Common use of LIABILITY OF TRUSTOR Clause in Contracts

LIABILITY OF TRUSTOR. Except as expressly set forth in the balance of this Section or in the Indemnity Agreement or Guaranty, anything contained herein or in any other Loan Documents to the contrary notwithstanding, no recourse shall be had for the payment of the principal or interest on the Note or for any other obligation hereunder or under the Loan Documents against (i) any affiliate, parent company, trustee or advisor of Trustor, Operating Lessee or Liable Party, or owner of a direct or indirect beneficial or equitable interest in Trustor, Table of Contents Operating Lessee or Liable Party, any member in Trustor or Operating Lessee, or any partner, shareholder or member therein (other than against Liable Party pursuant to the Guaranty or Indemnity Agreement or other than the Affiliated Guarantor under the Affiliated Guaranty or the Affiliated Guarantor Subordinate Mortgage); (ii) any legal representative, heir, estate, successor or assign of any thereof; (iii) any corporation (or any officer, director, employee or shareholder thereof), individual or entity to which any ownership interest in Trustor, Operating Lessee or Liable Party shall have been transferred; (iv) any purchaser of any asset of Trustor, Operating Lessee or Liable Party; or (v) any other Person (except Trustor and Liable Party pursuant to the Guaranty and except for the Affiliated Guarantor under the Affiliated Guaranty or the Affiliated Guarantor Subordinate Mortgage), for any deficiency or other sum owing with respect to the Note. It is understood that the Note (except as set forth in the balance of this Section and in the Indemnity Agreement or Guaranty) may not be enforced against any person described in clauses (i) through (v) above (other than against Liable Party pursuant to the Indemnity Agreement or Guaranty as set forth in clauses (i) and (v) above and other than the Affiliated Guarantor under the Affiliated Guaranty or the Affiliated Guarantor Subordinate Mortgage as set forth in clauses (i) and (v) above) unless such person is independently liable for the obligations under the Loan Documents, the Indemnity Agreement, the Guaranty or other document relating to the Loan, and Beneficiary agrees not to ▇▇▇ or bring any legal action or proceeding against any such person in such respect. However, nothing contained in this Section or the Loan Documents shall: (i) prevent recourse to the Trustor or, if and to the extent applicable, the Liable Party or the assets of Trustor, or, if and to the extent applicable, the assets of the Liable Party, or enforcement of the Deed of Trust or other instrument or document by which Trustor is bound pursuant to the Loan Documents; (ii) if and to the extent applicable, prevent recourse to the Affiliated Guarantor pursuant to the Affiliated Guaranty or, if and to the extent applicable, the enforcement of the Affiliated Guarantor Subordinate Mortgage; (iii) limit Beneficiary’s rights to institute or prosecute a legal action or proceeding or otherwise make a claim against Trustor, Operating Lessee and/or the Liable Party for damages and losses to the extent arising directly or indirectly from any of the following or against the person or persons committing any of the following: (1) fraud or intentional misrepresentation by Trustor, Operating Lessee and/or the Liable Party, (2) the misappropriation by Trustor, Operating Lessee or any affiliate of Trustor or Operating Lessee of any proceeds (including, without limitation, any Rents, security deposits, tenant letters of credit, insurance proceeds and condemnation proceeds), including (x) the failure to pay any such amounts to Holder as and to the extent required under the Loan Documents, (y) the collection of Rents for a period of more than 30 days in advance, and (z) such amounts received after an Event of Default and not applied to the Loan or in accordance with the Loan Documents to operating and maintenance expenses of the Property, Table of Contents (3) the breach of any representation, warranty, covenant or indemnification provision in the Indemnity Agreement or in the Deed of Trust with respect to Hazardous Materials, (4) physical damage to the Property from intentional waste committed by Trustor, Operating Lessee or any affiliate of Trustor or Operating Lessee, (5) any and all liabilities, obligations, losses, damages, costs and expenses (including, without limitation, reasonable attorneys’ fees, causes of action, suits, claims, demands and adjustments of any nature or description whatsoever) which may at any time be imposed upon, incurred by or awarded against Beneficiary, in the event (and arising out of such circumstances) that Trustor should raise any defense, counterclaim and/or allegation in any foreclosure action by Beneficiary relative to the Property, which is found by a court of competent jurisdiction to have been raised by Trustor or Operating Lessee in bad faith or to be without basis in fact or law, (iv) limit Beneficiary’s rights to recover damages to the extent arising from Trustor’s or Operating Lessee’s failure to comply with the provisions of the Deed of Trust pertaining to ERISA, (v) limit Beneficiary’s rights to recover all amounts due and payable pursuant to Sections 11.6 and 11.7 of the Deed of Trust and any amount expended by Beneficiary in connection with the foreclosure of the Deed of Trust, (vi) limit Beneficiary’s rights to enforce any leases entered into by Trustor or its affiliates as tenant, guarantees, or other agreements entered into by Trustor in a capacity other than as borrower or any policies of insurance; or (vii) limit Beneficiary’s rights to recover costs and damages arising from Trustor’s or Operating Lessee’s failure to pay any Premiums or Impositions in the event Trustor is not required to deposit such amounts with Beneficiary pursuant to Section 2.5 of the Deed of Trust. (viii) (i) limit Beneficiary’s rights to recover any damages, costs, expenses or liabilities, including reasonable attorneys’ fees, incurred by Beneficiary and arising from any breach or enforcement of any “environmental provision” (as defined in California Code of Civil Procedure Section 736, as such Section may be amended from time to time) relating to the Property or any portion thereof; and/or (ii) in accordance with California Code of Civil Procedure Section 726.5, as such Section may be amended from time to time, limit the right of Beneficiary to waive the security of the Deed of Trust as to any parcel of Real Property that is “environmentally impaired” or is an “affected parcel” (as such terms are defined in such Section), and as to any Personal Property attached to such parcel, and thereafter to exercise against Trustor, to the extent permitted by such Section 726.5, the rights and remedies of an unsecured creditor, including reduction of Beneficiary’s claim against Trustor to judgment, and any other rights and remedies permitted by law. If Beneficiary exercises the rights and remedies of an unsecured creditor in accordance with clause (ii) above, Trustor and Liable Party shall pay to Beneficiary, on demand by Beneficiary following such exercise, all amounts owed to Beneficiary Table of Contents and arising from any breach or enforcement of any “environmental provision” (as defined in California Code of Civil Procedure Section 736, as such Section may be amended from time to time) under any Loan Document, and Trustor and the Liable Party if any, will be personally liable for the payment of all such sums.

LIABILITY OF TRUSTOR. Except as expressly set forth in the balance of this Section or in the Indemnity Agreement or Guaranty, anything contained herein or in any other Loan Documents to the contrary notwithstanding, no recourse shall be had for the payment of the principal or interest on the Note or for any other obligation hereunder or under the Loan Documents against (i) any affiliate, parent company, trustee or advisor of Trustor, Operating Lessee or Lessee, Liable Party, or owner of a direct or indirect beneficial or equitable interest in Trustor, Table of Contents Operating Lessee or Liable Party, any member in Trustor or manager of Trustor, Liable Party or Operating Lessee, or any partner, shareholder or member therein (other than against Liable Party pursuant to the Guaranty or Indemnity Agreement or other than the Affiliated Guarantor under the Affiliated Guaranty or the Affiliated Guarantor Subordinate MortgageAgreement); (ii) any legal representative, heir, estate, successor or assign of any thereof; (iii) any corporation (or any officer, director, employee or shareholder thereof), individual or entity to which any ownership interest in Trustor, Operating Lessee or Liable Party shall have been transferred; (iv) any purchaser of any asset of Trustor, Trustor or Operating Lessee or Liable PartyLessee; or (v) any other Person person or entity (except Trustor and Liable Party pursuant to the Guaranty to the extent provided in (a) through (f) below and except for the Affiliated Guarantor under the Affiliated Guaranty or the Affiliated Guarantor Subordinate MortgageSection 9.2 and therein), for any deficiency or other sum owing with respect to the Note. It is understood that the Note (except as set forth in the balance of this Section and in the Indemnity Agreement or GuarantyGuaranty to the extent provided in (a) through (f) below and Section 9.2 and therein) may not be enforced against any person described in clauses (i) through (v) above (other than against Liable Party pursuant to the Indemnity Agreement or Guaranty as set forth in clauses (i) and (v) above and other than the Affiliated Guarantor under the Affiliated Guaranty or the Affiliated Guarantor Subordinate Mortgage as set forth in clauses (i) and (v) above) unless such person is independently liable for the obligations under the Loan Documents, the Indemnity Agreement, the Guaranty or other document relating to the Loan, and Beneficiary agrees not to ▇s▇▇ or bring any legal action or proceeding against any such person in such respect. However, nothing contained in this Section or in the Loan Documents shall: (ia) prevent recourse to the Trustor or, if and to the extent applicable, the Liable Party or the assets of Trustor, or, if and to the extent applicable, as provided in the Guaranty or Indemnity Agreement, the assets of the Liable Party, or enforcement of the Deed of Trust or other instrument or document by which Trustor is bound pursuant to the Loan Documents;. (ii) if and to the extent applicable, prevent recourse to the Affiliated Guarantor pursuant to the Affiliated Guaranty or, if and to the extent applicable, the enforcement of the Affiliated Guarantor Subordinate Mortgage; (iiib) limit Beneficiary’s rights to institute or prosecute a legal action or proceeding or otherwise make a claim against Trustor, Operating Lessee Trustor and/or the Liable Party for damages and losses to the extent arising directly or indirectly from any of the following or against the person or persons committing any of the following: (1i) fraud or intentional misrepresentation by Trustor, Operating Lessee and/or the Liable Party, (2ii) the misappropriation by Trustor, Operating Lessee or any affiliate of Trustor or Operating Lessee of any proceeds (including, without limitation, any Rents, security deposits, tenant letters of credit, insurance proceeds and condemnation proceeds), including (x) the failure to pay any such amounts to Holder Beneficiary as and to the extent required under the Loan Documents, (y) the collection of Rents for a period of more than 30 days in advance, and (z) such amounts received after an Event of Default and not applied to the Loan or in accordance with the Loan Documents to operating and maintenance expenses of the Property, Table of ContentsProperty or otherwise in accordance with the Loan Documents; (3iii) the failure of Trustor to pay any obligations for which an escrow of Premiums or Impositions was not required pursuant to Section 2.5 of this Deed of Trust; (iv) the breach of any representation, warranty, covenant or indemnification provision in the Indemnity Agreement or in the Deed of Trust with respect to Hazardous Materials, (4v) physical damage to the Property from intentional waste committed by Trustor, Operating Lessee or any affiliate of Trustor or Operating Lessee,, or (5vi) any and all liabilities, obligations, losses, damages, costs and expenses (including, without limitation, reasonable attorneys’ fees, causes of action, suits, claims, demands and adjustments of any nature or description whatsoever) which may at any time be imposed upon, incurred by or awarded against Beneficiary, in the event (and arising out of such circumstances) that Trustor should raise any defense, counterclaim and/or allegation in any foreclosure action by Beneficiary relative to the Property, or in any claim or action by Beneficiary relative to the assignment of Trustor’s rights to the Interest Rate Cap Agreement (including the right to receive any proceeds derived therefore) or any part thereof, which is found by a court of competent jurisdiction to have been raised by Trustor or Operating Lessee in bad faith or to be without basis in fact or law,. (ivc) limit Beneficiary’s rights to recover damages to the extent arising from Trustor’s or Operating Lessee’s failure to comply with the provisions of the Deed of Trust pertaining to ERISA, (vd) limit Beneficiary’s rights to recover all amounts due and payable pursuant to Sections 11.6 and 11.7 of the this Deed of Trust and any amount expended by Beneficiary in connection with the foreclosure of the Deed of Trust, (vie) limit Beneficiary’s rights to enforce any leases entered into by Trustor or its affiliates as tenant, guarantees, or other agreements entered into by Trustor in a capacity other than as borrower Trustor or any policies of insurance; or, (vii) limit Beneficiary’s rights to recover costs and damages arising from Trustor’s or Operating Lessee’s failure to pay any Premiums or Impositions in the event Trustor is not required to deposit such amounts with Beneficiary pursuant to Section 2.5 of the Deed of Trust. (viiif) (i) limit Beneficiary’s rights to recover any damages, costs, expenses or liabilities, including reasonable attorneys’ ' fees, incurred by Beneficiary and arising from any breach or enforcement of any “"environmental provision” " (as defined in California Code of Civil Procedure Section 736, as such Section may be amended from time to time) relating to the Property or any portion thereof; and/or (ii) in accordance with California Code of Civil Procedure Section 726.5, as such Section may be amended from time to time, limit the right of Beneficiary to waive the security of the Deed of Trust as to any parcel of Real Property that is “"environmentally impaired” " or is an “"affected parcel” " (as such terms are defined in such Section), and as to any Personal Property attached to such parcel, and thereafter to exercise against Trustor, to the extent permitted by such Section 726.5, the rights and remedies of an unsecured creditor, including reduction of Beneficiary’s 's claim against Trustor to judgment, and any other rights and remedies permitted by law. If Beneficiary exercises the rights and remedies of an unsecured creditor in accordance with clause (ii) above, Trustor and Liable Party shall pay to Beneficiary, on demand by Beneficiary following such exercise, all amounts owed to Beneficiary Table of Contents and arising from any breach or enforcement of any “environmental provision” (as defined in California Code of Civil Procedure Section 736, as such Section may be amended from time to time) under any Loan Document, and Trustor and the Liable Party Parties, if any, will be personally liable for the payment of all such sums.