Recourse Against Certain Parties. (a) Notwithstanding any contrary provision set forth herein, no claim may be made by the Borrower, the Transferor or the Servicer or any other Person against the Administrative Agent or any Secured Party or their respective Affiliates, directors, officers, employees, attorneys or agents for any special, indirect, consequential or punitive damages in respect to any claim for breach of contract or any other theory of liability arising out of or related to the transactions contemplated by this Agreement, or any act, omission or event occurring in connection therewith; and the Borrower, the Transferor and the Servicer each hereby waives, releases, and agrees not to ▇▇▇ upon any claim for any such damages, whether or not accrued and whether or not known or suspected. (b) Notwithstanding any contrary provision set forth herein, no claim may be made by the Administrative Agent, the Collateral Agent, the Collateral Custodian, any Lender, any Indemnified Party, any other Secured Party or any other Person against the Borrower, the Servicer or the Transferor or their respective Affiliates, directors, officers, employees, attorneys or agents for any special, indirect, consequential or punitive damages in respect to any claim for breach of contract or any other theory of liability arising out of or related to the transactions contemplated by this Agreement, or any act, omission or event occurring in connection therewith; and the Administrative Agent, the Collateral Agent, the Collateral Custodian, each Lender, each Indemnified Party and each other Secured Party each hereby waives, releases, and agrees not to ▇▇▇ upon any claim for any such damages, whether or not accrued and whether or not known or suspected; provided that the Borrower shall remain liable to the Collateral Agent, the Account Bank and the Collateral Custodian for such damages in respect of any USActive 55323723.3 claim brought by any Person (other than the Borrower) arising out of or related to the transactions contemplated by this Agreement. (c) No obligation or liability to any Obligor under any of the Loan Assets is intended to be assumed by the Administrative Agent, the Lenders or any Secured Party under or as a result of this Agreement and the transactions contemplated hereby. (d) The provisions of this Section 12.09 shall survive the termination of this Agreement.
Appears in 1 contract
Sources: Loan and Servicing Agreement (BlackRock TCP Capital Corp.)
Recourse Against Certain Parties. No recourse under or with respect to any obligation, covenant or agreement (a) Notwithstanding any contrary provision set forth hereinincluding, no claim may be made by the Borrowerwithout limitation, the Transferor or the Servicer payment of any fees or any other Person against obligations) of the Administrative Agent Purchaser, any Affected Party or the Seller or any Secured Party or their respective Affiliatesmanager of the Seller as contained in this Agreement, directors, officers, employees, attorneys or agents for any special, indirect, consequential or punitive damages in respect to any claim for breach of contract the Repurchase Documents or any other theory agreement, instrument or document entered into by the Purchaser, any Affected Party, the Seller or any such party pursuant hereto or thereto or in connection herewith or therewith shall be had against any administrator of liability arising out the Purchaser, any Affected Party, the Seller or any manager of the Seller or related to any incorporator, Affiliate, owner, member, partner, stockholder, officer, director or employee of the transactions contemplated Purchaser, any Affected Party, the Seller, or of any such manager or administrator, as such, by the enforcement of any assessment or by any legal or equitable proceeding, by virtue of any statute or otherwise; it being expressly agreed and understood that the agreements of the Purchaser, the Affected Parties or the Seller contained in this Agreement, the Repurchase Documents and all of the other agreements, instruments and documents entered into by it pursuant hereto or thereto or in connection herewith or therewith are, in each case, solely the corporate obligations of the Purchaser, the Affected Parties and the Seller, and that no personal liability whatsoever shall attach to or be incurred by any administrator of the Purchaser, the Affected Parties, the Seller or any actmanager of the Seller or any incorporator, omission owner, member, partner, stockholder, Affiliate, officer, director or event occurring in connection therewith; and employee of the BorrowerPurchaser, the Transferor and Affected Parties or the Servicer each hereby waivesSeller, releases, and agrees not to ▇▇▇ upon any claim for or of any such damagesmanager or administrator, whether or not accrued and whether or not known or suspected.
(b) Notwithstanding any contrary provision set forth hereinas such, no claim may be made by the Administrative Agent, the Collateral Agent, the Collateral Custodian, any Lender, any Indemnified Party, any other Secured Party or any other Person against of them, under or by reason of any of the Borrowerobligations, covenants or agreements of the Purchaser, the Servicer Affected Parties or the Transferor or their respective Affiliates, directors, officers, employees, attorneys or agents for any special, indirect, consequential or punitive damages Seller contained in respect to any claim for breach of contract or any other theory of liability arising out of or related to the transactions contemplated by this Agreement, the Repurchase Documents or in any other such instruments, documents or agreements, or that are implied therefrom, and that any and all personal liability of every such administrator of the Purchaser, any Affected Party or the Seller or any actmanager of the Seller and each incorporator, omission owner, member, partner, stockholder, Affiliate, officer, director or event occurring in connection therewith; and employee of the Administrative AgentPurchaser, the Collateral AgentAffected Parties or the Seller, or of any such manager or administrator, or any of them, for breaches by the Purchaser, the Collateral Custodian, each Lender, each Indemnified Party and each other Secured Party each hereby waives, releases, and agrees not to ▇▇▇ upon any claim for Affected Parties or the Seller of any such damagesobligations, whether covenants or not accrued agreements, which liability may arise either at common law or at equity, by statute or constitution, or otherwise, is hereby expressly waived as a condition of and whether or not known or suspected; provided that in consideration for the Borrower shall remain liable to the Collateral Agent, the Account Bank and the Collateral Custodian for such damages in respect execution of any USActive 55323723.3 claim brought by any Person (other than the Borrower) arising out of or related to the transactions contemplated by this Agreement.
(c) No obligation or liability to any Obligor under any of the Loan Assets is intended to be assumed by the Administrative Agent, the Lenders or any Secured Party under or as a result of this Agreement and the transactions contemplated hereby.
(d) . The provisions of this Section 12.09 13.11 shall survive the termination of this Agreement.
Appears in 1 contract
Sources: Master Repurchase Agreement (Quadra Realty Trust, Inc.)
Recourse Against Certain Parties. (a) Notwithstanding any contrary provision set forth herein, no claim may be made by the Borrower, the Transferor or the Servicer any party hereto or any other Person against the Administrative Agent or any Secured Party party hereto or their respective Affiliates, directors, officers, employees, attorneys or agents for any special, indirect, consequential or punitive damages in respect to any claim for breach of contract or any other theory of liability arising out of or related to the transactions contemplated by this Agreement, or any act, omission or event occurring in connection therewith; and the Borrower, the Transferor and the Servicer each party hereto hereby waives, releases, and agrees not to ▇▇▇ upon any claim for any such damages, whether or not accrued and whether or not known or suspected.
(b) Notwithstanding any contrary provision set forth herein, no claim may be made by the Administrative Agent, the Collateral Agent, the Collateral Custodian, any Lender, any Indemnified Party, any other Secured Party or any other Person against the Borrower, the Servicer or the Transferor or their respective Affiliates, directors, officers, employees, attorneys or agents for any special, indirect, consequential or punitive damages in respect to any claim for breach of contract or any other theory of liability arising out of or related to the transactions contemplated by this Agreement, or any act, omission or event occurring in connection therewith; and the Administrative Agent, the Collateral Agent, the Collateral Custodian, each Lender, each Indemnified Party and each other Secured Party each hereby waives, releases, and agrees not to ▇s▇▇ upon any claim for any such damages, whether or not accrued and whether or not known or suspected; provided that this sentence shall in no way limit or vitiate the indemnity obligations of the Borrower shall remain liable or the Servicer hereunder with respect to the Collateral Agenta claim for special, the Account Bank and the Collateral Custodian for such indirect, consequential or punitive damages in respect of against any USActive 55323723.3 claim Indemnified Party which is brought by any a Person (other than the Borrower) arising out not party hereto or brought in breach of or related to the transactions contemplated by this Agreementprovision.
(cb) No obligation or liability to any Obligor under any of the Loan Assets is intended to be assumed by the Administrative Agent, the Lenders or any Secured Party under or as a result of this Agreement and the transactions contemplated hereby.
(c) No recourse under any obligation, covenant or agreement of the Borrower contained in this Agreement shall be had against any incorporator, stockholder, officer, director, member, manager, employee or agent of the Borrower (solely by virtue of such capacity) by the enforcement of any assessment or by any legal or equitable proceeding, by virtue of any statute or otherwise, other than the limited recourse against those assets pledged by the Transferor or the Borrower pursuant to the applicable Pledge Agreement; it being expressly agreed and understood that this Agreement is solely a corporate obligation of the Borrower, and that no personal liability whatever shall attach to or be incurred by any incorporator, stockholder, officer, director, member, manager, employee or agent of the Borrower (solely by virtue of such capacity) or any of them under or by reason of any of the obligations, covenants or agreements of the Borrower contained in this Agreement, or implied therefrom, and that any and all personal liability for breaches by the Borrower of any of such obligations, covenants or agreements, either at common law or at equity, or by statute, rule or regulation, of every such incorporator, stockholder, officer, director, member, manager, employee or agent is hereby expressly waived as a condition of and in consideration for the execution of this Agreement. Without limitation of the foregoing, no recourse shall be had for the payment of any amount owing in respect of the Advances against the Transferor, the Servicer, the Transferor or any Affiliate, shareholder, manager, officer, director, employee or member of the Borrower, the Transferor, the Servicer or their respective successors or assigns.
(d) The provisions of this Section 12.09 shall survive the termination of this Agreement.
Appears in 1 contract
Sources: Loan and Servicing Agreement (HPS Corporate Lending Fund)
Recourse Against Certain Parties. (a) Notwithstanding any contrary provision set forth herein, no claim may be made by the Borrower, the Transferor or the Servicer or any other Person against the Administrative Agent or any Secured Party or their respective Affiliates, directors, officers, employees, attorneys or agents for any special, indirect, consequential or punitive damages in respect to any claim for breach of contract or any other theory of liability arising out of or related to the transactions contemplated by this Agreement, or any act, omission or event occurring in connection therewith; and the Borrower, the USActive 55125247.5 181 Transferor and the Servicer each hereby waives, releases, and agrees not to ▇▇▇ upon any claim for any such damages, whether or not accrued and whether or not known or suspected.
(b) Notwithstanding any contrary provision set forth herein, no claim may be made by the Administrative Agent, the Collateral Agent, the Collateral Custodian, any Lender, any Indemnified Party, any other Secured Party or any other Person against the Borrower, the Servicer or the Transferor or their respective Affiliates, directors, officers, employees, attorneys or agents for any special, indirect, consequential or punitive damages in respect to any claim for breach of contract or any other theory of liability arising out of or related to the transactions contemplated by this Agreement, or any act, omission or event occurring in connection therewith; and the Administrative Agent, the Collateral Agent, the Collateral Custodian, each Lender, each Indemnified Party and each other Secured Party each hereby waives, releases, and agrees not to ▇▇▇ upon any claim for any such damages, whether or not accrued and whether or not known or suspected; provided that the Borrower shall remain liable to the Collateral Agent, the Account Bank and the Collateral Custodian for such damages in respect of any USActive 55323723.3 claim brought by any Person (other than the Borrower) arising out of or related to the transactions contemplated by this Agreement.
(c) No obligation or liability to any Obligor under any of the Loan Assets is intended to be assumed by the Administrative Agent, the Lenders or any Secured Party under or as a result of this Agreement and the transactions contemplated hereby.
(d) The provisions of this Section 12.09 shall survive the termination of this Agreement.
Appears in 1 contract
Sources: Loan and Servicing Agreement (BlackRock TCP Capital Corp.)
Recourse Against Certain Parties. (a) Notwithstanding any contrary provision set forth herein, no claim may be made by the Borrower, the Transferor or the Servicer or any party hereto against any other Person against the Administrative Agent or any Secured Party party hereto or their respective Affiliates, directors, officers, employees, attorneys or agents for any special, indirect, consequential or punitive damages of any kind whatsoever (including but not limited to lost profits) in respect to any claim for breach of contract or any other theory of liability arising out of or related to the transactions contemplated by this Agreement, or any act, omission or event occurring in connection therewith; and the Borrower, the Transferor and the Servicer each party hereto hereby waives, releases, and agrees not to ▇▇▇ upon any claim for any such damages, whether or not accrued and whether or not known or suspected.
(b) Notwithstanding any contrary provision set forth herein, no claim may be made by the Administrative Agent, the Collateral Agent, the Collateral Custodian, any Lender, any Indemnified Party, any other Secured Party or any other Person against the Borrower, the Servicer or the Transferor or their respective Affiliates, directors, officers, employees, attorneys or agents for any special, indirect, consequential or punitive damages in respect to any claim for breach of contract or any other theory of liability arising out of or related to the transactions contemplated by this Agreement, or any act, omission or event occurring in connection therewith; and the Administrative Agent, the Collateral Agent, the Collateral Custodian, each Lender, each Indemnified Party and each other Secured Party each hereby waives, releases, and agrees not to ▇▇▇ sue upon any claim for any such damages, whether or not accrued and whether or not known or suspected; provided that this sentence shall in no way limit or vitiate the indemnity obligations of the Borrower shall remain liable or the Servicer hereunder with respect to the Collateral Agenta claim for special, the Account Bank and the Collateral Custodian for such indirect, consequential or punitive damages in respect of against any USActive 55323723.3 claim Indemnified Party which is brought by any a Person (other than the Borrower) arising out not party hereto or brought in breach of or related to the transactions contemplated by this Agreementprovision.
(cb) No obligation or liability to any Obligor under any of the Loan Assets is intended to be assumed by the Administrative Agent, the Lenders or any Secured Party under or as a result of this Agreement and the transactions contemplated hereby.
(dc) The provisions of this Section 12.09 shall survive the termination of this Agreement.
(d) The Secured Parties accept and agree that they shall have no recourse under any obligation, covenant or agreement of the Borrower contained in this Agreement against any shareholder, officer or director of the Borrower as such, by the enforcement of any assignment or by any proceeding; it being expressly agreed and understood that this Agreement is a corporate obligation of the Borrower and no liability shall attach to, or be incurred by, the shareholders, officers, agents or directors of the Borrower as such, or any of them, under or by reason of any of the obligations, covenants and agreements of the Borrower contained in this Agreement, or implied therefrom, and that any and all personal liability for breach by the Borrower of any of such obligations, covenants or agreements either at law or by statute or certification of every such shareholder, officer, agent or director is hereby expressly waived by the Secured Parties as
Appears in 1 contract
Recourse Against Certain Parties. No recourse under or with respect to any obligation, covenant or agreement (a) Notwithstanding any contrary provision set forth hereinincluding, no claim may be made by the Borrowerwithout limitation, the Transferor or the Servicer payment of any fees or any other Person against obligations) of the Administrative Agent Trustee, the Facility Agent, the Lender, the Alternate Lender, the Liquidity Facility Providers or any Secured Party or their respective Affiliates, directors, officers, employees, attorneys or agents for any special, indirect, consequential or punitive damages the Credit Support Providers as contained in respect to any claim for breach of contract this Agreement or any other theory agreement, instrument or document entered into by it pursuant hereto or in connection herewith shall be had against any administrator of the Trustee, the Facility Agent, the Lender, the Alternate Lender, the Liquidity Facility Providers or the Credit Support Providers or any incorporator, affiliate, stockholder, officer, employee or director of the Trustee, the Facility Agent, the Lender, the Alternate Lender, the Liquidity Facility Providers or the Credit Support Providers or of any such administrator, as such, by the enforcement of any assessment or by any legal or equitable proceeding, by virtue of any statute or otherwise; it being expressly agreed and understood that the agreements of the Trustee, the Facility Agent, the Lender, the Alternate Lender, the Liquidity Facility Providers and the Credit Support Providers contained in this Agreement and all of the other agreements, instruments and documents entered into by the Trustee, the Facility Agent, the Lender, the Alternate Lender, the Liquidity Facility Providers or the Credit Support Providers pursuant hereto or in connection herewith are, in each case, solely the corporate obligations of the Trustee, the Facility Agent, the Lender, the Alternate Lender, the Liquidity Facility Providers or the Credit Support Providers, as applicable, and that no personal liability arising out whatsoever shall attach to or be incurred by any administrator of the Trustee, the Facility Agent, the Lender, the Alternate Lender, the Liquidity Facility Providers or related to the transactions contemplated by this AgreementCredit Support Providers or any incorporator, stockholder, affiliate, officer, employee or director of the Trustee, the Facility Agent, Lender, the Alternate Lender, the Liquidity Facility Providers or the Credit Support Providers or of any such administrator, as such, or any actother them, omission under or event occurring in connection therewith; and by reason of any of the Borrowerobligations, covenants or agreements of the Trustee, the Transferor and the Servicer each hereby waives, releases, and agrees not to ▇▇▇ upon any claim for any such damages, whether or not accrued and whether or not known or suspected.
(b) Notwithstanding any contrary provision set forth herein, no claim may be made by the Administrative Facility Agent, the Collateral Lender, the Liquidity Facility Providers or the Credit Support Providers contained in this Agreement or in any other such instruments, documents or agreements, or which are implied therefrom, and that any and all personal liability of every such administrator of the Trustee, the Facility Agent, the Collateral Custodian, any Lender, any Indemnified Party, any other Secured Party or any other Person against the BorrowerAlternate Lender, the Servicer Liquidity Facility Providers or the Transferor Credit Support Providers and each incorporator, stockholder, affiliate, officer, employee or their respective Affiliatesdirector of the Trustee, directorsthe Facility Agent, officersthe Lender, employeesthe Alternate Lender, attorneys the Liquidity Facility Providers or agents for the Credit Support Providers or of any special, indirect, consequential or punitive damages in respect to any claim for breach of contract or any other theory of liability arising out of or related to the transactions contemplated by this Agreementsuch administrator, or any actof them, omission or event occurring in connection therewith; and for breaches by the Administrative Trustee, the Facility Agent, the Collateral AgentLender, the Collateral Custodian, each Alternate Lender, each Indemnified Party and each other Secured Party each hereby waives, releases, and agrees not to ▇▇▇ upon any claim for the Liquidity Facility Providers or the Credit Support Providers of any such damagesobligations, whether covenants or not accrued agreements, which liability may arise either at common law or at equity, by statute or constitution, or otherwise, is hereby expressly waived as a condition of and whether or not known or suspected; provided that in consideration for the Borrower shall remain liable to the Collateral Agent, the Account Bank and the Collateral Custodian for such damages in respect execution of any USActive 55323723.3 claim brought by any Person (other than the Borrower) arising out of or related to the transactions contemplated by this Agreement.
(c) No obligation or liability to any Obligor under any of the Loan Assets is intended to be assumed by the Administrative Agent, the Lenders or any Secured Party under or as a result of this Agreement and the transactions contemplated hereby.
(d) . The provisions of this Section 12.09 shall survive the termination of this Agreement.
Appears in 1 contract
Recourse Against Certain Parties. (a) No recourse under or with respect to any obligation, covenant or agreement (including the payment of any fees or any other obligations) of the Facility Servicer, the Portfolio Asset Servicer, the Sponsor, the Administrative Agent, the Lenders or any Secured Party as contained in this Agreement or any other agreement, instrument or document entered into by the Facility Servicer, the Portfolio Asset Servicer, the Sponsor, the Administrative Agent, the Lenders or any Secured Party pursuant hereto or in connection herewith shall be had against any administrator of the Facility Servicer, the Portfolio Asset Servicer, the Sponsor, the Administrative Agent, the Lenders or any Secured Party or any incorporator, affiliate, stockholder, officer, employee or director of the Facility Servicer, the Portfolio Asset Servicer, the Sponsor, the Administrative Agent, the Lenders or any Secured Party or of any such administrator, as such, by the enforcement of any assessment or by any legal or equitable proceeding, by virtue of any statute or otherwise; it being expressly agreed and understood that the agreements of each party hereto contained in this Agreement and all of the other agreements, instruments and documents entered into by the Facility Servicer, the Portfolio Asset Servicer, the Sponsor, the Administrative Agent, the Lenders or any Secured Party pursuant hereto or in connection herewith are, in each case, solely the corporate obligations of such party (and nothing in this Section 10.08 shall be construed to diminish in any way such corporate obligations of such party), and that no personal liability whatsoever shall attach to or be incurred by any administrator of the Administrative Agent, the Lenders or any Secured Party or any incorporator, stockholder, affiliate, officer, employee or director of the Lenders, the Facility Servicer, the Portfolio Asset Servicer, the Sponsor or the Administrative Agent or of any such administrator, as such, or any of them, under or by reason of any of the obligations, covenants or agreements of the Facility Servicer, the Portfolio Asset Servicer, the Sponsor, the Administrative Agent, the Lenders or any Secured Party contained in this Agreement or in any other such instruments, documents or agreements, or are implied therefrom, and that any and all personal liability of every such administrator of the Facility Servicer, the Portfolio Asset Servicer, the Sponsor, the Administrative Agent, the Lenders or any Secured Party and each incorporator, stockholder, affiliate, officer, employee or director of the Facility Servicer, the Portfolio Asset Servicer, the Sponsor, the Administrative Agent, the Lenders or any Secured Party or of any such administrator, or any of them, for breaches by the Facility Servicer, the Portfolio Asset Servicer, the Sponsor, the Administrative Agent, the Lenders or any Secured Party of any such obligations, covenants or agreements, which liability may arise either at common law or in equity, by statute or constitution, or otherwise, is hereby expressly waived as a condition of and in consideration for the execution of this Agreement.
(b) Notwithstanding any contrary provision set forth herein, no claim may be made by the Borrower, the Transferor or the Servicer or any other Person a party hereto against the Administrative Agent another party hereto or any Secured Party or their respective Affiliates, directors, officers, employees, attorneys or agents for any special, indirect, consequential or punitive damages in respect to any claim for breach of contract or any other theory of liability arising out of or related to the transactions contemplated by this Agreement, or any act, omission or event occurring in connection therewith; and the Borrower, the Transferor and the Servicer each hereby waives, releases, and agrees not to ▇▇▇ upon any claim for any such damages, whether or not accrued and whether or not known or suspected.
(b) Notwithstanding any contrary provision set forth herein, no claim may be made by the Administrative Agent, the Collateral Agent, the Collateral Custodian, any Lender, any Indemnified Party, any other Secured Party or any other Person against the Borrower, the Servicer or the Transferor or their respective Affiliates, directors, officers, employees, attorneys or agents for any special, indirect, consequential or punitive damages in respect to any claim for breach of contract or any other theory of liability arising out of or related to the transactions contemplated by this Agreement, or any act, omission or event occurring in connection therewith; and the Administrative Agent, the Collateral Agent, the Collateral Custodian, each Lender, each Indemnified Party and each other Secured Party each party hereto hereby waives, releases, and agrees not to ▇▇▇ upon any claim for any such damages, whether or not accrued and whether or not known or suspected; provided that the Borrower nothing contained in this sentence shall remain liable limit such Person’s indemnification obligations hereunder to the Collateral Agent, the Account Bank and the Collateral Custodian for extent such damages are included in respect of any USActive 55323723.3 a third party claim brought by any Person (other than the Borrower) arising out of or related in connection with which an indemnified party is entitled to the transactions contemplated by this Agreementindemnification hereunder.
(c) No obligation or liability to any Obligor under any of the Loan Assets is intended to be assumed by the Facility Servicer, the Portfolio Asset Servicer, the Collateral Custodian, the Administrative Agent, the Lenders or any Secured Party under or as a result of this Agreement and Agreement, the other Transaction Documents or the transactions contemplated hereby.
(d) The provisions of this Section 12.09 shall 10.08 survive the termination of this Agreement.
Appears in 1 contract
Sources: Loan and Servicing Agreement (Cim Real Estate Finance Trust, Inc.)
Recourse Against Certain Parties. (a) Notwithstanding any contrary provision set forth herein, no claim may be made by the Borrower, the Transferor or the Servicer or any party hereto against any other Person against the Administrative Agent or any Secured Party party hereto or their respective Affiliates, directors, officers, employees, attorneys or agents for any special, indirect, consequential or punitive damages of any kind whatsoever (including but not limited to lost profits) in respect to any claim for breach of contract or any other theory of liability arising out of or related to the transactions contemplated by this Agreement, or any act, omission or event occurring in connection therewith; and the Borrower, the Transferor and the Servicer each party hereto hereby waives, releases, and agrees not to ▇▇▇ upon any claim for any such damages, whether or not accrued and whether or not known or suspected.
(b) Notwithstanding any contrary provision set forth herein, no claim may be made by the Administrative Agent, the Collateral Agent, the Collateral Custodian, any Lender, any Indemnified Party, any other Secured Party or any other Person against the Borrower, the Servicer or the Transferor or their respective Affiliates, directors, officers, employees, attorneys or agents for any special, indirect, consequential or punitive damages in respect to any claim for breach of contract or any other theory of liability arising out of or related to the transactions contemplated by this Agreement, or any act, omission or event occurring in connection therewith; and the Administrative Agent, the Collateral Agent, the Collateral Custodian, each Lender, each Indemnified Party and each other Secured Party each hereby waives, releases, and agrees not to ▇▇▇ sue upon any claim for any such damages, whether or not accrued and whether or not known or suspected; provided that this sentence shall in no way limit or vitiate the indemnity obligations of the Borrower shall remain liable or the Servicer hereunder with respect to the Collateral Agenta claim for special, the Account Bank and the Collateral Custodian for such indirect, consequential or punitive damages in respect of against any USActive 55323723.3 claim Indemnified Party which is brought by any a Person (other than the Borrower) arising out not party hereto or brought in breach of or related to the transactions contemplated by this Agreementprovision.
(cb) No obligation or liability to any Obligor under any of the Loan Assets is intended to be assumed by the Administrative Agent, the Lenders or any Secured Party under or as a result of this Agreement and the transactions contemplated hereby.
(dc) The provisions of this Section 12.09 shall survive the termination of this Agreement.
(d) The Secured Parties accept and agree that they shall have no recourse under any obligation, covenant or agreement of the Borrower contained in this Agreement against any shareholder, officer or director of the Borrower as such, by the enforcement of any assignment or by any proceeding; it being expressly agreed and understood that this Agreement is a corporate obligation of the Borrower and no liability shall attach to, or be incurred by, the shareholders, officers, agents or directors of the Borrower as such, or any of them, under or by reason of any of the obligations, covenants and agreements of the Borrower contained in this Agreement, or implied therefrom, and that any and all personal liability for breach by the Borrower of any of such obligations, covenants or agreements either at law or by statute or certification of every such shareholder, officer, agent or director is hereby expressly waived by the Secured Parties as a condition of any consideration of the execution of this Agreement. The foregoing non-recourse provisions shall in no way affect any rights the Secured Parties might have against any incorporator, affiliate, stockholder, director, officer or employee of the Borrower or any other Person to the extent of any fraud, misappropriation, embezzlement or any other financial crime constituting a felony by such Person.
Appears in 1 contract
Recourse Against Certain Parties. No recourse under or with respect to any obligation, covenant or agreement (a) Notwithstanding any contrary provision set forth hereinincluding, no claim may be made by the Borrowerwithout limitation, the Transferor or the Servicer payment of any fees or any other Person against obligations) of the Administrative Agent or any Secured Party or their respective Affiliates, directors, officers, employees, attorneys or agents for any special, indirect, consequential or punitive damages in respect to any claim for breach of contract or any other theory of liability arising out of or related to the transactions contemplated by this Agreement, or any act, omission or event occurring in connection therewith; and the BorrowerTrustee, the Transferor and the Servicer each hereby waivesEligible Lender Trustee, releases, and agrees not to ▇▇▇ upon any claim for any such damages, whether or not accrued and whether or not known or suspected.
(b) Notwithstanding any contrary provision set forth herein, no claim may be made by the Administrative Agent, the Collateral AgentConduit Lenders, the Collateral CustodianFacility Agents, any Lender, any Indemnified Party, any other Secured Party the Alternate Lenders or the Program Support Providers as contained in this Agreement or any other Person agreement, instrument or document entered into by it pursuant hereto or in connection herewith shall be had against any administrator of the BorrowerTrustee, the Servicer or the Transferor or their respective AffiliatesEligible Lender Trustee, directors, officers, employees, attorneys or agents for any special, indirect, consequential or punitive damages in respect to any claim for breach of contract or any other theory of liability arising out of or related to the transactions contemplated by this Agreement, or any act, omission or event occurring in connection therewith; and the Administrative Agent, the Collateral AgentConduit Lenders, the Collateral Custodian, each Lender, each Indemnified Party and each other Secured Party each hereby waives, releases, and agrees not to ▇▇▇ upon any claim for any such damages, whether or not accrued and whether or not known or suspected; provided that the Borrower shall remain liable to the Collateral AgentFacility Agents, the Account Bank and Alternate Lenders or the Collateral Custodian for such damages in respect of Program Support Providers or any USActive 55323723.3 claim brought by any Person (other than the Borrower) arising out of incorporator, affiliate, stockholder, officer, employee or related to the transactions contemplated by this Agreement.
(c) No obligation or liability to any Obligor under any director of the Loan Assets is intended to be assumed by Trustee, the Eligible Lender Trustee, the Administrative Agent, the Conduit Lenders, the Facility Agents, the Alternate Lenders or the Program Support Providers or of any Secured Party under such administrator, as such, by the enforcement of any assessment or as a result by any legal or equitable proceeding, by virtue of any statute or otherwise; it being expressly agreed and understood that the agreements of the Trustee, the Eligible Lender Trustee, the Administrative Agent, the Conduit Lenders, the Facility Agents, the Alternate Lenders and the Program Support Providers contained in this Agreement and all of the transactions contemplated hereby.
(d) other agreements, instruments and documents entered into by the Trustee, the Eligible Lender Trustee, the Administrative Agent, the Conduit Lenders, the Facility Agents, the Alternate Lenders or the Program Support Providers pursuant hereto or in connection herewith are, in each case, solely the corporate obligations of the Trustee, the Eligible Lender Trustee, the Administrative Agent, the Conduit Lenders, the Facility Agents, the Alternate Lenders or the Program Support Providers, as applicable, and that no personal liability whatsoever shall attach to or be incurred by any administrator of the Trustee, the Eligible Lender Trustee, the Administrative Agent, the Conduit Lenders, the Facility Agents, the Alternate Lenders or the Program Support Providers or any incorporator, stockholder, affiliate, officer, employee or director of the Trustee, the Eligible Lender Trustee, the Administrative Agent, the Conduit Lenders, the Facility Agents, the Alternate Lenders or the Program Support Providers or of any such administrator, as such, or any other them, under or by reason of any of the obligations, covenants or agreements of the Trustee, the Eligible Lender Trustee, the Administrative Agent, the Conduit Lenders, the Facility Agents, the Alternate Lenders or the Program Support Providers contained in this Agreement or in any other such instruments, documents or agreements, or which are implied therefrom, and that any and all personal liability of every such administrator of the Trustee, the Eligible Lender Trustee, the Administrative Agent, the Conduit Lenders, the Facility Agents, the Alternate Lenders or the Program Support Providers and each incorporator, stockholder, affiliate, officer, employee or director of the Trustee, the Eligible Lender Trustee, the Administrative Agent, the Conduit Lenders, the Facility Agents, the Alternate Lenders or the Program Support Providers or of any such administrator, or any of them, for breaches by the Trustee, the Eligible Lender Trustee, the Administrative Agent, the Conduit Lenders, the Facility Agents, the Alternate Lenders or the Program Support Providers of any such obligations, covenants or agreements, which liability may arise either at common law or at equity, by statute or constitution, or otherwise, is hereby expressly waived as a condition of and in consideration for the execution of this Agreement. The provisions of this Section 12.09 shall survive the termination of this AgreementAgreement and, with respect to the rights of the Trustee and the Eligible Lender Trustee, the resignation or removal of the Trustee or the Eligible Lender Trustee.
Appears in 1 contract
Sources: Warehouse Note Purchase and Security Agreement (Nelnet Inc)
Recourse Against Certain Parties. (a) No recourse under or with respect to any obligation, covenant or agreement (including, without limitation, the payment of any fees or any other obligations) of the Administrative Agent, any Secured Party, the Borrower, the Collateral Manager, the Seller or the Equityholder as contained in this Agreement or any other agreement, instrument or document entered into by it pursuant hereto or in connection herewith shall be had against any incorporator, affiliate, stockholder, officer, partner, member, manager, employee or director of the Administrative Agent, any Secured Party, the Borrower, the Collateral Manager, the Seller or the Equityholder by the enforcement of any assessment or by any legal or equitable proceeding, by virtue of any statute or otherwise; it being expressly agreed and understood that the agreements of the Administrative Agent, any Secured Party, the Borrower, the Collateral Manager, the Seller or the Equityholder contained in this Agreement and all of the other agreements, instruments and documents entered into by it pursuant hereto or in connection herewith are, in each case, solely the corporate or limited liability company obligations of the Administrative Agent, any Secured Party, the Borrower, the Collateral Manager, the Seller or the Equityholder, and that no personal liability whatsoever shall attach to or be incurred by the Administrative Agent, any Secured Party, the Borrower, the Collateral Manager, the Seller or the Equityholder or any incorporator, stockholder, affiliate, officer, partner, member, manager, employee or director of the Administrative Agent, any Secured Party, the Borrower, the Collateral Manager, the Seller or the Equityholder under or by reason of any of the obligations, covenants or agreements of the Administrative Agent, any Secured Party, the Borrower, the Collateral Manager, the Seller or the Equityholder contained in this Agreement or in any other such instruments, documents or agreements, or that are implied therefrom, and that any and all personal liability of the Administrative Agent, any Secured Party, the Borrower, the Collateral Manager, the Seller or the Equityholder and each incorporator, stockholder, affiliate, officer, partner, member, manager, employee or director of the Administrative Agent, any Secured Party, the Borrower, the Collateral Manager, the Seller or the Equityholder, or any of them, for breaches by the Administrative Agent, any Secured Party, the Borrower, the Collateral Manager, the Seller or the Equityholder of any such obligations, covenants or agreements, which liability may arise either at common law or at equity, by statute or constitution, or otherwise, is hereby expressly waived as a condition of and in consideration for the execution of this Agreement; provided that the foregoing non-recourse provisions shall in no way affect any rights the Secured Parties might have against any incorporator, affiliate, stockholder, officer, employee, partner, member, manager or director of the Borrower, the Collateral Manager, the Seller or the Equityholder to the extent of any fraud, misappropriation, embezzlement or any other financial crime constituting a felony by such Person.
(b) Notwithstanding any contrary provision set forth herein, no claim may be made by the Borrower, the Transferor or Collateral Manager, the Servicer Seller or any other Person against the Administrative Agent or any and the Secured Party Parties or their respective Affiliates, directors, officers, employees, attorneys or agents for any special, indirect, consequential or punitive damages in respect to any claim for breach of contract or any other theory of liability arising out of or related to the transactions contemplated by this Agreement, or any act, omission or event occurring in connection therewith; and each of the Borrower, the Transferor Seller and the Servicer each Collateral Manager hereby waives, releases, and agrees not to ▇s▇▇ upon any claim for any such damages, whether or not accrued and whether or not known or suspected.
(bc) Notwithstanding any contrary provision set forth herein, no claim may be made by the Administrative Agent, Borrower against the Collateral Agent, the Collateral Custodian, any Lender, any Indemnified Party, any other Secured Party Manager or any other Person against the Borrower, the Servicer or the Transferor or their respective its Affiliates, directors, officers, employees, attorneys or agents for any special, indirect, consequential or punitive damages in respect to any claim for breach of contract or any other theory of liability arising out of or related to the transactions contemplated by this Agreement, or any act, omission or event occurring in connection therewith; and the Administrative Agent, the Collateral Agent, the Collateral Custodian, each Lender, each Indemnified Party and each other Secured Party each Borrower hereby waives, releases, and agrees not to ▇s▇▇ upon any claim for any such damages, whether or not accrued and whether or not known or suspected; provided that .
(d) Notwithstanding any contrary provision set forth herein, no claim may be made by the Collateral Manager against the Borrower shall remain liable to the Collateral Agentor its Affiliates, the Account Bank and the Collateral Custodian directors, officers, employees, attorneys or agents for such any special, indirect, consequential or punitive damages in respect to any claim for breach of contract or any USActive 55323723.3 claim brought by any Person (other than the Borrower) theory of liability arising out of or related to the transactions contemplated by this Agreement, or any act, omission or event occurring in connection therewith; and the Collateral Manager hereby waives, releases, and agrees not to s▇▇ upon any claim for any such damages, whether or not accrued and whether or not known or suspected.
(ce) No obligation or liability to any Obligor under any of the Loan Assets Loans is intended to be assumed by the Administrative Agent, Agent and the Lenders or any Secured Party Parties under or as a result of this Agreement and the transactions contemplated hereby.
(df) The provisions of this Section 12.09 13.11 shall survive the termination of this Agreement.
Appears in 1 contract
Sources: Loan and Security Agreement (Fifth Street Senior Floating Rate Corp.)
Recourse Against Certain Parties. (a) Notwithstanding any contrary other provision set forth herein, no claim may be made by the Borrowerof this Agreement, the Transferor or obligations of the Servicer Borrower under this Agreement are limited recourse obligations of the Borrower (and not any of its Affiliates or any other Person party) payable solely from the Collateral in accordance with the Priority of Payments and, following realization of the Collateral, and application of the proceeds thereof in accordance with the Priority of Payments and, subject to Section 2.13, all obligations of and any claims against the Administrative Agent Borrower hereunder or in connection herewith after such realization shall be extinguished and shall not thereafter revive. No recourse shall be had against any Secured Party officer, director, employee, shareholder, member, manager, agent, partner, principal or incorporator of the Borrower or their respective Affiliates, directors, officers, employees, attorneys successors or agents assigns for any specialamounts payable under this Agreement. It is understood that the foregoing provisions of this Section 2.19 shall not (i) prevent recourse to the Collateral for the sums due or to become due under any security, indirectinstrument or agreement which is part of the Collateral or (ii) constitute a waiver, consequential release or punitive damages discharge of any Indebtedness or obligation evidenced by this Agreement until such Collateral has been realized. It is further understood that the foregoing provisions of this Section 2.19 shall not limit the right of any Person to name the Borrower as a party defendant in any proceeding or in the exercise of any other remedy under this Agreement, so long as no judgment in the nature of a deficiency judgment or seeking personal liability shall be asked for or (if obtained) enforced against the Borrower. DOCPROPERTY "DocID" \* MERGEFORMAT USActive 60781347.5 Notwithstanding anything to the contrary in this Agreement or in any of the Facility Documents, the parties hereto acknowledge that the obligations of any Conduit Lender arising hereunder are limited recourse obligations payable solely from the unsecured assets of such Conduit Lender subject to the immediately succeeding paragraphs (the “Available Funds”) and, following the application of such Available Funds or the proceeds thereof, any claims of the parties hereto (and the obligations of such Conduit Lender) shall be extinguished. No recourse shall be had for the payment of any amount owing under this Agreement against any officer, member, director, employee, security holder or incorporator of any Conduit Lender or its successors or assigns, and no action may be brought against any officer, member, director, employee, security holder or incorporator of any Conduit ▇▇▇▇▇▇ personally. The parties hereto agree that they will not petition a court, or take any action or commence any proceedings, for the liquidation or the winding-up of, or the appointment of an examiner to, any Conduit ▇▇▇▇▇▇, as provided in Section 12.16, or any other bankruptcy or insolvency proceedings with respect to such Conduit Lender; provided that nothing in this sentence shall limit the right of any party hereto to file any claim or otherwise take any action with respect to any claim for breach proceeding of contract or the type described in this sentence that was instituted against any Conduit Lender by any Person other theory than such party. The provisions of liability arising out this paragraph shall survive the termination of or related this Agreement. Notwithstanding any provisions contained in this Agreement to the transactions contemplated by contrary, no Conduit Lender shall, nor shall any Conduit Lender be obligated to, pay any amount pursuant to this AgreementAgreement unless (i) such Conduit Lender has received funds which may be used to make such payment and which funds are not required to repay its commercial paper notes when due and (ii) after giving effect to such payment, either (x) such Conduit Lender could issue commercial paper notes to refinance all of its outstanding commercial paper notes (assuming such outstanding commercial paper notes matured at such time) in accordance with the program documents governing its securitization program or (y) all of such Conduit Lender’s commercial paper notes are paid in full. Any amount which any act, omission Conduit Lender does not pay pursuant to the operation of the preceding sentence shall not constitute a claim (as defined in Section 101 of the United States Bankruptcy Code) against or event occurring in connection therewith; and the Borrower, the Transferor and the Servicer each hereby waives, releases, and agrees not to ▇▇▇ upon any claim obligation of such Conduit Lender for any such damages, whether or not accrued insufficiency unless and whether or not known or suspected.
until such Conduit Lender satisfies the provisions of clauses (bi) Notwithstanding any contrary provision set forth herein, no claim may be made by the Administrative Agent, the Collateral Agent, the Collateral Custodian, any Lender, any Indemnified Party, any other Secured Party or any other Person against the Borrower, the Servicer or the Transferor or their respective Affiliates, directors, officers, employees, attorneys or agents for any special, indirect, consequential or punitive damages in respect to any claim for breach of contract or any other theory of liability arising out of or related to the transactions contemplated by this Agreement, or any act, omission or event occurring in connection therewith; and the Administrative Agent, the Collateral Agent, the Collateral Custodian, each Lender, each Indemnified Party and each other Secured Party each hereby waives, releases, and agrees not to ▇▇▇ upon any claim for any such damages, whether or not accrued and whether or not known or suspected; provided that the Borrower shall remain liable to the Collateral Agent, the Account Bank and the Collateral Custodian for such damages in respect of any USActive 55323723.3 claim brought by any Person (other than the Borrowerii) arising out of or related to the transactions contemplated by this Agreement.
(c) No obligation or liability to any Obligor under any of the Loan Assets is intended to be assumed by the Administrative Agent, the Lenders or any Secured Party under or as a result of this Agreement and the transactions contemplated hereby.
(d) above. The provisions of this Section 12.09 shall survive the termination of this Agreement.
Appears in 1 contract
Sources: Credit and Security Agreement (SLR Investment Corp.)
Recourse Against Certain Parties. (a) No recourse under or with respect to any obligation, covenant or agreement (including, without limitation, the payment of any fees or any other obligations) of the Administrative Agent, any Secured Party, the Borrower, the Collateral Manager or the Equity Investor as contained in this Agreement or any other agreement, instrument or document entered into by it pursuant hereto or in connection herewith shall be had against any incorporator, affiliate, stockholder, officer, partner, member, manager, employee or director of the Administrative Agent, any Secured Party, the Borrower, the Collateral Manager or the Equity Investor by the enforcement of any assessment or by any legal or equitable proceeding, by virtue of any statute or otherwise; it being expressly agreed and understood that the agreements of the Administrative Agent, any Secured Party, the Borrower, the Collateral Manager or the Equity Investor contained in this Agreement and all of the other agreements, instruments and documents entered into by it pursuant hereto or in connection herewith are, in each case, solely the corporate or limited liability company obligations of the Administrative Agent, any Secured Party, the Borrower, the Collateral Manager or the Equity Investor, and that no personal liability whatsoever shall attach to or be incurred by the Administrative Agent, any Secured Party, the Borrower, the Collateral Manager or the Equity Investor or any incorporator, stockholder, affiliate, officer, partner, member, manager, employee or director of the Administrative Agent, any Secured Party, the Borrower, the Collateral Manager or the Equity Investor under or by reason of any of the obligations, covenants or agreements of the Administrative Agent, any Secured Party, the Borrower, the Collateral Manager or the Equity Investor contained in this Agreement or in any other such instruments, documents or agreements, or that are implied therefrom, and that any and all personal liability of the Administrative Agent, any Secured Party, the Borrower, the Collateral Manager or the Equity Investor and each incorporator, stockholder, affiliate, officer, partner, member, manager, employee or director of the Administrative Agent, any Secured Party, the Borrower, the Collateral Manager or the Equity Investor, or any of them, for breaches by the Administrative Agent, any Secured Party, the Borrower, the Collateral Manager or the Equity Investor of any such obligations, covenants or agreements, which liability may arise either at common law or at equity, by statute or constitution, or otherwise, is hereby expressly waived as a condition of and in consideration for the execution of this Agreement; provided that the foregoing non‑recourse provisions shall in no way affect any rights the Secured Parties might have against any incorporator, affiliate, stockholder, officer, employee, partner, member, manager or director of the Borrower, the Collateral Manager or the Equity Investor to the extent of any fraud, misappropriation, embezzlement or any other financial crime constituting a felony by such Person.
(b) Notwithstanding any contrary provision set forth herein, no claim may be made by the Borrower, the Transferor or the Servicer Collateral Manager or any other Person against the Administrative Agent, the Collateral Agent or any and the other Secured Party Parties or their respective Affiliates, directors, officers, employees, attorneys or agents for any special, indirect, consequential or punitive damages (including lost profits) in respect to any claim for breach of contract or any other theory of liability arising out of or related to the transactions contemplated by this Agreement, or any act, omission or event occurring in connection therewith; and each of the Borrower and the Collateral Manager hereby waives, releases, and agrees not to ▇▇▇ upon any claim for any such damages, whether or not accrued and whether or not known or suspected.
(c) Notwithstanding any contrary provision set forth herein, no claim may be made by the Borrower against the Collateral Manager or its Affiliates, directors, officers, employees, attorneys or agents for any special, indirect, consequential or punitive damages in respect to any claim for breach of contract or any other theory of liability arising out of or related to the transactions contemplated by this Agreement, or any act, omission or event occurring in connection therewith; and the Borrower, the Transferor and the Servicer each Borrower hereby waives, releases, and agrees not to ▇▇▇ upon any claim for any such damages, whether or not accrued and whether or not known or suspected.
(bd) Notwithstanding any contrary provision set forth herein, no claim may be made by the Administrative Agent, the Collateral Agent, the Collateral Custodian, any Lender, any Indemnified Party, any other Secured Party or any other Person Manager against the Borrower, the Servicer Borrower or the Transferor or their respective its Affiliates, directors, officers, employees, attorneys or agents for any special, indirect, consequential or punitive damages in respect to any claim for breach of contract or any other theory of liability arising out of or related to the transactions contemplated by this Agreement, or any act, omission or event occurring in connection therewith; and the Administrative Agent, the Collateral Agent, the Collateral Custodian, each Lender, each Indemnified Party and each other Secured Party each Manager hereby waives, releases, and agrees not to ▇▇▇ upon any claim for any such damages, whether or not accrued and whether or not known or suspected; provided that the Borrower shall remain liable to the Collateral Agent, the Account Bank and the Collateral Custodian for such damages in respect of any USActive 55323723.3 claim brought by any Person (other than the Borrower) arising out of or related to the transactions contemplated by this Agreement.
(ce) No obligation or liability to any Obligor under any of the Loan Assets Loans is intended to be assumed by the Administrative Agent, Agent and the Lenders or any Secured Party Parties under or as a result of this Agreement and the transactions contemplated hereby.
(df) Notwithstanding any other provision of this Agreement, none of the parties to this Agreement, may, prior to the date which is one year (or if longer the applicable preference period then in effect) plus one day after the later to occur of (A) if the Permitted Securitization does not proceed with respect to a particular Borrower, the Termination Date or (B) if the Permitted Securitization does proceed, the payment in full of all notes issued by the Borrower thereunder, institute against, or join any other Person in instituting against, the Borrower, any bankruptcy, winding up, reorganization, arrangement, insolvency, moratorium or liquidation proceedings, or other proceedings under U.S. federal or state bankruptcy or similar laws of any jurisdiction. Nothing in this Section 12.11(f) shall preclude, or be deemed to estop, the Collateral Agent, the Custodian or any of the other party to this Agreement (i) from taking any action prior to the expiration of the aforementioned period in (y) any case or proceeding voluntarily filed or commenced by the Borrower or (z) any involuntary insolvency proceeding filed or commenced by a Person other than one of the parties to this Agreement, or (ii) from commencing against the Borrower or any of its property any legal action that is not a bankruptcy, winding up, reorganization, arrangement, insolvency, moratorium, liquidation or similar proceeding. It is understood that the foregoing provisions of this paragraph (f) shall not (i) prevent recourse to the Collateral in the manner provided herein for the sums due or to become due under any obligation, instrument or agreement that is part of the Collateral or (ii) constitute a waiver, release or discharge of any indebtedness or obligation evidenced by the Loans or the VFN (to the extent that they evidence debt) or secured by this Agreement until such Collateral has been realized and proceeds distributed in accordance with the provisions of Section 2.7 and Section 2.8, whereupon any outstanding indebtedness or obligation of the Borrower shall be extinguished. It is further understood that the foregoing provisions of this paragraph (f) shall not limit the right of any Person to name the Borrower as a party defendant in any proceeding or in the exercise of any other remedy under this Agreement, so long as no judgment in the nature of a deficiency judgment or seeking personal liability shall be asked for or (if obtained) enforced against the Borrower.
(g) U.S. Bank (in each of its capacities) agrees to accept and act upon instructions or directions pursuant to this Agreement or any document executed in connection herewith sent by unsecured email, facsimile transmission or other similar unsecured electronic methods, provided, however, that any person providing such instructions or directions shall provide to U.S. Bank an incumbency certificate listing persons designated to provide such instructions or directions, which incumbency certificate shall be amended whenever a person is added or deleted from the listing. If such person elects to give U.S. Bank email or facsimile instructions (or instructions by a similar electronic method) and U.S. Bank in its discretion elects to act upon such instructions, U.S. Bank’s reasonable understanding of such instructions shall be deemed controlling. U.S. Bank shall not be liable for any losses, costs or expenses arising directly or indirectly from U.S. Bank’s reliance upon and compliance with such instructions notwithstanding such instructions conflicting with or being inconsistent with a subsequent written instruction. Any person providing such instructions or directions agrees to assume all risks arising out of the use of such electronic methods to submit instructions and directions to U.S. Bank, including without limitation the risk of U.S. Bank acting on unauthorized instructions, and the risk of interception and misuse by third parties and acknowledges and agrees that there may be more secure methods of transmitting such instructions than the method(s) selected by it and agrees that the security procedures (if any) to be followed in connection with its transmission of such instructions provide to it a commercially reasonable degree of protection in light of its particular needs and circumstances.
(h) The provisions of this Section 12.09 12.11 shall survive the termination of this Agreement.
Appears in 1 contract
Sources: Loan and Security Agreement (Nuveen Churchill BDC INC.)
Recourse Against Certain Parties. (a) Notwithstanding any contrary provision set forth hereinanything in this Agreement to the contrary, no claim may be made by the Borrower, the Transferor or the Servicer any party hereto or any other Person against the Administrative Agent or any Secured Party party hereto or their respective Affiliates, directors, managers, officers, employees, attorneys or agents for any special, indirect, consequential or punitive damages in respect to any claim for breach of contract or any other theory of liability arising out of or related to the transactions contemplated by this Agreement, or any act, omission or event occurring in connection therewith; and the Borrower, the Transferor and the Servicer each party hereto hereby waives, releases, and agrees not to ▇▇▇ sue upon any claim for any such damages, whether or not accrued and whether or not known or suspected.and
(b) Notwithstanding any contrary provision set forth herein, no claim may be made by the Administrative Agent, the Collateral Agent, the Collateral Custodian, any Lender, any Indemnified Party, any other Secured Party or any other Person against the Borrower, the Servicer or the Transferor or their respective Affiliates, directors, officers, employees, attorneys or agents for any special, indirect, consequential or punitive damages in respect to any claim for breach of contract or any other theory of liability arising out of or related to the transactions contemplated by this Agreement, or any act, omission or event occurring in connection therewith; and the Administrative Agent, the Collateral Agent, the Collateral Custodian, each Lender, each Indemnified Party and each other Secured Party each hereby waives, releases, and agrees not to ▇▇▇ upon any claim for any such damages, whether or not accrued and whether or not known or suspected; provided that the Borrower shall remain liable to the Collateral Agent, the Account Bank and the Collateral Custodian for such damages in respect of any USActive 55323723.3 claim brought by any Person (other than the Borrower) arising out of or related to the transactions contemplated by this Agreement.
(c) No obligation or liability to any Obligor under any of the Loan Collateral Assets is intended to be assumed by the Administrative Agent, the Lenders or any Secured Party under or as a result of this Agreement and the transactions contemplated hereby.
(c) The Secured Parties accept and agree that they shall have no recourse under any obligation, covenant or agreement of the Borrower contained in this Agreement against any shareholder, member, limited partner, officer, manager or director of the Borrower as such, by the enforcement of any assignment or by any proceeding, by virtue of any statute or otherwise; it being expressly agreed and understood that this Agreement is a limited liability company obligation of the Borrower and no liability shall attach to, or be incurred by, the shareholders, members, limited partners, officers, managers, agents or directors of the Borrower as such, or any of them, under or by reason of any of the obligations, covenants and agreements of the Borrower contained in this Agreement, or implied therefrom, and that any and all personal liability for breach by the Borrower of any of such obligations, covenants or agreements either at law or by statute or certification of every such shareholder, limited partner, officer, agent or director is hereby expressly waived by the Secured Parties as a condition of any consideration of the execution of this Agreement. For the avoidance of doubt, nothing in this Section shall be deemed to limit the liability of the Borrower in its capacity as the Borrower hereunder. Notwithstanding any other provision of this Agreement, the obligations of the Borrower under this Agreement are payable solely out of the assets of the Borrower in accordance with the terms of the Transaction Documents (the “Recourse Assets”). The claims of Secured Parties against the Borrower shall be limited to the value from time to time of the Recourse Assets. The net proceeds of the realization of the Recourse Assets or the proceeds of sale of the Recourse Assets of the Borrower following the enforcement of the rights or interests of the Secured Parties may be insufficient to pay all amounts due to the Secured Parties after making payments to other creditors of Borrower ranking prior to the Secured Parties or pari passu therewith. If, following final distribution of the realization proceeds of the Recourse Assets applied in accordance with the Transaction Documents, the Borrower has insufficient funds to pay in full its obligations, then the Borrower will not be obliged to pay such shortfall, and all claims in respect of which shall be extinguished. It is understood that the foregoing provisions of this paragraph shall not (x) prevent recourse to the Collateral Portfolio or the Recourse Assets for the sums due or to become due under any security, instrument or agreement which is part of the Collateral Portfolio or the Recourse Assets or (y) constitute a waiver, release or discharge of any indebtedness or Obligation until such Recourse Assets have been realized.
(d) The provisions of this Section 12.09 shall survive the termination of this Agreement.
Appears in 1 contract
Sources: Loan and Servicing Agreement (KKR Enhanced US Direct Lending Fund-L Inc.)
Recourse Against Certain Parties. (a) No recourse under or with respect to any obligation, covenant or agreement (including, without limitation, the payment of any fees or any other obligations) of the Administrative Agent, any Secured Party, the Borrower, the Collateral Manager or the Equity Investor as contained in this Agreement or any other agreement, instrument or document entered into by it pursuant hereto or in connection herewith shall be had against any incorporator, affiliate, stockholder, officer, partner, member, manager, employee or director of the Administrative Agent, any Secured Party, the Borrower, the Collateral Manager or the Equity Investor by the enforcement of any assessment or by any legal or equitable proceeding, by virtue of any statute or otherwise; it being expressly agreed and understood that the agreements of the Administrative Agent, any Secured Party, the Borrower, the Collateral Manager or the Equity Investor contained in this Agreement and all of the other agreements, instruments and documents entered into by it pursuant -146- USActive 55348338.2
(b) Notwithstanding any contrary provision set forth herein, no claim may be made by the Borrower, the Transferor or the Servicer Collateral Manager or any other Person against the Administrative Agent, the Collateral Agent or any and the other Secured Party Parties or their respective Affiliates, directors, officers, employees, attorneys or agents for any special, indirect, consequential or punitive damages (including lost profits) in respect to any claim for breach of contract or any other theory of liability arising out of or related to the transactions contemplated by this Agreement, or any act, omission or event occurring in connection therewith; and each of the Borrower and the Collateral Manager hereby waives, releases, and agrees not to ▇▇▇ upon any claim for any such damages, whether or not accrued and whether or not known or suspected.
(c) Notwithstanding any contrary provision set forth herein, no claim may be made by the Borrower against the Collateral Manager or its Affiliates, directors, officers, employees, attorneys or agents for any special, indirect, consequential or punitive damages in respect to any claim for breach of contract or any other theory of liability arising out of or related to the transactions contemplated by this Agreement, or any act, omission or event occurring in connection therewith; and the Borrower, the Transferor and the Servicer each Borrower hereby waives, releases, and agrees not to ▇▇▇ upon any claim for any such damages, whether or not accrued and whether or not known or suspected.
(bd) Notwithstanding any contrary provision set forth herein, no claim may be made by the Administrative Agent, the Collateral Agent, the Collateral Custodian, any Lender, any Indemnified Party, any other Secured Party or any other Person Manager against the Borrower, the Servicer Borrower or the Transferor or their respective its Affiliates, directors, officers, employees, attorneys or agents for any special, indirect, consequential or punitive damages in respect to any claim for breach of contract or any other theory of liability arising out of or related to the transactions contemplated by this Agreement, or any act, omission or event occurring in connection therewith; and the Administrative Agent, the Collateral Agent, the Collateral Custodian, each Lender, each Indemnified Party and each other Secured Party each Manager hereby waives, releases, and agrees not to ▇▇▇ upon any claim for any such damages, whether or not accrued and whether or not known or suspected; provided that the Borrower shall remain liable to the Collateral Agent, the Account Bank and the Collateral Custodian for such damages in respect of any -147- USActive 55323723.3 claim brought by any Person (other than the Borrower) arising out of or related to the transactions contemplated by this Agreement.55348338.2
(ce) No obligation or liability to any Obligor under any of the Loan Assets Loans is intended to be assumed by the Administrative Agent, Agent and the Lenders or any Secured Party Parties under or as a result of this Agreement and the transactions contemplated hereby.
(df) Notwithstanding any other provision of this Agreement, none of the parties to this Agreement, may, prior to the date which is one year (or if longer the applicable preference period then in effect) plus one day after the later to occur of (A) if the Permitted Securitization does not proceed with respect to a particular Borrower, the Termination Date or (B) if the Permitted Securitization does proceed, the payment in full of all notes issued by the Borrower thereunder, institute against, or join any other Person in instituting against, the Borrower, any bankruptcy, winding up, reorganization, arrangement, insolvency, moratorium or liquidation proceedings, or other proceedings under U.S. federal or state bankruptcy or similar laws of any jurisdiction. Nothing in this Section 12.11(f) shall preclude, or be deemed to estop, the Collateral Agent, the Custodian or any of the other party to this Agreement (i) from taking any action prior to the expiration of the aforementioned period in (y) any case or proceeding voluntarily filed or commenced by the Borrower or (z) any involuntary insolvency proceeding filed or commenced by a Person other than one of the parties to this Agreement, or (ii) from commencing against the Borrower or any of its property any legal action that is not a bankruptcy, winding up, reorganization, arrangement, insolvency, moratorium, liquidation or similar proceeding. It is understood that the foregoing provisions of this paragraph (f) shall not (i) prevent recourse to the Collateral in the manner provided herein for the sums due or to become due under any obligation, instrument or agreement that is part of the Collateral or (ii) constitute a waiver, release or discharge of any indebtedness or obligation evidenced by the Loans or the VFN (to the extent that they evidence debt) or secured by this Agreement until such Collateral has been realized and proceeds distributed in accordance with the provisions of Section 2.7 and Section 2.8, whereupon any outstanding indebtedness or obligation of the Borrower shall be extinguished. It is further understood that the foregoing provisions of this paragraph (f) shall not limit the right of any Person to name the Borrower as a party defendant in any proceeding or in the exercise of any other remedy under this Agreement, so long as no judgment in the nature of a deficiency judgment or seeking personal liability shall be asked for or (if obtained) enforced against the Borrower.
(g) U.S. Bank (in each of its capacities) agrees to accept and act upon instructions or directions pursuant to this Agreement or any document executed in connection herewith sent by unsecured email, facsimile transmission or other similar unsecured electronic methods, provided, however, that any person providing such instructions or directions shall provide to U.S. Bank an incumbency certificate listing persons designated to provide such instructions or directions, which incumbency certificate shall be amended whenever a person is added or deleted from the listing. If such person elects to give U.S. Bank email or facsimile instructions (or instructions by a similar electronic method) and U.S. Bank in its discretion elects to act upon such instructions, U.S. Bank’s reasonable understanding of such instructions shall be deemed controlling. U.S. Bank shall not be liable for any losses, costs or expenses arising directly or indirectly from U.S. Bank’s reliance upon and compliance with such instructions notwithstanding such instructions conflicting with or being inconsistent with a subsequent written instruction. Any person providing such instructions or directions agrees to assume all risks arising -148- USActive 55348338.2
(h) The provisions of this Section 12.09 12.11 shall survive the termination of this Agreement.
Appears in 1 contract
Sources: Omnibus Amendment to Transaction Documents (Nuveen Churchill Direct Lending Corp.)
Recourse Against Certain Parties. (a) Notwithstanding any contrary provision set forth hereinanything in this Agreement to the contrary, no claim may be made by the Borrower, the Transferor or the Servicer any party hereto or any other Person against the Administrative Agent or any Secured Party party hereto or their respective Investment Affiliates, directors, officers, employees, attorneys or agents for any special, indirect, consequential or punitive damages in respect to any claim for breach of contract or any other theory of liability arising out of or related to the transactions contemplated by this Agreement, or any act, omission or event occurring in connection therewith; and the Borrower, the Transferor and the Servicer each party hereto hereby waives, releases, and agrees not to ▇▇▇ sue upon any claim for any such damages, whether or not accrued and whether or not known or suspected.
(b) Notwithstanding any contrary provision set forth herein, no claim may be made by the Administrative Agent, the Collateral Agent, the Collateral Custodian, any Lender, any Indemnified Party, any other Secured Party or any other Person against the Borrower, the Servicer or the Transferor or their respective Affiliates, directors, officers, employees, attorneys or agents for any special, indirect, consequential or punitive damages in respect to any claim for breach of contract or any other theory of liability arising out of or related to the transactions contemplated by this Agreement, or any act, omission or event occurring in connection therewith; and the Administrative Agent, the Collateral Agent, the Collateral Custodian, each Lender, each Indemnified Party and each other Secured Party each hereby waives, releases, and agrees not to ▇▇▇ upon any claim for any such damages, whether or not accrued and whether or not known or suspected; provided that the Borrower shall remain liable to the Collateral Agent, the Account Bank and the Collateral Custodian for such damages in respect of any USActive 55323723.3 claim brought by any Person (other than the Borrower) arising out of or related to the transactions contemplated by this Agreement.
(c) No obligation or liability to any Obligor under any of the Loan Assets Loans is intended to be assumed by the Administrative Agent, the Lenders or any Secured Party under or as a result of this Agreement and the transactions contemplated hereby.
(c) The Secured Parties accept and agree that they shall have no recourse under any obligation, covenant or agreement of the Borrower contained in this Agreement against any shareholder, officer or director of the Borrower as such, by the enforcement of any assignment or by any proceeding, by virtue of any statute or otherwise; it being expressly agreed and understood that this Agreement is a corporate obligation of the Borrower and no liability shall attach to, or be incurred by, the shareholders, officers, agents or directors of the Borrower as such, or any of them, under or by reason of any of the obligations, covenants and agreements of the Borrower contained in this Agreement, or implied therefrom, and that any and all personal liability for breach by the Borrower of any of such obligations, covenants or agreements either at law or by statute or certification of every such shareholder, officer, agent or director is hereby expressly waived by the Secured Parties as a condition of any consideration of the execution of this Agreement. Notwithstanding any other provision of this Agreement, the obligations of the Borrower under this Agreement are payable solely out of the assets of the Borrower in accordance with the terms of the Transaction Documents (the “Recourse Assets”). The claims of Secured Parties shall be limited to the value from time to time of the Recourse Assets. The net proceeds of the realization of the Recourse Assets or the proceeds of sale of the Recourse Assets of the Borrower following the enforcement of the rights or interests of the Secured Parties may be insufficient to pay all amounts due to the Secured Parties after making payments to other creditors of the Borrower ranking prior to the Secured Parties or pari passu therewith. If, following final distribution of the realization proceeds of the Recourse Assets applied in accordance with the Transaction Documents, the Borrower has insufficient funds to pay in full its obligations, then the Borrower will not be obliged to pay such shortfall, and all claims in respect of which shall be extinguished. Without limitation of the foregoing, no recourse shall be had for the payment of any amount owing in respect of the Advances against the Equityholder, the Servicer, the Transferor or any Affiliate, shareholder, manager, officer, director, employee or member of the Borrower, the Equityholder, the Servicer or the Transferor or their respective successors or assigns.
(d) The provisions of this Section 12.09 shall survive the termination of this Agreement.
Appears in 1 contract
Recourse Against Certain Parties. (a) Notwithstanding any contrary provision set forth herein, no claim may be made by the Borrower, the Transferor or the Servicer or any party hereto against any other Person against the Administrative Agent or any Secured Party party hereto or their respective Affiliates, directors, officers, employees, attorneys or agents for any special, indirect, consequential or punitive damages of any kind whatsoever (including but not limited to lost profits) in respect to any claim for breach of contract or any other theory of liability arising out of or related to the transactions contemplated by this Agreement, or any act, omission or event occurring in connection therewith; and the Borrower, the Transferor and the Servicer each party hereto hereby waives, releases, and agrees not to ▇▇▇ upon any claim for any such damages, whether or not accrued and whether or not known or suspected.
(b) Notwithstanding any contrary provision set forth herein, no claim may be made by the Administrative Agent, the Collateral Agent, the Collateral Custodian, any Lender, any Indemnified Party, any other Secured Party or any other Person against the Borrower, the Servicer or the Transferor or their respective Affiliates, directors, officers, employees, attorneys or agents for any special, indirect, consequential or punitive damages in respect to any claim for breach of contract or any other theory of liability arising out of or related to the transactions contemplated by this Agreement, or any act, omission or event occurring in connection therewith; and the Administrative Agent, the Collateral Agent, the Collateral Custodian, each Lender, each Indemnified Party and each other Secured Party each hereby waives, releases, and agrees not to ▇▇▇ sue upon any claim for any such damages, whether or not accrued and whether or not known or suspected; provided that this sentence shall in no way limit or vitiate the indemnity obligations of the Borrower shall remain liable or the Servicer hereunder with respect to the Collateral Agenta claim for special, the Account Bank and the Collateral Custodian for such indirect, consequential or punitive damages in respect of against any USActive 55323723.3 claim Indemnified Party which is brought by any a Person (other than the Borrower) arising out not party hereto or brought in breach of or related to the transactions contemplated by this Agreementprovision.
(cb) No obligation or liability to any Obligor under any of the Loan Assets is intended to be assumed by the Administrative Agent, the Lenders or any Secured Party under or as a result of this Agreement and the transactions contemplated hereby.. |US-DOCS\148390876.14||
(dc) The provisions of this Section 12.09 shall survive the termination of this Agreement.
(d) The Secured Parties accept and agree that they shall have no recourse under any obligation, covenant or agreement of the Borrower contained in this Agreement against any shareholder, officer or director of the Borrower as such, by the enforcement of any assignment or by any proceeding; it being expressly agreed and understood that this Agreement is a corporate obligation of the Borrower and no liability shall attach to, or be incurred by, the shareholders, officers, agents or directors of the Borrower as such, or any of them, under or by reason of any of the obligations, covenants and agreements of the Borrower contained in this Agreement, or implied therefrom, and that any and all personal liability for breach by the Borrower of any of such obligations, covenants or agreements either at law or by statute or certification of every such shareholder, officer, agent or director is hereby expressly waived by the Secured Parties as a condition of any consideration of the execution of this Agreement. The foregoing non-recourse provisions shall in no way affect any rights the Secured Parties might have against any incorporator, affiliate, stockholder, director, officer or employee of the Borrower or any other Person to the extent of any fraud, misappropriation, embezzlement or any other financial crime constituting a felony by such Person.
Appears in 1 contract
Recourse Against Certain Parties. (a) No recourse under or with respect to any obligation, covenant or agreement (including, without limitation, the payment of any fees or any other obligations) of the Administrative Agent, any Secured Party, the Borrower, the Collateral Manager, the Seller or the Equityholder as contained in this Agreement or any other agreement, instrument or document entered into by it pursuant hereto or in connection herewith shall be had against any incorporator, affiliate, stockholder, officer, partner, member, manager, employee or director of the Administrative Agent, any Secured Party, the Borrower, the Collateral Manager, the Seller or the Equityholder by the enforcement of any assessment or by any legal or equitable proceeding, by virtue of any statute or otherwise; it being expressly agreed and understood that the agreements of the Administrative Agent, any Secured Party, the Borrower, the Collateral Manager, the Seller or the Equityholder contained in this Agreement and all of the other agreements, instruments and documents entered into by it pursuant hereto or in connection herewith are, in each case, solely the corporate or limited liability company obligations of the Administrative Agent, any Secured Party, the Borrower, the Collateral Manager, the Seller or the Equityholder, and that no personal liability whatsoever shall attach to or be incurred by the Administrative Agent, any Secured Party, the Borrower, the Collateral Manager, the Seller or the Equityholder or any incorporator, stockholder, affiliate, officer, partner, member, manager, employee or director of the Administrative Agent, any Secured Party, the Borrower, the Collateral Manager, the Seller or the Equityholder under or by reason of any of the obligations, covenants or agreements of the Administrative Agent, any Secured Party, the Borrower, the Collateral Manager, the Seller or the Equityholder contained in this Agreement or in any other such instruments, documents or agreements, or that are implied therefrom, and that any and all personal liability of the Administrative Agent, any Secured Party, the Borrower, the Collateral Manager, the Seller or the Equityholder and each incorporator, stockholder, affiliate, officer, partner, member, manager, employee or director of the Administrative Agent, any Secured Party, the Borrower, the Collateral Manager, the Seller or the Equityholder, or any of them, for breaches by the Administrative Agent, any Secured Party, the Borrower, the Collateral Manager, the Seller or the Equityholder of any such obligations, covenants or agreements, which liability may arise either at common law or at equity, by statute or constitution, or otherwise, is hereby expressly waived as a condition of and in consideration for the execution of this Agreement; provided that the foregoing non-recourse provisions shall in no way affect any rights the Secured Parties might have against any incorporator, affiliate, stockholder, officer, employee, partner, member, manager or director of the Borrower, the Collateral Manager, the Seller or the Equityholder to the extent of any fraud, misappropriation, embezzlement or any other financial crime constituting a felony by such Person.
(b) Notwithstanding any contrary provision set forth herein, no claim may be made by the Borrower, the Transferor or Seller, the Servicer Collateral Manager or any other Person against the Administrative Agent, the Collateral Agent or any and the Secured Party Parties or their respective Affiliates, directors, officers, employees, attorneys or agents for any special, indirect, consequential or punitive damages in respect to any claim for breach of contract or any other theory of liability arising out of or related to the transactions contemplated by this Agreement, or any act, omission or event occurring in connection therewith; and each of the Borrower, the Transferor Seller and the Servicer each Collateral Manager hereby waives, releases, and agrees not to ▇▇▇ sue upon any claim for any such damages, whether or not accrued and whether or not known or suspected.
(bc) Notwithstanding any contrary provision set forth herein, no claim may be made by the Administrative AgentBorrower, the Collateral Agent, the Collateral Custodian, any Lender, any Indemnified Party, any other Secured Party Seller or any other Person against the Borrower, the Servicer Collateral Manager or the Transferor or their respective its Affiliates, directors, officers, employees, attorneys or agents for any special, indirect, consequential or punitive damages in respect to any claim for breach of contract or any other theory of liability arising out of or related to the transactions contemplated by this Agreement, or any act, omission or event occurring in connection therewith; and the Administrative Agent, the Collateral Agent, the Collateral Custodian, each Lender, each Indemnified Party and each other Secured Party each Borrower hereby waives, releases, and agrees not to ▇▇▇ sue upon any claim for any such damages, whether or not accrued and whether or not known or suspected; provided that .
(d) Notwithstanding any contrary provision set forth herein, no claim may be made by the Collateral Manager against the Borrower shall remain liable to the Collateral Agentor its Affiliates, the Account Bank and the Collateral Custodian directors, officers, employees, attorneys or agents for such any special, indirect, consequential or punitive damages in respect to any claim for breach of contract or any USActive 55323723.3 claim brought by any Person (other than the Borrower) theory of liability arising out of or related to the transactions contemplated by this Agreement, or any act, omission or event occurring in connection therewith; and the Collateral Manager hereby waives, releases, and agrees not to sue upon any claim for any such damages, whether or not accrued and whether or not known or suspected.
(ce) No obligation or liability to any Obligor under any of the Loan Assets Loans is intended to be assumed by the Administrative Agent, Agent and the Lenders or any Secured Party Parties under or as a result of this Agreement and the transactions contemplated hereby.
(df) Notwithstanding any other provision of this Agreement, none of the parties to this Agreement may, prior to the date which is one year (or if longer the applicable preference period then in effect) plus one day after the Termination Date, institute against, or join any other Person in instituting against, the Borrower, any bankruptcy, winding up, reorganization, arrangement, insolvency, moratorium or liquidation proceedings, or other proceedings under U.S. federal or state bankruptcy or similar laws of any jurisdiction. Nothing in this Section 12.11(f) shall preclude, or be deemed to estop, the Collateral Agent or any of the other party to this Agreement (i) from taking any action prior to the expiration of the aforementioned period in (y) any case or proceeding voluntarily filed or commenced by the Borrower or (z) any involuntary insolvency proceeding filed or commenced by a Person other than one of the parties to this Agreement, or (ii) from commencing against the Borrower or any of its property any legal action that is not a bankruptcy, winding up, reorganization, arrangement, insolvency, moratorium, liquidation or similar proceeding. It is understood that the foregoing provisions of this paragraph (f) shall not (i) prevent recourse to the Collateral in the manner provided herein for the sums due or to become due under any obligation, instrument or agreement that is part of the Collateral or (ii) constitute a waiver, release or discharge of any indebtedness or obligation evidenced by the Loans (to the extent that they evidence debt) or secured by this Agreement until such Collateral has been realized and proceeds distributed in accordance with the provisions of Section 2.7 and Section 2.8, whereupon any outstanding indebtedness or obligation of the Borrower shall be extinguished. It is further understood that the foregoing provisions of this paragraph (f) shall not limit the right of any Person to name the Borrower as a party defendant in any proceeding or in the exercise of any other remedy under this Agreement, so long as no judgment in the nature of a deficiency judgment or seeking personal liability shall be asked for or (if obtained) enforced against the Borrower.
(g) The provisions of this Section 12.09 12.11 shall survive the termination of this Agreement.
Appears in 1 contract
Sources: Loan and Security Agreement (Crescent Capital BDC, Inc.)
Recourse Against Certain Parties. (a) Notwithstanding any contrary provision set forth herein, no claim may be made by the Borrower, the Transferor or the Servicer or any party hereto against any other Person against the Administrative Agent or any Secured Party party hereto or their respective Affiliates, directors, officers, employees, attorneys or agents for any special, indirect, consequential or punitive damages in respect to any claim for breach of contract or any other theory of liability arising out of or related to the transactions contemplated by this Agreement, or any act, omission or event occurring in connection therewith; and the Borrower, the Transferor and the Servicer each party hereto hereby waives, releases, and agrees not to ▇▇▇ upon any claim for any such damages, whether or not accrued and whether or not known or suspected.
(b) Notwithstanding any contrary provision set forth herein, no claim may be made by the Administrative Agent, the Collateral Agent, the Collateral Custodian, any Lender, any Indemnified Party, any other Secured Party or any other Person against the Borrower, the Servicer or the Transferor or their respective Affiliates, directors, officers, employees, attorneys or agents for any special, indirect, consequential or punitive damages in respect to any claim for breach of contract or any other theory of liability arising out of or related to the transactions contemplated by this Agreement, or any act, omission or event occurring in connection therewith; and the Administrative Agent, the Collateral Agent, the Collateral Custodian, each Lender, each Indemnified Party and each other Secured Party each hereby waives, releases, and agrees not to ▇▇▇ sue upon any claim for any such damages, whether or not accrued and whether or not known or suspected; provided that this sentence shall in no way limit or vitiate the indemnity obligations of the Borrower or the Servicer hereunder with respect to a claim for special, indirect, consequential or punitive damages against any Indemnified Party which is brought by a Person not party hereto or brought in breach of this provision.
(b) The Secured Parties accept and agree that they shall remain liable to have no recourse under any obligation, covenant or agreement of the Collateral AgentBorrower contained in this Agreement against any shareholder, officer or director of the Borrower as such, by the enforcement of any assignment or by any proceeding; it being expressly agreed and understood that this Agreement is a corporate obligation of the Borrower and no liability shall attach to, or be incurred by, the Account Bank shareholders, officers, agents or directors of the Borrower as such, or any of them, under or by reason of any of the obligations, covenants and agreements of the Collateral Custodian Borrower contained in this Agreement, or implied therefrom, and that any and all personal liability for breach by the Borrower of any of such damages obligations, covenants or agreements either at law or by statute or certification of every such shareholder, officer, agent or director is hereby expressly waived by the Secured Parties as a condition of any consideration of the execution of this Agreement. The obligations of the Borrower under this Agreement are payable solely out of the assets of the Borrower in accordance with the terms of the Transaction Documents, and no recourse shall be had for the payment of any amount owing in respect of the Advances against the Servicer, the Transferor or any USActive 55323723.3 claim brought by Affiliate, shareholder, manager, officer, director, employee or member of the Servicer or the Transferor or their respective successors or assigns. The foregoing non-recourse provisions shall in no way affect any rights the Secured Parties might have against any incorporator, affiliate, stockholder, director, officer or employee of the Borrower or any other Person (other than the Borrower) arising out of or related to the transactions contemplated extent of any fraud, misappropriation, embezzlement or any other financial crime constituting a felony by this Agreementsuch Person.
(c) No obligation or liability to any Obligor under any of the Loan Assets is intended to be assumed by the Administrative Agent, the Lenders or any Secured Party under or as a result of this Agreement and the transactions contemplated hereby.
(d) The provisions of this Section 12.09 shall survive the termination of this Agreement.
Appears in 1 contract
Sources: Loan and Servicing Agreement (Oaktree Strategic Credit Fund)
Recourse Against Certain Parties. No recourse under or with respect to any obligation, covenant or agreement (a) Notwithstanding any contrary provision set forth hereinincluding, no claim may be made by the Borrowerwithout limitation, the Transferor or the Servicer payment of any fees or any other Person against obligations) of the Administrative Agent Trustee, the Eligible Lender Trustee, the Facility Agent, the Lender, the Alternate Lender, the Liquidity Facility Providers or any Secured Party or their respective Affiliates, directors, officers, employees, attorneys or agents for any special, indirect, consequential or punitive damages the Credit Support Providers as contained in respect to any claim for breach of contract this Agreement or any other theory agreement, instrument or document entered into by it pursuant hereto or in connection herewith shall be had against any administrator of the Trustee, the Eligible Lender Trustee, the Facility Agent, the Lender, the Alternate Lender, the Liquidity Facility Providers or the Credit Support Providers or any incorporator, affiliate, stockholder, officer, employee or director of the Trustee, the Eligible Lender Trustee, the Facility Agent, the Lender, the Alternate Lender, the Liquidity Facility Providers or the Credit Support Providers or of any such administrator, as such, by the enforcement of any assessment or by any legal or equitable proceeding, by virtue of any statute or otherwise; it being expressly agreed and understood that the agreements of the Trustee, the Eligible Lender Trustee, the Facility Agent, the Lender, the Alternate Lender, the Liquidity Facility Providers and the Credit Support Providers contained in this Agreement and all of the other agreements, instruments and documents entered into by the Trustee, the Eligible Lender Trustee, the Facility Agent, the Lender, the Alternate Lender, the Liquidity Facility Providers or the Credit Support Providers pursuant hereto or in connection herewith are, in each case, solely the corporate obligations of the Trustee, the Eligible Lender Trustee, the Facility Agent, the Lender, the Alternate Lender, the Liquidity Facility Providers or the Credit Support Providers, as applicable, and that no personal liability arising out whatsoever shall attach to or be incurred by any administrator of the Trustee, the Eligible Lender Trustee, the Facility Agent, the Lender, the Alternate Lender, the Liquidity Facility Providers or related to the transactions contemplated by this AgreementCredit Support Providers or any incorporator, stockholder, affiliate, officer, employee or director of the Trustee, the Eligible Lender Trustee, the Facility Agent, Lender, the Alternate Lender, the Liquidity Facility Providers or the Credit Support Providers or of any such administrator, as such, or any actother them, omission under or event occurring in connection therewith; and by reason of any of the Borrowerobligations, covenants or agreements of the Trustee, the Transferor and Eligible Lender Trustee, the Servicer each hereby waives, releases, and agrees not to ▇▇▇ upon any claim for any such damages, whether or not accrued and whether or not known or suspected.
(b) Notwithstanding any contrary provision set forth herein, no claim may be made by the Administrative Facility Agent, the Collateral Lender, the Liquidity Facility Providers or the Credit Support Providers contained in this Agreement or in any other such instruments, documents or agreements, or which are implied therefrom, and that any and all personal liability of every such administrator of the Trustee, the Eligible Lender Trustee, the Facility Agent, the Collateral Custodian, any Lender, any Indemnified Party, any other Secured Party or any other Person against the BorrowerAlternate Lender, the Servicer Liquidity Facility Providers or the Transferor Credit Support Providers and each incorporator, stockholder, affiliate, officer, employee or their respective Affiliatesdirector of the Trustee, directorsthe Eligible Lender Trustee, officersthe Facility Agent, employeesthe Lender, attorneys the Alternate Lender, the Liquidity Facility Providers or agents for the Credit Support Providers or of any special, indirect, consequential or punitive damages in respect to any claim for breach of contract or any other theory of liability arising out of or related to the transactions contemplated by this Agreementsuch administrator, or any actof them, omission or event occurring in connection therewith; and for breaches by the Administrative Trustee, the Eligible Lender Trustee, the Facility Agent, the Collateral AgentLender, the Collateral Custodian, each Alternate Lender, each Indemnified Party and each other Secured Party each hereby waives, releases, and agrees not to ▇▇▇ upon any claim for the Liquidity Facility Providers or the Credit Support Providers of any such damagesobligations, whether covenants or not accrued agreements, which liability may arise either at common law or at equity, by statute or constitution, or otherwise, is hereby expressly waived as a condition of and whether or not known or suspected; provided that in consideration for the Borrower shall remain liable to the Collateral Agent, the Account Bank and the Collateral Custodian for such damages in respect execution of any USActive 55323723.3 claim brought by any Person (other than the Borrower) arising out of or related to the transactions contemplated by this Agreement.
(c) No obligation or liability to any Obligor under any of the Loan Assets is intended to be assumed by the Administrative Agent, the Lenders or any Secured Party under or as a result of this Agreement and the transactions contemplated hereby.
(d) . The provisions of this Section 12.09 shall survive the termination of this Agreement.
Appears in 1 contract
Recourse Against Certain Parties. (a) No recourse under or with respect to any obligation, covenant or agreement (including, without limitation, the payment of any fees or any other obligations) of the Administrative Agent, any Secured Party, the Borrower, the Collateral Manager or the Equityholder as contained in this Agreement or any other agreement, instrument or document entered into by it pursuant hereto or in connection herewith shall be had against any incorporator, affiliate, stockholder, officer, partner, member, manager, employee or director of the Administrative Agent, any Secured Party, the Borrower, the Collateral Manager or the Equityholder by the enforcement of any assessment or by any legal or equitable proceeding, by virtue of any statute or otherwise; it being expressly agreed and understood that the agreements of the Administrative Agent, any Secured Party, the Borrower, the Collateral Manager or the Equityholder contained in this Agreement and all of the other agreements, instruments and documents entered into by it pursuant hereto or in connection herewith are, in each case, solely the corporate or limited liability company obligations of the Administrative Agent, any Secured Party, the Borrower, the Collateral Manager or the Equityholder, and that no personal liability whatsoever shall attach to or be incurred by the Administrative Agent, any Secured Party, the Borrower, the Collateral Manager or the Equityholder or any incorporator, stockholder, affiliate, officer, partner, member, manager, employee or director of the Administrative Agent, any Secured Party, the Borrower, the Collateral Manager or the Equityholder under or by reason of any of the obligations, covenants or agreements of the Administrative Agent, any Secured Party, the Borrower, the Collateral Manager or the Equityholder contained in this Agreement or in any other such instruments, documents or agreements, or that are implied therefrom, and that any and all personal liability of the Administrative Agent, any Secured Party, the Borrower, the Collateral Manager or the Equityholder and each incorporator, stockholder, affiliate, officer, partner, member, manager, employee or director of the Administrative Agent, any Secured Party, the Borrower, the Collateral Manager or the Equityholder, or any of them, for breaches by the Administrative Agent, any Secured Party, the Borrower, the Collateral Manager or the Equityholder of any such obligations, covenants or agreements, which liability may arise either at common law or at equity, by statute or constitution, or otherwise, is hereby expressly waived as a condition of and in consideration for the execution of this Agreement; provided that the foregoing non-recourse provisions shall in no way affect any rights the Secured Parties might have against any incorporator, affiliate, stockholder, officer, employee, partner, member, manager or director of the Borrower, the Collateral Manager or the Equityholder to the extent of any fraud, misappropriation, embezzlement or any other financial crime constituting a felony by such Person.
(b) Notwithstanding any contrary provision set forth herein, no claim may be made by the Borrower, the Transferor or Equityholder, the Servicer Collateral Manager or any other Person against the Administrative Agent, the Collateral Agent or any and the other Secured Party Parties or their respective Affiliates, directors, officers, employees, attorneys or agents for any special, indirect, consequential or punitive damages in respect to any claim for breach of contract or any other theory of liability arising out of or related to the transactions contemplated by this Agreement, or any act, omission or event occurring in connection therewith; and each of the Borrower, the Transferor Equityholder and the Servicer each Collateral Manager hereby waives, releases, and agrees not to ▇▇▇ upon any claim for any such damages, whether or not accrued and whether or not known or suspected.
(bc) Notwithstanding any contrary provision set forth herein, no claim may be made by the Administrative AgentBorrower, the Collateral Agent, the Collateral Custodian, any Lender, any Indemnified Party, any other Secured Party Equityholder or any other Person against the Borrower, the Servicer Collateral Manager or the Transferor or their respective its Affiliates, directors, officers, employees, attorneys or agents for any special, indirect, consequential or punitive damages in respect to any claim for breach of contract or any other theory of liability arising out of or related to the transactions contemplated by this Agreement, or any act, omission or event occurring in connection therewith; and the Administrative Agent, the Collateral Agent, the Collateral Custodian, each Lender, each Indemnified Party and each other Secured Party each Borrower hereby waives, releases, and agrees not to ▇▇▇ upon any claim for any such damages, whether or not accrued and whether or not known or suspected; provided that .
(d) Notwithstanding any contrary provision set forth herein, no claim may be made by the Collateral Manager against the Borrower shall remain liable to the Collateral Agentor its Affiliates, the Account Bank and the Collateral Custodian directors, officers, employees, attorneys or agents for such any special, indirect, consequential or punitive damages in respect to any claim for breach of contract or any USActive 55323723.3 claim brought by any Person (other than the Borrower) theory of liability arising out of or related to the transactions contemplated by this Agreement, or any act, omission or event occurring in connection therewith; and the Collateral Manager hereby waives, releases, and agrees not to ▇▇▇ upon any claim for any such damages, whether or not accrued and whether or not known or suspected.
(ce) No obligation or liability to any Obligor under any of the Loan Assets Loans is intended to be assumed by the Administrative Agent, Agent and the Lenders or any Secured Party Parties under or as a result of this Agreement and the transactions contemplated hereby.
(df) Notwithstanding any other provision of this Agreement, none of the parties to this Agreement may, prior to the date which is one year (or if longer the applicable preference period then in effect) plus one day after the Termination Date, institute against, or join any other Person in instituting against, the Borrower, any bankruptcy, winding up, reorganization, arrangement, insolvency, moratorium or liquidation proceedings, or other proceedings under U.S. federal or state bankruptcy or similar laws of any jurisdiction. Nothing in this Section 12.11(f) shall preclude, or be deemed to estop, the Collateral Agent, the Custodian or any of the other party to this Agreement (i) from taking any action prior to the expiration of the aforementioned period in (y) any case or proceeding voluntarily filed or commenced by the Borrower or (z) any involuntary insolvency proceeding filed or commenced by a Person other than one of the parties to this Agreement, or (ii) from commencing against the Borrower or any of its property any legal action that is not a bankruptcy, winding up, reorganization, arrangement, insolvency, moratorium, liquidation or similar proceeding. It is understood that the foregoing provisions of this paragraph (f) shall not (i) prevent recourse to the Collateral in the manner provided herein for the sums due or to become due under any obligation, instrument or agreement that is part of the Collateral or (ii) constitute a waiver, release or discharge of any indebtedness or obligation evidenced by the Loans (to the extent that they evidence debt) or secured by this Agreement until such Collateral has been realized and proceeds distributed in accordance with the provisions of Section 2.7 and Section 2.8, whereupon any outstanding indebtedness or obligation of the Borrower shall be extinguished. It is further understood that the foregoing provisions of this paragraph (f) shall not limit the right of any Person to name the Borrower as a party defendant in any proceeding or in the exercise of any other remedy under this Agreement, so long as no judgment in the nature of a deficiency judgment or seeking personal liability shall be asked for or (if obtained) enforced against the Borrower.
(g) U.S. Bank (in each of its capacities) agrees to accept and act upon instructions or directions pursuant to this Agreement or any document executed in connection herewith sent by unsecured email, facsimile transmission or other similar unsecured electronic methods, provided, however, that any person providing such instructions or directions shall provide to U.S. Bank an incumbency certificate listing persons designated to provide such instructions or directions, which incumbency certificate shall be amended whenever a person is added or deleted from the listing. If such person elects to give U.S. Bank email or facsimile instructions (or instructions by a similar electronic method) and U.S. Bank in its discretion elects to act upon such instructions, U.S. Bank’s reasonable understanding of such instructions shall be deemed controlling. U.S. Bank shall not be liable for any losses, costs or expenses arising directly or indirectly from U.S. Bank’s reliance upon and compliance with such instructions notwithstanding such instructions conflicting with or being inconsistent with a subsequent written instruction. Any person providing such instructions or directions agrees to assume all risks arising out of the use of such electronic methods to submit instructions and directions to U.S. Bank, including without limitation the risk of U.S. Bank acting on unauthorized instructions, and the risk of interception and misuse by third parties and acknowledges and agrees that there may be more secure methods of transmitting such instructions than the method(s) selected by it and agrees that the security procedures (if any) to be followed in connection with its transmission of such instructions provide to it a commercially reasonable degree of protection in light of its particular needs and circumstances.
(h) The provisions of this Section 12.09 12.11 shall survive the termination of this Agreement.
Appears in 1 contract
Sources: Loan and Security Agreement (Palmer Square Capital BDC Inc.)
Recourse Against Certain Parties. (a) Notwithstanding any contrary provision set forth hereinanything in this Agreement to the contrary, no claim may be made by the Borrower, the Transferor or the Servicer any party hereto or any other Person against the Administrative Agent or any Secured Party party hereto or their respective Affiliates, directors, managers, officers, employees, attorneys or agents for any special, indirect, consequential or punitive damages in respect to any claim for breach of contract or any other theory of liability arising out of or related to the transactions contemplated by this Agreement, or any act, omission or event occurring in connection therewith; and the Borrower, the Transferor and the Servicer each party hereto hereby waives, releases, and agrees not to ▇▇▇ upon any claim for any such damages, whether or not accrued and whether or not known or suspected.
(b) Notwithstanding any contrary provision set forth herein, no claim may be made by the Administrative Agent, the Collateral Agent, the Collateral Custodian, any Lender, any Indemnified Party, any other Secured Party or any other Person against the Borrower, the Servicer or the Transferor or their respective Affiliates, directors, officers, employees, attorneys or agents for any special, indirect, consequential or punitive damages in respect to any claim for breach of contract or any other theory of liability arising out of or related to the transactions contemplated by this Agreement, or any act, omission or event occurring in connection therewith; and the Administrative Agent, the Collateral Agent, the Collateral Custodian, each Lender, each Indemnified Party and each other Secured Party each hereby waives, releases, and agrees not to ▇▇▇ sue upon any claim for any such damages, whether or not accrued and whether or not known or suspected; provided that nothing herein shall constitute a waiver of any indemnification obligations of the Borrower shall remain liable to or the Collateral Agent, the Account Bank and the Collateral Custodian for such damages in respect of any USActive 55323723.3 claim brought by any Person (other than the Borrower) arising out of or related to the transactions contemplated by this AgreementManager.
(cb) No obligation or liability to any Obligor under any of the Loan Collateral Assets is intended to be assumed by the Administrative Agent, the Lenders or any Secured Party under or as a result of this Agreement and the transactions contemplated hereby. USActive 60058040.860058040.11 -178-
(c) The Secured Parties accept and agree that they shall have no recourse under any obligation, covenant or agreement of the Borrower contained in this Agreement against any shareholder, member, limited partner, officer, manager or director of the Borrower as such, by the enforcement of any assignment or by any proceeding, by virtue of any statute or otherwise; it being expressly agreed and understood that this Agreement is a limited liability company obligation of the Borrower and no liability shall attach to, or be incurred by, the shareholders, members, limited partners, officers, managers, agents or directors of the Borrower as such, or any of them, under or by reason of any of the obligations, covenants and agreements of the Borrower contained in this Agreement, or implied therefrom, and that any and all personal liability for breach by the Borrower of any of such obligations, covenants or agreements either at law or by statute or certification of every such shareholder, limited partner, officer, agent or director is hereby expressly waived by the Secured Parties as a condition of any consideration of the execution of this Agreement. For the avoidance of doubt, nothing in this Section shall be deemed to limit the liability of the Borrower in its capacity as the Borrower hereunder. Notwithstanding any other provision of this Agreement, the obligations of the Borrower under this Agreement are payable solely out of the assets of the Borrower in accordance with the terms of the Transaction Documents (the “Recourse Assets”). The claims of Secured Parties against the Borrower shall be limited to the value from time to time of the Recourse Assets. The net proceeds of the realization of the Recourse Assets or the proceeds of sale of the Recourse Assets of the Borrower following the enforcement of the rights or interests of the Secured Parties may be insufficient to pay all amounts due to the Secured Parties after making payments to other creditors of Borrower ranking prior to the Secured Parties or pari passu therewith. If, following final distribution of the realization proceeds of the Recourse Assets applied in accordance with the Transaction Documents, the Borrower has insufficient funds to pay in full its obligations, then the Borrower will not be obliged to pay such shortfall, and all claims in respect of which shall be extinguished. It is understood that the foregoing provisions of this paragraph shall not (x) prevent recourse to the Collateral Portfolio or the Recourse Assets for the sums due or to become due under any security, instrument or agreement which is part of the Collateral Portfolio or the Recourse Assets or (y) constitute a waiver, release or discharge of any indebtedness or Obligation until such Recourse Assets have been realized.
(d) The provisions of this Section 12.09 shall survive the termination of this Agreement.
Appears in 1 contract
Sources: Loan and Servicing Agreement (KKR Enhanced US Direct Lending Fund-L Inc.)
Recourse Against Certain Parties. (a) No recourse under or with respect to any obligation, covenant or agreement (including the payment of any fees or any other obligations) of the Facility Servicer, the Collateral Custodian, the Administrative Agent, the Lenders or any Secured Party as contained in this Agreement or any other agreement, instrument or document entered into by the Facility Servicer, the Collateral Custodian, the Administrative Agent, the Lenders or any Secured Party pursuant hereto or in connection herewith shall be had against any administrator of the Facility Servicer, the Collateral Custodian, the Administrative Agent, the Lenders or any Secured Party or any incorporator, affiliate, stockholder, officer, employee or director of the Facility Servicer, the Collateral Custodian, the Administrative Agent, the Lenders or any Secured Party or of any such administrator, as such, by the enforcement of any assessment or by any legal or equitable proceeding, by virtue of any statute or otherwise; it being expressly agreed and understood that the agreements of each party hereto contained in this Agreement and all of the other agreements, instruments and documents entered into by the Facility Servicer, the Collateral Custodian, the Administrative Agent, the Lenders or any Secured Party pursuant hereto or in connection herewith are, in each case, solely the corporate obligations of such party (and nothing in this Section 11.08(a) shall be construed to diminish in any way such corporate obligations of such party), and that no personal liability whatsoever shall attach to or be incurred by any administrator of the Administrative Agent, the Lenders or any Secured Party or any incorporator, stockholder, affiliate, officer, employee or director of the Lenders, the Facility Servicer, the Collateral Custodian or the Administrative Agent or of any such administrator, as such, or any of them, under or by reason of any of the obligations, covenants or agreements of the Facility Servicer, the Collateral Custodian, the Administrative Agent, the Lenders or any Secured Party contained in this Agreement or in any other such instruments, documents or agreements, or are implied therefrom, and that any and all personal liability of every such administrator of the Facility Servicer, the Collateral Custodian, the Administrative Agent, the Lenders or any Secured Party and each incorporator, stockholder, affiliate, officer, employee or director of the Facility Servicer, the Collateral Custodian, the Administrative Agent, the Lenders or any Secured Party or of any such administrator, or any of them, for breaches by the Facility Servicer, the Collateral Custodian, the Administrative Agent, the Lenders or any Secured Party of any such obligations, covenants or agreements, which liability may arise either at common law or in equity, by statute or constitution, or otherwise, is hereby expressly waived as a condition of and in consideration for the execution of this Agreement.
(b) The Secured Parties agree that, notwithstanding anything to the contrary contained in this Agreement, any action, suit or proceeding brought to enforce any obligations hereunder or any judgment or decree shall be enforceable against Holdings only to the extent of the Holdings Pledged Equity. The provisions of the preceding sentence shall not: (i) prevent or restrict the Administrative Agent’s recourse to the Pledged Equity or impair or limit the Administrative Agent’s ability to realize on the Pledged Equity as provided in this Agreement or otherwise exercise its rights and remedies under this Agreement or pursuant to law; (ii) constitute a waiver, release or discharge of any of the Obligations; (iii) limit the right of the Administrative Agent to name Holdings, Borrower or any transferee of any interest in the Pledged Equity or any other Person claiming an interest in or right to the Pledged Equity as party defendant in any action or suit for judicial or nonjudicial foreclosure or in the exercise of any other remedy under this Agreement; (iv) limit the Borrower’s, Holdings’ or the Subsidiary Guarantors’ obligations under this Agreement; or (v) constitute a waiver by the Lenders, the Administrative Agent, the Facility Servicer, the Collateral Custodian or any other Secured Party of any rights to damages, other monetary relief, injunctive relief or any other remedy at law or equity against the Borrower, Holdings or the Subsidiary Guarantors by reason of fraud.
(c) Notwithstanding any contrary provision set forth herein, no claim may be made by the Borrowerany Person against a Loan Party, the Transferor or the Servicer or any other Person against Portfolio Asset Servicer, the Administrative Agent Agent, the Lenders, the Facility Servicer, the Collateral Custodian or any Secured Party or their respective Affiliates, directors, officers, employees, attorneys or agents for any special, indirect, consequential or punitive damages in respect to any claim for breach of contract or any other theory of liability arising out of or related to the transactions contemplated by this Agreement, or any act, omission or event occurring in connection therewith; and each of the BorrowerLoan Parties, the Transferor Portfolio Asset Servicer, the Administrative Agent, the Lenders, the Facility Servicer, the Collateral Custodian and the Servicer each other Secured Parties hereby waives, releases, and agrees not to ▇▇▇ sue upon any claim for any such damages, whether or not accrued and whether or not known Known or suspected.
(b; provided that nothing contained in this Section 11.08(c) Notwithstanding any contrary provision set forth herein, no claim may be made by the Administrative Agent, the Collateral Agent, the Collateral Custodian, any Lender, any Indemnified Party, any other Secured Party or any other Person against limits the Borrower, ’s indemnity obligations pursuant to Section 10.01(a) to the Servicer or the Transferor or their respective Affiliates, directors, officers, employees, attorneys or agents for any extent such special, indirect, consequential or punitive damages are included in respect any third party claim in connection with which such Indemnified Party is entitled to any claim for breach of contract indemnification hereunder or any other theory of liability arising out of or related (ii) the Lender’s indemnity obligations pursuant to Section 8.10 to the transactions contemplated by this Agreementextent such special, indirect, consequential or punitive damages are included in any act, omission or event occurring third party claim in connection therewith; and with which the Administrative Agent, the Collateral Agent, the Collateral Custodian, each Lender, each Indemnified Party and each other Secured Party each hereby waives, releases, and agrees not Facility Servicer is entitled to ▇▇▇ upon any claim for any such damages, whether or not accrued and whether or not known or suspected; provided that the Borrower shall remain liable to the Collateral Agent, the Account Bank and the Collateral Custodian for such damages in respect of any USActive 55323723.3 claim brought by any Person (other than the Borrower) arising out of or related to the transactions contemplated by this Agreementindemnification hereunder.
(cd) No obligation or liability to any Obligor under any of the Loan Assets is intended to be assumed by the Facility Servicer, the Portfolio Asset Servicer, the Collateral Custodian, the Administrative Agent, the Lenders or any Secured Party under or as a result of this Agreement and the transactions contemplated hereby.
(de) The provisions of this Section 12.09 shall 11.08 survive the termination of this Agreement.
Appears in 1 contract
Recourse Against Certain Parties. (a) Notwithstanding any contrary provision set forth herein, no claim may be made by the Borrower, the Transferor or the Servicer any party hereto or any other Person against the Administrative Agent or any Secured Party party hereto or their respective Affiliates, directors, officers, employees, attorneys or agents for any special, indirect, consequential or punitive damages in respect to any claim for breach of contract or any other theory of liability arising out of or related to the transactions contemplated by this Agreement, or any act, omission or event occurring in connection therewith; and the Borrower, the Transferor and the Servicer each party hereto hereby waives, releases, and agrees not to ▇▇▇ upon any claim for any such damages, whether or not accrued and whether or not known or suspected.
(b) Notwithstanding any contrary provision set forth herein, no claim may be made by the Administrative Agent, the Collateral Agent, the Collateral Custodian, any Lender, any Indemnified Party, any other Secured Party or any other Person against the Borrower, the Servicer or the Transferor or their respective Affiliates, directors, officers, employees, attorneys or agents for any special, indirect, consequential or punitive damages in respect to any claim for breach of contract or any other theory of liability arising out of or related to the transactions contemplated by this Agreement, or any act, omission or event occurring in connection therewith; and the Administrative Agent, the Collateral Agent, the Collateral Custodian, each Lender, each Indemnified Party and each other Secured Party each hereby waives, releases, and agrees not to ▇▇▇ sue upon any claim for any such damages, whether or not accrued and whether or not known or suspected; provided that this sentence shall in no way limit or vitiate the indemnity obligations of the Borrower shall remain liable or the Servicer hereunder with respect to the Collateral Agenta claim for special, the Account Bank and the Collateral Custodian for such indirect, consequential or punitive damages in respect of against any USActive 55323723.3 claim Indemnified Party which is brought by any a Person (other than the Borrower) arising out not party hereto or brought in breach of or related to the transactions contemplated by this Agreementprovision.
(cb) No obligation or liability to any Obligor under any of the Loan Assets is intended to be assumed by the Administrative Agent, the Lenders or any Secured Party under or as a result of this Agreement and the transactions contemplated hereby.
(c) No recourse under any obligation, covenant or agreement of the Borrower contained in this Agreement shall be had against any incorporator, stockholder, officer, director, member, manager, employee or agent of the Borrower (solely by virtue of such capacity) by the enforcement of any assessment or by any legal or equitable proceeding, by virtue of any statute or otherwise, other than the limited recourse against those assets pledged by the Transferor or the Borrower pursuant to the applicable Pledge Agreement; it being expressly agreed and understood that this Agreement is solely a corporate obligation of the Borrower, and that no personal liability whatever shall attach to or be incurred by any incorporator, stockholder, officer, director, member, manager, employee or agent of the Borrower (solely by virtue of such capacity) or any of them under or by reason of any of the obligations, covenants or agreements of the Borrower contained in this Agreement, or implied therefrom, and that any and all personal liability for breaches by the Borrower of any of such obligations, covenants or agreements, either at common law or at equity, or by statute, rule or regulation, of every such incorporator, stockholder, officer, director, member, manager, employee or agent is hereby expressly waived as a condition of and in consideration for the execution of this Agreement. Without limitation of the foregoing, no recourse shall be had for the payment of any amount owing in respect of the Advances against the Transferor, the Servicer, the Transferor or any Affiliate, shareholder, manager, officer, director, employee or member of the Borrower, the Transferor, the Servicer or their respective successors or assigns.
(d) The provisions of this Section 12.09 shall survive the termination of this Agreement.
Appears in 1 contract
Sources: Loan and Servicing Agreement (HPS Corporate Lending Fund)
Recourse Against Certain Parties. (a) Notwithstanding No recourse under or with respect to any contrary provision set forth hereinobligation, no claim may be made by covenant or agreement (including, without limitation, the payment of any fees or any other obligations) of the Administrative Agent, the Lender Agents, any Secured Party, the Borrower, the Transferor Collateral Custodian or the Servicer as contained in this Agreement or any other agreement, instrument or document entered into by it pursuant hereto or in connection herewith shall be had against any incorporator, affiliate, stockholder, officer, partner, employee or director of the Administrative Agent, the Lender Agents, any Secured Party, the Borrower, the Collateral Custodian or the Servicer by the enforcement of any assessment or by any legal or equitable proceeding, by virtue USActive 57833767.7 of any statute or otherwise; it being expressly agreed and understood that the agreements of the Administrative Agent, the Lender Agents, any Secured Party, the Borrower, the Collateral Custodian or the Servicer contained in this Agreement and all of the other agreements, instruments and documents entered into by it pursuant hereto or in connection herewith are, in each case, solely the corporate obligations of the Administrative Agent, the Lender Agents, any Secured Party, the Borrower, the Collateral Custodian or the Servicer, and that no personal liability whatsoever shall attach to or be incurred by the Administrative Agent, the Lender Agents, any Secured Party, the Borrower, the Collateral Custodian, the Servicer or any other Person against incorporator, stockholder, affiliate, officer, partner, employee or director of the Administrative Agent or Agent, the Lender Agents, any Secured Party or their respective AffiliatesParty, directors, officers, employees, attorneys or agents for any special, indirect, consequential or punitive damages in respect to any claim for breach of contract or any other theory of liability arising out of or related to the transactions contemplated by this Agreement, or any act, omission or event occurring in connection therewith; and the Borrower, the Transferor and Collateral Custodian or the Servicer each hereby waivesunder or by reason of any of the obligations, releasescovenants or agreements of the Administrative Agent, the Lender Agents, any Secured Party, the Borrower, the Collateral Custodian or the Servicer contained in this Agreement or in any other such instruments, documents or agreements, or that are implied therefrom, and agrees not to ▇▇▇ upon that any claim and all personal liability of the Administrative Agent, the Lender Agents, any Secured Party, the Borrower, the Collateral Custodian or the Servicer and each incorporator, stockholder, affiliate, officer, partner, employee or director of the Administrative Agent, the Lender Agents, any Secured Party, the Borrower, the Collateral Custodian or the Servicer, or any of them, for breaches by the Administrative Agent, the Lender Agents, any Secured Party, the Borrower, the Collateral Custodian or the Servicer of any such damagesobligations, whether covenants or not accrued agreements, which liability may arise either at common law or at equity, by statute or constitution, or otherwise, is hereby expressly waived as a condition of and whether in consideration for the execution of this Agreement; provided that, the foregoing non-recourse provisions shall in no way affect any rights the Secured Parties might have against any incorporator, affiliate, stockholder, officer, employee or not known director of the Borrower, the Collateral Custodian or suspectedthe Servicer to the extent of any fraud, misappropriation, embezzlement or any other financial crime constituting a felony by such Person.
(b) Notwithstanding any contrary provision set forth hereinanything in this Agreement to the contrary, no claim may all amounts, payable or expressed to be made payable by the Administrative AgentBorrower on, under or in respect of its obligations and liabilities under this Agreement shall be recoverable only from and to the extent of sums in respect of, or calculated by reference to, the Collateral Agent, that are received by the Collateral Custodian, any Lender, any Indemnified Party, any other Secured Party or any other Person against the Borrower, the Servicer or the Transferor or their respective Affiliates, directors, officers, employees, attorneys or agents for any special, indirect, consequential or punitive damages in respect to any claim for breach of contract or any other theory of liability arising out of or related Borrower pursuant to the transactions contemplated by this Agreement, or any act, omission or event occurring in connection therewith; terms and conditions thereof and the Administrative Agent, the Collateral Agent, the Collateral Custodian, each Lender, each Indemnified Party and each other Secured Party each hereby waives, releases, and agrees not to ▇▇▇ upon any claim for any such damages, whether or not accrued and whether or not known or suspected; provided that the Borrower shall remain liable to the Collateral Agent, the Account Bank and the Collateral Custodian for such damages in respect proceeds of any USActive 55323723.3 claim brought by realization of enforcement of any Person Collateral, subject in any case to Section 2.7, Section 2.8 or Section 2.9. Upon final realization of such sums and proceeds, none of the parties hereto (other than the Borrower) arising out ), nor any person acting on their behalf, shall be entitled to take any further steps against the Borrower to recover any sums due but still unpaid and all claims in respect of or related to the transactions contemplated by this Agreementsuch sums due but still unpaid shall be extinguished.
(c) No Notwithstanding anything in this Agreement to the contrary, no Conduit Lender shall have any obligation to pay any amount required to be paid by it hereunder in excess of any amount available to such Conduit Lender after paying or liability to any Obligor under any making provision for the payment of its Commercial Paper Notes. All payment obligations of each Conduit Lender hereunder are contingent on the availability of funds in excess of the Loan Assets is intended amounts necessary to be assumed pay its Commercial Paper Notes; and each of the other parties hereto agrees that it will not have a claim under Section 101(5) of the Bankruptcy Code if and to the extent that any such payment obligation owed to it by a Conduit Lender exceeds the Administrative Agent, the Lenders or any Secured Party under or as a result of this Agreement and the transactions contemplated hereby.
(d) The provisions of this Section 12.09 shall survive the termination of this Agreement.amount available to such Conduit Lender USActive 57833767.7
Appears in 1 contract
Sources: Loan and Servicing Agreement (North Haven Private Income Fund LLC)
Recourse Against Certain Parties. (a) Notwithstanding No recourse under or with respect to any contrary provision set forth hereinobligation, no claim may be made by the Borrowercovenant, duty or agreement (including, without limitation, the Transferor or the Servicer payment of any fees or any other Person against obligations) of the Administrative Agent or Deal Agent, the Purchaser, any Secured Party Party, any Affected Party, the Seller or their respective Affiliatesthe Limited Guarantor as contained in this Agreement, directors, officers, employees, attorneys or agents for any special, indirect, consequential or punitive damages in respect to any claim for breach of contract the Repurchase Documents or any other theory agreement, instrument or document entered into by the Purchaser, any Secured Party, any Affected Party, the Seller, the Limited Guarantor or any such party pursuant hereto or thereto or in connection herewith or therewith shall be had against any administrator of liability arising out the Deal Agent, the Purchaser, any Secured Party, any Affected Party, the Seller or the Limited Guarantor or any incorporator, Affiliate (direct or indirect), owner, member, partner, stockholder, officer, director, employee, agent or attorney of the Deal Agent, the Purchaser, any Secured Party, any Affected Party, the Seller or related to the transactions contemplated Limited Guarantor or of any such administrator, as such, by the enforcement of any assessment or by any legal or equitable proceeding, by virtue of any statute or otherwise; it being expressly agreed and understood that the agreements of each of the Deal Agent, the Purchaser, the Secured Parties, the Affected Parties, the Seller and the Limited Guarantor contained in this Agreement, the Repurchase Documents and all of the other agreements, instruments and documents entered into by it pursuant hereto or any act, omission thereto or event occurring in connection therewith; and herewith or therewith are, in each case, solely the Borrower, corporate obligations of the Transferor and the Servicer each hereby waives, releases, and agrees not to ▇▇▇ upon any claim for any such damages, whether or not accrued and whether or not known or suspected.
(b) Notwithstanding any contrary provision set forth herein, no claim may be made by the Administrative Deal Agent, the Collateral Purchaser, the Secured Parties, the Affected Parties, the Seller and the Limited Guarantor, and that no personal liability whatsoever shall attach to or be incurred by any administrator of the Deal Agent, the Collateral CustodianPurchaser, the Secured Parties, the Affected Parties, the Seller or the Limited Guarantor or any incorporator, owner, member, partner, stockholder, Affiliate (direct or indirect), officer, director, employee, agent or attorney of the Deal Agent, the Purchaser, the Secured Parties, the Affected Parties, the Seller or the Limited Guarantor, or of any such administrator, as such, or any other of them, under or by reason of any of the obligations, duties, covenants or agreements of the Deal Agent, the Purchaser, the Secured Parties, the Affected Parties, the Seller or the Limited Guarantor contained in this Agreement, the Repurchase Documents or in any other such instruments, documents or agreements, or that are implied therefrom, and that any and all personal liability of every such administrator of the Deal Agent, the Purchaser, any Lender, any Indemnified Secured Party, any other Secured Party or any other Person against the BorrowerAffected Party, the Servicer Seller or the Transferor Limited Guarantor and each incorporator, owner, member, partner, stockholder, Affiliate (direct or their respective Affiliatesindirect), directorsofficer, officersdirector, employeesemployee, attorneys agent or agents for attorney of the Deal Agent, the Purchaser, the Secured Parties, the Affected Parties, the Seller or the Limited Guarantor, or of any special, indirect, consequential or punitive damages in respect to any claim for breach of contract or any other theory of liability arising out of or related to the transactions contemplated by this Agreementsuch administrator, or any actof them, omission or event occurring in connection therewith; and for breaches by the Administrative Deal Agent, the Collateral AgentPurchaser, the Collateral CustodianSecured Parties, each Lenderthe Affected Parties, each Indemnified Party and each other Secured Party each hereby waives, releases, and agrees not to ▇▇▇ upon any claim for the Seller or the Limited Guarantor of any such damagesobligations, whether duties, covenants or not accrued agreements, which liability may arise either at common law or at equity, by statute or constitution, or otherwise, is hereby expressly waived as a condition of and whether or not known or suspected; provided that in consideration for the Borrower shall remain liable to the Collateral Agent, the Account Bank and the Collateral Custodian for such damages in respect execution of any USActive 55323723.3 claim brought by any Person (other than the Borrower) arising out of or related to the transactions contemplated by this Agreement.
(c) No obligation or liability to any Obligor under any of the Loan Assets is intended to be assumed by the Administrative Agent, the Lenders or any Secured Party under or as a result of this Agreement and the transactions contemplated hereby.
(d) . The provisions of this Section 12.09 13.11 shall survive the termination of this Agreement.
(b) Notwithstanding anything in this Agreement to the contrary, neither VFCC nor any other Purchaser that is a commercial paper conduit shall have any obligation to pay any amount required to be paid by it hereunder in excess of any amount available to VFCC or any other Purchaser that is a commercial paper conduit after paying or making provision for the payment of its Commercial Paper Notes. All payment obligations of VFCC and the other Purchasers that are commercial paper conduits hereunder are contingent on the availability of funds to such Purchaser in excess of the amounts necessary to pay its Commercial Paper Notes; and each of the other parties hereto agrees that it shall not have a claim under Section 101(5) of the Bankruptcy Code if and to the extent that any such payment obligation owed to it by VFCC or any other Purchaser that is a commercial paper conduit, as applicable, exceeds the amount available to VFCC or any other Purchaser that is a commercial paper conduit, as applicable, to pay such amount after paying or making provision for the payment of its Commercial Paper Notes.
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Sources: Master Repurchase Agreement (Municipal Mortgage & Equity LLC)