Common use of Limitation of Recourse Clause in Contracts

Limitation of Recourse. There shall be full recourse to the Borrower and to all of its assets for the liabilities of the Borrower under this Credit Agreement and the other Financing Documents and its other Secured Obligations, but in no event shall any of the Financing Parties have any claims with respect to the Transactions contemplated under the Transaction Documents against the Sponsor, the Pledgor or any of the Sponsor’s or Pledgor’s Affiliates (other than any Borrower Party), or in either case any of their respective shareholders, officers, directors, employees, representatives or agents (collectively, the “Non-Recourse Parties”), provided, that the foregoing shall not: (a) constitute a waiver, release or discharge (or otherwise impair the enforceability) of any of the Secured Obligations, or of any of the terms, covenants, conditions, or provisions of this Credit Agreement or any other Financing Document and the same shall continue (but without personal liability of the Non-Recourse Parties) until fully paid, discharged, observed, or performed; (b) constitute a waiver, release or discharge of any Lien purported to be created pursuant to any Security Document (or otherwise impair the ability of any Secured Party to realize or foreclose upon any Collateral); (c) limit or restrict the right of the Administrative Agent, the Collateral Agent or any other Secured Party (or any assignee, beneficiary or successor to any of them) to name any Borrower Party or any other person as a defendant in any action or suit for a judicial foreclosure or for the exercise of any other remedy under or with respect to this Credit Agreement or any other Financing Document, or for injunction or specific performance, so long as no judgment in the nature of a deficiency judgment shall be enforced against any Non-Recourse Party, except as set forth in other provisions of this Section 11.17; (d) in any way limit or restrict any right or remedy of the Administrative Agent, the Collateral Agent or any other Financing Party (or any assignee or beneficiary thereof or successor thereto) with respect to, and each Non-Recourse Party shall remain fully liable to the extent that it would otherwise be liable for its own actions with respect to, any fraud (which shall not include innocent or negligent misrepresentation), wilful misrepresentation, or misappropriation of revenues, profits of or proceeds from each of the Project or any Collateral, that should or would have been paid as provided herein or paid or delivered to the Administrative Agent, the Collateral Agent or any other Financing Party (or any assignee or beneficiary thereof or successor thereto) towards any payment required under this Credit Agreement or any other Financing Document; or (e) affect or diminish in any way or constitute a waiver, release or discharge of any specific written obligation, covenant, or agreement made by any of the Non-Recourse Parties (or any security granted by the Non-Recourse Parties in support of the obligations of any person) under any Financing Document (including the Pledge Agreements) or as security for the Secured Obligations. The limitations on recourse set forth in this Section 11.17 shall survive the termination of this Credit Agreement, the termination of all Commitments and the full payment and performance of the Secured Obligations under this Credit Agreement and the other Financing Documents.

Limitation of Recourse. There (a) The indemnification provided by Section 10.1(a) shall be full the sole and exclusive remedy for any Losses of the Parent Indemnified Parties with respect to any misrepresentation or inaccuracy in, or breach of, any representations or warranties or any breach or failure in performance of any covenants or agreements made by the Company in this Agreement or in any exhibit or schedules hereto or any certificate delivered hereunder, other than for breach of the representations and covenants contained in any Letter of Transmittal. Recovery from the Escrow Account, solely to the extent of the funds therein and pursuant to Section 10.1, constitutes Parent Indemnified Parties’ sole and exclusive source of funds for payment of the indemnification provided in Section 10.1(a) and for any other Losses or other claims relating to or arising from this Agreement or in connection with the transactions contemplated hereby or any exhibit, schedule or certificate delivered hereunder and the Parent Indemnified Parties shall have no recourse to the Borrower and to all or remedy against any of its assets Stockholders, Warrantholders Eligible Optionholders or any of their respective Affiliates for the liabilities any such indemnification or any other Loss, other than for breach of the Borrower under representations and covenants contained in any Letter of Transmittal. (b) Notwithstanding anything in this Credit Agreement and Agreement, no Parent Indemnified Party shall have any right to set off any amount or any monies otherwise to be paid or delivered to any of the Stockholders, Eligible Optionholders or Warrantholders of the Company, against anything, including, without limitation, any monies owed by any of the Stockholders, Eligible Optionholders or Warrantholders of the Company. The exercise of such set off will constitute a material breach of this or any other Financing Documents and its other Secured Obligationsagreement between any of the Parties. (c) Notwithstanding anything in this Article 10 to the contrary, but in no event shall any of the Financing limitations on indemnification set forth in this Article 10 be applicable to any fraud or for breach of any representation or warranty in any of the Letters of Transmittal. (d) The Parent Indemnified Parties have any claims shall only be indemnified and held harmless from the Escrow Account for Losses incurred with respect to a breach of the Transactions contemplated under the Transaction Documents against the Sponsorrepresentation contained in Section 6.21(s) (i) after taking into account any limitations on, the Pledgor or reductions of, such net operating losses resulting from any of the Sponsor’s Transactions, (ii) after taking into account the actual expiration dates applicable to such net operating losses and any increase to such net operating losses resulting from any “net unrealized built-in gain” that is utilized by the Company on or Pledgor’s Affiliates (other than any Borrower Party), or in either case any of their respective shareholders, officers, directors, employees, representatives or agents (collectively, after the “Non-Recourse Parties”), provided, that Closing Date to increase the foregoing shall not: (a) constitute a waiver, release or discharge (or otherwise impair the enforceability) of any of the Secured Obligations, or of any of the terms, covenants, conditions, or provisions of this Credit Agreement or any other Financing Document and the same shall continue (but without personal liability of the Non-Recourse Parties) until fully paid, discharged, observed, or performed; (b) constitute a waiver, release or discharge of any Lien purported to be created pursuant to any Security Document (or otherwise impair the ability of any Secured Party to realize or foreclose upon any Collateral); (c) limit or restrict the right of the Administrative Agent, the Collateral Agent or any other Secured Party (or any assignee, beneficiary or successor to any of them) to name any Borrower Party or any other person as a defendant in any action or suit for a judicial foreclosure or for the exercise of any other remedy under or with respect to this Credit Agreement or any other Financing Document, or for injunction or specific performance, so long as no judgment in the nature of a deficiency judgment shall be enforced against any Non-Recourse Party, except as set forth in other provisions of this Section 11.17; (d) in any way limit or restrict any right or remedy of the Administrative Agent, the Collateral Agent or any other Financing Party (or any assignee or beneficiary thereof or successor thereto) with respect to382 limitation, and each Non-Recourse Party shall remain fully liable (iii) only to the extent that it (x) the actual Tax liability of the Company or Parent’s Affiliated Group or any successor would otherwise be liable not have been increased but for a breach of such representation or if such representation had been accurate or (y) Parent’s Affiliated Group or any successor would not have utilized its own actions with respect tonet operating losses but for a breach of such representation or if such representation had been accurate; provided, any fraud however, that no indemnification shall be available under (which shall not include innocent or negligent misrepresentation), wilful misrepresentation, or misappropriation of revenues, profits of or proceeds from each of y) to the Project extent that the NOLs utilized by Parent’s Affiliated Group or any Collateralsuccessor, that should or as applicable, would have been paid as provided herein or paid or delivered to expired in the Administrative Agent, the Collateral Agent or any other Financing Party (or any assignee or beneficiary thereof or successor thereto) towards any payment required under this Credit Agreement or any other Financing Document; or (e) affect or diminish taxable year in any way or constitute a waiver, release or discharge of any specific written obligation, covenant, or agreement made by any of the Non-Recourse Parties (or any security granted by the Non-Recourse Parties in support of the obligations of any person) under any Financing Document (including the Pledge Agreements) or as security for the Secured Obligations. The limitations on recourse set forth in this Section 11.17 shall survive the termination of this Credit Agreement, the termination of all Commitments and the full payment and performance of the Secured Obligations under this Credit Agreement and the other Financing Documentswhich utilized.

Limitation of Recourse. (a) There shall be full recourse to the Borrower and the Guarantors (to the extent provided for in the applicable Guaranties) and to all of its such Borrower Affiliate Party’s assets for the liabilities of the Borrower under this Credit Agreement and the other Financing Loan Documents and its other Secured ObligationsObligations of any Borrower, but in no event shall any officer, director or holder of any equity interest in the Borrower be personally liable or obligated for such liabilities and Obligations of the Financing Parties have Borrower. Nothing contained herein shall affect or diminish any claims with respect to the Transactions contemplated under the Transaction Documents rights of any Person against the Sponsorany other Person for such other Person’s fraud, the Pledgor willful misrepresentation, gross negligence or any willful misconduct. (b) Each of the Sponsor’s or Pledgor’s Affiliates (other than any Lenders for itself and its successors and assigns acknowledges and agrees that Cargill is not a party to this Agreement and is a legal entity separate from the Borrower Party)and the Borrower Affiliate Parties, or in either case and that Cargill has not, and does not, assume any of their respective shareholdersobligations and has no obligation to contribute capital, officers, directors, employees, representatives or agents (collectively, the “Non-Recourse Parties”), provided, that the foregoing shall not: (a) constitute a waiver, release or discharge (or otherwise impair provide financial support, to the enforceability) of Borrower and the Borrower Affiliate Parties or to any other entity in respect of the Secured Obligations, Project or of any of the terms, covenants, conditions, or provisions of this Credit Agreement or any other Financing Document and Plants (except for the same shall continue (but without personal liability of the Non-Recourse Parties) until fully paid, discharged, observed, or performed; (b) constitute a waiver, release or discharge of any Lien purported equity contributions to be created pursuant to any Security Document (or otherwise impair the ability of any Secured Party to realize or foreclose upon any Collateral); (c) limit or restrict the right of the Administrative Agentmade by Cargill Biofuels Investments, the Collateral Agent or any other Secured Party (or any assignee, beneficiary or successor to any of them) to name any Borrower Party or any other person as a defendant in any action or suit for a judicial foreclosure or for the exercise of any other remedy under or with respect to this Credit Agreement or any other Financing Document, or for injunction or specific performance, so long as no judgment in the nature of a deficiency judgment shall be enforced against any Non-Recourse Party, except LLC as set forth in other provisions of this Section 11.17; (d) in any way limit or restrict any right or remedy the Borrower LLC Agreement). Accordingly, each of the Administrative Agent, Lenders is electing to enter into this Agreement without reliance upon the Collateral Agent creditworthiness of Cargill for repayment of the Loans or the Term Loans and without reliance upon any other Financing Party (or any assignee or beneficiary thereof or successor thereto) with undertakings by Cargill in respect to, and each Non-Recourse Party shall remain fully liable to the extent that it would otherwise be liable for its own actions with respect to, any fraud (which shall not include innocent or negligent misrepresentation), wilful misrepresentation, or misappropriation of revenues, profits of or proceeds from each of the Project or any Collateral, that should or would have been paid as provided herein or paid or delivered to the Administrative Agent, the Collateral Agent or any other Financing Party (or any assignee or Plants. Cargill is a third party beneficiary thereof or successor thereto) towards any payment required under this Credit Agreement or any other Financing Document; or (e) affect or diminish in any way or constitute a waiver, release or discharge of any specific written obligation, covenant, or agreement made by any of the Non-Recourse Parties (or any security granted by the Non-Recourse Parties in support of the obligations of any person) under any Financing Document (including the Pledge Agreements) or as security for the Secured Obligations. The limitations on recourse set forth in this Section 11.17 shall survive 10.8(b) and is entitled to rely on and enforce this Section 10.18(b) against the termination parties to this Agreement. For purposes of this Credit AgreementSection 10.18(b), the termination of all Commitments Cargill means and the full payment includes Cargill and performance of the Secured Obligations under this Credit Agreement its Affiliates, including without limitation, Cargill Biofuels Investments, LLC and the other Financing Documents.Cargill Commodities Services, Inc.