Common use of LIABILITY OF TRUSTOR Clause in Contracts

LIABILITY OF TRUSTOR. (a) Upon the occurrence and during the continuance of an Event of Default, except as provided in this Section 9.01, Beneficiary will look solely to the Property and the security under the Loan Documents for the repayment of the Loan and will not enforce a deficiency judgment against Trustor. However, nothing contained in this section shall limit the rights of Beneficiary to proceed against Trustor and/or the Liable Party (i) to enforce any Leases entered into by Trustor or its affiliates as tenant; (ii) to recover damages for fraud, material misrepresentation, or waste; (iii) to recover any Condemnation Proceeds or Insurance Proceeds or other similar funds which have been misapplied by Trustor or which, under the terms of the Loan Documents, should have been paid to Beneficiary and were not paid to Beneficiary; (iv) to recover any tenant security deposits, tenant letters of credit or other deposits or fees paid to Trustor or prepaid rents for a period of more than one month which have not been delivered to Beneficiary; (v) to recover Rents and Profits received by Trustor after the first day of the month in which an Event of Default occurs and prior to the date Beneficiary acquires title to the Property which have not been applied to the Loan or in accordance with the Loan Documents to operating and maintenance expenses of the Property; (vi) to recover damages, costs and expenses arising from, or in connection with Article VI of this Deed of Trust pertaining to hazardous materials or the Indemnity Agreement; (vii) to recover all amounts due and payable pursuant to Sections 11.06 and 11.07 of this Deed of Trust, and any amount expended by Beneficiary in connection with the foreclosure of this Deed of Trust; (viii) to recover costs and damages arising from Trustor’s failure to pay Premiums or Impositions in the event that Trustor is not required to deposit such amounts with Beneficiary pursuant to Section 2.05 hereof; (ix) to recover damages arising from Trustor’s failure to comply with Section 8.01 of this Deed of Trust pertaining to ERISA; (x) to recover any damages, costs, expenses or liabilities, including 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 (xi) in accordance with California Code of Civil Procedure Section 726.5, as such Section may be amended from time to time, 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 (xi) above, Trustor promises to pay to Beneficiary, on demand by Beneficiary following such exercise, all amounts owed to Beneficiary under any Loan Document, and Trustor agrees that it and the Liable Party will be personally liable for the payment of all such sums. (b) The limitation of liability set forth in this Section 9.01 shall not apply and the Loan shall be fully recourse to Trustor in the event that Trustor commences a voluntary bankruptcy or insolvency proceeding or an involuntary bankruptcy or insolvency proceeding is commenced against Trustor and is not dismissed within 90 days of filing. In addition, this agreement shall not waive any rights which Beneficiary would have under any provisions of the U.S. Bankruptcy Code to file a claim for the full amount of the Secured Indebtedness or to require that the Property shall continue to secure all of the Secured Indebtedness. (c) The limitation of liability set forth in this Section 9.01 shall not apply and the Loan shall be fully recourse to Trustor in the event that there is a Transfer or Secondary Financing except as permitted in the Loan Documents or otherwise approved in writing by Beneficiary.

LIABILITY OF TRUSTOR. (a) Upon the occurrence and during the continuance of an Event of Default, except as provided in this Section 9.019.1, Beneficiary will look solely to the Property and the security under the Loan Documents for the repayment of the Loan and will not enforce a deficiency judgment against Trustor. However, nothing contained in this section shall limit the rights of Beneficiary to enforce any policies of insurance or to proceed against Trustor and the general partners of Trustor and/or the Liable Party Parties, if any, (i) 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; (ii) to recover damages for fraud, material misrepresentation, material breach of warranty or physical waste; (iii) to recover any Condemnation Proceeds or Insurance Proceeds or other similar funds which have been misapplied by Trustor or which, under the terms of the Loan Documents, should have been paid to Beneficiary and were not paid to Beneficiary; (iv) to recover any tenant security deposits, tenant letters of credit or other deposits or fees paid to Trustor that are part of the collateral for the Loan or prepaid rents for a period of more than one month 30 days which have not been delivered to Beneficiary; (v) to recover Rents and Profits received by Trustor after the first day of the month in which an Event of Default occurs and prior to the date Beneficiary acquires title to the Property which have not been applied to the Loan or in accordance with the Loan Documents to operating and maintenance expenses of the Property; (vi) to recover damages, costs and expenses arising from, or in connection with any breach of a covenant contained in Article VI of this Deed of Trust pertaining to hazardous materials 6 hereof or the Indemnity Agreement; (vii) to recover all amounts due and payable pursuant to Sections 11.06 11.6 and 11.07 11.7 of this Deed of Trust, Trust and any amount expended by Beneficiary in connection with the a foreclosure of this Deed of Trustor trustee's sale hereunder; (viii) to recover costs and damages arising from Trustor’s failure to pay Premiums or Impositions in the event that Trustor is not required to deposit such amounts with Beneficiary pursuant to Section 2.05 hereof; (ix) to recover damages arising from Trustor’s 's failure to comply with Section 8.01 8.1 of this Deed of Trust pertaining to ERISA; (xix) to recover any damages, costs, expenses or liabilities, including attorneys’ ' fees, incurred by Beneficiary and arising from any breach or enforcement of any “order, consent decree or settlement relating to the cleanup of Hazardous Materials, or any other "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 (xix) in accordance with California Code of Civil Procedure Section 726.5, as such Section may be amended from time to time, to limit the right of Beneficiary to waive the security of the this 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 lawlaw (provided, however, that this clause (x) shall not be applicable if such impairment occurred during the period of time that Beneficiary owned the Property, unless and to the extent that any impairment results from any act or omission of Trustor or its agents, employees or invitees during such period that Beneficiary owned the Property, or results from the material aggravation of the Hazardous Material condition after the transfer of the Property to Trustor). If Beneficiary exercises the rights and remedies of an unsecured creditor in accordance with the preceding clause (xi) abovex), Trustor promises to pay to Beneficiary, on demand by Beneficiary following such exercise, all amounts owed to Beneficiary under any Loan Document, and Trustor agrees that it and the Liable Party its general partners, if any, will be personally liable for the payment of all such sums. (b) The limitation of liability set forth in this Section 9.01 9.1 shall not apply and the Loan shall be fully recourse to Trustor in the event that prior to the indefeasible repayment in full of the Secured Indebtedness, Trustor commences a voluntary bankruptcy or insolvency proceeding or an involuntary bankruptcy or insolvency proceeding is commenced against Trustor and is not dismissed within 90 ninety (90) days of filing. In addition, this agreement shall not waive any rights which Beneficiary would have under any provisions of the U.S. Bankruptcy Code to file a claim for the full amount of the Secured Indebtedness or to require that the Property shall continue to secure all of the Secured Indebtedness. (c) The limitation of liability set forth in this Section 9.01 shall not apply and the Loan shall be fully recourse to Trustor in the event that there is a Transfer or Secondary Financing except as permitted in the Loan Documents or otherwise approved in writing by Beneficiary.