Common use of Borrower’s Recourse Liabilities Clause in Contracts

Borrower’s Recourse Liabilities. Nothing contained in this Section 21 shall (i) constitute a waiver, release or impairment of the lien of the Mortgage or any obligation evidenced or secured by any of the other Loan Documents; (ii) impair the right of Agent, as agent for the Lenders, to name Borrower as a party defendant in any action or suit under the Mortgage or any of the other Loan Documents; (iii) affect the validity or enforceability of any of the Loan Documents or any guaranty made in connection with the Loan or any of the rights and remedies of Agent, as agent for the Lenders, thereunder; (iv) impair the right of Agent, as agent for the Lenders, to obtain the appointment of a receiver; (v) constitute a prohibition against Agent, as agent for the Lenders, to commence any other appropriate action or proceeding in order for Lender to fully realize the lien and security granted by the Mortgage or the other Loan Documents or to exercise its remedies against all or any portion of the Property. In addition, nothing in this Section 21 shall be deemed to impede or prejudice the rights of the holder of the Note to recover (including reasonable attorney's fees and costs) against Borrower, for and to the extent of any loss, damage, cost, expense, liability, claim or other obligation incurred by Agent and/or the Lenders (including reasonable attorney's fees and costs) (collectively, the “Losses”) arising out of or in connection with the following (all such liability and obligation of Borrower for any or all of the following being referred hereto as “Borrower's Recourse Liabilities”) as a result of: (i) the commission of fraud or any material misrepresentation made in connection with the Loan or under this Agreement or the Loan Documents; (ii) the misappropriation or misapplication of funds associated with the Property, or failure to apply funds in accordance with the provisions of the Loan Documents, including (i) lease security deposits and prepaid rents, (ii) casualty insurance proceeds and Condemnation Awards, (iii) judgments, settlements or bankruptcy claims for unpaid rent, (iv) Gross Receipts from the Property not applied to payment of Expenses, debt service and other expenditures required by the Loan Documents (provided that Borrower may make distributions to its partners if no Event of Default exists and is continuing and Expenses are paid on a current basis), and (v) the Holdback Funds; (iii) waste in connection with the Property;

Borrower’s Recourse Liabilities. Nothing contained in this Section 21 The Obligated Parties shall (i) constitute a waiver, release or impairment not under any circumstances be personally liable for the repayment of any of the lien principal of, interest on, or prepayment fees or late charges or other charges or fees, including, without limitation, attorneys’ fees, due in connection with, the Loan or any other amounts due hereunder or for any deficiency judgment which Lender may obtain after foreclosure of the Mortgage after default by Borrower, except as otherwise expressly provided in the Hazardous Indemnification Agreement; provided, however, that the Obligated Parties (but not the members or partners thereof) shall be personally responsible for any liability, loss, damage or other obligation evidenced (including, without limitation, reasonable attorneys’ fees and disbursements) arising out of any of the following: (a) Any fraud or secured by material misrepresentation (b) Any misapplication of insurance proceeds, condemnation awards or compensation, security deposits or trust funds in violation of applicable law or of the provisions of this Loan Agreement or of any of the other Loan Documents; ; (iic) impair the right of Agent, as agent for the Lenders, The failure to name Borrower as a party defendant in any action or suit under the Mortgage or any of the other Loan Documents; (iii) affect the validity or enforceability of any of the Loan Documents or any guaranty made in connection comply with the provisions of this Loan Agreement prohibiting the sale or any of the rights and remedies of Agent, as agent for the Lenders, thereunder; (iv) impair the right of Agent, as agent for the Lenders, to obtain the appointment of a receiver; (v) constitute a prohibition against Agent, as agent for the Lenders, to commence any other appropriate action or proceeding in order for Lender to fully realize the lien and security granted by the Mortgage or the other Loan Documents or to exercise its remedies against all or any portion further encumbering of the Property. In addition, nothing in this Section 21 shall be deemed ; (d) Willful attempts to impede or prejudice the rights of the holder of the Note to recover (including reasonable attorney's fees and costs) against Borrower, for and to the extent of any loss, damage, cost, expense, liability, claim or other obligation incurred by Agent and/or the Lenders (including reasonable attorney's fees and costs) (collectively, the “Losses”) arising out of or in connection interfere with the following (all such liability and obligation Lender’s rights under the assignment of Borrower for any or all of the following being referred hereto as “Borrower's Recourse Liabilities”) as a result of: (i) the commission of fraud or any material misrepresentation made rents set forth in connection with the Loan or under this Agreement or the Loan Documents; (iie) The failure by the misappropriation or misapplication of funds associated with the Property, or failure Borrower to apply funds in accordance with the provisions perform its obligations (under any of the Loan Documents) to preserve, including protect and maintain the Property and to apply the proceeds of Rents and other income of the Collateral toward the costs of maintenance and operation of the Property, Debt Service and other Permitted Indebtedness; (f) Waste or willful destruction or willful damage by any of the Obligated Parties to the Property or to the electrical, plumbing, heating or air conditioning systems or elevators of the Property; (g) Failure by the Borrower or the Manager to remit to the Lender (or failure to deposit or cause to be deposited into the Clearing Account) all Rents and all other Receipts of the Property at the times specified in the Loan Documents or in the Clearing Account Agreement; (h) The taking of funds from the Clearing Account or the Tax and Insurance Subaccount and use of said funds for any purpose other than as permitted under the Clearing Account Agreement, the Deposit Account Agreement or this Agreement; (i) lease security deposits and prepaid rentsThe Lender’s incurring any liability, (ii) casualty insurance proceeds and Condemnation Awardsloss, (iii) judgmentsor damage in connection with any claim, settlements demand, order, consent, decree, settlement, judgment or bankruptcy claims for unpaid rent, (iv) Gross Receipts from the Property not applied to payment of Expenses, debt service and other expenditures required by the Loan Documents (provided that Borrower may make distributions to its partners if no Event of Default exists and is continuing and Expenses are paid on a current basis), and (v) the Holdback Funds; (iii) waste verdict arising in connection with the manufacture, spilling, leaking or other placement or release in, on or about the Property, of a hazardous or toxic waste, waste product or substance as defined in 42 U.S.C. § 9601 or as defined in any other statute, rule or regulation governing such waste, waste products or substances, as and to the extent more fully set forth in the Hazardous Indemnification Agreement; (j) The Borrower’s or Manager’s collection of Receipts of the Property for periods of more than one (1) month in advance under leases of the Property; (k) The receipt by the Borrower of monies in connection with the modification of any existing or future Lease or the entering into of a new Lease in violation of the applicable provisions of this Loan Agreement, the Management Agreement or the Subordination of Manager; or (l) the Lender’s incurring any liability, loss, or damage resulting from any claim, demand, determination, judgment, verdict or holding that the relationship of the Borrower and the Lender is that of joint ventures, partners, tenants in common, joint tenants or any relationship other than that of debtor and creditor and (x) arising out of a claim, assertion or litigation directly or indirectly brought by or on behalf of Borrower, its Beneficial Interest Holder, Beneficial Interest Holder’s partners or members (or their partners or members) or (y) arising out of any misrepresentation or breach of any representation or warranty set forth herein.

Borrower’s Recourse Liabilities. Nothing contained in this Section 21 shall (i) constitute a waiver, release or impairment of the lien of the Mortgage or any obligation evidenced or secured by any of the other Loan Documents; (ii) impair the right of Agent, as agent for the Lenders, to name Borrower as a party defendant in any action or suit under the Mortgage or any of the other Loan Documents; (iii) affect the validity or enforceability of any of the Loan Documents or any guaranty made in connection with the Loan or any of the rights and remedies of Agent, as agent for the Lenders, thereunder; (iv) impair the right of Agent, as agent for the Lenders, to obtain the appointment of a receiver; (v) constitute a prohibition against Agent, as agent for the Lenders, to commence any other appropriate action or proceeding in order for Lender to fully realize the lien and security granted by the Mortgage or the other Loan Documents or to exercise its remedies against all or any portion of the Property. In addition, nothing in this Section 21 shall be deemed to impede or prejudice the rights of the holder of the Note to recover (including reasonable attorney's ’s fees and costs) against Borrower, for and to the extent of any loss, damage, cost, expense, liability, claim or other obligation incurred by Agent and/or the Lenders (including reasonable attorney's ’s fees and costs) (collectively, the “Losses”) arising out of or in connection with the following (all such liability and obligation of Borrower for any or all of the following being referred hereto as “Borrower's ’s Recourse Liabilities”) as a result of: (i) the commission of fraud or any material misrepresentation made in connection with the Loan or under this Agreement or the Loan Documents; (ii) the misappropriation or misapplication of funds associated with the Property, or failure to apply funds in accordance with the provisions of the Loan Documents, including (i) lease security deposits and prepaid rents, (ii) casualty insurance proceeds and Condemnation Awards, (iii) judgments, settlements or bankruptcy claims for unpaid rent, rent and (iv) Gross Receipts from the Property not applied to payment of Expenses, debt service and other expenditures required by the Loan Documents (provided that Borrower may make distributions to its partners Members if no Event of Default exists and is continuing and Expenses are paid on a current basis), and (v) the Holdback Funds; (iiiii) waste in connection with the Property; (iii) removal from the Property of any personal property in violation of any of the Loan Documents; (iv) forfeiture of the Property; (v) the intentional breach of any of the representations and warranties set forth in the Loan Documents; (vi) to the extent there exist adequate funds from the operation of the Property to pay for or carry insurance, the failure to pay for or carry insurance as required by the Loan Documents; (vii) to the extent there exist adequate funds from the operation of the Property to pay Taxes with respect to the Property, the failure to pay Taxes with respect to the Property when due; (viii) all reasonable costs and expenses incurred by Agent in connection with the exercise by Agent, as agent for the Lenders, of its rights and remedies under this Agreement and the Loan Documents as a result of any of the foregoing or the matters and events listed in Section 21(b) below. (ix) Borrower’s failure to re-deposit into the Interest Shortfall Reserve Account an amount equal to the Disbursed Interest Reserve Amount in accordance with Section 3(c)(ii) above. Notwithstanding anything to the contrary in this Agreement or any of the Loan Documents, neither Agent nor any Lender shall be deemed to have waived any right which any of them may have under Sections 506(a), 506(b), 1111(b) or any other provisions of the Bankruptcy Code to file a claim for the full amount of the Indebtedness or to require that all collateral for the Loan shall continue to secure all of the Indebtedness in accordance with the Loan Documents.

Borrower’s Recourse Liabilities. Nothing contained in this Section 21 shall (i) constitute a waiver, release or impairment of the lien of the Mortgage or any obligation evidenced or secured by any of the other Loan Documents; (ii) impair the right of Agent, as agent for the Lenders, Lender to name Borrower as a party defendant in any action or suit under the Mortgage or any of the other Loan Documents; (iii) affect the validity or enforceability of any of the Loan Documents or any guaranty made in connection with the Loan or any of the rights and remedies of Agent, as agent for the Lenders, Lender thereunder; (iv) impair the right of Agent, as agent for the Lenders, Lender to obtain the appointment of a receiver; (v) constitute a prohibition against Agent, as agent for the Lenders, Lender to commence any other appropriate action or proceeding in order for Lender to fully realize the lien and security granted by the Mortgage or the other Loan Documents or to exercise its remedies against all or any portion of the Property. In addition, nothing in this Section 21 shall be deemed to impede or prejudice the rights of the holder of the Note to recover (including reasonable attorney's fees and costs) against Borrower, for and to the extent of any loss, damage, cost, expense, liability, claim or other obligation incurred by Agent and/or the Lenders Lender (including reasonable attorney's ’s fees and costs) (collectively, the “Losses”) arising out of or in connection with the following (all such liability and obligation of Borrower for any or all of the following being referred hereto as “Borrower's ’s Recourse Liabilities”) as a result of: (iA) the commission of fraud or any intentional material misrepresentation made in connection with the Loan application for or under this Agreement or closing of the Loan DocumentsLoan; (iiB) the misappropriation or misapplication of funds associated with the Property, or failure to apply funds in accordance with the provisions of the Loan Documents, including (i) lease security deposits and prepaid rents, (ii) casualty insurance proceeds and Condemnation Awards, (iii) judgments, settlements or bankruptcy claims for unpaid rent, (iv) Gross Receipts from the Property not applied to payment of Expenses, debt service and other expenditures required by the Loan Documents (provided that Borrower may make distributions to its partners if no Event of Default exists and is continuing and Expenses are paid on a current basis)Documents, and (v) the Holdback Fundsfunds in any Accounts or amounts required to be funded into any of the Accounts pursuant to the Account Agreements; (iiiC) loss in connection with the Property resulting from Borrower’s failure to pay the Insurance Premiums; (D) intentional waste in connection with the Property; (E) removal from the Property of any personal property in violation of any of the Loan Documents; (F) any of the Borrower, Borrower Manager or Guarantor institutes, commences any legal proceeding or engages in any other act or omission of any kind solely for the purpose of directly or indirectly preventing, impeding, hindering, baring, staying, inhibiting, impairing or otherwise interfering with the exercise by Lender of any of its rights or remedies under the Loan Documents and such legal proceeding, act or omission is not discontinued or rescinded within ten (10) days after notice from Lender, provided, however, the foregoing shall not be deemed to prohibit Borrower, Borrower Manager or Guarantor from raising any defenses or making any claims that Borrower, Borrower Manager or such Guarantor believes in good faith it is entitled to raise or make under applicable law; (G) Borrower’s acquisition of any property or operation of any business not permitted by Section 23 of this Agreement. Notwithstanding anything to the contrary in this Agreement or any of the Loan Documents, Lender shall not be deemed to have waived any right which Lender may have under Section 506(a), 506(b), 1111(b) or any other provisions of the Bankruptcy Code to file a claim for the full amount of the Indebtedness or to require that all collateral for the Loan shall continue to secure all of the Indebtedness in accordance with the Loan Documents.