result of acting pursuant to and consistent with any of the Operative Documents; (ii) all obligations of each Certificate Holder and Owner Trustee to any Lender are solely nonrecourse obligations Exculpated Person except to the extent that such Certificate Holder of the Lessor's interest in the Trust Estate (excluding Excepted Payments) or Owner Trustee has received payment from others (including, without limitation, obligations with respect to the Loans); extent the Lessor may be liable as otherwise contemplated in clauses (ii) and (iii) all such personal liability of any Certificate Holder and Owner Trustee is expressly waived and released as a condition of, and as consideration for, the execution and delivery of the Operative Documents by such Certificate Holder and Owner Trusteethis Section 12.9(b)). (b) No Participant shall have any obligation to any other Participant or to the Lessee, the Certificate Holders or the Lenders with respect to transactions contemplated by the Operative Documents, except those obligations of such Participant expressly set forth in the Operative Documents or except as set forth in the instruments delivered in connection therewith, and no Participant shall be liable for performance by any other party hereto of such other party's obligations under the Operative Documents except as otherwise so set forth.

Appears in 1 contract

Samples: Participation Agreement (American Oncology Resources Inc /De/)

Liability Limited. (a) The parties hereto agree that Anything to the contrary contained in any Operative Agreement notwithstanding, except as specifically set forth herein stated in this Section 12.9 below or as expressly provided in any Operative Agreement, no Exculpated Person shall be personally liable in any respect for any liability or obligation arising hereunder or in any other Operative DocumentAgreement including the payment of the principal and interest regarding the Loans, no Certificate Holder or Owner Trustee for monetary damages for the breach of performance of any of the covenants contained in the Operative Agreements. The Mortgage Lenders, the Credit Lenders, the Lessor and the Agent agree that, in the event any remedies under any Operative Agreement are pursued, none of the Lessor, the Mortgage Lenders, the Credit Lenders or the Agent shall have any personal liability whatsoever to recourse against any Participant or their respective successors and assigns Exculpated Person, for any claim based on deficiency, loss or in respect hereof Claim for monetary damages or any of the other Operative Documents or arising in any way from the transactions contemplated hereby or thereby otherwise resulting therefrom and recourse, if any, recourse shall be had solely had and exclusively against such Certificate Holder's the Lessor’s interest in the Lessor TrustTrust Property, and the assets of the Credit Parties (with respect to the Credit Parties’ obligations under the Operative Agreements); provided, however, that each Certificate Holder and Owner Trustee but nothing contained herein shall be liable in its individual capacity taken to prevent recourse against or the enforcement of remedies against (a) for its own willful misconduct or gross negligencethe Lessor’s interest in the Trust Property in respect of any and all liabilities, obligations and undertakings contained herein and/or in any other Operative Agreement; (b) breach of the Lessor for any of its representations, warranties obligations arising on a full recourse basis; or covenants under the Operative Documents, (c) the Lessor or any other Person for gross negligence or willful misconduct (other than any gross negligence or willful misconduct imputed to the Lessor from any Person other than the Lessor or any Affiliate of the Lessor (excepting the Agent)). Notwithstanding the provisions of this Section, nothing in any Operative Agreement shall: (w) constitute a waiver, release or discharge of any indebtedness or obligation evidenced by the Notes arising under any Operative Agreement or secured by any Operative Agreement, but the same shall continue until paid or discharged; (x) relieve any Exculpated Person from liability and responsibility for (but only to the extent of the damages arising by reason of): active waste knowingly committed by any Exculpated Person with respect to Certificate Holdersthe Property, any fraud, gross negligence or willful misconduct on the part of any Exculpated Person (other than any fraud, gross negligence or willful misconduct imputed to such Exculpated Person from any Person other than an Affiliate of such Exculpated Person (excepting the Agent)); (y) relieve any Exculpated Person from liability and responsibility for any Tax based on (but only to the extent of the moneys misappropriated, misapplied or measured by any fees, commission or compensation received by a Certificate Holder for acting as a Certificate Holder as contemplated by the Operative Documents, or (d) any Lessor Liens attributable to it. It is understood and agreed that, except as provided in the preceding sentence: not turned over) (i) no Certificate Holder except for Excepted Payments, misappropriation or Owner Trustee shall have any personal liability under misapplication by the Lessor (i.e., application in a manner contrary to any of the Operative Documents as a result Agreements) of acting pursuant any insurance proceeds or condemnation award paid or delivered to and consistent with the Lessor by any of Person other than the Operative Documents; Agent, (ii) all obligations except for Excepted Payments, any rent or other income received by the Lessor from any Credit Party that is not turned over to the Agent, or (iii) except for Excepted Payments, any deposits or any escrows or amounts owed by the Construction Agent under the Agency Agreement held by the Lessor; or (z) affect or in any way limit the Agent’s rights and remedies under any Operative Agreement with respect to the Rents (other than Excepted Payments) and rights and powers of each Certificate Holder the Agent under the Operative Agreements or to obtain a judgment against the Lessee’s interest in the Property or the Agent’s rights and Owner Trustee powers to obtain a judgment against the Lessor or any Lender are solely nonrecourse obligations Credit Party (provided, that no deficiency judgment or other money judgment shall be enforced against any Exculpated Person except to the extent that such Certificate Holder of the Lessor’s interest in the Trust Property or Owner Trustee has received payment from others (including, without limitation, obligations with respect to the Loans); and (iii) all such personal liability of any Certificate Holder and Owner Trustee is expressly waived and released extent the Lessor may be liable as a condition of, and as consideration for, the execution and delivery of the Operative Documents by such Certificate Holder and Owner Trustee. otherwise contemplated in clauses (b) No Participant shall have any obligation to any other Participant or to the Lessee, the Certificate Holders or the Lenders with respect to transactions contemplated by the Operative Documents, except those obligations and (c) of such Participant expressly set forth in the Operative Documents or except as set forth in the instruments delivered in connection therewith, and no Participant shall be liable for performance by any other party hereto of such other party's obligations under the Operative Documents except as otherwise so set forththis Section 12.9).

Appears in 1 contract

Samples: Participation Agreement (Nvidia Corp)

Liability Limited. (a) The parties hereto Agent, the Lessee and the Holders each acknowledge and agree that the Owner Trustee is (except as specifically otherwise expressly provided herein or therein) entering into this Agreement and the other Operative Agreements to which it is a party (other than the Trust Agreement and other than as set forth in SECTION 7.2 of this Agreement), solely in its capacity as trustee under the Trust Agreement and not in its individual capacity and that Trust Company shall not be liable or accountable under any circumstances whatsoever in its individual capacity for or on account of any statements, representations, warranties, covenants or obligations stated to be those of the Owner Trustee, except for its own gross negligence or willful misconduct and except as otherwise expressly provided herein or in the other Operative Agreements. (b) Anything to the contrary contained in this Agreement, the Credit Agreement, the Notes or in any other Operative DocumentAgreement notwithstanding, no Certificate neither the Lessor nor any Holder (in its capacity as a Holder) nor any officer, director, shareholder, or Owner Trustee partner thereof, nor any of the successors or assigns of the foregoing (all such Persons being hereinafter referred to collectively as the "Exculpated Persons"), shall have be personally liable in any personal liability whatsoever to any Participant or their respective successors and assigns respect for any claim based on liability or obligation hereunder or under any other Operative Agreement including the payment of the principal of, or interest on, the Notes, or for monetary damages for the breach of performance of any of the covenants contained in respect hereof the Credit Agreement, the Notes, this Agreement, the Security Agreement or any of the other Operative Documents Agreements. The Agent (for itself and on behalf of the Lenders) agrees that, in the event the Agent or arising any Lender pursues any remedies available to them under the Credit Agreement, the Notes, this Agreement, the Security Agreement, the Mortgage Instruments or under any other Operative Agreement, neither the Lenders nor the Agent shall have any recourse against any Exculpated Person, for any deficiency, loss or Claim for monetary damages or otherwise resulting therefrom, and recourse shall be had solely and exclusively against the Trust Estate and the Lessee (with respect to the Lessee's obligations under the Lease, the Participation Agreement and the Agency Agreement); but nothing contained herein shall be taken to prevent recourse against or the enforcement of remedies against the Trust Estate in respect of any and all liabilities, obligations and undertakings contained herein, in the Credit Agreement, in the Notes, in the Security Agreement, the Mortgage Instruments or in any other Operative Agreement. Notwithstanding the provisions of this Section, nothing in this Agreement, the Credit (a) misappropriation or misapplication by such Lessor (I.E., application in a manner contrary to any Operative Agreement) of any insurance proceeds or condemnation award paid or delivered to such Lessor by any Person other than the Agent, (b) any deposits or any escrows or amounts owed by the Lessee under the Agency Agreement held by such Lessor or (c) any rents or other income received by such Lessor from the Lessee that are not turned over to the Agent; or (iv) affect or in any way from limit the transactions contemplated hereby Agent's rights and remedies under any Operative Agreement with respect to the Rents and its rights thereunder or thereby and recourse, if any, shall be solely had its right to obtain a judgment against such Certificate Holderthe Lessor's interest in the Lessor Trust; provided, however, that each Certificate Holder and Owner Trustee shall be liable in its individual capacity (a) for its own willful misconduct or gross negligence, (b) breach of any of its representations, warranties or covenants under the Operative Documents, (c) with respect to Certificate Holders, for any Tax based on or measured by any fees, commission or compensation received by a Certificate Holder for acting as a Certificate Holder as contemplated by the Operative Documents, or (d) any Lessor Liens attributable to it. It is understood and agreed that, except as provided in the preceding sentence: (i) no Certificate Holder or Owner Trustee shall have any personal liability under any of the Operative Documents as a result of acting pursuant to and consistent with any of the Operative Documents; (ii) all obligations of each Certificate Holder and Owner Trustee to any Lender are solely nonrecourse obligations except to the extent that such Certificate Holder or Owner Trustee has received payment from others (including, without limitation, obligations with respect to the Loans); and (iii) all such personal liability of any Certificate Holder and Owner Trustee is expressly waived and released as a condition of, and as consideration for, the execution and delivery of the Operative Documents by such Certificate Holder and Owner TrusteeProperties. (b) No Participant shall have any obligation to any other Participant or to the Lessee, the Certificate Holders or the Lenders with respect to transactions contemplated by the Operative Documents, except those obligations of such Participant expressly set forth in the Operative Documents or except as set forth in the instruments delivered in connection therewith, and no Participant shall be liable for performance by any other party hereto of such other party's obligations under the Operative Documents except as otherwise so set forth.

Appears in 1 contract

Samples: Participation Agreement (Tech Data Corp)

Liability Limited. (a) The parties hereto Lenders, the Agent, the Credit Parties, the Owner Trustee and the Holders each acknowledge and agree that the Owner Trustee is (except as specifically set forth otherwise expressly provided herein or therein) entering into this Agreement and the other Operative Agreements to which it is a party (other than the Trust Agreement and to the extent otherwise provided in Section 6.1 of this Agreement), solely in its capacity as trustee under the Trust Agreement and not in its individual capacity and that the Trust Company shall not be liable or accountable under any circumstances whatsoever in its individual capacity for or on account of any statements, representations, warranties, covenants or obligations stated to be those of the Owner Trustee, except for its own gross negligence or willful misconduct and as otherwise expressly provided herein or in the other Operative Agreements. (b) Anything to the contrary contained in this Agreement, the Credit Agreement, the Notes or in any other Operative DocumentAgreement notwithstanding, but subject to the exceptions set forth in the definition of "Exculpated Person" in Appendix A to this Agreement, no Certificate Holder or Owner Trustee Exculpated Person shall have be personally liable in any personal liability whatsoever to any Participant or their respective successors and assigns respect for any claim based on liability or obligation arising hereunder or in respect hereof any other Operative Agreement including without limitation the payment of the principal of, or interest on, the Notes, or for monetary damages for the breach of performance of any of the covenants contained in the Credit Agreement, the Notes, this Agreement, the Security Agreement or any of the other Operative Documents or arising in any way from Agreements. The Lenders, the transactions contemplated hereby or thereby Holders and recoursethe Agent agree that, if any, shall be solely had against such Certificate Holder's interest in the Lessor Trust; provided, however, that each Certificate Holder and Owner Trustee shall be liable in its individual capacity (a) for its own willful misconduct or gross negligence, (b) breach of event any of its representations, warranties or covenants under the Operative Documents, (c) with respect to Certificate Holders, for any Tax based on or measured by any fees, commission or compensation received by a Certificate Holder for acting as a Certificate Holder as contemplated by the Operative Documents, or (d) any Lessor Liens attributable to it. It is understood and agreed that, except as provided in the preceding sentence: (i) no Certificate Holder or Owner Trustee shall have any personal liability remedies under any of Operative Agreement are pursued, neither the Operative Documents as a result of acting pursuant to and consistent with any of the Operative Documents; (ii) all obligations of each Certificate Holder and Owner Trustee to any Lender are solely nonrecourse obligations except to the extent that such Certificate Holder or Owner Trustee has received payment from others (includingLenders, without limitation, obligations with respect to the Loans); and (iii) all such personal liability of any Certificate Holder and Owner Trustee is expressly waived and released as a condition of, and as consideration for, the execution and delivery of the Operative Documents by such Certificate Holder and Owner Trustee. (b) No Participant shall have any obligation to any other Participant or to the Lessee, the Certificate Holders or the Lenders with respect to transactions contemplated by the Operative Documents, except those obligations of such Participant expressly set forth in the Operative Documents or except as set forth in the instruments delivered in connection therewith, and no Participant shall be liable for performance by any other party hereto of such other party's obligations under the Operative Documents except as otherwise so set forth.the

Appears in 1 contract

Samples: Participation Agreement (Shurgard Storage Centers Inc)

Liability Limited. (a) The parties hereto agree that Anything to the contrary contained in any Operative Agreement notwithstanding, except as specifically set forth herein stated in this Section 12.9 below or as expressly provided in any Operative Agreement, no Exculpated Person shall be personally liable in any respect for any liability or obligation arising hereunder or in any other Operative DocumentAgreement including the payment of the principal and interest regarding the Loans, no Certificate Holder or Owner Trustee shall have any personal liability whatsoever to any Participant or their respective successors and assigns for any claim based on or in respect hereof or monetary damages for the breach of performance of any of the other Operative Documents or arising in any way from the transactions contemplated hereby or thereby and recourse, if any, shall be solely had against such Certificate Holder's interest covenants contained in the Operative Agreements. The Mortgage Lenders, the Credit Lenders, the Lessor Trust; provided, however, that each Certificate Holder and Owner Trustee shall be liable in its individual capacity (a) for its own willful misconduct or gross negligence, (b) breach of any of its representations, warranties or covenants under the Operative Documents, (c) with respect to Certificate Holders, for any Tax based on or measured by any fees, commission or compensation received by a Certificate Holder for acting as a Certificate Holder as contemplated by the Operative Documents, or (d) any Lessor Liens attributable to it. It is understood and agreed Agent agree that, except as provided in the preceding sentence: event any remedies under any Operative Agreement are pursued, none of the Lessor, the Mortgage Lenders, the Credit Lenders or the Agent (i) no Certificate Holder except for Excepted Payments, misappropriation or Owner Trustee shall have any personal liability under misapplication by the Lessor (i.e., application in a manner contrary to any of the Operative Documents as a result Agreements) of acting pursuant any insurance proceeds or condemnation award paid or delivered to and consistent with the Lessor by any of Person other than the Operative Documents; Agent, (ii) all obligations except for Excepted Payments, any rent or other income received by the Lessor from any Credit Party that is not turned over to the Agent, or (iii) except for Excepted Payments, any deposits or any escrows or amounts owed by the Construction Agent under the Agency Agreement held by the Lessor; or (z) affect or in any way limit the Agent’s rights and remedies under any Operative Agreement with respect to the Rents (other than Excepted Payments) and rights and powers of each Certificate Holder the Agent under the Operative Agreements or to obtain a judgment against the Lessee’s interest in the Property or the Agent’s rights and Owner Trustee powers to obtain a judgment against the Lessor or any Lender are solely nonrecourse obligations Credit Party (provided, that no deficiency judgment or other money judgment shall be enforced against any Exculpated Person except to the extent that such Certificate Holder of the Lessor’s interest in the Trust Property or Owner Trustee has received payment from others (including, without limitation, obligations with respect to the Loans); and (iii) all such personal liability of any Certificate Holder and Owner Trustee is expressly waived and released extent the Lessor may be liable as a condition of, and as consideration for, the execution and delivery of the Operative Documents by such Certificate Holder and Owner Trustee. otherwise contemplated in clauses (b) No Participant shall have any obligation to any other Participant or to the Lessee, the Certificate Holders or the Lenders with respect to transactions contemplated by the Operative Documents, except those obligations and (c) of such Participant expressly set forth in the Operative Documents or except as set forth in the instruments delivered in connection therewith, and no Participant shall be liable for performance by any other party hereto of such other party's obligations under the Operative Documents except as otherwise so set forththis Section 12.9).

Appears in 1 contract

Samples: Participation Agreement (Nvidia Corp)

Liability Limited. (a) The parties hereto agree that except as specifically set forth herein Anything to the contrary contained in this Agreement, the Note Purchase Agreement, Mortgage Note Loan Agreement, the Notes or in any other Operative DocumentAgreement notwithstanding, no Certificate Holder or Owner Trustee Exculpated Person shall have be personally liable in any personal liability whatsoever to any Participant or their respective successors and assigns respect for any claim based on liability or obligation arising hereunder or in respect hereof any other Operative Agreement including without limitation the payment of the principal of, or interest on, the Notes, or for monetary damages for the breach of performance of any of the covenants contained in the Note Purchase Agreement, Mortgage Note Loan Agreement, the Notes, this Agreement or any of the other Operative Documents Agreements. The Financing Parties agree that, in the event any remedies under any Operative Agreement are pursued, neither the Primary Financing Parties nor the Agent shall have any recourse against any (A) except for Excepted Payments, misappropriation or arising misapplication by the Lessor (i.e., application in a manner contrary to any of the Operative Agreements) of any insurance proceeds or condemnation award paid or delivered to the Lessor by any Person other than the Agent, (B) except for Excepted Payments, any deposits or any escrows or amounts held by the Lessor or (C) except for Excepted Payments, any rent or other income or funds received by the Lessor from the Lessee that are not turned over to the Agent; (iv) affect or in any way from limit the transactions contemplated hereby Agent's rights and remedies under any Operative Agreement with respect to the Rents and rights and powers of the Agent under the Operative Agreements or thereby and recourse, if any, shall be solely had to obtain a judgment against such Certificate Holderthe Lessee's interest in the Property or the Agent's rights and powers to obtain a judgment against the Lessor Trustor the Lessee; provided, however, that each Certificate Holder or (v) relieve any Exculpated Person from liability and Owner Trustee shall be liable in its individual capacity responsibility (a) for its own willful misconduct or gross negligence, (b) breach of any of its representations, warranties or covenants under the Operative Documents, (cA) with respect to Certificate Holders, for any Tax based on or measured by any fees, commission or compensation received by a Certificate Holder for acting as a Certificate Holder as contemplated by such Person's obligations concerning Lessor Liens pursuant to Section 8.2(a) and the Operative Documents, last sentence of Section 8.9(a) hereof or (dB) any Lessor Liens to the extent such liability or responsibility is attributable to it. It is understood and agreed thatany representation or warranty of any Exculpated Person contained in Section 6.1 hereof that was false or inaccurate in any material way when made (provided, except as provided in the preceding sentence: (i) that no Certificate Holder deficiency judgment or Owner Trustee other money judgment shall have be enforced against any personal liability under any of the Operative Documents as a result of acting pursuant to and consistent with any of the Operative Documents; (ii) all obligations of each Certificate Holder and Owner Trustee to any Lender are solely nonrecourse obligations Exculpated Person except to the extent that such Certificate Holder of the Borrower's Interest (excluding Excepted Payments) or Owner Trustee has received payment from others (including, without limitation, obligations with respect to the Loansextent the Lessor may be liable as otherwise contemplated in clauses (ii); and , (iii) all such personal liability or (v) of any Certificate Holder and Owner Trustee is expressly waived and released as a condition of, and as consideration for, the execution and delivery of the Operative Documents by such Certificate Holder and Owner Trusteethis Section 12.9(b)). (b) No Participant shall have any obligation to any other Participant or to the Lessee, the Certificate Holders or the Lenders with respect to transactions contemplated by the Operative Documents, except those obligations of such Participant expressly set forth in the Operative Documents or except as set forth in the instruments delivered in connection therewith, and no Participant shall be liable for performance by any other party hereto of such other party's obligations under the Operative Documents except as otherwise so set forth.

Appears in 1 contract

Samples: Participation Agreement (Convergys Corp)