Limitations on Recourse. Notwithstanding anything in the Loan Documents to the contrary, but subject to the qualifications and other provisions in clauses (a), (b) and (c) of this Section 12 below, Payee and Maker agree that: (i) Maker shall be liable upon the Debt and for the other obligations arising under the Loan Documents to the full extent (but only to the extent) of all of the Mortgaged Property and any other items, property or amounts which are collateral or security for the Loan; (ii) if a default occurs in the timely and proper payment of all or any part of the Debt, any judicial proceedings brought by Payee against Maker shall be limited to the preservation, enforcement and foreclosure, or any thereof, of the liens, security titles, estates, assignments, rights and security interests now or at any time hereafter securing the payment of the Debt and/or the other obligations of Maker under the Loan Documents, and no attachment, execution or other writ of process shall be sought, issued or levied upon any assets, properties or funds of Maker other than the Mortgaged Property; and (iii) in the event of a foreclosure of such liens, security titles, estates, assignments, rights or security interests securing the payment of the Debt, no judgment for any deficiency upon the Debt shall be sought or obtained by Payee against Maker. (a) Nothing contained in this Section 12 shall (1) be deemed to be a release or impairment of the Debt or the lien of the Loan Documents upon the Mortgaged Property, or (2) preclude Payee from foreclosing under the Loan Documents in case of any default or from enforcing any of the other rights of Payee, including naming Maker as a party defendant in any action or suit for foreclosure and sale under the Mortgage, or obtaining the appointment of a receiver or prohibit Payee from obtaining a personal judgment against Maker on the Debt to the extent (but only to the extent) such judgment may be required in order to enforce the liens, security titles, estates, assignments, rights and security interests securing payment of the Debt, or (3) limit or impair in any way whatsoever the Guaranty (the "Guaranty") of even date executed and delivered in connection with the indebtedness evidenced by this Note or release, relieve, reduce, waive or impair in any way whatsoever, any obligation of any party to the Guaranty or (4) release, relieve, reduce, waive or impair in any way whatsoever any obligations of any person other than Maker which is a party to any of the other Loan Documents. (b) In the event of fraud or material misrepresentation by Maker or any guarantor in connection with the Loan Documents or the documents delivered by Maker, or the first full Monthly Installment on this Note is not paid when due, or if any petition or proceeding for bankruptcy, reorganization or arrangement pursuant to federal bankruptcy law, or any similar federal or state law, shall be filed by Maker (or if any such petition or proceeding was not so filed by Maker, but Maker or Guarantor or their respective agents, affiliates, officers or employees consented to, acquiesced in arranged or otherwise participated in bringing about the institution of such petition or proceeding), or if there shall occur any material breach or default under the provisions of Section 9 of the Mortgage (entitled "Single Purpose Entity/Separateness"), the limitations on recourse set forth in this Section 12, including the provisions of clauses (i), (ii) and (iii) of this Section 12 above, will be null and void and completely inapplicable, and this Note shall be full recourse to Maker. (c) Nothing contained herein shall in any manner or way release, affect or impair the right of Payee to recover, and Maker shall be fully and personally liable and subject to legal action, for any loss, cost, expense, damage, claim or other obligation (including without limitation reasonable attorneys' fees and court costs) incurred or suffered by Payee arising out of or in connection with the following: (A) any continuing default beyond any applicable cure periods of the Environmental Liabilities Agreement executed by Maker for the benefit of Payee, dated of even date herewith, including the indemnification provisions contained therein; (B) Maker's failure to obtain ▇▇▇▇▇'s prior written consent to any subordinate financing (except as permitted in Section 9(d) of the Mortgage) or any other encumbrance on the Mortgaged Property, or any transfer of the Mortgaged Property or majority ownership in Maker in violation of the Mortgage; (C) the misapplication by Maker, its agents, affiliates, officers or employees of any funds derived from the Mortgaged Property, including security deposits, insurance proceeds and condemnation awards, in violation of the Loan Documents; (D) Maker's failure to apply proceeds of rents or any other payments in respect of the leases and other income from the Mortgaged Property or any other collateral when received to the costs of maintenance and operation of the Mortgaged Property and to the payment of taxes, lien claims, insurance premiums, monthly payments of principal and interest or escrow payments or other payments due under the Loan Documents to the extent the Loan Documents require such proceeds to be then so applied; (E) any litigation or other legal proceeding related to the Debt filed by Maker or any guarantor or indemnitor that delays or impairs Payee's ability to preserve, enforce or foreclose its lien on the Mortgaged Property, including, but not limited to, the filing of a voluntary petition concerning Maker under the U.S. Bankruptcy Code, in which action a claim, counterclaim, or defense is asserted against Payee, other than any litigation or other legal proceeding in which a final, non-appealable judgment for money damages or injunctive relief is entered against Payee; (F) the gross negligence or willful misconduct of Maker, its agents, affiliates, officers or employees which causes or results in a material diminution, or material loss of value, of the Mortgaged Property that is not reimbursed by insurance or which gross negligence or willful misconduct exposes Payee to claims, liability or costs of defense in any litigation or other legal proceeding; (G) the seizure or forfeiture of the Mortgaged Property, or any portion thereof, or ▇▇▇▇▇'s interest therein, resulting from criminal wrongdoing by Maker, its agents, affiliates, officers or employees; (H) waste to the Mortgaged Property caused by the acts or omissions of Maker, its agents, affiliates, officers, employees or contractors; or the removal or disposal of any portion of the Mortgaged Property by Maker its agents, affiliates, officers, employees or contractors after an Event of Default to the extent such Mortgaged Property is not replaced by Maker with like property of equivalent value, function and design; and (I) in the event Payee has waived (or the Mortgage does not require) the monthly collection for real and personal property taxes, assessments, or insurance premiums, then failure by Maker to pay any or all such taxes, assessments or premiums in accordance with terms of the Mortgage (except for taxes and assessment which accrue, and premiums which are payable, after either (1) the date that Payee takes title to the Mortgaged Property by foreclosure, deed-in-lieu of foreclosure or otherwise or (2) ▇▇▇▇▇ obtains the appointment of a receiver or otherwise takes possession directly as a mortgagee in possession (provided, that, Maker has relinquished possession and control of the Mortgaged Property to such receiver or Payee and is not disputing the receivership or possession by the receiver or Payee)). (d) In addition to the foregoing, Maker shall also be fully and personally liable to Payee for any amount which Maker is fully and personally liable to Payee for under Section 12 of the Crossed Note evidencing the Crossed Loan.
Appears in 2 contracts
Sources: Fixed Rate Note (Ramco Gershenson Properties Trust), Fixed Rate Note (Ramco Gershenson Properties Trust)
Limitations on Recourse. (a) Notwithstanding anything in the Loan Documents to the contrary, but subject to the qualifications and other provisions in clauses (ab), (bc) and (cd) of this Section 12 below, Payee Lender and Maker Borrower agree that: (i) Maker Borrower shall be liable upon the Debt and for the other obligations arising under the Loan Documents to the full extent (but only to the extent) of the security therefor, the same being all properties (whether real or personal), rights, estates and interests now or at any time hereafter securing the payment of the Mortgaged Property and any Debt and/or the other items, property or amounts which are collateral or security for obligations of Borrower under the LoanLoan Documents; (ii) if a default occurs in the timely and proper payment of all or any part of the Debt, any judicial proceedings brought by Payee L▇▇▇▇▇ against Maker Borrower shall be limited to the preservation, enforcement and foreclosure, or any thereof, of the liens, security titles, estates, assignments, rights and security interests now or at any time hereafter securing the payment of the Debt and/or the other obligations of Maker Borrower under the Loan Documents, and no attachment, execution or other writ of process shall be sought, issued or levied upon any assets, properties or funds of Maker Borrower other than the Mortgaged Property; and (iii) in the event of a foreclosure of such liens, security titles, estates, assignments, rights or security interests securing the payment of the Debt, no judgment for any deficiency upon the Debt shall be sought or obtained by Payee Lender against MakerBorrower.
(ab) Nothing contained in this Section 12 shall (1A) be deemed to be a release or impairment of the Debt or the lien of the Loan Documents upon the Mortgaged Property, or (2B) preclude Payee Lender from foreclosing under the Loan Documents in case of any default or from enforcing any of the other rights of PayeeLender, including naming Maker Borrower as a party defendant in any action or suit for foreclosure and sale under the Mortgage, or obtaining the appointment of a receiver or prohibit Payee Lender from obtaining a personal judgment against Maker Borrower on the Debt to the extent (but only to the extent) such judgment may be required in order to enforce the liens, security titles, estates, assignments, rights and security interests securing payment of the Debt, or (3C) limit or impair in any way whatsoever the Guaranty (the "“Guaranty"”) of even date executed and delivered in connection with the indebtedness evidenced by this Note or release, relieve, reduce, waive or impair in any way whatsoever, any obligation of any party to the Guaranty Guaranty, or (4D) release, relieve, reduce, waive or impair in any way whatsoever any obligations of any person other than Maker Borrower which is a party to any of the other Loan Documents.
(bc) In the event of fraud or material misrepresentation by Maker Borrower or Guarantor or any guarantor of their agents, affiliates, officers or employees in connection with the Loan Documents or the documents delivered by Makerany of them, or if the first full Monthly Installment monthly installment on this Note is not paid when due, or if any petition or proceeding for bankruptcy, reorganization or arrangement pursuant to federal bankruptcy law, or any similar federal or state law, shall be filed by Maker Borrower (or if any such petition or proceeding was not so filed by MakerBorrower, but Maker Borrower or Guarantor or their respective agents, affiliates, officers or employees consented to, acquiesced in in, arranged or otherwise participated in bringing about the institution of such petition or proceeding), or if there shall occur any material breach or default under the provisions of Section 9 of the Mortgage (entitled "Single “Single-Purpose Entity/Separateness"”) or Section 12 of the Mortgage (entitled “Transfer or Encumbrance of the Property”), the limitations on recourse set forth in this Section 12, including the provisions of clauses (i), (ii) and (iii) of this Section 12 12(a) above, will be null and void and completely inapplicable, and this Note shall be full recourse to MakerBorrower.
(cd) Nothing contained herein shall in any manner or way release, affect or impair the right of Payee Lender to recover, and Maker Borrower shall be fully and personally liable and subject to legal action, for any loss, cost, expense, damage, claim or other obligation (including without limitation reasonable attorneys' ’ fees and court costs) incurred or suffered by Payee Lender arising out of or in connection with the following:
(Ai) any continuing default beyond any applicable cure periods breach of the Environmental Liabilities Agreement executed by Maker B▇▇▇▇▇▇▇ and Guarantor for the benefit of PayeeLender, dated of even on or about the date herewithhereof, including the indemnification provisions contained therein;
(Bii) Maker's any failure to obtain ▇▇▇▇▇'s prior written consent to any comply with the provisions of the Loan Documents prohibiting subordinate financing (except as permitted in Section 9(d) or the sale, transfer or encumbrance of the Mortgage) Property or any other encumbrance on the Mortgaged Property, direct or indirect ownership interest in Borrower;
(iii) any transfer of the Mortgaged Property or majority ownership in Maker application in violation of the Mortgage;
(C) the Loan Documents or other misapplication by MakerBorrower, its agents, affiliates, officers or employees of any funds derived from the Mortgaged Property, including security deposits, insurance proceeds and condemnation awards, in violation of the Loan Documents;
(Div) Maker's after the occurrence of an Event of Default or otherwise to the extent the Loan Documents require such application, Borrower’s failure to apply proceeds of rents (including rents collected in advance) or any other payments receipts in respect of the leases (lease termination and modification payments and recoveries upon defaulted leases) and other income or funds derived from the Mortgaged Property or any other collateral when received to the costs of maintenance and operation of the Mortgaged Property and to the payment of taxes, lien claims, insurance premiums, monthly payments of principal and interest or escrow payments or other payments due under the Loan Documents to the extent Documents;
(v) Borrower, Guarantor or any Affiliate contests or in any way interferes with, directly or indirectly, any foreclosure action or sale commenced by Lender or with any other enforcement of Lender’s rights, powers or remedies under any of the Loan Documents require or under any document evidencing, securing or otherwise relating to the Property or any other collateral for the Debt (whether by making any motion, bringing any counterclaim, claiming any defense, seeking any injunction or other restraint, commencing any action seeking to consolidate any such proceeds to be then so appliedforeclosure or other enforcement with any other action, or otherwise), other than contests brought in good faith by Borrower upon which such B▇▇▇▇▇▇▇ ultimately prevails through a favorable court order in favor of B▇▇▇▇▇▇▇;
(E) any litigation or other legal proceeding related to the Debt filed by Maker or any guarantor or indemnitor that delays or impairs Payee's ability to preserve, enforce or foreclose its lien on the Mortgaged Property, including, but not limited to, the filing of a voluntary petition concerning Maker under the U.S. Bankruptcy Code, in which action a claim, counterclaim, or defense is asserted against Payee, other than any litigation or other legal proceeding in which a final, non-appealable judgment for money damages or injunctive relief is entered against Payee;
(F) the gross negligence or willful misconduct of Maker, its agents, affiliates, officers or employees which causes or results in a material diminution, or material loss of value, of the Mortgaged Property that is not reimbursed by insurance or which gross negligence or willful misconduct exposes Payee to claims, liability or costs of defense in any litigation or other legal proceeding;
(Gvi) the seizure or forfeiture of the Mortgaged Property, or any portion thereof, or L▇▇▇▇▇'s ’s interest therein, resulting from criminal wrongdoing by MakerBorrower, its agents, affiliates, officers or employees;
(H) waste to the Mortgaged Property caused by the acts or omissions of Maker, its agents, affiliates, officers, employees or contractors; or the removal or disposal of any portion of the Mortgaged Property by Maker its agents, affiliates, officers, employees or contractors after an Event of Default to the extent such Mortgaged Property is not replaced by Maker with like property of equivalent value, function and design; and
(Ivii) in the event Payee Lender has waived (or Borrower has failed to pay or the Mortgage does not require) the monthly collection for real and personal property taxes, assessments, or insurance premiums, or ground rents, then failure by Maker Borrower to pay any or all such taxes, assessments or assessments, premiums and rents;
(viii) waste of the Property;
(ix) any failure by Borrower to insure the Property in accordance with terms the Loan Documents;
(x) the removal or disposal of any portion of the Mortgage (except for taxes and assessment which accrue, and premiums which are payable, Property after either (1) the date that Payee takes title an Event of Default to the Mortgaged extent such Property is necessary to the operation, preservation or protection of the Property in Lender’s reasonable discretion and is not replaced by foreclosureBorrower with like property of equivalent value, deed-in-lieu function and design;
(xi) any payments made by Borrower to any affiliated property manager or other Affiliate of foreclosure or otherwise or Borrower after the occurrence and during the continuance of an Event of Default;
(2xii) B▇▇▇▇▇ obtains ▇▇▇’s collection of Rents more than one month in advance or entering into or modifying Leases, or receipt of monies by Borrower or its Affiliates in connection with the appointment modification of a receiver any Leases, in violation of the Mortgage; and
(xiii) any documentary stamp, intangibles tax, mortgage recording tax or other transfer or mortgage or mortgage debt taxes or fees or other similar taxes or fees charged upon any transfer of the Property to or by Borrower or upon the making of the loan evidenced by the Note or upon the Note or Mortgage or the recording or acceptance thereof, and any brokerage commission or finder’s fees claimed in connection with the transactions contemplated by the Loan Documents. Borrower shall additionally be personally liable for (and the provisions of Section 12(a) above shall not be applied to limit or otherwise takes possession directly as a mortgagee affect Borrower’s personal liability for) and shall pay to Lender upon demand any and all fees, costs and expenses, including without limitation legal fees and expenses, incurred by Lender and its servicers in possession (provided, that, Maker has relinquished possession and control connection with the enforcement by Lender of the Mortgaged Property to such receiver or Payee and any obligations of Borrower for which Borrower is not disputing the receivership or possession by the receiver or Payee)).
(d) In addition to the foregoing, Maker shall also be fully and personally liable to Payee hereunder and under the Environmental Liabilities Agreement, together with interest accrued for any amount which Maker is fully and personally liable to Payee for under Section 12 of such unpaid obligations at the Crossed Note evidencing the Crossed LoanDefault Rate.
Appears in 2 contracts
Sources: Fixed Rate Note (Infousa Inc), Fixed Rate Note (Infousa Inc)
Limitations on Recourse. Notwithstanding anything in the Loan Documents to the contrary, but subject to the qualifications and other provisions in clauses (a), (b) and (c) of this Section 12 below, Payee and Maker agree that: (i) Maker The Secured Parties shall be liable upon have recourse in respect of the Debt and for the other obligations arising under the Loan Documents Secured Obligations only (1) to the full extent Collateral and (but only 2) against the Borrower (x) up to the extent) of all of the Mortgaged Property and any other items, property or amounts which are collateral or security for the Loan; (ii) if a default occurs in the timely and proper payment of all or any part of the Debt, any judicial proceedings brought by Payee against Maker shall be limited to the preservation, enforcement and foreclosure, or any thereof, of the liens, security titles, estates, assignments, rights and security interests now or an aggregate amount equal at any time hereafter securing to the payment fair market value of the Debt and/or Designated Interests that are not Collateral at such time, as reasonably determined in good faith by the other obligations of Maker under the Loan Documents, and no attachment, execution or other writ of process shall be sought, issued or levied upon any assets, properties or funds of Maker other than the Mortgaged Property; and (iii) in the event of a foreclosure of such liens, security titles, estates, assignments, rights or security interests securing the payment of the Debt, no judgment for any deficiency upon the Debt shall be sought or obtained by Payee against Maker.
(a) Nothing contained in this Section 12 shall (1) be deemed to be a release or impairment of the Debt or the lien of the Loan Documents upon the Mortgaged Property, or (2) preclude Payee from foreclosing under the Loan Documents in case of any default or from enforcing any of the other rights of Payee, including naming Maker as a party defendant in any action or suit for foreclosure and sale under the Mortgage, or obtaining the appointment of a receiver or prohibit Payee from obtaining a personal judgment against Maker on the Debt to the extent (but only to the extent) such judgment may be required in order to enforce the liens, security titles, estates, assignments, rights and security interests securing payment of the Debt, or (3) limit or impair in any way whatsoever the Guaranty (the "Guaranty") of even date executed and delivered in connection with the indebtedness evidenced by this Note or release, relieve, reduce, waive or impair in any way whatsoever, any obligation of any party to the Guaranty or (4) release, relieve, reduce, waive or impair in any way whatsoever any obligations of any person other than Maker which is a party to any of the other Loan Documents.
(b) In the event of fraud or material misrepresentation by Maker or any guarantor in connection with the Loan Documents or the documents delivered by Maker, or the first full Monthly Installment on this Note is not paid when dueAIG Board, or if the Rights Holder on behalf of the Secured Parties contests such valuation, by an investment banking firm of national standing designated by mutual agreement of AIG and the Rights Holder on behalf of the Secured Parties and (y) in respect of any petition or proceeding for bankruptcy, reorganization or arrangement amounts due and unpaid pursuant to federal bankruptcy lawSection 4(a); provided, or that the foregoing limitations shall not apply to any similar federal or state law, shall be filed by Maker (or if any such petition or proceeding was not so filed by Maker, but Maker or Guarantor or their respective agents, affiliates, officers or employees consented to, acquiesced in arranged or otherwise participated in bringing about claims against the institution of such petition or proceeding), or if there shall occur any material breach or default under the provisions of Section 9 of the Mortgage (entitled "Single Purpose Entity/Separateness"), the limitations on recourse set forth in this Section 12, including the provisions of clauses (i), (ii) and (iii) of this Section 12 above, will be null and void and completely inapplicable, and this Note shall be full recourse to Maker.
(c) Nothing contained herein shall in any manner or way release, affect or impair the right of Payee to recover, and Maker shall be fully and personally liable and subject to legal action, Borrower for any loss, damage, cost, expense, damageliability, claim or other obligation incurred by the Secured Parties (including without limitation reasonable attorneys' attorney’s fees and court costsreasonable out-of-pocket expenses) incurred or suffered by Payee arising out of or in connection with the following:
(A) any continuing default beyond any applicable cure periods of fraud or intentional misrepresentation by the Environmental Liabilities Agreement executed by Maker for Borrower in connection with the benefit of PayeeLoans, dated of even date herewith, including the indemnification provisions contained therein;
or (B) Maker's Borrower’s knowing and intentional failure to obtain ▇▇▇▇▇'s prior written consent to any subordinate financing (except as permitted in Section 9(d) of the Mortgage) or any other encumbrance on the Mortgaged Property, or any transfer of the Mortgaged Property or majority ownership in Maker in violation of the Mortgage;
(C) the misapplication by Maker, perform its agents, affiliates, officers or employees of any funds derived from the Mortgaged Property, including security deposits, insurance proceeds and condemnation awards, in violation of material obligations under the Loan Documents;.
(Dii) Maker's failure The Secured Parties shall have recourse against any Guarantor only to apply proceeds the extent of rents or such Guarantor’s interests in the Collateral.
(iii) The ALICO SPV, as Secured Party, shall have no recourse to any other payments Collateral pledged by the AIA SPV as Guarantor in respect of the leases Secured Obligations until such time as the Preferred Payment (as defined in the AIA SPV LLC Agreement) shall have occurred in accordance with the terms of the AIA SPV LLC Agreement and other income the ALICO SPV, as Secured Party, shall be subordinated in right of payment from the Mortgaged Property or any other collateral when received AIA SPV, as Guarantor, to the costs of maintenance and operation prior payment in full of the Mortgaged Property AIA Liquidation Preference and all preferred returns earned thereon, except (i) during any period in which the FRBNY Payoff Time shall have occurred with respect to the payment AIA SPV but not with respect to the ALICO SPV, during which period the ALICO SPV shall have recourse to any Collateral Pledged by the AIA SPV in priority of taxes, lien claims, insurance premiums, monthly payments of principal and interest any distribution on the AIA Preferred Units or escrow payments or other payments due under the Loan Documents (ii) to the extent otherwise directed by the Loan Documents require such proceeds to be then so applied;Rights Holder.
(Eiv) The AIA SPV, as Secured Party, shall have no recourse to any litigation or other legal proceeding related Collateral pledged by the ALICO SPV as Guarantor in respect of the Secured Obligations until such time as the Junior Preferred Payment (as defined in the ALICO SPV LLC Agreement) shall have occurred in accordance with the terms of the ALICO SPV LLC Agreement and the AIA SPV, as Secured Party, shall be subordinated in right of payment from the ALICO SPV, as Guarantor, to the Debt filed prior payment in full of the ALICO Liquidation Preference and all preferred returns earned thereon, except (i) during any period in which the FRBNY Payoff Time shall have occurred with respect to the ALICO SPV but not with respect to the AIA SPV, during which period the AIA SPV shall have recourse to any Collateral Pledged by Maker or the ALICO SPV in priority of any guarantor or indemnitor that delays or impairs Payee's ability to preserve, enforce or foreclose its lien distribution on the Mortgaged Property, including, but not limited to, the filing of a voluntary petition concerning Maker under the U.S. Bankruptcy Code, in which action a claim, counterclaim, ALICO Preferred Units or defense is asserted against Payee, other than any litigation or other legal proceeding in which a final, non-appealable judgment for money damages or injunctive relief is entered against Payee;
(Fii) the gross negligence or willful misconduct of Maker, its agents, affiliates, officers or employees which causes or results in a material diminution, or material loss of value, of the Mortgaged Property that is not reimbursed by insurance or which gross negligence or willful misconduct exposes Payee to claims, liability or costs of defense in any litigation or other legal proceeding;
(G) the seizure or forfeiture of the Mortgaged Property, or any portion thereof, or ▇▇▇▇▇'s interest therein, resulting from criminal wrongdoing by Maker, its agents, affiliates, officers or employees;
(H) waste to the Mortgaged Property caused by the acts or omissions of Maker, its agents, affiliates, officers, employees or contractors; or the removal or disposal of any portion of the Mortgaged Property by Maker its agents, affiliates, officers, employees or contractors after an Event of Default to the extent such Mortgaged Property is not replaced by Maker with like property of equivalent value, function and design; and
(I) in the event Payee has waived (or the Mortgage does not require) the monthly collection for real and personal property taxes, assessments, or insurance premiums, then failure by Maker to pay any or all such taxes, assessments or premiums in accordance with terms of the Mortgage (except for taxes and assessment which accrue, and premiums which are payable, after either (1) the date that Payee takes title to the Mortgaged Property by foreclosure, deed-in-lieu of foreclosure or otherwise or (2) ▇▇▇▇▇ obtains the appointment of a receiver or otherwise takes possession directly as a mortgagee in possession (provided, that, Maker has relinquished possession and control of the Mortgaged Property to such receiver or Payee and is not disputing the receivership or possession directed by the receiver or Payee))Rights Holder.
(d) In addition to the foregoing, Maker shall also be fully and personally liable to Payee for any amount which Maker is fully and personally liable to Payee for under Section 12 of the Crossed Note evidencing the Crossed Loan.
Appears in 2 contracts
Sources: Master Transaction Agreement, Master Transaction Agreement (American International Group Inc)
Limitations on Recourse. Notwithstanding anything Subject to the provisions and qualifications of this Article, Lender shall not enforce the liability and obligation of the Borrowers to perform and observe any of their obligations that may be contained in the Note, this Loan Documents Agreement, the Mortgages or any other Loan Document by any action or proceeding wherein a money judgment shall be sought against Borrowers, except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender to enforce and realize upon its interest under the Note, this Loan Agreement, the Mortgages and the other Loan Documents, or in the Properties, the Rents, or any other Collateral pursuant to the contraryLoan Documents; provided, but subject to the qualifications and other provisions however, that, except as specifically provided herein, any judgment in clauses (a), (b) and (c) of this Section 12 below, Payee and Maker agree that: (i) Maker any such action or proceeding shall be liable upon the Debt and for the other obligations arising under the Loan Documents to the full extent (but enforceable against Borrowers only to the extent) extent of all of Borrowers’ interest in the Mortgaged Property Properties, in the Rents and in any other itemsCollateral. Lender, property by accepting the Note, this Loan Agreement, the Mortgages and the other Loan Documents, shall not s▇▇ for, seek or amounts which are collateral demand any monetary judgment against any Borrower in any such action or security for proceeding under or by reason of or under or in connection with the Loan; (ii) if a default occurs Note, this Loan Agreement, the Mortgage or the other Loan Documents. Notwithstanding anything to the contrary in this Loan Agreement, the timely and proper payment of all Mortgages or any part of the Debt, any judicial proceedings brought by Payee against Maker shall be limited to the preservation, enforcement and foreclosure, or any thereof, of the liens, security titles, estates, assignments, rights and security interests now or at any time hereafter securing the payment of the Debt and/or the other obligations of Maker under the Loan Documents, the provisions of this Section 12.1 and no attachment, execution or the other writ of process shall be sought, issued or levied upon any assets, properties or funds of Maker other than the Mortgaged Property; and (iii) in the event of a foreclosure of such liens, security titles, estates, assignments, rights or security interests securing the payment provisions of the DebtLoan Documents shall not, no judgment for any deficiency upon the Debt shall be sought or obtained by Payee against Maker.
however: (a) Nothing contained constitute a waiver of any right which Lender 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 Obligations secured by the Mortgages or to require that all Collateral shall continue to secure all of the Obligations owing to Lender in this Section 12 shall accordance with the Loan Documents; (1b) be deemed to be constitute a waiver, release or impairment of the Debt any obligation evidenced or the lien secured by any of the Loan Documents upon Documents; (c) impair the Mortgaged Property, or (2) preclude Payee from foreclosing under the Loan Documents in case right of Lender to name any default or from enforcing any of the other rights of Payee, including naming Maker Borrower as a party defendant in any action or suit for foreclosure and sale under any of the Mortgage, Mortgages or obtaining other Loan Documents; (d) impair the right of Lender to obtain the appointment of a receiver receiver; (e) impair the enforcement of any of the Assignments of Leases; or prohibit Payee from obtaining (f) constitute a personal prohibition against Lender to seek a deficiency judgment against Maker on the Debt to the extent (but only to the extent) such judgment may be required Borrowers in order to enforce fully realize the liens, security titles, estates, assignments, rights granted by the Mortgages and security interests securing payment of the Debt, or (3) limit or impair in any way whatsoever the Guaranty (the "Guaranty") of even date executed and delivered in connection with the indebtedness evidenced by this Note or release, relieve, reduce, waive or impair in any way whatsoever, any obligation of any party to the Guaranty or (4) release, relieve, reduce, waive or impair in any way whatsoever any obligations of any person other than Maker which is a party to any of the other Loan Documents.
(b) In the event of fraud or material misrepresentation by Maker or any guarantor in connection with the Loan Documents or the documents delivered by Maker, or the first full Monthly Installment on this Note is not paid when due, or if to commence any petition other appropriate action or proceeding in order for bankruptcy, reorganization or arrangement pursuant Lender to federal bankruptcy law, or any similar federal or state law, shall be filed by Maker (or if any such petition or proceeding was not so filed by Maker, but Maker or Guarantor or their respective agents, affiliates, officers or employees consented to, acquiesced in arranged or otherwise participated in bringing about exercise its remedies against the institution of such petition or proceeding), or if there shall occur any material breach or default under the provisions of Section 9 of the Mortgage (entitled "Single Purpose Entity/Separateness"), the limitations on recourse set forth in this Section 12, including the provisions of clauses (i), (ii) and (iii) of this Section 12 above, will be null and void and completely inapplicable, and this Note shall be full recourse to Maker.
(c) Nothing contained herein shall in any manner or way release, affect or impair the right of Payee to recover, and Maker shall be fully and personally liable and subject to legal action, for any loss, cost, expense, damage, claim or other obligation (including without limitation reasonable attorneys' fees and court costs) incurred or suffered by Payee arising out of or in connection with the following:
(A) any continuing default beyond any applicable cure periods of the Environmental Liabilities Agreement executed by Maker for the benefit of Payee, dated of even date herewith, including the indemnification provisions contained therein;
(B) Maker's failure to obtain ▇▇▇▇▇'s prior written consent to any subordinate financing (except as permitted in Section 9(d) of the Mortgage) Properties or any other encumbrance on the Mortgaged Property, or any transfer of the Mortgaged Property or majority ownership in Maker in violation of the Mortgage;
(C) the misapplication by Maker, its agents, affiliates, officers or employees of any funds derived from the Mortgaged Property, including security deposits, insurance proceeds and condemnation awards, in violation of the Loan Documents;
(D) Maker's failure to apply proceeds of rents or any other payments in respect of the leases and other income from the Mortgaged Property or any other collateral when received to the costs of maintenance and operation of the Mortgaged Property and to the payment of taxes, lien claims, insurance premiums, monthly payments of principal and interest or escrow payments or other payments due under the Loan Documents to the extent the Loan Documents require such proceeds to be then so applied;
(E) any litigation or other legal proceeding related to the Debt filed by Maker or any guarantor or indemnitor that delays or impairs Payee's ability to preserve, enforce or foreclose its lien on the Mortgaged Property, including, but not limited to, the filing of a voluntary petition concerning Maker under the U.S. Bankruptcy Code, in which action a claim, counterclaim, or defense is asserted against Payee, other than any litigation or other legal proceeding in which a final, non-appealable judgment for money damages or injunctive relief is entered against Payee;
(F) the gross negligence or willful misconduct of Maker, its agents, affiliates, officers or employees which causes or results in a material diminution, or material loss of value, of the Mortgaged Property that is not reimbursed by insurance or which gross negligence or willful misconduct exposes Payee to claims, liability or costs of defense in any litigation or other legal proceeding;
(G) the seizure or forfeiture of the Mortgaged Property, or any portion thereof, or ▇▇▇▇▇'s interest therein, resulting from criminal wrongdoing by Maker, its agents, affiliates, officers or employees;
(H) waste to the Mortgaged Property caused by the acts or omissions of Maker, its agents, affiliates, officers, employees or contractors; or the removal or disposal of any portion of the Mortgaged Property by Maker its agents, affiliates, officers, employees or contractors after an Event of Default to the extent such Mortgaged Property is not replaced by Maker with like property of equivalent value, function and design; and
(I) in the event Payee has waived (or the Mortgage does not require) the monthly collection for real and personal property taxes, assessments, or insurance premiums, then failure by Maker to pay any or all such taxes, assessments or premiums in accordance with terms of the Mortgage (except for taxes and assessment which accrue, and premiums which are payable, after either (1) the date that Payee takes title to the Mortgaged Property by foreclosure, deed-in-lieu of foreclosure or otherwise or (2) ▇▇▇▇▇ obtains the appointment of a receiver or otherwise takes possession directly as a mortgagee in possession (provided, that, Maker has relinquished possession and control of the Mortgaged Property to such receiver or Payee and is not disputing the receivership or possession by the receiver or Payee))Collateral.
(d) In addition to the foregoing, Maker shall also be fully and personally liable to Payee for any amount which Maker is fully and personally liable to Payee for under Section 12 of the Crossed Note evidencing the Crossed Loan.
Appears in 2 contracts
Sources: Loan and Security Agreement (Lightstone Value Plus Real Estate Investment Trust, Inc.), Loan and Security Agreement (Lightstone Value Plus Real Estate Investment Trust, Inc.)
Limitations on Recourse. Notwithstanding anything in the Loan Documents to the contrary, but subject (a) Subject to the qualifications and other provisions set forth in clauses (a)this Section, (b) and (c) neither Maker nor Guarantor nor any partner, member, shareholder, officer or director of this Section 12 below, Payee and Maker agree that: (i) Maker either of them shall be personally liable upon the Debt and either at law or in equity for the other obligations arising under the Loan Documents to the full extent (but only to the extent) of all of the Mortgaged Property and any other items, property or amounts which are collateral or security for the Loan; (ii) if a default occurs in the timely and proper payment of all or any part of the Debt, any judicial proceedings brought by Payee against Maker shall be limited to the preservation, enforcement and foreclosure, or any thereof, of the liens, security titles, estates, assignments, rights and security interests now or at any time hereafter securing the payment of the Debt and/or the other obligations of Maker under the Loan Documents, and no attachment, execution or other writ of process shall be sought, issued or levied upon any assets, properties or funds of Maker other than the Mortgaged Property; and (iii) in the event of a foreclosure of such liens, security titles, estates, assignments, rights or security interests securing the payment of the Debt, no judgment for any deficiency upon the Debt shall be sought or obtained by Payee against Maker.
(a) Nothing contained in this Section 12 shall (1) be deemed to be a release or impairment repayment of the Debt or the lien failure of performance of any other obligation evidenced by this Note or contained in the Deed of Trust or the Other Security Documents, and Payee will satisfy any judgments, orders or decrees on account of the failure to repay such Debt and/or the failure to perform any such obligation, from the Property and any other real or personal property, tangible or intangible, as Maker, Guarantor or any other entity shall have pledged or assigned to secure this Note by any of the Loan Documents, except that Payee may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Payee to enforce and realize upon this Note, the Deed of Trust, the Other Security Documents, and the interests in the Property and any other collateral given to Payee pursuant to the Deed of Trust and the Other Security Documents; provided, however, that, except as specifically provided in this Section, any judgment in any such action or proceeding shall be enforceable against Maker only to the extent of Maker’s interest in the Property and in any other collateral given to Payee. ▇▇▇▇▇, by accepting this Note, the Deed of Trust and the Other Security Documents, agrees that it shall not sue for, seek or demand any deficiency judgment against Maker in any such action or proceeding, under, by reason of or in connection with the Deed of Trust, the Other Security Documents upon the Mortgaged Propertyor this Note. The provisions of this Section shall not, however: (i) constitute a waiver, release or (2) preclude Payee from foreclosing under the Loan Documents in case impairment of any default obligation evidenced or from enforcing any secured by the Deed of Trust, the other rights Environmental Agreement, the Guaranty or the Other Security Documents or this Note; (ii) impair the right of Payee, including naming Payee to name Maker as a party defendant in any action or suit for foreclosure and sale under the Mortgage, Deed of Trust; (iii) affect the validity or obtaining the appointment enforceability of a receiver any guaranty or prohibit Payee from obtaining a personal judgment against Maker on the Debt to the extent (but only to the extent) such judgment may be required in order to enforce the liens, security titles, estates, assignments, rights and security interests securing payment of the Debt, or (3) limit or impair in any way whatsoever the Guaranty (the "Guaranty") of even date executed and delivered indemnity made in connection with the indebtedness evidenced by Deed of Trust, this Note or release, relieve, reduce, waive or impair in any way whatsoever, any obligation of any party to the Guaranty or Other Security Documents; (4iv) release, relieve, reduce, waive or impair in any way whatsoever any obligations of any person other than Maker which is a party to any of the other Loan Documents.
(b) In the event of fraud or material misrepresentation by Maker or any guarantor in connection with the Loan Documents or the documents delivered by Maker, or the first full Monthly Installment on this Note is not paid when due, or if any petition or proceeding for bankruptcy, reorganization or arrangement pursuant to federal bankruptcy law, or any similar federal or state law, shall be filed by Maker (or if any such petition or proceeding was not so filed by Maker, but Maker or Guarantor or their respective agents, affiliates, officers or employees consented to, acquiesced in arranged or otherwise participated in bringing about the institution of such petition or proceeding), or if there shall occur any material breach or default under the provisions of Section 9 of the Mortgage (entitled "Single Purpose Entity/Separateness"), the limitations on recourse set forth in this Section 12, including the provisions of clauses (i), (ii) and (iii) of this Section 12 above, will be null and void and completely inapplicable, and this Note shall be full recourse to Maker.
(c) Nothing contained herein shall in any manner or way release, affect or impair the right of Payee to recoverobtain the appointment of a receiver; (v) impair the right of Payee to bring suit with respect to fraud or misrepresentation by Maker in connection with the Deed of Trust, this Note, the Environmental Agreement, the Guaranty or the Other Security Documents; (vi) affect the validity or enforceability of the Environmental Agreement or limit the liability of Maker or Guarantor thereunder; or (vii) affect the validity or enforceability of the Guaranty or limit the liability of Guarantor thereunder.
(b) Nothing herein shall be deemed to be a waiver of any right which Payee may have under Section 506(a), 506(b), 1111(b) or any other provisions of the U.S. Bankruptcy Code to file a claim for the full amount of the Debt secured by the Deed of Trust or to require that all collateral shall continue to secure all of the debt owing to Payee in accordance with this Note, the Deed of Trust, the Environmental Agreement, the Guaranty and the Other Security Documents.
(c) Notwithstanding the foregoing provisions of this Section or any other provision in the Loan Documents, Maker and Guarantor, jointly and severally, shall be fully liable for and personally liable and subject to legal action, shall indemnify Payee for any or all loss, cost, expenseliability, damagejudgment, claim claim, damage or other obligation (including without limitation reasonable attorneys' fees and court costs) expense sustained, suffered or incurred or suffered by Payee (including, without limitation, Payee’s attorneys’ fees) arising out of or attributable or relating to:
(i) fraud or material misrepresentation by Grantor or Guarantor in connection with the following:
(A) any continuing default beyond any applicable cure periods of the Environmental Liabilities Agreement executed by Maker for the benefit of Payee, dated of even date herewith, including the indemnification provisions contained thereinLoan;
(B) Maker's failure to obtain ▇▇▇▇▇'s prior written consent to any subordinate financing (except as permitted in Section 9(d) of the Mortgage) or any other encumbrance on the Mortgaged Property, or any transfer of the Mortgaged Property or majority ownership in Maker in violation of the Mortgage;
(C) the misapplication by Maker, its agents, affiliates, officers or employees of any funds derived from the Mortgaged Property, including security deposits, insurance proceeds and condemnation awards, in violation of the Loan Documents;
(D) Maker's failure to apply proceeds of rents or any other payments in respect of the leases and other income from the Mortgaged Property or any other collateral when received to the costs of maintenance and operation of the Mortgaged Property and to the payment of taxes, lien claims, insurance premiums, monthly payments of principal and interest or escrow payments or other payments due under the Loan Documents to the extent the Loan Documents require such proceeds to be then so applied;
(E) any litigation or other legal proceeding related to the Debt filed by Maker or any guarantor or indemnitor that delays or impairs Payee's ability to preserve, enforce or foreclose its lien on the Mortgaged Property, including, but not limited to, the filing of a voluntary petition concerning Maker under the U.S. Bankruptcy Code, in which action a claim, counterclaim, or defense is asserted against Payee, other than any litigation or other legal proceeding in which a final, non-appealable judgment for money damages or injunctive relief is entered against Payee;
(Fii) the gross negligence or willful misconduct of MakerGrantor or Guarantor, its agents, affiliates, officers their respective agents or employees which causes or results in a material diminutionemployees, or material loss of value, physical waste of the Mortgaged Property that is not reimbursed by insurance or which gross negligence or willful misconduct exposes Payee to claims, liability or costs of defense in any litigation or other legal proceedingProperty;
(Giii) the seizure breach of provisions in the Deed of Trust or forfeiture any of the Mortgaged Propertyother Loan Documents concerning Environmental Laws, Hazardous Substances and Asbestos (as each such terms are defined in the Deed of Trust), and any indemnification of Payee in the Deed of Trust or any portion thereofof the other Loan Documents with respect to such Environmental Laws, or ▇▇▇▇▇'s interest therein, resulting from criminal wrongdoing by Maker, its agents, affiliates, officers or employeesHazardous Substances and Asbestos;
(Hiv) waste to the Mortgaged Property caused by the acts or omissions of Maker, its agents, affiliates, officers, employees or contractors; or the removal or disposal of any portion of the Mortgaged Property by Maker its agents, affiliates, officers, employees or contractors after while an Event of Default exists;
(v) the conversion by Grantor or Guarantor of: (A) any insurance proceeds paid by reason of any loss, damage or destruction to the extent such Mortgaged Property; (B) any awards or other amounts received in connection with the condemnation of all or a portion of the Property; or (C) rents, issues, profits, proceeds, accounts or other amounts received by Grantor or Guarantor (in the case of clause (C), following an Event of Default under this Note, the Deed of Trust, the Environmental Agreement, the Guaranty or any of the other Loan Documents);
(vi) Grantor’s failure to pay taxes, assessments, charges for labor or materials or other charges that may result in liens on any portion of the Property or Grantor’s failure to pay on a current basis the Taxes, Insurance Premiums and Other Charges pursuant to the terms of Section 6 of the Deed of Trust;
(vii) Grantor’s failure to pay the deductible amount of any insurance maintained in respect of the Property;
(viii) Grantor’s failure to comply materially with the Americans With Disabilities Act;
(ix) criminal acts resulting in forfeiture of any of the Property;
(x) any security deposits, advance deposits or retained rents and profits collected with respect to the Property which are not delivered to Payee upon a foreclosure of the Property or action in lieu thereof;
(xi) Grantor fails to obtain ▇▇▇▇▇’s prior written consent if consent is not replaced by Maker with like property required under the Loan Documents to any subordinate financing;
(xii) Grantor’s failure to obtain ▇▇▇▇▇’s prior written consent if consent is required under the Loan Documents to any transfer of equivalent value, function and designthe Property or of any ownership interest in Grantor; and
(Ixiii) Grantor fails to comply with the provisions of Section 11 of the Deed of Trust pertaining to their single purpose/single asset entity status (the “SPE Covenants”);
(xiv) Grantor’s failure to provide financial reports and information pertaining to the Property as required by the Deed of Trust unless such failure is the result of a good faith error and is cured within ten (10) days after notice;
(xv) Grantor’s failure to comply with the PIP (as defined in the event Payee has waived Deed of Trust) as agreed to by Operator and Franchisor from time to time, beyond the expiration of any notice or cure periods provided for in the PIP; and/or
(xvi) default or breach under the Mortgage does not requireOperating Lease (as defined in the Deed of Trust) the monthly collection beyond any applicable grace or cure period provided for real and personal property taxes, assessments, or insurance premiums, then failure by Maker to pay any or all such taxes, assessments or premiums in accordance with terms of the Mortgage (except for taxes and assessment which accrue, and premiums which are payable, after either (1) the date that Payee takes title to the Mortgaged Property by foreclosure, deed-in-lieu of foreclosure or otherwise or (2) ▇▇▇▇▇ obtains the appointment of a receiver or otherwise takes possession directly as a mortgagee in possession (provided, that, Maker has relinquished possession and control of the Mortgaged Property to such receiver or Payee and is not disputing the receivership or possession by the receiver or Payee))therein.
(d) In addition to Notwithstanding the foregoing, Maker the agreement of Payee not to pursue recourse liability as set forth in subsection (a) above SHALL BE AND BECOME NULL AND VOID and shall also be fully of no further force or effect if: (i) any financial information concerning Grantor or Guarantor is fraudulent in any respect, contains any fraudulent information with respect to the financial condition of Grantor or Guarantor; (ii) a voluntary bankruptcy or insolvency proceeding is commenced by Grantor or a managing member of Grantor; or (iii) an involuntary bankruptcy or insolvency proceeding is commenced by any party against Grantor or a managing member of Grantor and personally liable to Payee for any amount which Maker is fully not unconditionally dismissed within ninety (90) days of filing and personally liable to Payee for under Section 12 either (1) at the time of the Crossed Note evidencing filing of such proceeding Grantor was in breach of the Crossed LoanSPE Covenants, or (2) Payee is able to prove collusion between Grantor or either of their Affiliates and the party commencing such action. Upon the occurrence of any of the foregoing events, Grantor and Guarantor shall have full joint and several recourse liability for all sums due under the Loan Documents.
(e) Nothing in this Section shall be interpreted or construed to impair, limit the liability of or otherwise affect the terms, conditions, requirements and obligations of Guarantor under the Guaranty or Maker or Guarantor under the Environmental Agreement.
Appears in 2 contracts
Sources: Deed of Trust Note (Innkeepers Usa Trust/Fl), Deed of Trust Note (Innkeepers Usa Trust/Fl)
Limitations on Recourse. (a) Notwithstanding anything in any other provision of this Agreement, the Loan Documents and, the Transaction Documents, the Project Company Documents, or the Sunnova ABS Transaction Documents, the obligations of each Borrower Entity to the contrary, but subject to the qualifications and other provisions in clauses (a), (b) and (c) of this Section 12 below, Payee and Maker agree that: (i) Maker shall be liable upon the Debt and for the other obligations arising make any payments under the Loan Documents shall be recourse solely to a claim against such Borrower Entity and the Collateral pledged under the Loan Documents and no Lender Party will have any recourse to the full extent Sponsor or its Affiliates (but only to other than the extentBorrower Entities) or any recourse against any of the directors, officers, employees, representative or agent of the Sponsor, any Borrower Entity or any other Affiliates of the Sponsor. On enforcement of the Loan Documents, after realization of the Collateral, including liquidation of any contingent claims that are included in the Collateral, and distribution of all proceeds the Collateral, including the proceeds of any such contingent claims, in accordance with the Loan Documents, the Agent shall have no claim against the Sponsor or any of Subsidiaries (other than the Borrower Entities).
(b) The parties hereto hereby further acknowledge and agree that each Borrower Entities’ obligations under the Loan Document are solely the corporate obligations of such Borrower Entity, and that no party shall have any recourse against any of the Mortgaged Property directors, officers or employees of such Borrower Entity for any claims, losses, damages, liabilities, indemnities or other obligations whatsoever in connection with any transactions contemplated by the Loan Documents and the Transaction Documents.
(c) On enforcement of the Loan Documents, after realization of the Collateral, including liquidation of any contingent claims that are included in the Collateral, and distribution of all proceeds of the Collateral, including the proceeds of any such contingent claims, in accordance with the Loan Documents, none of the parties hereto or to any other itemsLoan Document may take any further steps against the Borrower Entities or against any shareholder, property director, officer, employee, representative or amounts which are collateral or security for agent of such Borrower Entity in respect of such obligations. No party hereto will, and agrees that it will not, until the Loan; expiry of two (ii2) if a default occurs in years and one (1) day after the timely and proper payment of all or any part of the Debt, any judicial proceedings brought by Payee against Maker shall be limited to the preservation, enforcement sums outstanding and foreclosure, or any thereof, of the liens, security titles, estates, assignments, rights and security interests now or at any time hereafter securing the payment of the Debt and/or the other obligations of Maker owing under the Loan Documents, and no attachment, execution take any corporate action or other writ of process shall be soughtsteps or legal proceedings for the winding-up, issued dissolution, bankruptcy, liquidation, arrangement, insolvency, composition or levied upon any assets, properties re-organization or funds of Maker other than the Mortgaged Property; and (iii) in the event of a foreclosure of such liens, security titles, estates, assignments, rights like proceedings or security interests securing the payment of the Debt, no judgment for any deficiency upon the Debt shall be sought or obtained by Payee against Maker.
(a) Nothing contained in this Section 12 shall (1) be deemed to be a release or impairment of the Debt or the lien of the Loan Documents upon the Mortgaged Property, or (2) preclude Payee from foreclosing under the Loan Documents in case of any default or from enforcing any of the other rights of Payee, including naming Maker as a party defendant in any action or suit for foreclosure and sale under the Mortgage, or obtaining the appointment of a receiver receiver, administrator, administrative receiver, trustee, liquidator, sequestrator or prohibit Payee from obtaining a personal judgment against Maker on the Debt to the extent (but only to the extent) such judgment may be required in order to enforce the liens, security titles, estates, assignments, rights and security interests securing payment similar officer of the DebtBorrower or any other Borrower Entity, or (3) limit or impair in any way whatsoever the Guaranty (the "Guaranty") of even date executed and delivered in connection with the indebtedness evidenced by this Note or release, relieve, reduce, waive or impair in any way whatsoever, any obligation of any party to the Guaranty or (4) release, relieve, reduce, waive or impair in any way whatsoever any obligations of any person other than Maker which is a party to against any of the other Loan Documentsrevenues and assets such Borrower Entity.
(b) In the event of fraud or material misrepresentation by Maker or any guarantor in connection with the Loan Documents or the documents delivered by Maker, or the first full Monthly Installment on this Note is not paid when due, or if any petition or proceeding for bankruptcy, reorganization or arrangement pursuant to federal bankruptcy law, or any similar federal or state law, shall be filed by Maker (or if any such petition or proceeding was not so filed by Maker, but Maker or Guarantor or their respective agents, affiliates, officers or employees consented to, acquiesced in arranged or otherwise participated in bringing about the institution of such petition or proceeding), or if there shall occur any material breach or default under the provisions of Section 9 of the Mortgage (entitled "Single Purpose Entity/Separateness"), the limitations on recourse set forth in this Section 12, including the provisions of clauses (i), (ii) and (iii) of this Section 12 above, will be null and void and completely inapplicable, and this Note shall be full recourse to Maker.
(c) Nothing contained herein shall in any manner or way release, affect or impair the right of Payee to recover, and Maker shall be fully and personally liable and subject to legal action, for any loss, cost, expense, damage, claim or other obligation (including without limitation reasonable attorneys' fees and court costs) incurred or suffered by Payee arising out of or in connection with the following:
(A) any continuing default beyond any applicable cure periods of the Environmental Liabilities Agreement executed by Maker for the benefit of Payee, dated of even date herewith, including the indemnification provisions contained therein;
(B) Maker's failure to obtain ▇▇▇▇▇'s prior written consent to any subordinate financing (except as permitted in Section 9(d) of the Mortgage) or any other encumbrance on the Mortgaged Property, or any transfer of the Mortgaged Property or majority ownership in Maker in violation of the Mortgage;
(C) the misapplication by Maker, its agents, affiliates, officers or employees of any funds derived from the Mortgaged Property, including security deposits, insurance proceeds and condemnation awards, in violation of the Loan Documents;
(D) Maker's failure to apply proceeds of rents or any other payments in respect of the leases and other income from the Mortgaged Property or any other collateral when received to the costs of maintenance and operation of the Mortgaged Property and to the payment of taxes, lien claims, insurance premiums, monthly payments of principal and interest or escrow payments or other payments due under the Loan Documents to the extent the Loan Documents require such proceeds to be then so applied;
(E) any litigation or other legal proceeding related to the Debt filed by Maker or any guarantor or indemnitor that delays or impairs Payee's ability to preserve, enforce or foreclose its lien on the Mortgaged Property, including, but not limited to, the filing of a voluntary petition concerning Maker under the U.S. Bankruptcy Code, in which action a claim, counterclaim, or defense is asserted against Payee, other than any litigation or other legal proceeding in which a final, non-appealable judgment for money damages or injunctive relief is entered against Payee;
(F) the gross negligence or willful misconduct of Maker, its agents, affiliates, officers or employees which causes or results in a material diminution, or material loss of value, of the Mortgaged Property that is not reimbursed by insurance or which gross negligence or willful misconduct exposes Payee to claims, liability or costs of defense in any litigation or other legal proceeding;
(G) the seizure or forfeiture of the Mortgaged Property, or any portion thereof, or ▇▇▇▇▇'s interest therein, resulting from criminal wrongdoing by Maker, its agents, affiliates, officers or employees;
(H) waste to the Mortgaged Property caused by the acts or omissions of Maker, its agents, affiliates, officers, employees or contractors; or the removal or disposal of any portion of the Mortgaged Property by Maker its agents, affiliates, officers, employees or contractors after an Event of Default to the extent such Mortgaged Property is not replaced by Maker with like property of equivalent value, function and design; and
(I) in the event Payee has waived (or the Mortgage does not require) the monthly collection for real and personal property taxes, assessments, or insurance premiums, then failure by Maker to pay any or all such taxes, assessments or premiums in accordance with terms of the Mortgage (except for taxes and assessment which accrue, and premiums which are payable, after either (1) the date that Payee takes title to the Mortgaged Property by foreclosure, deed-in-lieu of foreclosure or otherwise or (2) ▇▇▇▇▇ obtains the appointment of a receiver or otherwise takes possession directly as a mortgagee in possession (provided, that, Maker has relinquished possession and control of the Mortgaged Property to such receiver or Payee and is not disputing the receivership or possession by the receiver or Payee)).
(d) In addition to the foregoing, Maker shall also be fully and personally liable to Payee for any amount which Maker is fully and personally liable to Payee for under Section 12 of the Crossed Note evidencing the Crossed Loan.
Appears in 1 contract
Sources: Term Loan Agreement (Sunnova Energy International Inc.)
Limitations on Recourse. Notwithstanding anything in the Loan Documents to the contrary, but subject to the qualifications and other provisions in clauses (a), (b) and (c) of this Section 12 below, Payee and Maker agree that: (i) Maker shall be liable upon the Debt and for the other obligations arising under the Loan Documents to the full extent (but only to the extent) of all of the Mortgaged Property and any other items, property or amounts which are collateral or security for the Loan; (ii) if a default occurs in the timely and proper payment of all or any part of the Debt, any judicial proceedings brought by Payee against Maker shall be limited to the preservation, enforcement and foreclosure, or any thereof, of the liens, security titles, estates, assignments, rights and security interests now or at any time hereafter securing the payment of the Debt and/or the other obligations of Maker under the Loan Documents, and no attachment, execution or other writ of process shall be sought, issued or levied upon any assets, properties or funds of Maker other than the Mortgaged Property; and (iii) in the event of a foreclosure of such liens, security titles, estates, assignments, rights or security interests securing the payment of the Debt, no judgment for any deficiency upon the Debt shall be sought or obtained by Payee against Maker.
(a) Nothing contained in this Section 12 shall (1) be deemed to be a release or impairment of the Debt or the lien of the Loan Documents upon the Mortgaged Property, or (2) preclude Payee from foreclosing under the Loan Documents in case of any default or from enforcing any of the other rights of Payee, including naming Maker as a party defendant in any action or suit for foreclosure and sale under the Mortgage, or obtaining the appointment of a receiver or prohibit Payee from obtaining a personal judgment against Maker on the Debt to the extent (but only to the extent) such judgment may be required in order to enforce the liens, security titles, estates, assignments, rights and security interests securing payment of the Debt, or (3) limit or impair in any way whatsoever the Guaranty (the "Guaranty") of even date executed and delivered in connection with the indebtedness evidenced by this Note or release, relieve, reduce, waive or impair in any way whatsoever, any obligation of any party to the Guaranty or (4) release, relieve, reduce, waive or impair in any way whatsoever any obligations of any person other than Maker which is a party to any of the other Loan Documents.
(b) In the event of fraud or material misrepresentation by Maker or any guarantor in connection with the Loan Documents or the documents delivered by Maker, or the first full Monthly Installment monthly payment on this Note is not paid when due, or if any petition or proceeding for bankruptcy, reorganization or arrangement pursuant to federal bankruptcy law, or any similar federal or state law, shall be filed by Maker (or if any such petition or proceeding was not so filed by Maker, but Maker or Guarantor or their respective agents, affiliates, officers or employees consented to, acquiesced in arranged or otherwise participated in bringing about the institution of such petition or proceeding), or if there shall occur any material breach or default under the provisions of Section 9 of the Mortgage (entitled "Single Purpose Entity/Separateness"), the limitations on recourse set forth in this Section 12, including the provisions of clauses (i), (ii) and (iii) of this Section 12 above, will be null and void and completely inapplicable, and this Note shall be full recourse to Maker.
(c) Nothing contained herein shall in any manner or way release, affect or impair the right of Payee to recover, and Maker shall be fully and personally liable and subject to legal action, for any loss, cost, expense, damage, claim or other obligation (including without limitation reasonable attorneys' fees and court costs) incurred or suffered by Payee arising out of or in connection with the following:
(A) any continuing default beyond any applicable cure periods of the Environmental Liabilities Agreement executed by Maker for the benefit of Payee, dated of even date herewith, including the indemnification provisions contained therein;
(B) Maker's failure to obtain ▇▇▇▇▇'s prior written consent to any subordinate financing (except as permitted in Section 9(d) of the Mortgage) or any other encumbrance on the Mortgaged Property, or any transfer of the Mortgaged Property or majority ownership in Maker in violation of the Mortgage;
(C) the misapplication by Maker, its agents, affiliates, officers or employees of any funds derived from the Mortgaged Property, including security deposits, insurance proceeds and condemnation awards, in violation of the Loan Documents;
(D) Maker's failure to apply proceeds of rents or any other payments in respect of the leases and other income from the Mortgaged Property or any other collateral when received to the costs of maintenance and operation of the Mortgaged Property and to the payment of taxes, lien claims, insurance premiums, monthly payments of principal and interest or escrow payments or other payments due under the Loan Documents to the extent the Loan Documents require such proceeds to be then so applied;
(E) any litigation or other legal proceeding related to the Debt filed by Maker or any guarantor or indemnitor that delays or impairs Payee's ability to preserve, enforce or foreclose its lien on the Mortgaged Property, including, but not limited to, the filing of a voluntary petition concerning Maker under the U.S. Bankruptcy Code, in which action a claim, counterclaim, or defense is asserted against Payee, other than any litigation or other legal proceeding in which a final, non-appealable judgment for money damages or injunctive relief is entered against Payee;
(F) the gross negligence or willful misconduct of Maker, its agents, affiliates, officers or employees which causes or results in a material diminution, or material loss of value, of the Mortgaged Property that is not reimbursed by insurance or which gross negligence or willful misconduct exposes Payee to claims, liability or costs of defense in any litigation or other legal proceeding;
(G) the seizure or forfeiture of the Mortgaged Property, or any portion thereof, or ▇▇▇▇▇'s interest therein, resulting from criminal wrongdoing by Maker, its agents, affiliates, officers or employees;; and
(H) waste to the Mortgaged Property caused by the acts or omissions of Maker, its agents, affiliates, officers, employees or contractors; or the removal or disposal of any portion of the Mortgaged Property by Maker its agents, affiliates, officers, employees or contractors after an Event of Default to the extent such Mortgaged Property is not replaced by Maker with like property of equivalent value, function and design; and
(I) in the event Payee has waived (or the Mortgage does not require) the monthly collection for real and personal property taxes, assessments, or insurance premiums, then failure by Maker to pay any or all such taxes, assessments or premiums in accordance with terms of the Mortgage (except for taxes and assessment which accrue, and premiums which are payable, after either (1) the date that Payee takes title to the Mortgaged Property by foreclosure, deed-in-lieu of foreclosure or otherwise or (2) ▇▇▇▇▇ obtains the appointment of a receiver or otherwise takes possession directly as a mortgagee in possession (provided, that, Maker has relinquished possession and control of the Mortgaged Property to such receiver or Payee and is not disputing the receivership or possession by the receiver or Payee)).
(d) In addition to the foregoing, Maker shall also be fully and personally liable to Payee for any amount which Maker is fully and personally liable to Payee for under Section 12 of the Crossed Note evidencing the Crossed Loan.
Appears in 1 contract
Sources: Fixed Rate Note (Ramco Gershenson Properties Trust)
Limitations on Recourse. Notwithstanding anything in the Loan Documents to the contrary, but subject to contrary contained in any Financing Document (other than the qualifications and other provisions in clauses Guaranty):
(a)) the following obligations of Borrower under this Agreement, the Note and the other Financing Documents (bother than the Guaranty) are nonrecourse to Borrower and (c) shall be payable only from the income and proceeds of this Section 12 below, Payee and Maker agree that: the Collateral:
(i) Maker shall be liable upon the Debt obligation to make payments of principal and for the other obligations arising under the Loan Documents to the full extent (but only to the extent) of all of the Mortgaged Property and any other items, property or amounts which are collateral or security for interest due on the Loan; (ii) if a default occurs in the timely and proper payment of all or any part performance by Borrower of the Debt, any judicial proceedings brought by Payee against Maker shall be limited to the preservation, enforcement obligations and foreclosure, or any thereof, covenants contained in Sections 6 and 10 of the liens, security titles, estates, assignments, rights and security interests now or at any time hereafter securing the payment of the Debt and/or the other obligations of Maker under the Loan Documents, and no attachment, execution or other writ of process shall be sought, issued or levied upon any assets, properties or funds of Maker other than the Mortgaged Propertythis Agreement; and (iii) in the event of a foreclosure of such liens, security titles, estates, assignments, rights or security interests securing the obligation to make any payment of fees, expenses or other amounts due under the DebtFinancing Documents (other than the Guaranty), no judgment for except fees, expenses and other amounts arising as a result of the breach by Borrower or the failure by Borrower to perform any deficiency upon representation, warranty, covenant, indemnity or other agreement not covered by the Debt shall be sought or obtained by Payee against Maker.
preceding clauses (ai) Nothing contained in and (ii) of this Section 12 shall (1) be deemed to be a release or impairment of the Debt or the lien of the Loan Documents upon the Mortgaged Property, or (2) preclude Payee from foreclosing under the Loan Documents in case of any default or from enforcing any of the other rights of Payee, including naming Maker as a party defendant in any action or suit for foreclosure and sale under the Mortgage, or obtaining the appointment of a receiver or prohibit Payee from obtaining a personal judgment against Maker on the Debt to the extent (but only to the extent) such judgment may be required in order to enforce the liens, security titles, estates, assignments, rights and security interests securing payment of the Debt, or (3) limit or impair in any way whatsoever the Guaranty (the "Guaranty") of even date executed and delivered in connection with the indebtedness evidenced by this Note or release, relieve, reduce, waive or impair in any way whatsoever, any obligation of any party to the Guaranty or (4) release, relieve, reduce, waive or impair in any way whatsoever any obligations of any person other than Maker which is a party to any of the other Loan Documents.2.7(a); and
(b) In the event of fraud or material misrepresentation by Maker or Trust Company shall not have any guarantor in connection with the Loan Documents or the documents delivered by Maker, or the first full Monthly Installment on this Note is not paid when due, or if any petition or proceeding for bankruptcy, reorganization or arrangement pursuant to federal bankruptcy law, or any similar federal or state law, shall be filed by Maker (or if any such petition or proceeding was not so filed by Maker, but Maker or Guarantor or their respective agents, affiliates, officers or employees consented to, acquiesced in arranged or otherwise participated in bringing about the institution of such petition or proceeding), or if there shall occur any material breach or default under the provisions of Section 9 of the Mortgage (entitled "Single Purpose Entity/Separateness"), the limitations on recourse set forth in this Section 12, including the provisions of clauses personal liability (i), (ii) and (iii) of this Section 12 above, will be null and void and completely inapplicable, and this Note shall be full recourse to Maker.
(c) Nothing contained herein shall in any manner or way release, affect or impair the right of Payee to recover, and Maker shall be fully and personally liable and subject to legal action, for any loss, cost, expense, damage, claim or other obligation (including without limitation reasonable attorneys' fees and court costs) incurred or suffered by Payee arising out of or in connection with the following:
(A) any continuing default beyond any applicable cure periods of the Environmental Liabilities Agreement executed by Maker for the benefit of Payee, dated of even date herewith, including the indemnification provisions contained therein;
(B) Maker's failure to obtain ▇▇▇▇▇'s prior written consent to any subordinate financing (except as permitted in Section 9(d) of the Mortgage) or any other encumbrance on the Mortgaged Property, or any transfer of the Mortgaged Property or majority ownership in Maker in violation of the Mortgage;
(C) the misapplication by Maker, its agents, affiliates, officers or employees of any funds derived from the Mortgaged Property, including security deposits, insurance proceeds and condemnation awards, in violation of the Loan Documents;
(D) Maker's failure to apply proceeds of rents or any other payments in respect of the leases and other income from the Mortgaged Property or any other collateral when received to the costs of maintenance and operation of the Mortgaged Property and to the payment of taxes, lien claims, insurance premiums, monthly make payments of principal and interest due on the Loan, or escrow (ii) to make payments or of any other payments due amounts payable under the Loan Financing Documents except to the extent arising from a misrepresentation or breach of a representation, warranty or covenant expressly made by the Loan Documents require such proceeds Trust Company in a Financing Document; provided, that Section 2.7(a) or (b) shall not be construed to be then so applied;
(E) any litigation or other legal proceeding related to limit the Debt filed by Maker exercise and enforcement of Agent's or any guarantor or indemnitor that delays or impairs PayeeLender's ability to preserve, enforce or foreclose its lien on the Mortgaged Property, including, but not limited rights in and remedies with respect to, (i) the filing Collateral in accordance with the terms of a voluntary petition concerning Maker this Agreement and the Security Agreement, or (ii) under the U.S. Bankruptcy CodeGuaranty. Borrower hereby acknowledges that Agent and the Lenders have expressly reserved all of their respective legal rights and remedies against the Collateral, in which action a claimincluding the right, counterclaim, or defense is asserted against Payee, other than any litigation or other legal proceeding in which a final, non-appealable judgment for money damages or injunctive relief is entered against Payee;
(F) upon the gross negligence or willful misconduct occurrence and continuation of Maker, its agents, affiliates, officers or employees which causes or results in a material diminution, or material loss of value, of the Mortgaged Property that is not reimbursed by insurance or which gross negligence or willful misconduct exposes Payee to claims, liability or costs of defense in any litigation or other legal proceeding;
(G) the seizure or forfeiture of the Mortgaged Property, or any portion thereof, or ▇▇▇▇▇'s interest therein, resulting from criminal wrongdoing by Maker, its agents, affiliates, officers or employees;
(H) waste to the Mortgaged Property caused by the acts or omissions of Maker, its agents, affiliates, officers, employees or contractors; or the removal or disposal of any portion of the Mortgaged Property by Maker its agents, affiliates, officers, employees or contractors after an Event of Default Default, to foreclose upon and to receive the extent such Mortgaged Property is not replaced by Maker with like property of equivalent value, function proceeds from the Collateral and design; and
(I) in otherwise to enforce any right or remedy against the event Payee has waived (or the Mortgage does not require) the monthly collection for real Collateral under and personal property taxes, assessments, or insurance premiums, then failure by Maker to pay any or all such taxes, assessments or premiums in accordance with the terms of this Agreement and the Mortgage (except for taxes and assessment which accrue, and premiums which are payable, after either (1) the date that Payee takes title to the Mortgaged Property by foreclosure, deed-in-lieu of foreclosure or otherwise or (2) ▇▇▇▇▇ obtains the appointment of a receiver or otherwise takes possession directly as a mortgagee in possession (provided, that, Maker has relinquished possession and control of the Mortgaged Property to such receiver or Payee and is not disputing the receivership or possession by the receiver or Payee))Security Agreement.
(d) In addition to the foregoing, Maker shall also be fully and personally liable to Payee for any amount which Maker is fully and personally liable to Payee for under Section 12 of the Crossed Note evidencing the Crossed Loan.
Appears in 1 contract
Limitations on Recourse. Notwithstanding anything in the Loan Documents to the contraryPayee agrees that, but subject to the qualifications and other provisions in clauses (a), (b) and (c) for payment of this Section 12 belowNote, Payee and Maker agree that: (i) Maker shall be liable upon the Debt and for the other obligations arising under the Loan Documents it will look solely to the full extent (but only to the extent) of all of the Mortgaged Property and any such other itemscollateral, property or amounts which are collateral or security for the Loan; (ii) if a default occurs in the timely and proper payment of all or any part of the Debtany, any judicial proceedings brought by Payee against Maker shall be limited to the preservation, enforcement and foreclosure, or any thereof, of the liens, security titles, estates, assignments, rights and security interests as may now or at any time hereafter securing be given to secure the payment of the Debt and/or the other obligations of Maker under the Loan Documentsthis Note, and no attachmentother property or assets of Maker or any other person, firm or entity, disclosed or undisclosed (each an "Exculpated Party"), other than a person, firm or entity who or which has expressly guaranteed some or all of the Maker's obligations under this Note or any other Loan Document to the extent of such guaranty (each a "Guarantor"), shall be subject to levy, execution or other writ of process shall be sought, issued or levied upon any assets, properties or funds of Maker other than enforcement procedure for the Mortgaged Property; and (iii) in the event of a foreclosure of such liens, security titles, estates, assignments, rights or security interests securing the payment satisfaction of the Debtremedies of Payee, no judgment or for any deficiency upon the Debt shall be sought or obtained by Payee against Maker.
(a) Nothing contained in this Section 12 shall (1) be deemed payment required to be a release made under this Note or impairment any other Loan Document or for the performance of the Debt or the lien of the Loan Documents upon the Mortgaged Property, or (2) preclude Payee from foreclosing under the Loan Documents in case of any default or from enforcing any of the covenants or warranties contained herein or therein; provided, however, that the foregoing provisions of this paragraph shall not (i) constitute a waiver of any obligation evidenced by this Note or secured by any other rights Loan Document, (ii) limit the right of PayeePayee to name Maker, including naming Maker any Exculpated Party or any Guarantor as a party defendant in any action or suit for judicial or non-judicial foreclosure and sale or any other action or suit under the Mortgage, Assignment of Leases or obtaining any other Loan Document, (iii) release or impair this Note or the appointment of a receiver or prohibit Payee from obtaining a personal judgment against Maker on the Debt to the extent (but only to the extent) such judgment may be required in order to enforce the liens, security titles, estates, assignments, rights and security interests securing payment lien of the DebtMortgage or any other Loan Document or, (iv) release, impair or (3) limit or impair affect in any way whatsoever the Guaranty validity or enforceability of any guaranty (the whether of payment, performance and/or otherwise) (a "Guaranty") of even date executed and delivered or indemnity agreement given to Payee in connection with the indebtedness loan evidenced hereby; and provided, further that if Maker, any one or more of the Exculpated Parties, any one or more of the Guarantors or any other person or entity (all of the foregoing are collectively referred to as "Persons and Entities") (i) commits any act of fraud in connection with the transactions contemplated by this Note or releaseany other Loan Document, relieve(ii) makes a material adverse misrepresentation of any facts or circumstances related to the Mortgaged Property, reduce, waive or impair in any way whatsoeverMaker, any obligation Exculpated Party or any Guarantor, or any constituent or sub-constituent (including, without limitation, a shareholder, partner, principal, trustee or beneficiary) of any party of the foregoing, (iii) is obligated to pay, but fails to pay or cause to be paid any taxes assessed or payable with respect to the Guaranty Mortgaged Property (to the extent that escrowed funds held or controlled by Payee are not available therefor), (iv) commits or (4as to any Person or Entity having title to or control of the Mortgaged Property) releasesuffers to exist, relieve, reduce, waive any waste with respect to the Mortgaged Property or impair in (v) misapplies (a) any way whatsoever any obligations revenues received from the Mortgaged Property by failing to apply the same solely to the expenses of the Mortgaged Property and/or to amounts due under the Loan Documents after the occurrence and during the continuance of any person Event of Default under this Note or any other than Loan Document, (b) insurance proceeds or condemnation awards received with respect to the Mortgaged Property, or (c) tax deposits or security deposits by tenants relating to the Mortgaged Property or any portion thereof, the Person or Entity committing such fraud, misrepresentation or failure to pay taxes, or so misapplying the aforesaid funds, shall be personally liable from his, her or its separate assets to Payee for any loss or damage resulting therefrom up to the value of the misapplied funds and any interest chargeable thereto (and in this regard, (I) any act by an employee or agent authorized to handle funds for any Person or Entity shall be deemed to be the act of such Person or Entity, and (II) any representation made or deemed made by Maker with respect to facts or circumstances that are particularly susceptible to the control or knowledge, directly or indirectly, of any constituent shareholder, partner, principal, trustee or beneficiary of Maker, or any affiliate of same, shall be deemed to be the representation of such partner, shareholder, principal, trustee, beneficiary or affiliate). Nothing in this paragraph shall be deemed to be a waiver of any right which is the Payee may have under any provision of the Bankruptcy Act of 1986, as amended, or any successor legislation, to file a party claim for the full amount of indebtedness owed by Maker to any Payee or to require that the Mortgaged Property shall continue to secure all of the indebtedness owed by Maker to Payee in accordance with the Mortgage and the other Loan Documents.
(b) In the event of fraud or material misrepresentation by Maker or any guarantor in connection with the Loan Documents or the documents delivered by Maker, or the first full Monthly Installment on this Note is not paid when due, or if any petition or proceeding for bankruptcy, reorganization or arrangement pursuant to federal bankruptcy law, or any similar federal or state law, shall be filed by Maker (or if any such petition or proceeding was not so filed by Maker, but Maker or Guarantor or their respective agents, affiliates, officers or employees consented to, acquiesced in arranged or otherwise participated in bringing about the institution of such petition or proceeding), or if there shall occur any material breach or default under the provisions of Section 9 of the Mortgage (entitled "Single Purpose Entity/Separateness"), the limitations on recourse set forth in this Section 12, including the provisions of clauses (i), (ii) and (iii) of this Section 12 above, will be null and void and completely inapplicable, and this Note shall be full recourse to Maker.
(c) Nothing contained herein shall in any manner or way release, affect or impair the right of Payee to recover, and Maker shall be fully and personally liable and subject to legal action, for any loss, cost, expense, damage, claim or other obligation (including without limitation reasonable attorneys' fees and court costs) incurred or suffered by Payee arising out of or in connection with the following:
(A) any continuing default beyond any applicable cure periods of the Environmental Liabilities Agreement executed by Maker for the benefit of Payee, dated of even date herewith, including the indemnification provisions contained therein;
(B) Maker's failure to obtain ▇▇▇▇▇'s prior written consent to any subordinate financing (except as permitted in Section 9(d) of the Mortgage) or any other encumbrance on the Mortgaged Property, or any transfer of the Mortgaged Property or majority ownership in Maker in violation of the Mortgage;
(C) the misapplication by Maker, its agents, affiliates, officers or employees of any funds derived from the Mortgaged Property, including security deposits, insurance proceeds and condemnation awards, in violation of the Loan Documents;
(D) Maker's failure to apply proceeds of rents or any other payments in respect of the leases and other income from the Mortgaged Property or any other collateral when received to the costs of maintenance and operation of the Mortgaged Property and to the payment of taxes, lien claims, insurance premiums, monthly payments of principal and interest or escrow payments or other payments due under the Loan Documents to the extent the Loan Documents require such proceeds to be then so applied;
(E) any litigation or other legal proceeding related to the Debt filed by Maker or any guarantor or indemnitor that delays or impairs Payee's ability to preserve, enforce or foreclose its lien on the Mortgaged Property, including, but not limited to, the filing of a voluntary petition concerning Maker under the U.S. Bankruptcy Code, in which action a claim, counterclaim, or defense is asserted against Payee, other than any litigation or other legal proceeding in which a final, non-appealable judgment for money damages or injunctive relief is entered against Payee;
(F) the gross negligence or willful misconduct of Maker, its agents, affiliates, officers or employees which causes or results in a material diminution, or material loss of value, of the Mortgaged Property that is not reimbursed by insurance or which gross negligence or willful misconduct exposes Payee to claims, liability or costs of defense in any litigation or other legal proceeding;
(G) the seizure or forfeiture of the Mortgaged Property, or any portion thereof, or ▇▇▇▇▇'s interest therein, resulting from criminal wrongdoing by Maker, its agents, affiliates, officers or employees;
(H) waste to the Mortgaged Property caused by the acts or omissions of Maker, its agents, affiliates, officers, employees or contractors; or the removal or disposal of any portion of the Mortgaged Property by Maker its agents, affiliates, officers, employees or contractors after an Event of Default to the extent such Mortgaged Property is not replaced by Maker with like property of equivalent value, function and design; and
(I) in the event Payee has waived (or the Mortgage does not require) the monthly collection for real and personal property taxes, assessments, or insurance premiums, then failure by Maker to pay any or all such taxes, assessments or premiums in accordance with terms of the Mortgage (except for taxes and assessment which accrue, and premiums which are payable, after either (1) the date that Payee takes title to the Mortgaged Property by foreclosure, deed-in-lieu of foreclosure or otherwise or (2) ▇▇▇▇▇ obtains the appointment of a receiver or otherwise takes possession directly as a mortgagee in possession (provided, that, Maker has relinquished possession and control of the Mortgaged Property to such receiver or Payee and is not disputing the receivership or possession by the receiver or Payee)).
(d) In addition to the foregoing, Maker shall also be fully and personally liable to Payee for any amount which Maker is fully and personally liable to Payee for under Section 12 of the Crossed Note evidencing the Crossed Loan.
Appears in 1 contract
Sources: Loan Agreement (Sepracor Inc /De/)
Limitations on Recourse. Notwithstanding anything Except as hereinafter in the Loan Documents to the contrary, but subject to the qualifications and other provisions in clauses (a), (b) and (c) of this Section 12 below, Payee and Maker agree that: (i) Maker shall be liable upon the Debt and for the other obligations arising under the Loan Documents to the full extent (but only to the extent) of all in ----------------------- Section 15 of the Mortgaged Property Note specifically provided, Mortgagor, Marriott Hanover Hotel Corporation ("MHHC") and any other items, property or amounts which are collateral or security for the Loan; (ii) if a default occurs in the timely and proper payment of all or any part partners of the Debt, any judicial proceedings brought by Payee against Maker Mortgagor shall not be limited to the preservation, enforcement and foreclosure, or any thereof, of the liens, security titles, estates, assignments, rights and security interests now or at any time hereafter securing personally liable for the payment of any sums due hereunder or the Debt and/or the other performance of any obligations of Maker Mortgagor hereunder or under any other Loan Document. No judgment for the repayment of the Indebtedness and no action to foreclose this Mortgage, or to collect any amount payable under the Loan Documents, and no attachmentor to satisfy any other claim relating thereto, execution will be enforced against Mortgagor or MHHC or any other writ partner of process shall be sought, issued Mortgagor personally or levied upon any assets, properties property of Mortgagor or funds MHHC or any other partner of Maker Mortgagor other than the Mortgaged Property; Security and (iii) any other security furnished under the Loan Documents in any action to foreclose this Mortgage or to otherwise realize upon any security furnished under the event of a foreclosure of such liens, security titles, estates, assignments, rights Loan Documents or security interests securing to collect any amount payable under the payment of Loan Documents. Notwithstanding the Debt, no judgment for any deficiency upon the Debt shall be sought or obtained by Payee against Maker.foregoing:
(a) Nothing herein contained in this Section 12 shall (1) be deemed to be a release or impairment of the Debt or the lien of construed as prohibiting Mortgagee from exercising any and all remedies which the Loan Documents upon the Mortgaged Property, or (2) preclude Payee from foreclosing under the Loan Documents in case of any default or from enforcing any of the other rights of Payee, including naming Maker as a party defendant in any action or suit for foreclosure and sale under the Mortgage, or obtaining the appointment of a receiver or prohibit Payee from obtaining a personal judgment against Maker on the Debt to the extent (but only to the extent) such judgment may be required in order to enforce the liens, security titles, estates, assignments, rights and security interests securing payment of the Debt, or (3) limit or impair in any way whatsoever the Guaranty (the "Guaranty") of even date executed and delivered in connection with the indebtedness evidenced by this Note or release, relieve, reduce, waive or impair in any way whatsoever, any obligation of any party to the Guaranty or (4) release, relieve, reduce, waive or impair in any way whatsoever any obligations of any person other than Maker which is a party to any of the other Loan Documents.
(b) In the event of fraud or material misrepresentation by Maker or any guarantor in connection with the Loan Documents or the documents delivered by Maker, or the first full Monthly Installment on this Note is not paid when due, or if any petition or proceeding for bankruptcy, reorganization or arrangement pursuant to federal bankruptcy law, or any similar federal or state law, shall be filed by Maker (or if any such petition or proceeding was not so filed by Maker, but Maker or Guarantor or their respective agents, affiliates, officers or employees consented to, acquiesced in arranged or otherwise participated in bringing about the institution of such petition or proceeding), or if there shall occur any material breach or default under the provisions of Section 9 of the Mortgage (entitled "Single Purpose Entity/Separateness"), the limitations on recourse set forth in this Section 12permit, including the provisions right to bring actions or proceedings against Mortgagor and/or MHHC and/or any other general partner of clauses (i)Mortgagor and to enter a judgment against Mortgagor and/or MHHC and/or any other general partner in Mortgagor, (ii) and (iii) so long as the exercise of this Section 12 above, will be null and void and completely inapplicable, and this Note shall be full recourse any remedy does not extend to Maker.
(c) Nothing contained herein shall in any manner execution against or way release, affect or impair the right of Payee to recover, and Maker shall be fully and personally liable and subject to legal action, for any loss, cost, expense, damage, claim or other obligation (including without limitation reasonable attorneys' fees and court costs) incurred or suffered by Payee arising recovery out of or in connection with the following:
(A) any continuing default beyond any applicable cure periods property of the Environmental Liabilities Agreement executed by Maker for the benefit of Payee, dated of even date herewith, including the indemnification provisions contained therein;
(B) Maker's failure to obtain ▇▇▇▇▇'s prior written consent to any subordinate financing (except as permitted in Section 9(d) of the Mortgage) or Mortgagor and/or MHHC and/or any other encumbrance on general partner other than the Mortgaged Property, or any transfer of the Mortgaged Property or majority ownership in Maker in violation of the Mortgage;
(C) the misapplication by Maker, its agents, affiliates, officers or employees of any funds derived from the Mortgaged Property, including security deposits, insurance proceeds and condemnation awards, in violation of furnished under the Loan Documents;
(Db) Maker's failure to apply proceeds of rents or Mortgagor and MHHC and any other payments in respect general partner of the leases and other income from the Mortgaged Property or any other collateral when received to the costs of maintenance and operation of the Mortgaged Property and to the payment of taxes, lien claims, insurance premiums, monthly payments of principal and interest or escrow payments or other payments due under the Loan Documents to the extent the Loan Documents require such proceeds to be then so applied;
(E) any litigation or other legal proceeding related to the Debt filed by Maker or any guarantor or indemnitor that delays or impairs Payee's ability to preserve, enforce or foreclose its lien on the Mortgaged Property, includingMortgagor, but not any limited to, the filing partner of a voluntary petition concerning Maker under the U.S. Bankruptcy Code, in which action a claim, counterclaim, or defense is asserted against Payee, other than any litigation or other legal proceeding in which a final, non-appealable judgment for money damages or injunctive relief is entered against Payee;
(F) the gross negligence or willful misconduct of Maker, its agents, affiliates, officers or employees which causes or results in a material diminution, or material loss of value, of the Mortgaged Property that Mortgagor who is not reimbursed by insurance or which gross negligence or willful misconduct exposes Payee to claimsalso a general partner, liability or costs of defense in any litigation or other legal proceeding;
(G) the seizure or forfeiture of the Mortgaged Property, or any portion thereof, or ▇▇▇▇▇'s interest therein, resulting from criminal wrongdoing by Maker, its agents, affiliates, officers or employees;
(H) waste to the Mortgaged Property caused by the acts or omissions of Maker, its agents, affiliates, officers, employees or contractors; or the removal or disposal of any portion of the Mortgaged Property by Maker its agents, affiliates, officers, employees or contractors after an Event of Default to the extent such Mortgaged Property is not replaced by Maker with like property of equivalent value, function and design; and
(I) in the event Payee has waived (or the Mortgage does not require) the monthly collection for real and personal property taxes, assessments, or insurance premiums, then failure by Maker to pay any or all such taxes, assessments or premiums in accordance with terms of the Mortgage (except for taxes and assessment which accrue, and premiums which are payable, after either (1) the date that Payee takes title to the Mortgaged Property by foreclosure, deed-in-lieu of foreclosure or otherwise or (2) ▇▇▇▇▇ obtains the appointment of a receiver or otherwise takes possession directly as a mortgagee in possession (provided, that, Maker has relinquished possession and control of the Mortgaged Property to such receiver or Payee and is not disputing the receivership or possession by the receiver or Payee)).
(d) In addition to the foregoing, Maker shall also be fully and personally liable to Payee for any amount which Maker is fully jointly and severally personally liable for (i) misapplying any condemnation proceeds or insurance proceeds attributable to Payee for under Section 12 the Security, to the full extent of such proceeds so misapplied, (ii) misapplying any security deposits attributable to the Security, to the full extent of such deposits so misapplied, (iii) collecting any Rents, Revenues and any other revenues and income generated by the operation of the Crossed Note evidencing hotel on the Crossed Loan.Real Property in advance in violation of any covenant contained in any of the Loan Documents (except for deposits to hold advance room reservations which occur in the ordinary course of business), to the full extent of such Rents, Revenues and other revenues and income collected in advance, (iv) committing fraud, misrepresentation or waste in connection with the operation of the Security or the making of the loan evidenced hereby, to the full extent of any remedies available at law
Appears in 1 contract
Sources: Assignment of Hotel Management Agreement (Hanover Marriott Limited Partnership)
Limitations on Recourse. Notwithstanding anything in the Loan Documents to the contrary, but subject (a) Subject to the qualifications and other provisions set forth in clauses (a), (b) and (c) of this Section 12 belowSection, Payee shall not enforce the liability and obligation of Maker agree that: (i) Maker to perform and observe the obligations contained in this Note, the Loan Agreement, the Mortgages, the Assignment or the Other Security Documents by an action or proceeding wherein a money judgment shall be liable sought against Maker, except that Payee may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Payee to enforce and realize upon this Note, the Debt Mortgages, the Assignment, the Other Security Documents, and for the other obligations arising under the Loan Documents to the full extent (but only to the extent) of all of interests in the Mortgaged Property and any other itemscollateral given to Payee pursuant to the Mortgages, property the Assignment and the Other Security Documents; provided, however, that, except as specifically provided in this Section, any judgment in any such action or amounts which are proceeding shall be enforceable against Maker only to the extent of Maker's interest in the Mortgaged Property and in any other collateral given to Payee. Payee, by accepting this Note, the Loan Agreement, the Assignment, the Mortgages and the Other Security Documents, agrees that it shall not sue for, seek or security for demand any deficiency judgment against Maker in any such action or proceeding, under, by reason of or in connection with the LoanMortgages, the Loan Agreement, the Assignment, the Other Security Documents or this Note. The provisions of this Section shall not, however: (i) constitute a waiver, release or impairment of any obligation evidenced or secured by the Mortgages, the Loan Agreement, the Assignment, the Environmental Agreement or the Other Security Documents or this Note; (ii) if a default occurs in impair the timely and proper payment right of all or any part of the Debt, any judicial proceedings brought by Payee against Maker shall be limited to the preservation, enforcement and foreclosure, or any thereof, of the liens, security titles, estates, assignments, rights and security interests now or at any time hereafter securing the payment of the Debt and/or the other obligations of Maker under the Loan Documents, and no attachment, execution or other writ of process shall be sought, issued or levied upon any assets, properties or funds of Maker other than the Mortgaged Property; and (iii) in the event of a foreclosure of such liens, security titles, estates, assignments, rights or security interests securing the payment of the Debt, no judgment for any deficiency upon the Debt shall be sought or obtained by Payee against Maker.
(a) Nothing contained in this Section 12 shall (1) be deemed to be a release or impairment of the Debt or the lien of the Loan Documents upon the Mortgaged Property, or (2) preclude Payee from foreclosing under the Loan Documents in case of any default or from enforcing any of the other rights of Payee, including naming name Maker as a party defendant in any action or suit for foreclosure and sale under the Mortgage, Mortgages; (iii) affect the validity or obtaining the appointment enforceability of a receiver any guaranty or prohibit Payee from obtaining a personal judgment against Maker on the Debt to the extent (but only to the extent) such judgment may be required in order to enforce the liens, security titles, estates, assignments, rights and security interests securing payment of the Debt, or (3) limit or impair in any way whatsoever the Guaranty (the "Guaranty") of even date executed and delivered indemnity made in connection with the indebtedness evidenced by this Note or releaseMortgages, relieve, reduce, waive or impair in any way whatsoever, any obligation of any party to the Guaranty or (4) release, relieve, reduce, waive or impair in any way whatsoever any obligations of any person other than Maker which is a party to any of the other Loan Documents.
(b) In the event of fraud or material misrepresentation by Maker or any guarantor in connection with the Loan Documents Agreement, this Note, the Assignment or the documents delivered by Maker, or the first full Monthly Installment on this Note is not paid when due, or if any petition or proceeding for bankruptcy, reorganization or arrangement pursuant to federal bankruptcy law, or any similar federal or state law, shall be filed by Maker Other Security Documents; (or if any such petition or proceeding was not so filed by Maker, but Maker or Guarantor or their respective agents, affiliates, officers or employees consented to, acquiesced in arranged or otherwise participated in bringing about the institution of such petition or proceeding), or if there shall occur any material breach or default under the provisions of Section 9 of the Mortgage (entitled "Single Purpose Entity/Separateness"), the limitations on recourse set forth in this Section 12, including the provisions of clauses (i), (iiiv) and (iii) of this Section 12 above, will be null and void and completely inapplicable, and this Note shall be full recourse to Maker.
(c) Nothing contained herein shall in any manner or way release, affect or impair the right of Payee to recoverobtain the appointment of a receiver; (v) impair the enforcement of the Assignment; (vi) impair the right of Payee to bring suit with respect to fraud or intentional misrepresentation by Maker or any other person or entity in connection with the Mortgages, the Loan Agreement, this Note, the Assignment, the Environmental Agreement or the Other Security Documents; or (vii)affect the validity or enforceability of the Environmental Agreement or limit the liability of Maker or any other party thereunder.
(b) Nothing herein shall be deemed to be a waiver of any right which Payee may have under Section 506(a), 506(b), 1111(b) or any other provisions of the U.S. Bankruptcy Code to file a claim for the full amount of the Debt secured by the Mortgages or to require that all collateral shall continue to secure all of the debt owing to Payee in accordance with this Note, the Loan Agreement, the Mortgages, the Assignment, the Environmental Agreement and the Other Security Documents.
(c) Notwithstanding the foregoing provisions of this Section or any other provision in the Loan Documents, Maker shall be fully liable for and personally liable and subject to legal action, shall indemnify Payee for any and all loss, cost, expenseliability, damagejudgment, claim claim, damage or other obligation expense sustained, suffered or incurred by ▇▇▇▇▇ (including including, without limitation reasonable attorneys' fees and court costs) incurred or suffered by Payee arising out of or in connection with the following:
(A) any continuing default beyond any applicable cure periods of the Environmental Liabilities Agreement executed by Maker for the benefit of Payeelimitation, dated of even date herewith, including the indemnification provisions contained therein;
(B) Maker's failure to obtain ▇▇▇▇▇'s prior written consent to any subordinate financing attorneys' fees) arising out of or attributable or relating to: (except as permitted in Section 9(di) of the Mortgage) fraud or any other encumbrance on the Mortgaged Property, or any transfer of the Mortgaged Property or majority ownership in misrepresentation by Maker in violation of connection with the MortgageLoan;
(C) the misapplication by Maker, its agents, affiliates, officers or employees of any funds derived from the Mortgaged Property, including security deposits, insurance proceeds and condemnation awards, in violation of the Loan Documents;
(D) Maker's failure to apply proceeds of rents or any other payments in respect of the leases and other income from the Mortgaged Property or any other collateral when received to the costs of maintenance and operation of the Mortgaged Property and to the payment of taxes, lien claims, insurance premiums, monthly payments of principal and interest or escrow payments or other payments due under the Loan Documents to the extent the Loan Documents require such proceeds to be then so applied;
(E) any litigation or other legal proceeding related to the Debt filed by Maker or any guarantor or indemnitor that delays or impairs Payee's ability to preserve, enforce or foreclose its lien on the Mortgaged Property, including, but not limited to, the filing of a voluntary petition concerning Maker under the U.S. Bankruptcy Code, in which action a claim, counterclaim, or defense is asserted against Payee, other than any litigation or other legal proceeding in which a final, non-appealable judgment for money damages or injunctive relief is entered against Payee;
(Fii) the gross negligence or willful misconduct of Maker, its agents, affiliates, officers agents or employees which causes or results in a material diminutionemployees, or material loss of value, of the Mortgaged Property that is not reimbursed by insurance or which gross negligence or willful misconduct exposes Payee to claims, liability or costs of defense in any litigation or other legal proceeding;
(G) the seizure or forfeiture physical waste of the Mortgaged Property, or any portion thereof, or ▇▇▇▇▇'s interest therein, resulting from criminal wrongdoing by Maker, its agents, affiliates, officers or employees;
(Hiii) waste the breach of provisions in the Loan Agreement concerning environmental laws, hazardous substances and asbestos, and any indemnification of Payee therein with respect to the Mortgaged Property caused by the acts or omissions of Makersuch environmental laws, its agents, affiliates, officers, employees or contractors; or hazardous substances and asbestos;
(iv) the removal or disposal of any portion of the Mortgaged Property after default under this Note, the Mortgages, the Loan Agreement, the Assignment, the Environmental Agreement or any Other Security Document; (v) the misapplication or conversion by Maker its agentsof: (A) any insurance proceeds paid by reason of any loss, affiliatesdamage or destruction to the Mortgaged Property; (B) any awards or other amounts received in connection with the condemnation of all or a portion of the Mortgaged Property; or (C) rents, officersissues, employees profits, proceeds, accounts, or contractors after other amounts received by Maker (in the case of clause (C) following an Event of Default to the extent such Mortgaged Property is not replaced by Maker with like property of equivalent value, function and design; and
(I) in the event Payee has waived (or the Mortgage does not require) the monthly collection for real and personal property taxes, assessments, or insurance premiums, then failure by Maker to pay any or all such taxes, assessments or premiums in accordance with terms of the Mortgage (except for taxes and assessment which accrue, and premiums which are payable, after either (1) the date that Payee takes title to the Mortgaged Property by foreclosure, deed-in-lieu of foreclosure or otherwise or (2) ▇▇▇▇▇ obtains the appointment of a receiver or otherwise takes possession directly as a mortgagee in possession (provided, that, Maker has relinquished possession and control of the Mortgaged Property to such receiver or Payee and is not disputing the receivership or possession by the receiver or PayeeDefault)).
(d) In addition to the foregoing, Maker shall also be fully and personally liable to Payee for any amount which Maker is fully and personally liable to Payee for under Section 12 of the Crossed Note evidencing the Crossed Loan.;
Appears in 1 contract
Sources: Mortgage Note (Nexthealth Inc)
Limitations on Recourse. Notwithstanding anything in the Loan Documents to the contrary, but subject (a) Subject to the qualifications and other provisions set forth in clauses (a)this Section, (b) and (c) neither Maker nor Guarantor nor any partner, member, shareholder, officer or director of this Section 12 below, Payee and Maker agree that: (i) Maker either of them shall be personally liable upon the Debt and either at law or in equity for the other obligations arising under the Loan Documents to the full extent (but only to the extent) of all of the Mortgaged Property and any other items, property or amounts which are collateral or security for the Loan; (ii) if a default occurs in the timely and proper payment of all or any part of the Debt, any judicial proceedings brought by Payee against Maker shall be limited to the preservation, enforcement and foreclosure, or any thereof, of the liens, security titles, estates, assignments, rights and security interests now or at any time hereafter securing the payment of the Debt and/or the other obligations of Maker under the Loan Documents, and no attachment, execution or other writ of process shall be sought, issued or levied upon any assets, properties or funds of Maker other than the Mortgaged Property; and (iii) in the event of a foreclosure of such liens, security titles, estates, assignments, rights or security interests securing the payment of the Debt, no judgment for any deficiency upon the Debt shall be sought or obtained by Payee against Maker.
(a) Nothing contained in this Section 12 shall (1) be deemed to be a release or impairment repayment of the Debt or the lien failure of performance of any other obligation evidenced by this Note or contained in the Deed of Trust or the Other Security Documents, and Payee will satisfy any judgments, orders or decrees on account of the failure to repay such Debt and/or the failure to perform any such obligation, from the Property and any other real or personal property, tangible or intangible, as Maker, Guarantor or any other entity shall have pledged or assigned to secure this Note by any of the Loan Documents, except that Payee may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Payee to enforce and realize upon this Note, the Deed of Trust, the Other Security Documents, and the interests in the Property and any other collateral given to Payee pursuant to the Deed of Trust and the Other Security Documents; provided, however, that, except as specifically provided in this Section, any judgment in any such action or proceeding shall be enforceable against Maker only to the extent of Maker’s interest in the Property and in any other collateral given to Payee. ▇▇▇▇▇, by accepting this Note, the Deed of Trust and the Other Security Documents, agrees that it shall not sue for, seek or demand any deficiency judgment against Maker in any such action or proceeding, under, by reason of or in connection with the Deed of Trust, the Other Security Documents upon the Mortgaged Propertyor this Note. The provisions of this Section shall not, however: (i) constitute a waiver, release or (2) preclude Payee from foreclosing under the Loan Documents in case impairment of any default obligation evidenced or from enforcing any secured by the Deed of Trust, the other rights Environmental Agreement, the Guaranty or the Other Security Documents or this Note; (ii) impair the right of Payee, including naming Payee to name Maker as a party defendant in any action or suit for foreclosure and sale under the Mortgage, Deed of Trust; (iii) affect the validity or obtaining the appointment enforceability of a receiver any guaranty or prohibit Payee from obtaining a personal judgment against Maker on the Debt to the extent (but only to the extent) such judgment may be required in order to enforce the liens, security titles, estates, assignments, rights and security interests securing payment of the Debt, or (3) limit or impair in any way whatsoever the Guaranty (the "Guaranty") of even date executed and delivered indemnity made in connection with the indebtedness evidenced by Deed of Trust, this Note or release, relieve, reduce, waive or impair in any way whatsoever, any obligation of any party to the Guaranty or Other Security Documents; (4iv) release, relieve, reduce, waive or impair in any way whatsoever any obligations of any person other than Maker which is a party to any of the other Loan Documents.
(b) In the event of fraud or material misrepresentation by Maker or any guarantor in connection with the Loan Documents or the documents delivered by Maker, or the first full Monthly Installment on this Note is not paid when due, or if any petition or proceeding for bankruptcy, reorganization or arrangement pursuant to federal bankruptcy law, or any similar federal or state law, shall be filed by Maker (or if any such petition or proceeding was not so filed by Maker, but Maker or Guarantor or their respective agents, affiliates, officers or employees consented to, acquiesced in arranged or otherwise participated in bringing about the institution of such petition or proceeding), or if there shall occur any material breach or default under the provisions of Section 9 of the Mortgage (entitled "Single Purpose Entity/Separateness"), the limitations on recourse set forth in this Section 12, including the provisions of clauses (i), (ii) and (iii) of this Section 12 above, will be null and void and completely inapplicable, and this Note shall be full recourse to Maker.
(c) Nothing contained herein shall in any manner or way release, affect or impair the right of Payee to recoverobtain the appointment of a receiver; (v) impair the right of Payee to bring suit with respect to fraud or misrepresentation by Maker in connection with the Deed of Trust, this Note, the Environmental Agreement, the Guaranty or the Other Security Documents; (vi) affect the validity or enforceability of the Environmental Agreement or limit the liability of Maker or Guarantor thereunder; or (vii) affect the validity or enforceability of the Guaranty or limit the liability of Guarantor thereunder.
(b) Nothing herein shall be deemed to be a waiver of any right which Payee may have under Section 506(a), 506(b), 1111(b) or any other provisions of the U.S. Bankruptcy Code to file a claim for the full amount of the Debt secured by the Deed of Trust or to require that all collateral shall continue to secure all of the debt owing to Payee in accordance with this Note, the Deed of Trust, the Environmental Agreement, the Guaranty and the Other Security Documents.
(c) Notwithstanding the foregoing provisions of this Section or any other provision in the Loan Documents, Maker and Guarantor, jointly and severally, shall be fully liable for and personally liable and subject to legal action, shall indemnify Payee for any or all loss, cost, expenseliability, damagejudgment, claim claim, damage or other obligation (including without limitation reasonable attorneys' fees and court costs) expense sustained, suffered or incurred or suffered by Payee (including, without limitation, Payee’s attorneys’ fees) arising out of or attributable or relating to:
(i) fraud or material misrepresentation by Grantor or Guarantor in connection with the following:
(A) any continuing default beyond any applicable cure periods of the Environmental Liabilities Agreement executed by Maker for the benefit of Payee, dated of even date herewith, including the indemnification provisions contained thereinLoan;
(B) Maker's failure to obtain ▇▇▇▇▇'s prior written consent to any subordinate financing (except as permitted in Section 9(d) of the Mortgage) or any other encumbrance on the Mortgaged Property, or any transfer of the Mortgaged Property or majority ownership in Maker in violation of the Mortgage;
(C) the misapplication by Maker, its agents, affiliates, officers or employees of any funds derived from the Mortgaged Property, including security deposits, insurance proceeds and condemnation awards, in violation of the Loan Documents;
(D) Maker's failure to apply proceeds of rents or any other payments in respect of the leases and other income from the Mortgaged Property or any other collateral when received to the costs of maintenance and operation of the Mortgaged Property and to the payment of taxes, lien claims, insurance premiums, monthly payments of principal and interest or escrow payments or other payments due under the Loan Documents to the extent the Loan Documents require such proceeds to be then so applied;
(E) any litigation or other legal proceeding related to the Debt filed by Maker or any guarantor or indemnitor that delays or impairs Payee's ability to preserve, enforce or foreclose its lien on the Mortgaged Property, including, but not limited to, the filing of a voluntary petition concerning Maker under the U.S. Bankruptcy Code, in which action a claim, counterclaim, or defense is asserted against Payee, other than any litigation or other legal proceeding in which a final, non-appealable judgment for money damages or injunctive relief is entered against Payee;
(Fii) the gross negligence or willful misconduct of MakerGrantor or Guarantor, its agents, affiliates, officers their respective agents or employees which causes or results in a material diminutionemployees, or material loss of value, physical waste of the Mortgaged Property that is not reimbursed by insurance or which gross negligence or willful misconduct exposes Payee to claims, liability or costs of defense in any litigation or other legal proceedingProperty;
(Giii) the seizure breach of provisions in the Deed of Trust or forfeiture any of the Mortgaged Propertyother Loan Documents concerning Environmental Laws, Hazardous Substances and Asbestos (as each such terms are defined in the Deed of Trust), and any indemnification of Payee in the Deed of Trust or any portion thereofof the other Loan Documents with respect to such Environmental Laws, or ▇▇▇▇▇'s interest therein, resulting from criminal wrongdoing by Maker, its agents, affiliates, officers or employeesHazardous Substances and Asbestos;
(Hiv) waste to the Mortgaged Property caused by the acts or omissions of Maker, its agents, affiliates, officers, employees or contractors; or the removal or disposal of any portion of the Mortgaged Property by Maker its agents, affiliates, officers, employees or contractors after while an Event of Default exists;
(v) the conversion by Grantor or Guarantor of: (A) any insurance proceeds paid by reason of any loss, damage or destruction to the extent such Mortgaged Property; (B) any awards or other amounts received in connection with the condemnation of all or a portion of the Property; or (C) rents, issues, profits, proceeds, accounts or other amounts received by Grantor or Guarantor (in the case of clause (C), following an Event of Default under this Note, the Deed of Trust, the Environmental Agreement, the Guaranty or any of the other Loan Documents);
(vi) Grantor’s failure to pay taxes, assessments, charges for labor or materials or other charges that may result in liens on any portion of the Property or Grantor’s failure to pay on a current basis the Taxes, Insurance Premiums and Other Charges pursuant to the terms of Section 6 of the Deed of Trust;
(vii) Grantor’s failure to pay the deductible amount of any insurance maintained in respect of the Property;
(viii) Grantor’s failure to comply materially with the Americans With Disabilities Act;
(ix) criminal acts resulting in forfeiture of any of the Property;
(x) any security deposits, advance deposits or retained rents and profits collected with respect to the Property which are not delivered to Payee upon a foreclosure of the Property or action in lieu thereof;
(xi) Grantor fails to obtain ▇▇▇▇▇’s prior written consent if consent is not replaced by Maker with like property required under the Loan Documents to any subordinate financing;
(xii) Grantor’s failure to obtain ▇▇▇▇▇’s prior written consent if consent is required under the Loan Documents to any transfer of equivalent value, function and designthe Property or of any ownership interest in Grantor; and
(Ixiii) Grantor fails to comply with the provisions of Section 11 of the Deed of Trust pertaining to their single purpose/single asset entity status (the “SPE Covenants”);
(xiv) Grantor’s failure to provide financial reports and information pertaining to the Property as required by the Deed of Trust unless such failure is the result of a good faith error and is cured within ten (10) days after notice;
(xv) Grantor’s failure to comply with the PIP (as defined in the event Payee has waived Deed of Trust) as agreed to by Operator and Franchisor from time to time, beyond the expiration of any notice or cure periods provided for in the PIP;
(xvi) default or breach under the Operating Lease (as defined in the Deed of Trust) beyond any applicable grace or cure period provided for therein; and/or
(xvii) a judicial decision is rendered that is adverse to Grantor or the Mortgage does not requireProperty in connection with the Pending Litigation (as defined in the Deed of Trust) and materially and adversely affects the monthly collection for real and personal property taxes, assessments, or insurance premiums, then failure by Maker to pay any or all such taxes, assessments or premiums in accordance with terms value of the Mortgage (except for taxes and assessment which accrue, and premiums which are payable, after either (1) Property or the date that Payee takes title to operation of the Mortgaged Property by foreclosure, deed-in-lieu of foreclosure or otherwise or (2) ▇▇▇▇▇ obtains the appointment of a receiver or otherwise takes possession directly as a mortgagee in possession (provided, that, Maker has relinquished possession and control of the Mortgaged Property to such receiver or Payee and is not disputing the receivership or possession by the receiver or Payee))hotel.
(d) In addition to Notwithstanding the foregoing, Maker the agreement of Payee not to pursue recourse liability as set forth in subsection (a) above SHALL BE AND BECOME NULL AND VOID and shall also be fully of no further force or effect if: (i) any financial information concerning Grantor or Guarantor is fraudulent in any respect, contains any fraudulent information with respect to the financial condition of Grantor or Guarantor; (ii) a voluntary bankruptcy or insolvency proceeding is commenced by Grantor or a managing member of Grantor; or (iii) an involuntary bankruptcy or insolvency proceeding is commenced by any party against Grantor or a managing member of Grantor and personally liable to Payee for any amount which Maker is fully not unconditionally dismissed within ninety (90) days of filing and personally liable to Payee for under Section 12 either (1) at the time of the Crossed Note evidencing filing of such proceeding Grantor was in breach of the Crossed LoanSPE Covenants, or (2) Payee is able to prove collusion between Grantor or either of their Affiliates and the party commencing such action. Upon the occurrence of any of the foregoing events, Grantor and Guarantor shall have full joint and several recourse liability for all sums due under the Loan Documents.
(e) Nothing in this Section shall be interpreted or construed to impair, limit the liability of or otherwise affect the terms, conditions, requirements and obligations of Guarantor under the Guaranty or Maker or Guarantor under the Environmental Agreement.
Appears in 1 contract
Limitations on Recourse. Notwithstanding anything Except as hereinafter in the Loan Documents to the contrary, but subject to the qualifications and other provisions in clauses (a), (b) and (c) of this Section 12 below, Payee and Maker agree that: (i) Maker shall be liable upon the Debt and for the other obligations arising under the Loan Documents to the full extent (but only to the extent) of all in ----------------------- Section 15 of the Mortgaged Property Note specifically provided, Mortgagor, Marriott Hanover Hotel Corporation ("MHHC") and any other items, property or amounts which are collateral or security for the Loan; (ii) if a default occurs in the timely and proper payment of all or any part partners of the Debt, any judicial proceedings brought by Payee against Maker Mortgagor shall not be limited to the preservation, enforcement and foreclosure, or any thereof, of the liens, security titles, estates, assignments, rights and security interests now or at any time hereafter securing personally liable for the payment of any sums due hereunder or the Debt and/or the other performance of any obligations of Maker Mortgagor hereunder or under any other Loan Document. No judgment for the repayment of the Indebtedness and no action to foreclose this Mortgage, or to collect any amount payable under the Loan Documents, and no attachmentor to satisfy any other claim relating thereto, execution will be enforced against Mortgagor or MHHC or any other writ partner of process shall be sought, issued Mortgagor personally or levied upon any assets, properties property of Mortgagor or funds MHHC or any other partner of Maker Mortgagor other than the Mortgaged Property; Security and (iii) any other security furnished under the Loan Documents in any action to foreclose this Mortgage or to otherwise realize upon any security furnished under the event of a foreclosure of such liens, security titles, estates, assignments, rights Loan Documents or security interests securing to collect any amount payable under the payment of Loan Documents. Notwithstanding the Debt, no judgment for any deficiency upon the Debt shall be sought or obtained by Payee against Maker.foregoing:
(a) Nothing herein contained in this Section 12 shall (1) be deemed to be a release or impairment of the Debt or the lien of construed as prohibiting Mortgagee from exercising any and all remedies which the Loan Documents upon the Mortgaged Property, or (2) preclude Payee from foreclosing under the Loan Documents in case of any default or from enforcing any of the other rights of Payee, including naming Maker as a party defendant in any action or suit for foreclosure and sale under the Mortgage, or obtaining the appointment of a receiver or prohibit Payee from obtaining a personal judgment against Maker on the Debt to the extent (but only to the extent) such judgment may be required in order to enforce the liens, security titles, estates, assignments, rights and security interests securing payment of the Debt, or (3) limit or impair in any way whatsoever the Guaranty (the "Guaranty") of even date executed and delivered in connection with the indebtedness evidenced by this Note or release, relieve, reduce, waive or impair in any way whatsoever, any obligation of any party to the Guaranty or (4) release, relieve, reduce, waive or impair in any way whatsoever any obligations of any person other than Maker which is a party to any of the other Loan Documents.
(b) In the event of fraud or material misrepresentation by Maker or any guarantor in connection with the Loan Documents or the documents delivered by Maker, or the first full Monthly Installment on this Note is not paid when due, or if any petition or proceeding for bankruptcy, reorganization or arrangement pursuant to federal bankruptcy law, or any similar federal or state law, shall be filed by Maker (or if any such petition or proceeding was not so filed by Maker, but Maker or Guarantor or their respective agents, affiliates, officers or employees consented to, acquiesced in arranged or otherwise participated in bringing about the institution of such petition or proceeding), or if there shall occur any material breach or default under the provisions of Section 9 of the Mortgage (entitled "Single Purpose Entity/Separateness"), the limitations on recourse set forth in this Section 12permit, including the provisions right to bring actions or proceedings against Mortgagor and/or MHHC and/or any other general partner of clauses (i)Mortgagor and to enter a judgment against Mortgagor and/or MHHC and/or any other general partner in Mortgagor, (ii) and (iii) so long as the exercise of this Section 12 above, will be null and void and completely inapplicable, and this Note shall be full recourse any remedy does not extend to Maker.
(c) Nothing contained herein shall in any manner execution against or way release, affect or impair the right of Payee to recover, and Maker shall be fully and personally liable and subject to legal action, for any loss, cost, expense, damage, claim or other obligation (including without limitation reasonable attorneys' fees and court costs) incurred or suffered by Payee arising recovery out of or in connection with the following:
(A) any continuing default beyond any applicable cure periods property of the Environmental Liabilities Agreement executed by Maker for the benefit of Payee, dated of even date herewith, including the indemnification provisions contained therein;
(B) Maker's failure to obtain ▇▇▇▇▇'s prior written consent to any subordinate financing (except as permitted in Section 9(d) of the Mortgage) or Mortgagor and/or MHHC and/or any other encumbrance on general partner other than the Mortgaged Property, or any transfer of the Mortgaged Property or majority ownership in Maker in violation of the Mortgage;
(C) the misapplication by Maker, its agents, affiliates, officers or employees of any funds derived from the Mortgaged Property, including security deposits, insurance proceeds and condemnation awards, in violation of furnished under the Loan Documents;
(Db) Maker's failure to apply proceeds of rents or Mortgagor and MHHC and any other payments in respect general partner of Mortgagor, but not any limited partner of Mortgagor who is not also a general partner, shall be fully and personally jointly and severally personally liable for (i) misapplying any condemnation proceeds or insurance proceeds attributable to the leases Security, to the full extent of such proceeds so misapplied, (ii) misapplying any security deposits attributable to the Security, to the full extent of such deposits so misapplied, (iii) collecting any Rents, Revenues and other income from the Mortgaged Property or any other collateral when received to revenues and income generated by the costs of maintenance and operation of the Mortgaged hotel on the Real Property and in advance in violation of any covenant contained in any of the Loan Documents (except for deposits to hold advance room reservations which occur in the ordinary course of business), to the payment full extent of taxessuch Rents, lien claimsRevenues and other revenues and income collected in advance, (iv) committing fraud, misrepresentation or waste in connection with the operation of the Security or the making of the loan evidenced hereby, to the full extent of any remedies available at law or in equity not to exceed Mortgagee's actual damages, except that no such limit shall apply or be imposed if Mortgagor, or its general partner(s) intentionally commit(s) fraud, misrepresentation or waste, (v) Gross Revenues (as defined in the Hotel Management Agreement) are sufficient to pay any portion of the Indebtedness, operating expenses, maintenance expenses, insurance premiums, monthly payments of principal reserve escrow account deposits, sales and interest or escrow payments occupancy taxes, wages, salaries, taxes and benefits relating to hotel employees, employment and withholding taxes, or other payments due under sums required to be paid pursuant to the terms of the Loan Documents Documents, and Mortgagor fails to the extent the Loan Documents require such proceeds to be then so applied;
(E) any litigation or other legal proceeding related to the Debt filed by Maker or any guarantor or indemnitor that delays or impairs Payee's ability to preserve, enforce or foreclose its lien on the Mortgaged Property, including, but not limited to, the filing of a voluntary petition concerning Maker under the U.S. Bankruptcy Code, in which action a claim, counterclaim, or defense is asserted against Payee, other than any litigation or other legal proceeding in which a final, non-appealable judgment for money damages or injunctive relief is entered against Payee;
(F) the gross negligence or willful misconduct of Maker, its agents, affiliates, officers or employees which causes or results in a material diminution, or material loss of value, of the Mortgaged Property that is not reimbursed by insurance or which gross negligence or willful misconduct exposes Payee to claims, liability or costs of defense in any litigation or other legal proceeding;
(G) the seizure or forfeiture of the Mortgaged Property, or any portion thereof, or ▇▇▇▇▇'s interest therein, resulting from criminal wrongdoing by Maker, its agents, affiliates, officers or employees;
(H) waste to the Mortgaged Property caused by the acts or omissions of Maker, its agents, affiliates, officers, employees or contractors; or the removal or disposal of any portion of the Mortgaged Property by Maker its agents, affiliates, officers, employees or contractors after an Event of Default to the extent such Mortgaged Property is not replaced by Maker with like property of equivalent value, function and design; and
(I) in the event Payee has waived (or the Mortgage does not require) the monthly collection for real and personal property taxes, assessments, or insurance premiums, then failure by Maker to pay make any or all such taxespayments or deposits when due, assessments or premiums in accordance with terms all to the extent of any funds diverted from such obligations, payments and/or expenses during the Mortgage twelve (except for taxes and assessment which accrue, and premiums which are payable, after either (112) months prior to Mortgagee notice of acceleration through the date that Payee Mortgagor takes title to the Mortgaged Property by foreclosure, deed-in-lieu of foreclosure or otherwise or Security; (2vi) ▇▇▇▇▇ obtains the appointment of a receiver or otherwise takes possession directly as a mortgagee in possession (provided, that, Maker has relinquished possession failing to pay real estate taxes and control of the Mortgaged Property to such receiver or Payee and is not disputing the receivership or possession by the receiver or Payee)).
(d) In addition to the foregoing, Maker shall also be fully and personally liable to Payee for any amount which Maker is fully and personally liable to Payee for under Section 12 of the Crossed Note evidencing the Crossed Loan.assessments
Appears in 1 contract
Sources: Mortgage and Security Agreement (Hanover Marriott Limited Partnership)
Limitations on Recourse. Notwithstanding anything in Subject to the provisions of this Article, ----------------------- and notwithstanding any provision of the Loan Documents to the contraryother than this Article, but subject to the qualifications and other provisions in clauses (a), (b) and (c) of this Section 12 below, Payee and Maker agree that: (i) Maker no personal liability shall be liable upon the Debt and for the other obligations arising under the Loan Documents to the full extent (but only to the extent) of all of the Mortgaged Property and any other itemsasserted, property or amounts which are collateral or security for the Loan; (ii) if a default occurs in the timely and proper payment of all or any part of the Debt, any judicial proceedings brought by Payee against Maker shall be limited to the preservation, enforcement and foreclosure, or any thereof, of the liens, security titles, estates, assignments, rights and security interests now or at any time hereafter securing the payment of the Debt and/or the other obligations of Maker under the Loan Documents, and no attachment, execution or other writ of process shall be sought, issued or levied upon any assets, properties or funds of Maker other than the Mortgaged Property; and (iii) in the event of a foreclosure of such liens, security titles, estates, assignments, rights or security interests securing the payment of the Debt, no judgment for any deficiency upon the Debt shall be sought or obtained by Payee Lender or enforceable against Maker.
(a) Nothing contained in this Section 12 shall (1) be deemed to be a release or impairment of the Debt or the lien of the Loan Documents upon the Mortgaged Property, or (2) preclude Payee from foreclosing under the Loan Documents in case of any default or from enforcing any of the other rights of Payee, including naming Maker as a party defendant in any action or suit for foreclosure and sale under the Mortgage, or obtaining the appointment of a receiver or prohibit Payee from obtaining a personal judgment against Maker on the Debt to the extent (but only to the extent) such judgment may be required in order to enforce the liens, security titles, estates, assignments, rights and security interests securing payment of the Debt, or (3) limit or impair in any way whatsoever the Guaranty (the "Guaranty") of even date executed and delivered in connection with the indebtedness evidenced by this Note or release, relieve, reduce, waive or impair in any way whatsoever, any obligation of any party to the Guaranty or (4) release, relieve, reduce, waive or impair in any way whatsoever any obligations of any person other than Maker which is a party to any of the other Loan Documents.
(b) In the event of fraud or material misrepresentation by Maker or any guarantor in connection with the Loan Documents or the documents delivered by Maker, or the first full Monthly Installment on this Note is not paid when due, or if any petition or proceeding for bankruptcy, reorganization or arrangement pursuant to federal bankruptcy law, or any similar federal or state law, shall be filed by Maker (or if any such petition or proceeding was not so filed by Maker, but Maker or Guarantor or their respective agents, affiliates, officers or employees consented to, acquiesced in arranged or otherwise participated in bringing about the institution of such petition or proceeding), or if there shall occur any material breach or default under the provisions of Section 9 of the Mortgage (entitled "Single Purpose Entity/Separateness"), the limitations on recourse set forth in this Section 12, including the provisions of clauses (i)) any Borrower Party, (ii) and any Affiliate of any Borrower Party, (iii) any Person owning, directly or indirectly, any legal or beneficial interest in any Borrower Party or any Affiliate of any Borrower Party or (iv) any partner, member, principal, officer, controlling person, beneficiary, trustee, advisor, shareholder, employee, agent, Affiliate or director of any Persons described in clauses (i) through (iv) above (collectively, the "Exculpated Parties") by Lender in respect of the Obligations, this Section 12 aboveLoan ------------------ Agreement, will be null the Mortgages, the Note, the Properties or any other Loan Document, or the making, issuance or transfer thereof, all such liability, if any, being expressly waived by Lender and void each successive holder of the Note and completely inapplicablethe Mortgages shall accept the Note and the Mortgages upon the express condition that Lender's sole recourse for the Obligations and the performance and observance of the obligations contained in this Loan Agreement, the Note, the Mortgages and this Note the other Loan Documents shall be full recourse to Maker.
(c) Nothing contained herein shall in exercise any manner or way releaseall of its rights and remedies with respect to the Properties, affect the Rents and other Collateral including, without limitation, any or impair the right all of Payee to recover, and Maker shall be fully and personally liable and subject to legal action, for any loss, cost, expense, damage, claim or other obligation (including without limitation reasonable attorneys' fees and court costs) incurred or suffered by Payee arising out of or in connection with the following:
(Ai) any continuing default beyond any applicable cure periods Foreclosure of the Environmental Liabilities Agreement executed by Maker for Lien of the benefit of Payee, dated of even date herewith, including Mortgages in accordance with the indemnification terms and provisions contained thereinset forth in the Mortgages;
(Bii) Maker's failure Action against any other security at any time given to obtain ▇▇▇▇▇'s prior written consent to any subordinate financing (except as permitted in Section 9(d) secure the payment of the Mortgage) or any Note and under the other encumbrance on the Mortgaged Property, or any transfer of the Mortgaged Property or majority ownership in Maker in violation of the Mortgage;
(C) the misapplication by Maker, its agents, affiliates, officers or employees of any funds derived from the Mortgaged Property, including security deposits, insurance proceeds and condemnation awards, in violation of the Loan Documents;
(Diii) Maker's failure to apply proceeds Exercise of rents any other remedy set forth in this Loan Agreement, the Mortgages or any other payments Loan Document. Notwithstanding anything to the contrary in respect this Loan Agreement, the Mortgages or any of the leases and other income from the Mortgaged Property 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 collateral when received to the costs of maintenance and operation provisions of the Mortgaged Property and Bankruptcy Code to file a claim for the payment of taxes, lien claims, insurance premiums, monthly payments of principal and interest or escrow payments or other payments due under the Loan Documents to the extent the Loan Documents require such proceeds to be then so applied;
(E) any litigation or other legal proceeding related to the Debt filed by Maker or any guarantor or indemnitor that delays or impairs Payee's ability to preserve, enforce or foreclose its lien on the Mortgaged Property, including, but not limited to, the filing of a voluntary petition concerning Maker under the U.S. Bankruptcy Code, in which action a claim, counterclaim, or defense is asserted against Payee, other than any litigation or other legal proceeding in which a final, non-appealable judgment for money damages or injunctive relief is entered against Payee;
(F) the gross negligence or willful misconduct of Maker, its agents, affiliates, officers or employees which causes or results in a material diminution, or material loss of value, full amount of the Mortgaged Property Obligations secured by the Mortgages or to require that is not reimbursed by insurance or which gross negligence or willful misconduct exposes Payee all collateral shall continue to claims, liability or costs of defense in any litigation or other legal proceeding;
(G) the seizure or forfeiture secure all of the Mortgaged Property, or any portion thereof, or ▇▇▇▇▇'s interest therein, resulting from criminal wrongdoing by Maker, its agents, affiliates, officers or employees;
(H) waste Obligations owing to the Mortgaged Property caused by the acts or omissions of Maker, its agents, affiliates, officers, employees or contractors; or the removal or disposal of any portion of the Mortgaged Property by Maker its agents, affiliates, officers, employees or contractors after an Event of Default to the extent such Mortgaged Property is not replaced by Maker with like property of equivalent value, function and design; and
(I) in the event Payee has waived (or the Mortgage does not require) the monthly collection for real and personal property taxes, assessments, or insurance premiums, then failure by Maker to pay any or all such taxes, assessments or premiums Lender in accordance with terms of the Mortgage (except for taxes and assessment which accrue, and premiums which are payable, after either (1) the date that Payee takes title to the Mortgaged Property by foreclosure, deed-in-lieu of foreclosure or otherwise or (2) ▇▇▇▇▇ obtains the appointment of a receiver or otherwise takes possession directly as a mortgagee in possession (provided, that, Maker has relinquished possession and control of the Mortgaged Property to such receiver or Payee and is not disputing the receivership or possession by the receiver or Payee))Loan Documents.
(d) In addition to the foregoing, Maker shall also be fully and personally liable to Payee for any amount which Maker is fully and personally liable to Payee for under Section 12 of the Crossed Note evidencing the Crossed Loan.
Appears in 1 contract
Limitations on Recourse. Notwithstanding anything Subject to the provisions and qualifications of this Article, Lender shall not enforce the liability and obligation of the Borrowers to perform and observe any of their obligations that may be contained in the Note, this Loan Documents Agreement, the Mortgage or any other Loan Document by any action or proceeding wherein a money judgment shall be sought against Borrowers, except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender to enforce and realize upon its interest under the Note, this Agreement, the Mortgage and the other Loan Documents, or in the Properties, the Rents, or any other Collateral pursuant to the contraryLoan Documents; provided, but subject to the qualifications and other provisions however, that, except as specifically provided herein, any judgment in clauses (a), (b) and (c) of this Section 12 below, Payee and Maker agree that: (i) Maker any such action or proceeding shall be liable upon the Debt and for the other obligations arising under the Loan Documents to the full extent (but enforceable against Borrowers only to the extent) extent of all of Borrowers' interest in the Mortgaged Property Properties, in the Rents and in any other itemsCollateral. Lender, property by accepting the Note, this Loan Agreement, the Mortgage and the other Loan Documents, shall not sue for, seek or amounts which are collateral demand any monetary judgment against any Borrower in ▇▇y such action or security for proceeding under or by reason of or under or in connection with the Loan; (ii) if a default occurs Note, this Loan Agreement, the Mortgage or the other Loan Documents. Notwithstanding anything to the contrary in this Loan Agreement, the timely and proper payment of all Mortgage or any part of the Debt, any judicial proceedings brought by Payee against Maker shall be limited to the preservation, enforcement and foreclosure, or any thereof, of the liens, security titles, estates, assignments, rights and security interests now or at any time hereafter securing the payment of the Debt and/or the other obligations of Maker under the Loan Documents, the provisions of this Section 12.1 and no attachment, execution or the other writ of process shall be sought, issued or levied upon any assets, properties or funds of Maker other than the Mortgaged Property; and (iii) in the event of a foreclosure of such liens, security titles, estates, assignments, rights or security interests securing the payment provisions of the DebtLoan Documents shall not, no judgment for any deficiency upon the Debt shall be sought or obtained by Payee against Maker.
however: (a) Nothing contained constitute a waiver of any right which Lender 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 Obligations secured by the Mortgage or to require that all Collateral shall continue to secure all of the Obligations owing to Lender in this Section 12 shall accordance with the Loan Documents; (1b) be deemed to be constitute a waiver, release or impairment of the Debt any obligation evidenced or the lien secured by any of the Loan Documents upon Documents; (c) impair the Mortgaged Property, right of Lender to name any Borrower (or (2each of them) preclude Payee from foreclosing under the Loan Documents in case of any default or from enforcing any of the other rights of Payee, including naming Maker as a party defendant in any action or suit for foreclosure and sale under the Mortgage, Mortgage or obtaining other Loan Documents; (d) impair the right of Lender to obtain the appointment of a receiver receiver; (e) impair the enforcement of the Assignment of Leases; or prohibit Payee from obtaining (f) constitute a personal prohibition against Lender to seek a deficiency judgment against Maker on the Debt to the extent (but only to the extent) such judgment may be required Borrowers in order to enforce fully realize the liens, security titles, estates, assignments, rights collateral granted under the Mortgage and security interests securing payment of the Debt, or (3) limit or impair in any way whatsoever the Guaranty (the "Guaranty") of even date executed and delivered in connection with the indebtedness evidenced by this Note or release, relieve, reduce, waive or impair in any way whatsoever, any obligation of any party to the Guaranty or (4) release, relieve, reduce, waive or impair in any way whatsoever any obligations of any person other than Maker which is a party to any of the other Loan Documents.
(b) In the event of fraud or material misrepresentation by Maker or any guarantor in connection with the Loan Documents or the documents delivered by Maker, or the first full Monthly Installment on this Note is not paid when due, or if to commence any petition other appropriate action or proceeding in order for bankruptcy, reorganization or arrangement pursuant Lender to federal bankruptcy law, or any similar federal or state law, shall be filed by Maker (or if any such petition or proceeding was not so filed by Maker, but Maker or Guarantor or their respective agents, affiliates, officers or employees consented to, acquiesced in arranged or otherwise participated in bringing about exercise its remedies against the institution of such petition or proceeding), or if there shall occur any material breach or default under the provisions of Section 9 of the Mortgage (entitled "Single Purpose Entity/Separateness"), the limitations on recourse set forth in this Section 12, including the provisions of clauses (i), (ii) and (iii) of this Section 12 above, will be null and void and completely inapplicable, and this Note shall be full recourse to Maker.
(c) Nothing contained herein shall in any manner or way release, affect or impair the right of Payee to recover, and Maker shall be fully and personally liable and subject to legal action, for any loss, cost, expense, damage, claim or other obligation (including without limitation reasonable attorneys' fees and court costs) incurred or suffered by Payee arising out of or in connection with the following:
(A) any continuing default beyond any applicable cure periods of the Environmental Liabilities Agreement executed by Maker for the benefit of Payee, dated of even date herewith, including the indemnification provisions contained therein;
(B) Maker's failure to obtain ▇▇▇▇▇'s prior written consent to any subordinate financing (except as permitted in Section 9(d) of the Mortgage) Properties or any other encumbrance on the Mortgaged Property, or any transfer of the Mortgaged Property or majority ownership in Maker in violation of the Mortgage;
(C) the misapplication by Maker, its agents, affiliates, officers or employees of any funds derived from the Mortgaged Property, including security deposits, insurance proceeds and condemnation awards, in violation of the Loan Documents;
(D) Maker's failure to apply proceeds of rents or any other payments in respect of the leases and other income from the Mortgaged Property or any other collateral when received to the costs of maintenance and operation of the Mortgaged Property and to the payment of taxes, lien claims, insurance premiums, monthly payments of principal and interest or escrow payments or other payments due under the Loan Documents to the extent the Loan Documents require such proceeds to be then so applied;
(E) any litigation or other legal proceeding related to the Debt filed by Maker or any guarantor or indemnitor that delays or impairs Payee's ability to preserve, enforce or foreclose its lien on the Mortgaged Property, including, but not limited to, the filing of a voluntary petition concerning Maker under the U.S. Bankruptcy Code, in which action a claim, counterclaim, or defense is asserted against Payee, other than any litigation or other legal proceeding in which a final, non-appealable judgment for money damages or injunctive relief is entered against Payee;
(F) the gross negligence or willful misconduct of Maker, its agents, affiliates, officers or employees which causes or results in a material diminution, or material loss of value, of the Mortgaged Property that is not reimbursed by insurance or which gross negligence or willful misconduct exposes Payee to claims, liability or costs of defense in any litigation or other legal proceeding;
(G) the seizure or forfeiture of the Mortgaged Property, or any portion thereof, or ▇▇▇▇▇'s interest therein, resulting from criminal wrongdoing by Maker, its agents, affiliates, officers or employees;
(H) waste to the Mortgaged Property caused by the acts or omissions of Maker, its agents, affiliates, officers, employees or contractors; or the removal or disposal of any portion of the Mortgaged Property by Maker its agents, affiliates, officers, employees or contractors after an Event of Default to the extent such Mortgaged Property is not replaced by Maker with like property of equivalent value, function and design; and
(I) in the event Payee has waived (or the Mortgage does not require) the monthly collection for real and personal property taxes, assessments, or insurance premiums, then failure by Maker to pay any or all such taxes, assessments or premiums in accordance with terms of the Mortgage (except for taxes and assessment which accrue, and premiums which are payable, after either (1) the date that Payee takes title to the Mortgaged Property by foreclosure, deed-in-lieu of foreclosure or otherwise or (2) ▇▇▇▇▇ obtains the appointment of a receiver or otherwise takes possession directly as a mortgagee in possession (provided, that, Maker has relinquished possession and control of the Mortgaged Property to such receiver or Payee and is not disputing the receivership or possession by the receiver or Payee))Collateral.
(d) In addition to the foregoing, Maker shall also be fully and personally liable to Payee for any amount which Maker is fully and personally liable to Payee for under Section 12 of the Crossed Note evidencing the Crossed Loan.
Appears in 1 contract
Sources: Loan and Security Agreement (Education Realty Trust, Inc.)
Limitations on Recourse. Notwithstanding anything in the Loan Documents to the contrary, but subject to the qualifications and other provisions in clauses (a), (b) and (c) of this Section 12 below, Payee and Maker agree that: (i) Maker shall be liable upon the Debt and for the other obligations arising under the Loan Documents to the full extent (but only to the extent) of the security therefor, the same being all properties (whether real or personal), rights, estates and interests now or at any time hereafter securing the payment of the Mortgaged Property and any Debt and/or the other items, property or amounts which are collateral or security for obligations of Maker under the LoanLoan Documents; (ii) if a default occurs in the timely and proper payment of all or any part of the Debt, any judicial proceedings brought by Payee against Maker shall be limited to the preservation, enforcement and foreclosure, or any thereof, of the liens, security titles, estates, assignments, rights and security interests now or at any time hereafter securing the payment of the Debt and/or the other obligations of Maker under the Loan Documents, and no attachment, execution or other writ of process shall be sought, issued or levied upon any assets, properties or funds of Maker other than the Mortgaged Property; and (iii) in the event of a foreclosure of such liens, security titles, estates, assignments, rights or security interests securing the payment of the Debt, no judgment for any deficiency upon the Debt shall be sought or obtained by Payee against Maker.
(a) Nothing contained in this Section 12 shall (1) be deemed to be a release or impairment of the Debt or the lien of the Loan Documents upon the Mortgaged Property, or (2) preclude Payee from foreclosing under the Loan Documents in case of any default or from enforcing any of the other rights of Payee, including naming Maker as a party defendant in any action or suit for foreclosure and sale under the Mortgage, or obtaining the appointment of a receiver or prohibit Payee from obtaining a personal judgment against Maker on the Debt to the extent (but only to the extent) such judgment may be required in order to enforce the liens, security titles, estates, assignments, rights and security interests securing payment of the Debt, or (3) limit or impair in any way whatsoever the Guaranty (the "Guaranty") of even date executed and delivered in connection with the indebtedness evidenced by this Note or release, relieve, reduce, waive or impair in any way whatsoever, any obligation of any party to the Guaranty or (4) release, relieve, reduce, waive or impair in any way whatsoever any obligations of any person other than Maker which is a party to any of the other Loan Documents.
(b) In the event of fraud or material misrepresentation by Maker or any guarantor in connection with the Loan Documents or the documents delivered by Maker, or the first full Monthly Installment on this Note is not paid when due, or if any petition or proceeding for bankruptcy, reorganization or arrangement pursuant to federal bankruptcy law, or any similar federal or state law, shall be filed by Maker (or if any such petition or proceeding was not so filed by Maker, but Maker or Guarantor or their respective agents, affiliates, officers or employees consented to, acquiesced in arranged or otherwise participated in bringing about the institution of such petition or proceeding), or if there shall occur any material breach or default under the provisions of Section 9 of the Mortgage (entitled "Single Purpose Entity/Separateness"), the limitations on recourse set forth in this Section 12, including the provisions of clauses (i), (ii) and (iii) of this Section 12 above, will be null and void and completely inapplicable, and this Note shall be full recourse to Maker.
(c) Nothing contained herein shall in any manner or way release, affect or impair the right of Payee to recover, and Maker shall be fully and personally liable and subject to legal action, for any loss, cost, expense, damage, claim or other obligation (including without limitation reasonable attorneys' fees and court costs) incurred or suffered by Payee arising out of or in connection with the following:
(A) any continuing default beyond any applicable cure periods breach of the Environmental Liabilities Agreement executed by Maker for the benefit of Payee▇▇▇▇▇, dated of even date herewith, including the indemnification provisions contained therein;
(B) Maker's failure to obtain ▇▇▇▇▇'s prior written consent to any subordinate financing (except as permitted in Section 9(d) of the Mortgage) or any other encumbrance on the Mortgaged Property, or any transfer of the Mortgaged Property or majority ownership in Maker in violation of the Mortgage;
(C) the misapplication by Maker, its agents, affiliates, officers or employees of any funds derived from the Mortgaged Property, including security deposits, insurance proceeds and condemnation awards, in violation of the Loan Documents;
(D) Maker's failure to apply proceeds of rents or any other payments in respect of the leases and other income from the Mortgaged Property or any other collateral when received to the costs of maintenance and operation of the Mortgaged Property and to the payment of taxes, lien claims, insurance premiums, monthly payments of principal and interest or escrow payments or other payments due under the Loan Documents to the extent the Loan Documents require such proceeds to be then so applied;
(E) any litigation or other legal proceeding related to the Debt filed by Maker or any guarantor or indemnitor that delays or impairs Payee's ability to preserve, enforce or foreclose its lien on the Mortgaged Property, including, but not limited to, the filing of a voluntary petition concerning Maker under the U.S. Bankruptcy Code, in which action a claim, counterclaim, or defense is asserted against Payee, other than any litigation or other legal proceeding in which a final, non-appealable judgment for money damages or injunctive relief is entered against Payee;
(F) the gross negligence or willful misconduct of Maker, its agents, affiliates, officers or employees which causes or results in a material diminution, or material loss of value, of the Mortgaged Property that is not reimbursed by insurance or which gross negligence or willful misconduct exposes Payee to claims, liability or costs of defense in any litigation or other legal proceeding;
(G) the seizure or forfeiture of the Mortgaged Property, or any portion thereof, or ▇▇▇▇▇'s interest therein, resulting from criminal wrongdoing by Maker, its agents, affiliates, officers or employees;; and
(H) waste to the Mortgaged Property caused by the acts or omissions of Maker, its agents, affiliates, officers, employees or contractors; or the removal or disposal of any portion of the Mortgaged Property by Maker its agents, affiliates, officers, employees or contractors after an Event of Default to the extent such Mortgaged Property is not replaced by Maker with like property of equivalent value, function and design; and
(I) in the event Payee has waived (or the Mortgage does not require) the monthly collection for real and personal property taxes, assessments, or insurance premiums, then failure by Maker to pay any or all such taxes, assessments or premiums in accordance with terms of the Mortgage (except for taxes and assessment which accrue, and premiums which are payable, after either (1) the date that Payee takes title to the Mortgaged Property by foreclosure, deed-in-lieu of foreclosure or otherwise or (2) ▇▇▇▇▇ obtains the appointment of a receiver or otherwise takes possession directly as a mortgagee in possession (provided, that, Maker has relinquished possession and control of the Mortgaged Property to such receiver or Payee and is not disputing the receivership or possession by the receiver or Payee)).
(d) In addition to the foregoing, Maker shall also be fully and personally liable to Payee for any amount which Maker is fully and personally liable to Payee for under Section 12 of the Crossed Note evidencing the Crossed Loan.
Appears in 1 contract
Limitations on Recourse. Notwithstanding anything (a) Except as expressly set forth in the Loan Documents Operative Agreements, Lessee agrees to look solely to Lessor's estate and interest in the contraryProperties, but subject to the qualifications and proceeds of sale thereof, any insurance proceeds or any other provisions award or any third party proceeds received by Lessor in clauses (a), (b) and (c) of this Section 12 below, Payee and Maker agree that: (i) Maker shall be liable upon connection with the Debt and Properties for the collection of any judgment requiring the payment of money by Lessor in the event of liability by Lessor, and no other obligations arising under the Loan Documents to the full extent (but only to the extent) of all of the Mortgaged Property and any other items, property or amounts which are collateral or security for assets of Lessor, the Loan; (ii) if a default occurs in the timely and proper payment of all Lenders or any part of the Debtshareholder, any judicial proceedings brought by Payee against Maker shall be limited to the preservation, enforcement and foreclosureowner or partner (direct or indirect) thereof, or any thereofdirector, officer, employee, beneficiary, Affiliate of any of the liens, security titles, estates, assignments, rights and security interests now or at any time hereafter securing the payment of the Debt and/or the other obligations of Maker under the Loan Documents, and no attachmentforegoing shall be subject to levy, execution or other writ enforcement procedure for the satisfaction of process shall be soughtLessee's remedies under or with respect to this Lease, issued the relationship of Lessor and Lessee hereunder or levied upon any assets, properties or funds of Maker other than the Mortgaged Property; and (iii) in the event of a foreclosure of such liens, security titles, estates, assignments, rights or security interests securing the payment Lessee's use of the Debt, no judgment for Properties or any deficiency upon the Debt shall be sought or obtained by Payee against Maker.
(a) Nothing contained other liability of Lessor to Lessee; provided that nothing in this Section 12 shall (1) be deemed to be a release or impairment of the Debt or the lien of the Loan Documents upon the Mortgaged Property, or (2) preclude Payee from foreclosing under the Loan Documents in case of any default or from enforcing any of the other rights of Payee, including naming Maker as a party defendant in any action or suit for foreclosure and sale under the Mortgage, or obtaining the appointment of a receiver or prohibit Payee from obtaining a personal judgment against Maker on the Debt to the extent (but only to the extent) such judgment may be required in order to enforce the liens, security titles, estates, assignments, rights and security interests securing payment of the Debt, or (3) limit or impair in any way whatsoever the Guaranty (the "Guaranty") of even date executed and delivered in connection with the indebtedness evidenced by this Note or release, relieve, reduce, waive or impair in any way whatsoever, any obligation of any party to the Guaranty or (4) release, relieve, reduce, waive or impair in any way whatsoever any obligations of any person other than Maker which is a party to any of the other Loan Documents.construed to
(b) In It is expressly understood and agreed by the event of fraud or material misrepresentation by Maker or any guarantor in connection with the Loan Documents or the documents parties hereto that (i) this Lease is executed and delivered by MakerWilmington Trust Company, not individually or the first full Monthly Installment on this Note is not paid when due, or if any petition or proceeding for bankruptcy, reorganization or arrangement pursuant to federal bankruptcy law, or any similar federal or state law, shall be filed by Maker (or if any such petition or proceeding was not so filed by Maker, personally but Maker or Guarantor or their respective agents, affiliates, officers or employees consented to, acquiesced in arranged or otherwise participated in bringing about the institution of such petition or proceeding), or if there shall occur any material breach or default under the provisions of Section 9 solely as trustee of the Mortgage (entitled "Single Purpose Entity/Separateness"), Lessor in the limitations on recourse set forth exercise of the powers and authority conferred and vested in this Section 12, including the provisions of clauses (i)it, (ii) each of the representations, undertakings and agreements herein made on the part of the Lessor is made and intended not as personal representations, undertakings and agreements by the Trust Company but is made and intended for the purpose of binding only the Lessor, (iii) of this Section 12 above, will be null and void and completely inapplicable, and this Note nothing herein contained shall be full recourse construed as creating any liability on the Trust Company, individually or personally, to Maker.
perform any covenant either expressed or implied contained herein, all such liability, if any, being expressly waived by the parties hereto and by any Person claiming by, through or under the parties hereto and (civ) Nothing contained herein under no circumstances shall in any manner or way release, affect or impair the right of Payee to recover, and Maker shall Trust Company be fully and personally liable and subject to legal action, for any loss, cost, expense, damage, claim or other obligation (including without limitation reasonable attorneys' fees and court costs) incurred or suffered by Payee arising out of or in connection with the following:
(A) any continuing default beyond any applicable cure periods of the Environmental Liabilities Agreement executed by Maker for the benefit breach or failure of Payeeany obligation, dated of even date herewithrepresentation, including warranty or covenant made or undertaken by the indemnification provisions contained therein;
(B) Maker's failure to obtain ▇▇▇▇▇'s prior written consent to any subordinate financing (except as permitted in Section 9(d) of the Mortgage) Lessor under this Lease or any other encumbrance on the Mortgaged Property, or any transfer of the Mortgaged Property or majority ownership in Maker in violation of the Mortgage;
(C) the misapplication by Maker, its agents, affiliates, officers or employees of any funds derived from the Mortgaged Property, including security deposits, insurance proceeds and condemnation awards, in violation of the Loan Documents;
(D) Maker's failure to apply proceeds of rents or any other payments in respect of the leases and other income from the Mortgaged Property or any other collateral when received to the costs of maintenance and operation of the Mortgaged Property and to the payment of taxes, lien claims, insurance premiums, monthly payments of principal and interest or escrow payments or other payments due under the Loan Documents to the extent the Loan Documents require such proceeds to be then so applied;
(E) any litigation or other legal proceeding related to the Debt filed by Maker or any guarantor or indemnitor that delays or impairs Payee's ability to preserve, enforce or foreclose its lien on the Mortgaged Property, including, but not limited to, the filing of a voluntary petition concerning Maker under the U.S. Bankruptcy Code, in which action a claim, counterclaim, or defense is asserted against Payee, other than any litigation or other legal proceeding in which a final, non-appealable judgment for money damages or injunctive relief is entered against Payee;
(F) the gross negligence or willful misconduct of Maker, its agents, affiliates, officers or employees which causes or results in a material diminution, or material loss of value, of the Mortgaged Property that is not reimbursed by insurance or which gross negligence or willful misconduct exposes Payee to claims, liability or costs of defense in any litigation or other legal proceeding;
(G) the seizure or forfeiture of the Mortgaged Property, or any portion thereof, or ▇▇▇▇▇'s interest therein, resulting from criminal wrongdoing by Maker, its agents, affiliates, officers or employees;
(H) waste to the Mortgaged Property caused by the acts or omissions of Maker, its agents, affiliates, officers, employees or contractors; or the removal or disposal of any portion of the Mortgaged Property by Maker its agents, affiliates, officers, employees or contractors after an Event of Default to the extent such Mortgaged Property is not replaced by Maker with like property of equivalent value, function and design; and
(I) in the event Payee has waived (or the Mortgage does not require) the monthly collection for real and personal property taxes, assessments, or insurance premiums, then failure by Maker to pay any or all such taxes, assessments or premiums in accordance with terms of the Mortgage (except for taxes and assessment which accrue, and premiums which are payable, after either (1) the date that Payee takes title to the Mortgaged Property by foreclosure, deed-in-lieu of foreclosure or otherwise or (2) ▇▇▇▇▇ obtains the appointment of a receiver or otherwise takes possession directly as a mortgagee in possession (provided, that, Maker has relinquished possession and control of the Mortgaged Property to such receiver or Payee and is not disputing the receivership or possession by the receiver or Payee))documents.
(d) In addition to the foregoing, Maker shall also be fully and personally liable to Payee for any amount which Maker is fully and personally liable to Payee for under Section 12 of the Crossed Note evidencing the Crossed Loan.
Appears in 1 contract
Sources: Master Lease (Symantec Corp)
Limitations on Recourse. Notwithstanding anything Subject to the provisions and qualifications of this Article, Lender shall not enforce the liability and obligation of Borrower to perform and observe the obligations contained in the Note, this Agreement, the Security Instruments or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against Borrower, except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender to enforce and realize upon its interest under the Note, this Agreement, the Security Instruments and the other Loan Documents, or in the Property, the Rents, or any other Collateral pursuant to the contraryLoan Documents; provided, but subject to the qualifications and other provisions however, that, except as specifically provided herein, any judgment in clauses (a), (b) and (c) of this Section 12 below, Payee and Maker agree that: (i) Maker any such action or proceeding shall be liable upon the Debt and for the other obligations arising under the Loan Documents to the full extent (but enforceable against Borrower only to the extent) extent of all of Borrower’s interest in the Mortgaged Property Property, in the Rents and in any other itemsCollateral, property and Lender, by accepting the Note, this Agreement, the Security Instruments and the other Loan Documents, shall not ▇▇▇ for, seek or amounts which are collateral demand any deficiency judgment against Borrower in any such action or security for proceeding under or by reason of or under or in connection with the Loan; (ii) if a default occurs Note, this Agreement, the Security Instruments or the other Loan Documents. Notwithstanding anything to the contrary in this Agreement, the timely and proper payment of all Security Instrument or any part of the Debt, any judicial proceedings brought by Payee against Maker shall be limited to the preservation, enforcement and foreclosure, or any thereof, of the liens, security titles, estates, assignments, rights and security interests now or at any time hereafter securing the payment of the Debt and/or the other obligations of Maker under the Loan Documents, the provisions of this Section 12.1 and no attachment, execution or the other writ of process shall be sought, issued or levied upon any assets, properties or funds of Maker other than the Mortgaged Property; and (iii) in the event of a foreclosure of such liens, security titles, estates, assignments, rights or security interests securing the payment provisions of the DebtLoan Documents shall not, no judgment for any deficiency upon the Debt shall be sought or obtained by Payee against Maker.
however: (a) Nothing contained constitute a waiver of 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 Obligations secured by the Security Instruments or to require that all Collateral shall continue to secure all of the Obligations owing to Lender in this Section 12 shall accordance with the Loan Documents; (1b) be deemed to be constitute a waiver, release or impairment of the Debt any obligation evidenced or the lien secured by any of the Loan Documents upon Documents; (c) impair the Mortgaged Property, or (2) preclude Payee from foreclosing under the Loan Documents in case right of any default or from enforcing any of the other rights of Payee, including naming Maker Lender to name Borrower as a party defendant in any action or suit for foreclosure and sale under the Mortgage, Security Instruments or obtaining other Loan Documents; (d) impair the right of Lender to obtain the appointment of a receiver receiver; (e) impair the enforcement of the Security Instruments; or prohibit Payee from obtaining (f) constitute a personal prohibition against Lender to seek a deficiency judgment against Maker on Borrower (to be realized, subject to Sections 12.2 and 12.3 below, solely from the Debt to Collateral and Borrower’s equity interest, if any, in the extent (but only to the extentCollateral) such judgment may be required in order to enforce fully realize the liens, security titles, estates, assignments, rights granted by the Security Instruments and security interests securing payment of the Debt, or (3) limit or impair in any way whatsoever the Guaranty (the "Guaranty") of even date executed and delivered in connection with the indebtedness evidenced by this Note or release, relieve, reduce, waive or impair in any way whatsoever, any obligation of any party to the Guaranty or (4) release, relieve, reduce, waive or impair in any way whatsoever any obligations of any person other than Maker which is a party to any of the other Loan Documents.
(b) In the event of fraud or material misrepresentation by Maker or any guarantor in connection with the Loan Documents or the documents delivered by Maker, or the first full Monthly Installment on this Note is not paid when due, or if to commence any petition other appropriate action or proceeding in order for bankruptcy, reorganization or arrangement pursuant Lender to federal bankruptcy law, or any similar federal or state law, shall be filed by Maker (or if any such petition or proceeding was not so filed by Maker, but Maker or Guarantor or their respective agents, affiliates, officers or employees consented to, acquiesced in arranged or otherwise participated in bringing about exercise its remedies against the institution of such petition or proceeding), or if there shall occur any material breach or default under the provisions of Section 9 of the Mortgage (entitled "Single Purpose Entity/Separateness"), the limitations on recourse set forth in this Section 12, including the provisions of clauses (i), (ii) and (iii) of this Section 12 above, will be null and void and completely inapplicable, and this Note shall be full recourse to Maker.
(c) Nothing contained herein shall in any manner or way release, affect or impair the right of Payee to recover, and Maker shall be fully and personally liable and subject to legal action, for any loss, cost, expense, damage, claim or other obligation (including without limitation reasonable attorneys' fees and court costs) incurred or suffered by Payee arising out of or in connection with the following:
(A) any continuing default beyond any applicable cure periods of the Environmental Liabilities Agreement executed by Maker for the benefit of Payee, dated of even date herewith, including the indemnification provisions contained therein;
(B) Maker's failure to obtain ▇▇▇▇▇'s prior written consent to any subordinate financing (except as permitted in Section 9(d) of the Mortgage) or any other encumbrance on the Mortgaged Property, or any transfer of the Mortgaged Property or majority ownership in Maker in violation of the Mortgage;
(C) the misapplication by Maker, its agents, affiliates, officers or employees of any funds derived from the Mortgaged Property, including security deposits, insurance proceeds and condemnation awards, in violation of the Loan Documents;
(D) Maker's failure to apply proceeds of rents or any other payments in respect of the leases and other income from the Mortgaged Property or any other collateral when received to the costs of maintenance and operation of the Mortgaged Property and to the payment of taxes, lien claims, insurance premiums, monthly payments of principal and interest or escrow payments or other payments due under the Loan Documents to the extent the Loan Documents require such proceeds to be then so applied;
(E) any litigation or other legal proceeding related to the Debt filed by Maker or any guarantor or indemnitor that delays or impairs Payee's ability to preserve, enforce or foreclose its lien on the Mortgaged Property, including, but not limited to, the filing of a voluntary petition concerning Maker under the U.S. Bankruptcy Code, in which action a claim, counterclaim, or defense is asserted against Payee, other than any litigation or other legal proceeding in which a final, non-appealable judgment for money damages or injunctive relief is entered against Payee;
(F) the gross negligence or willful misconduct of Maker, its agents, affiliates, officers or employees which causes or results in a material diminution, or material loss of value, of the Mortgaged Property that is not reimbursed by insurance or which gross negligence or willful misconduct exposes Payee to claims, liability or costs of defense in any litigation or other legal proceeding;
(G) the seizure or forfeiture of the Mortgaged Property, or any portion thereof, or ▇▇▇▇▇'s interest therein, resulting from criminal wrongdoing by Maker, its agents, affiliates, officers or employees;
(H) waste to the Mortgaged Property caused by the acts or omissions of Maker, its agents, affiliates, officers, employees or contractors; or the removal or disposal of any portion of the Mortgaged Property by Maker its agents, affiliates, officers, employees or contractors after an Event of Default to the extent such Mortgaged Property is not replaced by Maker with like property of equivalent value, function and design; and
(I) in the event Payee has waived (or the Mortgage does not require) the monthly collection for real and personal property taxes, assessments, or insurance premiums, then failure by Maker to pay any or all such taxes, assessments or premiums in accordance with terms of the Mortgage (except for taxes and assessment which accrue, and premiums which are payable, after either (1) the date that Payee takes title to the Mortgaged Property by foreclosure, deed-in-lieu of foreclosure or otherwise or (2) ▇▇▇▇▇ obtains the appointment of a receiver or otherwise takes possession directly as a mortgagee in possession (provided, that, Maker has relinquished possession and control of the Mortgaged Property to such receiver or Payee and is not disputing the receivership or possession by the receiver or Payee))Collateral.
(d) In addition to the foregoing, Maker shall also be fully and personally liable to Payee for any amount which Maker is fully and personally liable to Payee for under Section 12 of the Crossed Note evidencing the Crossed Loan.
Appears in 1 contract
Limitations on Recourse. Notwithstanding anything in the Loan Documents to the contrary, but subject (a) Subject to the qualifications and other provisions set forth in clauses (a), (b) and (c) of this Section 12 belowSection, Payee shall not enforce the liability and obligation of Maker agree that: (i) Maker to perform and observe the obligations contained in the Note, the Loan Agreement, the Mortgage, the Assignment or the Other Security Documents by an action or proceeding wherein a money judgment shall be liable sought against Maker, except that Payee may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Payee to enforce and realize upon this Note, the Debt Mortgage, the Assignment, the Other Security Documents, and for the other obligations arising under the Loan Documents to the full extent (but only to the extent) of all of interests in the Mortgaged Property and any other itemscollateral given to Payee pursuant to the Mortgage, property the Assignment and the Other Security Documents; provided, however, that, except as specifically provided in this Section, any judgment in any such action or amounts which are proceeding shall be enforceable against Maker only to the extent of Maker's interest in the Mortgaged Property and in any other collateral given to Payee. Payee, by accepting this Note, the Loan Agreement, the Assignment, the Mortgage and the Other Security Documents, agrees that it shall not sue for, seek or security demand any deficiency judgment against Maker in any such action or proceeding, under, by reason of or in connection with the Mortgage, the Loan Agreement, the Assignment, the Other Security Documents or this Note. Except as may be expressly provided for herein, the Loanprovisions of this Section shall not, however: (i) constitute a waiver, release or impairment of any obligation evidenced or secured by the Mortgage, the Loan Agreement, the Assignment, the Environmental Agreement or the Other Security Documents or this Note; (ii) if a default occurs in impair the timely and proper payment right of all or any part of the Debt, any judicial proceedings brought by Payee against Maker shall be limited to the preservation, enforcement and foreclosure, or any thereof, of the liens, security titles, estates, assignments, rights and security interests now or at any time hereafter securing the payment of the Debt and/or the other obligations of Maker under the Loan Documents, and no attachment, execution or other writ of process shall be sought, issued or levied upon any assets, properties or funds of Maker other than the Mortgaged Property; and (iii) in the event of a foreclosure of such liens, security titles, estates, assignments, rights or security interests securing the payment of the Debt, no judgment for any deficiency upon the Debt shall be sought or obtained by Payee against Maker.
(a) Nothing contained in this Section 12 shall (1) be deemed to be a release or impairment of the Debt or the lien of the Loan Documents upon the Mortgaged Property, or (2) preclude Payee from foreclosing under the Loan Documents in case of any default or from enforcing any of the other rights of Payee, including naming name Maker as a party defendant in any action or suit for foreclosure and sale under the Mortgage, ; (iii) affect the validity or obtaining the appointment enforceability of a receiver any guaranty or prohibit Payee from obtaining a personal judgment against Maker on the Debt to the extent (but only to the extent) such judgment may be required in order to enforce the liens, security titles, estates, assignments, rights and security interests securing payment of the Debt, or (3) limit or impair in any way whatsoever the Guaranty (the "Guaranty") of even date executed and delivered indemnity made in connection with the indebtedness evidenced by this Note or releaseMortgage, relieve, reduce, waive or impair in any way whatsoever, any obligation of any party to the Guaranty or (4) release, relieve, reduce, waive or impair in any way whatsoever any obligations of any person other than Maker which is a party to any of the other Loan Documents.
(b) In the event of fraud or material misrepresentation by Maker or any guarantor in connection with the Loan Documents Agreement, this Note, the Assignment or the documents delivered by Maker, or the first full Monthly Installment on this Note is not paid when due, or if any petition or proceeding for bankruptcy, reorganization or arrangement pursuant to federal bankruptcy law, or any similar federal or state law, shall be filed by Maker Other Security Documents; (or if any such petition or proceeding was not so filed by Maker, but Maker or Guarantor or their respective agents, affiliates, officers or employees consented to, acquiesced in arranged or otherwise participated in bringing about the institution of such petition or proceeding), or if there shall occur any material breach or default under the provisions of Section 9 of the Mortgage (entitled "Single Purpose Entity/Separateness"), the limitations on recourse set forth in this Section 12, including the provisions of clauses (i), (iiiv) and (iii) of this Section 12 above, will be null and void and completely inapplicable, and this Note shall be full recourse to Maker.
(c) Nothing contained herein shall in any manner or way release, affect or impair the right of Payee to recoverobtain the appointment of a receiver; (v) impair the enforcement of the Assignment; (vi) impair the right of Payee to bring suit with respect to fraud or intentional misrepresentation by Maker or any other person or entity in connection with the Mortgage, the Loan Agreement, this Note, the Assignment, the Environmental Agreement or the Other Security Documents; or (vii) affect the validity or enforceability of the Environmental Agreement or limit the liability of Maker or any other party thereunder.
(b) Nothing herein shall be deemed to be a waiver of any right which Payee may have under Section 506(a), 506(b), 1111(b) or any other provisions of the U.S. Bankruptcy Code to file a claim for the full amount of the Debt secured by the Mortgage or to require that all collateral shall continue to secure all of the debt owing to Payee in accordance with this Note, the Loan Agreement, the Mortgage, the Assignment, the Environmental Agreement and the Other Security Documents.
(c) Notwithstanding the foregoing provisions of this Section or any other provision in the Loan Documents, Maker shall be fully liable for and personally liable and subject to legal action, shall indemnify Payee for any or all loss, cost, expenseliability, damagejudgment, claim claim, damage or other obligation expense sustained, suffered or incurred by Payee (including, without limitation, ▇▇▇▇▇'s attorneys' fees) (including without limitation reasonable attorneys' on appeal) if Payee prevails in the applicable action or proceeding to which such fees and court costsrelate) incurred or suffered by Payee arising out of or attributable or relating to:
(i) fraud or misrepresentation by Maker in connection with the following:Loan;
(ii) the gross negligence or willful misconduct of Maker, its agents or employees, or physical waste of the Mortgaged Property;
(iii) the breach of provisions in the Loan Agreement concerning Environmental Laws, Hazardous Substances and Asbestos, and any indemnification of Payee therein with respect to such Environmental Laws, Hazardous Substances and Asbestos;
(iv) except as permitted in the Loan Agreement, the removal or disposal of any portion of the Mortgaged Property after default under this Note, the Mortgage, the Loan Agreement, the Assignment, the Environmental Agreement or any Other Security Document;
(v) the misapplication or misappropriation by Maker of: (A) any continuing default beyond insurance proceeds paid by reason of any applicable cure periods loss, damage or destruction to the Mortgaged Property; (B) any awards or other amounts received in connection with the condemnation of all or a portion of the Environmental Liabilities Agreement executed Mortgaged Property; or (C) rents, issues, profits, proceeds, accounts, or other amounts received by Maker for (in the benefit case of Payeeclause (C) following an Event of Default under this Note, dated of even date herewiththe Mortgage, including the indemnification provisions contained thereinLoan Agreement, the Assignment, the Environmental Agreement or the Other Security Documents);
(Bvi) Maker's failure to pay taxes, assessments, charges for labor or materials or other charges that can result in liens on any portion of the Mortgaged Property; and
(vii) any security deposits or advance deposits collected with respect to the Mortgaged Property (except to the extent such deposits are required to be returned or refunded to the depositor), which are not delivered to Payee upon a foreclosure of the Mortgaged Property or action in lieu thereof.
(d) Notwithstanding the foregoing, the agreement of Payee not to pursue recourse liability as set forth in subsection (a) above SHALL BECOME NULL AND VOID and shall be of no further force or effect in the event of: (i) Maker's failure (after prior notice and the expiration of applicable cure periods) to permit on-site inspections of the Mortgaged Property or to provide financial reports and information pertaining to the Mortgaged Property as required by the Loan Agreement which failure continues, with respect to reports required to be furnished monthly, for 15 days beyond otherwise applicable cure periods, with respect to reports required to be furnished quarterly, for 30 days beyond otherwise applicable cure periods, and with respect to reports required to be furnished annually, for 45 days beyond otherwise applicable cure periods; (ii) Maker's failure to obtain ▇▇▇▇▇'s written consent to any subordinate financing not otherwise permitted under the Loan Agreement; (iii) Maker's failure to obtain ▇▇▇▇▇'s prior written consent to any subordinate financing (except as permitted in Section 9(d) of the Mortgage) or any other encumbrance on the Mortgaged Property, or any transfer of the Mortgaged Property or majority of any ownership interest in Maker in violation of the Mortgage;
(C) the misapplication by Maker, its agents, affiliates, officers or employees of any funds derived from the Mortgaged Property, including security deposits, insurance proceeds and condemnation awards, in violation of not otherwise permitted under the Loan Documents;
Agreement; (Div) Maker's failure to apply proceeds of rents or any other payments in respect of the leases and other income from the Mortgaged Property or any other collateral when received part thereof becoming an asset in a voluntary bankruptcy or insolvency proceeding; or (v) the failure of Maker to comply with the costs provisions of maintenance and operation Section 11 (SINGLE PURPOSE ENTITY) of the Mortgaged Property and to the payment of taxes, lien claims, insurance premiums, monthly payments of principal and interest or escrow payments or other payments due under the Loan Documents to the extent the Loan Documents require such proceeds to be then so applied;
(E) any litigation or other legal proceeding related to the Debt filed by Maker or any guarantor or indemnitor that delays or impairs Payee's ability to preserve, enforce or foreclose its lien on the Mortgaged Property, including, but not limited to, the filing of a voluntary petition concerning Maker under the U.S. Bankruptcy Code, in which action a claim, counterclaim, or defense is asserted against Payee, other than any litigation or other legal proceeding in which a final, non-appealable judgment for money damages or injunctive relief is entered against Payee;
(F) the gross negligence or willful misconduct of Maker, its agents, affiliates, officers or employees which causes or results in a material diminution, or material loss of value, of the Mortgaged Property that is not reimbursed by insurance or which gross negligence or willful misconduct exposes Payee to claims, liability or costs of defense in any litigation or other legal proceeding;
(G) the seizure or forfeiture of the Mortgaged Property, or any portion thereof, or ▇▇▇▇▇'s interest therein, resulting from criminal wrongdoing by Maker, its agents, affiliates, officers or employees;
(H) waste to the Mortgaged Property caused by the acts or omissions of Maker, its agents, affiliates, officers, employees or contractors; or the removal or disposal of any portion of the Mortgaged Property by Maker its agents, affiliates, officers, employees or contractors after an Event of Default to the extent such Mortgaged Property is not replaced by Maker with like property of equivalent value, function and design; and
(I) in the event Payee has waived (or the Mortgage does not require) the monthly collection for real and personal property taxes, assessments, or insurance premiums, then failure by Maker to pay any or all such taxes, assessments or premiums in accordance with terms of the Mortgage (except for taxes and assessment which accrue, and premiums which are payable, after either (1) the date that Payee takes title to the Mortgaged Property by foreclosure, deed-in-lieu of foreclosure or otherwise or (2) ▇▇▇▇▇ obtains the appointment of a receiver or otherwise takes possession directly as a mortgagee in possession (provided, that, Maker has relinquished possession and control of the Mortgaged Property to such receiver or Payee and is not disputing the receivership or possession by the receiver or Payee))Agreement.
(d) In addition to the foregoing, Maker shall also be fully and personally liable to Payee for any amount which Maker is fully and personally liable to Payee for under Section 12 of the Crossed Note evidencing the Crossed Loan.
Appears in 1 contract
Limitations on Recourse. Notwithstanding anything any contrary provision in the Loan Documents to the contrary, but subject to the qualifications and other provisions in clauses (a), (b) and (c) of this Section 12 below, Payee and Maker agree that: (i) Maker shall be liable upon the Debt and for the other obligations arising under the Loan Documents to the full extent (but only to the extent) of all of the Mortgaged Property and any other items, property or amounts which are collateral or security for the Loan; (ii) if a default occurs in the timely and proper payment of all Mortgage Note or any part of the Debt, any judicial proceedings brought by Payee against Maker shall be limited to the preservation, enforcement and foreclosure, or any thereof, of the liens, security titles, estates, assignments, rights and security interests now or at any time hereafter securing the payment of the Debt and/or the other obligations of Maker under the Loan Documents, and no attachmentit is hereby expressly agreed that, execution except as otherwise provided in this SECTION 5 or other writ in any section of process any Loan Document that is substantially similar to this SECTION 5, there shall be sought, issued or levied upon any assets, properties or funds no recourse to the assets of Maker or any of its Members (other than against the Mortgaged Property; Collateral and (iii) in the event of a foreclosure of such liens, any other property given as security titles, estates, assignments, rights or security interests securing for the payment of this Mortgage Note) for (i) the Debtpayment of principal, no judgment interest, Defeasance Deposits, Yield Maintenance Payments or other charges hereunder or for any deficiency upon the Debt shall be sought other amount that is or obtained may become due and owing to Holder by Payee against Maker.
(a) Nothing contained in Maker under this Section 12 shall (1) be deemed to be a release or impairment of the Debt or the lien of the Loan Documents upon the Mortgaged Property, or (2) preclude Payee from foreclosing under the Loan Documents in case of any default or from enforcing any of the other rights of Payee, including naming Maker as a party defendant in any action or suit for foreclosure and sale under the Mortgage, or obtaining the appointment of a receiver or prohibit Payee from obtaining a personal judgment against Maker on the Debt to the extent (but only to the extent) such judgment may be required in order to enforce the liens, security titles, estates, assignments, rights and security interests securing payment of the Debt, or (3) limit or impair in any way whatsoever the Guaranty (the "Guaranty") of even date executed and delivered in connection with the indebtedness evidenced by this Mortgage Note or release, relieve, reduce, waive or impair in any way whatsoever, any obligation of any party to the Guaranty or (4) release, relieve, reduce, waive or impair in any way whatsoever any obligations of any person other than Maker which is a party to any of the other Loan Documents or (ii) the performance or discharge of any covenant or undertaking hereunder or under the other Loan Documents.
(b) In , and in the event of fraud any Event of Default hereunder or material misrepresentation by thereunder, Hold▇▇ ▇▇▇ees to proceed solely against the Collateral and any other property given as security for payment of this Mortgage Note, and Holder shall not seek or claim recourse against Maker or any guarantor in connection with Member (other than against the Loan Documents Collateral and any other property given as security for payment of this Mortgage Note) for any deficiency or for any personal judgment after a foreclosure of the documents delivered by Maker, or the first full Monthly Installment on this Note is not paid when due, or if any petition or proceeding for bankruptcy, reorganization or arrangement pursuant to federal bankruptcy law, or any similar federal or state law, shall be filed by Maker (or if any such petition or proceeding was not so filed by Maker, but Maker or Guarantor or their respective agents, affiliates, officers or employees consented to, acquiesced in arranged or otherwise participated in bringing about the institution of such petition or proceeding), or if there shall occur any material breach or default under the provisions of Section 9 lien of the Mortgage or other Security Documents or for the performance or discharge of any covenants or undertakings of Maker hereunder or under any other Loan Documents (entitled "Single Purpose Entity/Separateness"except that Maker may be made a party to a proceeding to the extent legally necessary for the conduct of a foreclosure or the exercise of other similar remedies under the Mortgage or other Security Documents). Notwithstanding the foregoing, the limitations on recourse set forth nothing contained in this Section 12, including the provisions SECTION 5 shall relieve Maker or any Member of clauses (i), (ii) and (iii) of this Section 12 above, will be null and void and completely inapplicable, and this Note shall be full recourse to Maker.
(c) Nothing contained herein shall in any manner or way release, affect or impair the right of Payee to recover, and Maker shall be fully and personally liable and subject to legal action, personal liability for any loss, cost, expense, damage, claim damage or other obligation (including without limitation reasonable attorneys' fees and court costs) incurred liability arising or suffered by Payee arising out of or in connection with the following:
resulting from (A) any continuing default beyond breach of any applicable cure periods of representation or warranty made in the Environmental Liabilities Loan Agreement executed by Maker for the benefit of Payeethat was materially incorrect when made and that was made with fraudulent intent, dated of even date herewith, including the indemnification provisions contained therein;
(B) Maker's failure any amount paid or distributed to obtain ▇▇▇▇▇'s prior written consent to any subordinate financing (except as permitted in Section 9(d) of the Mortgage) Members, the Manager or any other encumbrance on the Mortgaged Property, or Affiliate of any transfer of the Mortgaged Property or majority ownership in Maker them in violation of the Mortgage;
(C) the misapplication by Maker, its agents, affiliates, officers or employees of any funds derived from the Mortgaged Property, including security deposits, insurance proceeds and condemnation awards, in violation provisions of the Loan Documents;
, (C) fraud or breach of trust, including misapplication of Loan proceeds or any Insurance Proceeds or Awards or other sums that are part of the Collateral that may come into the possession or control of Maker or a Member or any Affiliate of any of them, (D) Maker's liability under the Environmental Indemnity Agreement or (E) following the occurrence of a Lockbox Event, the willful failure of Maker to apply proceeds of rents or any other payments in respect of the leases and other income from the Mortgaged Property or any other collateral when received to the costs of maintenance and operation instruct Tenants of the Mortgaged Property and Properties to the payment of taxes, lien claims, insurance premiums, monthly make payments of Rents into the Lockbox Account or the failure of Maker or the Manager to deposit payments of Rents received by Maker or Manager into the Lockbox Account promptly upon receipt thereof. It is hereby expressly agreed that no director, officer, shareholder, partner, member or employee of Maker or any Member, nor the legal or personal representative, successor or assign of any of the foregoing, nor any other principal and interest of Maker or escrow payments any Member, whether disclosed or other payments due undisclosed, shall have any personal liability under the Loan Documents Agreement or any of the other Loan Documents, except as personal liability may be specifically imposed upon a signatory to any of the extent Loan Documents. It is the intention of the parties hereto that this SECTION 5 shall govern every other provision of the Loan Documents require such proceeds and that the absence of explicit reference to be then so applied;
(E) this SECTION 5 in any litigation or other legal proceeding related to the Debt filed by Maker or any guarantor or indemnitor that delays or impairs Payee's ability to preserve, enforce or foreclose its lien on the Mortgaged Property, including, but not limited to, the filing of a voluntary petition concerning Maker under the U.S. Bankruptcy Code, in which action a claim, counterclaim, or defense is asserted against Payee, other than any litigation or other legal proceeding in which a final, non-appealable judgment for money damages or injunctive relief is entered against Payee;
(F) the gross negligence or willful misconduct of Maker, its agents, affiliates, officers or employees which causes or results in a material diminution, or material loss of value, provision of the Mortgaged Property that is not reimbursed by insurance Loan Documents or which gross negligence or willful misconduct exposes Payee the absence of any Section similar to claims, liability or costs of defense this SECTION 5 in any litigation or Loan Document shall not be construed to deny the application of this SECTION 5 to such provision, notwithstanding the presence of explicit reference to this SECTION 5 in other legal proceeding;
(G) the seizure or forfeiture provisions of the Mortgaged Property, or any portion thereof, or ▇▇▇▇▇'s interest therein, resulting from criminal wrongdoing by Maker, its agents, affiliates, officers or employees;
(H) waste to the Mortgaged Property caused by the acts or omissions of Maker, its agents, affiliates, officers, employees or contractors; or the removal or disposal of any portion of the Mortgaged Property by Maker its agents, affiliates, officers, employees or contractors after an Event of Default to the extent such Mortgaged Property is not replaced by Maker with like property of equivalent value, function and design; and
(I) in the event Payee has waived (or the Mortgage does not require) the monthly collection for real and personal property taxes, assessments, or insurance premiums, then failure by Maker to pay any or all such taxes, assessments or premiums in accordance with terms of the Mortgage (except for taxes and assessment which accrue, and premiums which are payable, after either (1) the date that Payee takes title to the Mortgaged Property by foreclosure, deed-in-lieu of foreclosure or otherwise or (2) ▇▇▇▇▇ obtains the appointment of a receiver or otherwise takes possession directly as a mortgagee in possession (provided, that, Maker has relinquished possession and control of the Mortgaged Property to such receiver or Payee and is not disputing the receivership or possession by the receiver or Payee))Loan Documents.
(d) In addition to the foregoing, Maker shall also be fully and personally liable to Payee for any amount which Maker is fully and personally liable to Payee for under Section 12 of the Crossed Note evidencing the Crossed Loan.
Appears in 1 contract
Sources: Mortgage Note (Arden Realty Inc)
Limitations on Recourse. Notwithstanding anything in the Loan Documents to the contrary, but subject (a) Subject to the qualifications and other provisions set forth in clauses (a), (b) and (c) of this Section 12 belowSection, Payee shall not enforce the liability and obligation of Maker agree that: (i) Maker to perform and observe the obligations contained in the Note, the Loan Agreement, the Mortgage, the Assignment or the Other Security Documents by an action or proceeding wherein a money judgment shall be liable sought against Maker, except that Payee may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Payee to enforce and realize upon this Note, the Debt Mortgage, the Assignment, the Other Security Documents, and for the other obligations arising under the Loan Documents to the full extent (but only to the extent) of all of interests in the Mortgaged Property and any other itemscollateral given to Payee pursuant to the Mortgage, property the Assignment and the Other Security Documents; provided, however, that, except as specifically provided in this Section, any judgment in any such action or amounts which are proceeding shall be enforceable against Maker only to the extent of each Maker's respective interest in the Mortgaged Property and in any other collateral given to Payee. Payee, by accepting this Note, the Loan Agreement, the Assignment, the Mortgage and the Other Security Documents, agrees that it shall not sue for, seek or security demand any deficiency judgment against Maker in any such action or proceeding, under, by reason of or in connection with the Mortgage, the Loan Agreement, the Assignment, the Other Security Documents or this Note. Except as may be expressly provided for herein, the Loanprovisions of this Section shall not, however: (i) constitute a waiver, release or impairment of any obligation evidenced or secured by the Mortgage, the Loan Agreement, the Assignment, the Environmental Agreement or the Other Security Documents or this Note; (ii) if a default occurs in impair the timely and proper payment right of all or any part of the Debt, any judicial proceedings brought by Payee against Maker shall be limited to the preservation, enforcement and foreclosure, or any thereof, of the liens, security titles, estates, assignments, rights and security interests now or at any time hereafter securing the payment of the Debt and/or the other obligations of Maker under the Loan Documents, and no attachment, execution or other writ of process shall be sought, issued or levied upon any assets, properties or funds of Maker other than the Mortgaged Property; and (iii) in the event of a foreclosure of such liens, security titles, estates, assignments, rights or security interests securing the payment of the Debt, no judgment for any deficiency upon the Debt shall be sought or obtained by Payee against Maker.
(a) Nothing contained in this Section 12 shall (1) be deemed to be a release or impairment of the Debt or the lien of the Loan Documents upon the Mortgaged Property, or (2) preclude Payee from foreclosing under the Loan Documents in case of any default or from enforcing any of the other rights of Payee, including naming name Maker as a party defendant in any action or suit for foreclosure and sale under the Mortgage; (iii) affect the validity or enforceability of any guaranty or indemnity made in connection with the Mortgage, the Loan Agreement, this Note, the Assignment or obtaining the Other Security Documents; (iv) impair the right of Payee to obtain the appointment of a receiver or prohibit Payee from obtaining a personal judgment against Maker on receiver; (v) impair the Debt to the extent (but only to the extent) such judgment may be required in order to enforce the liens, security titles, estates, assignments, rights and security interests securing payment enforcement of the Debt, Assignment; (vi) impair the right of Payee to bring suit with respect to fraud or (3) limit intentional misrepresentation by Maker or impair in any way whatsoever the Guaranty (the "Guaranty") of even date executed and delivered other person or entity in connection with the indebtedness evidenced by Mortgage, the Loan Agreement, this Note Note, the Assignment, the Environmental Agreement or release, relieve, reduce, waive the Other Security Documents; or (vii) affect the validity or enforceability of the Environmental Agreement or limit the liability of Maker or any other party thereunder. Nothing herein shall impair the right of Payee to obtain a deficiency judgment in any way whatsoeveraction or proceeding in order to preserve its rights and remedies including, without limitation, foreclosure, non-judicial foreclosure or the exercise of a power of sale, under the Mortgage; provided, however, that Payee shall not enforce any obligation such deficiency judgment against Maker or any assets of any party to the Guaranty or (4) release, relieve, reduce, waive or impair in any way whatsoever any obligations of any person Maker other than Maker which is a party to any the Mortgaged Property or in the exercise of its rights and remedies under the other Loan Documents.
(b) In the event Nothing herein shall be deemed to be a waiver of fraud or material misrepresentation by Maker any right which Payee may have under Section 506(a), 506(b), 1111(b) or any guarantor other provisions of the U.S. Bankruptcy Code to file a claim for the full amount of the Debt secured by the Mortgage or to require that all collateral shall continue to secure all of the debt owing to Payee in connection accordance with this Note, the Loan Documents or the documents delivered by Maker, or the first full Monthly Installment on this Note is not paid when due, or if any petition or proceeding for bankruptcy, reorganization or arrangement pursuant to federal bankruptcy law, or any similar federal or state law, shall be filed by Maker (or if any such petition or proceeding was not so filed by Maker, but Maker or Guarantor or their respective agents, affiliates, officers or employees consented to, acquiesced in arranged or otherwise participated in bringing about the institution of such petition or proceeding), or if there shall occur any material breach or default under the provisions of Section 9 of the Mortgage (entitled "Single Purpose Entity/Separateness")Agreement, the limitations on recourse set forth in this Section 12Mortgage, including the provisions of clauses (i)Assignment, (ii) the Environmental Agreement and (iii) of this Section 12 above, will be null and void and completely inapplicable, and this Note shall be full recourse to Makerthe Other Security Documents.
(c) Nothing contained herein shall Notwithstanding the foregoing provisions of this Section or any other provision in any manner or way releasethe Loan Documents, affect or impair the right of Payee to recover, and Maker shall be fully liable for and personally liable and subject to legal action, shall indemnify Payee for any or all loss, cost, expenseliability, damagejudgment, claim claim, damage or other obligation expense sustained, suffered or incurred by Payee (including including, without limitation reasonable limitation, ▇▇▇▇▇'s attorneys' fees and court costs(including on appeal) incurred if Payee prevails in the applicable action or suffered by Payee proceeding arising to which such fees relate) arising out of or attributable or relating to:
(i) fraud or misrepresentation by Maker in connection with the following:Loan;
(ii) the gross negligence or willful misconduct of Maker, its agents or employees, or physical waste of the Mortgaged Property;
(iii) the breach of provisions in the Loan Agreement concerning Environmental Laws, Hazardous Substances and Asbestos, and any indemnification of Payee therein with respect to such Environmental Laws, Hazardous Substances and Asbestos;
(iv) except as permitted in the Loan Agreement, the removal or disposal of any portion of the Mortgaged Property after default under this Note, the Mortgage, the Loan Agreement, the Assignment, the Environmental Agreement or any Other Security Document;
(v) the misapplication or misappropriation by Maker of: (A) any continuing default beyond insurance proceeds paid by reason of any applicable cure periods loss, damage or destruction to the Mortgaged Property; (B) any awards or other amounts received in connection with the condemnation of all or a portion of the Environmental Liabilities Agreement executed Mortgaged Property; or (C) rents, issues, profits, proceeds, accounts, or other amounts received by Maker for (in the benefit case of Payeeclause (C) following an Event of Default under this Note, dated of even date herewiththe Mortgage, including the indemnification provisions contained thereinLoan Agreement, the Assignment, the Environmental Agreement or the Other Security Documents);
(Bvi) Maker's failure to pay taxes, assessments, charges for labor or materials or other charges that results in liens on any portion of the Mortgaged Property; and
(vii) any security deposits or advance deposits collected with respect to the Mortgaged Property (except to the extent such deposits are required to be returned or refunded to the depositor), which are not delivered to Payee upon a foreclosure of the Mortgaged Property or action in lieu thereof.
(d) Notwithstanding the foregoing, the agreement of Payee not to pursue recourse liability as set forth in Subsection (a) above SHALL BECOME NULL AND VOID and shall be of no further force or effect in the event of: (i) Maker's failure (after prior notice and the expiration of applicable cure periods) to permit on-site inspections of the Mortgaged Property or to provide financial reports and information pertaining to the Mortgaged Property as required by the Loan Agreement which failure continues, with respect to reports required to be furnished monthly, for 15 days beyond otherwise applicable cure periods, with respect to reports required to be furnished quarterly, for 30 days beyond otherwise applicable cure periods, and with respect to reports required to be furnished annually, for 45 days beyond otherwise applicable cure periods; (ii) Maker's failure to obtain ▇▇▇▇▇'s written consent to any subordinate financing not otherwise permitted under the Loan Agreement; (iii) Maker's failure to obtain ▇▇▇▇▇'s prior written consent to any subordinate financing (except as permitted in Section 9(d) of the Mortgage) or any other encumbrance on the Mortgaged Property, or any transfer of the Mortgaged Property or majority of any ownership interest in Maker in violation of the Mortgage;
(C) the misapplication by Maker, its agents, affiliates, officers or employees of any funds derived from the Mortgaged Property, including security deposits, insurance proceeds and condemnation awards, in violation of not otherwise permitted under the Loan Documents;
Agreement; (Div) Maker's failure to apply proceeds of rents or any other payments in respect of the leases and other income from the Mortgaged Property or any other collateral when received part thereof becoming an asset in a voluntary bankruptcy or insolvency proceeding; or (v) the failure of Maker to comply with the costs provisions of maintenance and operation Section 11 (SINGLE PURPOSE ENTITY) of the Mortgaged Property and to the payment of taxes, lien claims, insurance premiums, monthly payments of principal and interest or escrow payments or other payments due under the Loan Documents to the extent the Loan Documents require such proceeds to be then so applied;
(E) any litigation or other legal proceeding related to the Debt filed by Maker or any guarantor or indemnitor that delays or impairs Payee's ability to preserve, enforce or foreclose its lien on the Mortgaged Property, including, but not limited to, the filing of a voluntary petition concerning Maker under the U.S. Bankruptcy Code, in which action a claim, counterclaim, or defense is asserted against Payee, other than any litigation or other legal proceeding in which a final, non-appealable judgment for money damages or injunctive relief is entered against Payee;
(F) the gross negligence or willful misconduct of Maker, its agents, affiliates, officers or employees which causes or results in a material diminution, or material loss of value, of the Mortgaged Property that is not reimbursed by insurance or which gross negligence or willful misconduct exposes Payee to claims, liability or costs of defense in any litigation or other legal proceeding;
(G) the seizure or forfeiture of the Mortgaged Property, or any portion thereof, or ▇▇▇▇▇'s interest therein, resulting from criminal wrongdoing by Maker, its agents, affiliates, officers or employees;
(H) waste to the Mortgaged Property caused by the acts or omissions of Maker, its agents, affiliates, officers, employees or contractors; or the removal or disposal of any portion of the Mortgaged Property by Maker its agents, affiliates, officers, employees or contractors after an Event of Default to the extent such Mortgaged Property is not replaced by Maker with like property of equivalent value, function and design; and
(I) in the event Payee has waived (or the Mortgage does not require) the monthly collection for real and personal property taxes, assessments, or insurance premiums, then failure by Maker to pay any or all such taxes, assessments or premiums in accordance with terms of the Mortgage (except for taxes and assessment which accrue, and premiums which are payable, after either (1) the date that Payee takes title to the Mortgaged Property by foreclosure, deed-in-lieu of foreclosure or otherwise or (2) ▇▇▇▇▇ obtains the appointment of a receiver or otherwise takes possession directly as a mortgagee in possession (provided, that, Maker has relinquished possession and control of the Mortgaged Property to such receiver or Payee and is not disputing the receivership or possession by the receiver or Payee))Agreement.
(d) In addition to the foregoing, Maker shall also be fully and personally liable to Payee for any amount which Maker is fully and personally liable to Payee for under Section 12 of the Crossed Note evidencing the Crossed Loan.
Appears in 1 contract
Limitations on Recourse. Notwithstanding anything in Subject to the provisions of this Article, and notwithstanding any provision of the Loan Documents to the contraryother than this Article, but subject to the qualifications and other provisions in clauses (a), (b) and (c) of this Section 12 below, Payee and Maker agree that: (i) Maker no personal liability shall be liable upon the Debt and for the other obligations arising under the Loan Documents to the full extent (but only to the extent) of all of the Mortgaged Property and any other itemsasserted, property or amounts which are collateral or security for the Loan; (ii) if a default occurs in the timely and proper payment of all or any part of the Debt, any judicial proceedings brought by Payee against Maker shall be limited to the preservation, enforcement and foreclosure, or any thereof, of the liens, security titles, estates, assignments, rights and security interests now or at any time hereafter securing the payment of the Debt and/or the other obligations of Maker under the Loan Documents, and no attachment, execution or other writ of process shall be sought, issued or levied upon any assets, properties or funds of Maker other than the Mortgaged Property; and (iii) in the event of a foreclosure of such liens, security titles, estates, assignments, rights or security interests securing the payment of the Debt, no judgment for any deficiency upon the Debt shall be sought or obtained by Payee Lender or enforceable against Maker.
(a) Nothing contained in this Section 12 shall (1) be deemed to be a release or impairment of the Debt or the lien of the Loan Documents upon the Mortgaged Property, or (2) preclude Payee from foreclosing under the Loan Documents in case of any default or from enforcing any of the other rights of Payee, including naming Maker as a party defendant in any action or suit for foreclosure and sale under the Mortgage, or obtaining the appointment of a receiver or prohibit Payee from obtaining a personal judgment against Maker on the Debt to the extent (but only to the extent) such judgment may be required in order to enforce the liens, security titles, estates, assignments, rights and security interests securing payment of the Debt, or (3) limit or impair in any way whatsoever the Guaranty (the "Guaranty") of even date executed and delivered in connection with the indebtedness evidenced by this Note or release, relieve, reduce, waive or impair in any way whatsoever, any obligation of any party to the Guaranty or (4) release, relieve, reduce, waive or impair in any way whatsoever any obligations of any person other than Maker which is a party to any of the other Loan Documents.
(b) In the event of fraud or material misrepresentation by Maker or any guarantor in connection with the Loan Documents or the documents delivered by Maker, or the first full Monthly Installment on this Note is not paid when due, or if any petition or proceeding for bankruptcy, reorganization or arrangement pursuant to federal bankruptcy law, or any similar federal or state law, shall be filed by Maker (or if any such petition or proceeding was not so filed by Maker, but Maker or Guarantor or their respective agents, affiliates, officers or employees consented to, acquiesced in arranged or otherwise participated in bringing about the institution of such petition or proceeding), or if there shall occur any material breach or default under the provisions of Section 9 of the Mortgage (entitled "Single Purpose Entity/Separateness"), the limitations on recourse set forth in this Section 12, including the provisions of clauses (i)) any Borrower Party, (ii) and any Affiliate of any Borrower Party, (iii) any Person owning, directly or indirectly, any legal or beneficial interest in any Borrower Party or any Affiliate of any Borrower Party or (iv) any partner, member, principal, officer, controlling person, beneficiary, trustee, advisor, shareholder, employee, agent, Affiliate or director of any Persons described in clauses (i) through (iv) above (collectively, the "Exculpated Parties") by Lender in respect of the Obligations, this Section 12 aboveLoan Agreement, will be null the Mortgage, the Note, the Property or any other Loan Document, or the making, issuance or transfer thereof, all such liability, if any, being expressly waived by Lender and void each successive holder of the Note and completely inapplicablethe Mortgage shall accept the Note and the Mortgage upon the express condition that Lender's sole recourse for the Obligations and the performance and observance of the obligations contained in this Loan Agreement, the Note, the Mortgage and this Note the other Loan Documents shall be full recourse to Maker.
(c) Nothing contained herein shall in exercise any manner or way releaseall of its rights and remedies with respect to the Property, affect the Rents and other Collateral including, without limitation, any or impair the right all of Payee to recover, and Maker shall be fully and personally liable and subject to legal action, for any loss, cost, expense, damage, claim or other obligation (including without limitation reasonable attorneys' fees and court costs) incurred or suffered by Payee arising out of or in connection with the following:
(Ai) any continuing default beyond any applicable cure periods Foreclosure of the Environmental Liabilities Agreement executed by Maker for the benefit of Payee, dated of even date herewith, including the indemnification provisions contained therein;
(B) Maker's failure to obtain ▇▇▇▇▇'s prior written consent to any subordinate financing (except as permitted in Section 9(d) lien of the Mortgage) or any other encumbrance on Mortgage in accordance with the Mortgaged Property, or any transfer of the Mortgaged Property or majority ownership terms and provisions set forth in Maker in violation of the Mortgage;
(Cii) Action against any other security at any time given to secure the misapplication by Maker, its agents, affiliates, officers or employees of any funds derived from the Mortgaged Property, including security deposits, insurance proceeds and condemnation awards, in violation payment of the Note and under the other Loan Documents;
(Diii) Maker's failure to apply proceeds Exercise of rents any other remedy set forth in this Loan Agreement, the Mortgage or any other payments Loan Document. Notwithstanding anything to the contrary in respect this Loan Agreement, the Mortgage or any of the leases and other income from the Mortgaged Property 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 collateral when received to the costs of maintenance and operation provisions of the Mortgaged Property and Bankruptcy Code to file a claim for the payment of taxes, lien claims, insurance premiums, monthly payments of principal and interest or escrow payments or other payments due under the Loan Documents to the extent the Loan Documents require such proceeds to be then so applied;
(E) any litigation or other legal proceeding related to the Debt filed by Maker or any guarantor or indemnitor that delays or impairs Payee's ability to preserve, enforce or foreclose its lien on the Mortgaged Property, including, but not limited to, the filing of a voluntary petition concerning Maker under the U.S. Bankruptcy Code, in which action a claim, counterclaim, or defense is asserted against Payee, other than any litigation or other legal proceeding in which a final, non-appealable judgment for money damages or injunctive relief is entered against Payee;
(F) the gross negligence or willful misconduct of Maker, its agents, affiliates, officers or employees which causes or results in a material diminution, or material loss of value, full amount of the Mortgaged Property Obligations secured by the Mortgage or to require that is not reimbursed by insurance or which gross negligence or willful misconduct exposes Payee all collateral shall continue to claims, liability or costs of defense in any litigation or other legal proceeding;
(G) the seizure or forfeiture secure all of the Mortgaged Property, or any portion thereof, or ▇▇▇▇▇'s interest therein, resulting from criminal wrongdoing by Maker, its agents, affiliates, officers or employees;
(H) waste Obligations owing to the Mortgaged Property caused by the acts or omissions of Maker, its agents, affiliates, officers, employees or contractors; or the removal or disposal of any portion of the Mortgaged Property by Maker its agents, affiliates, officers, employees or contractors after an Event of Default to the extent such Mortgaged Property is not replaced by Maker with like property of equivalent value, function and design; and
(I) in the event Payee has waived (or the Mortgage does not require) the monthly collection for real and personal property taxes, assessments, or insurance premiums, then failure by Maker to pay any or all such taxes, assessments or premiums Lender in accordance with terms of the Mortgage (except for taxes and assessment which accrue, and premiums which are payable, after either (1) the date that Payee takes title to the Mortgaged Property by foreclosure, deed-in-lieu of foreclosure or otherwise or (2) ▇▇▇▇▇ obtains the appointment of a receiver or otherwise takes possession directly as a mortgagee in possession (provided, that, Maker has relinquished possession and control of the Mortgaged Property to such receiver or Payee and is not disputing the receivership or possession by the receiver or Payee))Loan Documents.
(d) In addition to the foregoing, Maker shall also be fully and personally liable to Payee for any amount which Maker is fully and personally liable to Payee for under Section 12 of the Crossed Note evidencing the Crossed Loan.
Appears in 1 contract
Sources: Loan and Security Agreement (HRPT Properties Trust)
Limitations on Recourse. Notwithstanding anything in the Loan Documents to the contrary, but subject (a) Subject to the qualifications and other provisions set forth in clauses this Section, neither Maker nor Guarantor nor any partner, member, shareholder, officer or director of either of them (a)collectively, (bthe "Maker Group") and (c) of this Section 12 below, Payee and Maker agree that: (i) Maker shall be personally liable upon the Debt and either at law or in equity for the other obligations arising under the Loan Documents to the full extent (but only to the extent) of all of the Mortgaged Property and any other items, property or amounts which are collateral or security for the Loan; (ii) if a default occurs in the timely and proper payment of all or any part of the Debt, any judicial proceedings brought by Payee against Maker shall be limited to the preservation, enforcement and foreclosure, or any thereof, of the liens, security titles, estates, assignments, rights and security interests now or at any time hereafter securing the payment of the Debt and/or the other obligations of Maker under the Loan Documents, and no attachment, execution or other writ of process shall be sought, issued or levied upon any assets, properties or funds of Maker other than the Mortgaged Property; and (iii) in the event of a foreclosure of such liens, security titles, estates, assignments, rights or security interests securing the payment of the Debt, no judgment for any deficiency upon the Debt shall be sought or obtained by Payee against Maker.
(a) Nothing contained in this Section 12 shall (1) be deemed to be a release or impairment repayment of the Debt or the lien failure of performance of any other obligation evidenced by the Note or contained in the Deed of Trust or the Other Security Documents, and P▇▇▇▇ will satisfy any judgments, orders or decrees on account of the failure to repay such Debt and/or the failure to perform any such obligation, from the Property and any other real or personal property, tangible or intangible, as Maker, Guarantor or any other entity shall have pledged or assigned to secure this Note by any of the Loan Documents, except that Payee may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Payee to enforce and realize upon this Note, the Deed of Trust, the Other Security Documents, and the interests in the Property and any other collateral given to Payee pursuant to the Deed of Trust and the Other Security Documents; provided, however, that, except as specifically provided in this Section, any judgment in any such action or proceeding shall be enforceable against Maker Group only to the extent of Maker Group's interest in the Property and in any other collateral given to Payee. P▇▇▇▇, by accepting this Note, the Deed of Trust and the Other Security Documents, agrees that it shall not sue for, seek or demand any deficiency judgment against Maker Group in any such action or proceeding, under, by reason of or in connection with the Deed of Trust, the Other Security Documents upon the Mortgaged Propertyor this Note. The provisions of this Section shall not, however: (i) constitute a waiver, release or (2) preclude Payee from foreclosing under the Loan Documents in case impairment of any default obligation evidenced or from enforcing any secured by the Deed of Trust, the other rights Environmental Agreement, the Guaranty or the Other Security Documents or this Note; (ii) impair the right of Payee, including naming Payee to name Maker as a party defendant in any action or suit for foreclosure and sale under the Mortgage, Deed of Trust; (iii) affect the validity or obtaining the appointment enforceability of a receiver any guaranty or prohibit Payee from obtaining a personal judgment against Maker on the Debt to the extent (but only to the extent) such judgment may be required in order to enforce the liens, security titles, estates, assignments, rights and security interests securing payment of the Debt, or (3) limit or impair in any way whatsoever the Guaranty (the "Guaranty") of even date executed and delivered indemnity made in connection with the indebtedness evidenced by Deed of Trust, this Note or release, relieve, reduce, waive or impair in any way whatsoever, any obligation of any party to the Guaranty or Other Security Documents; (4iv) release, relieve, reduce, waive or impair in any way whatsoever any obligations of any person other than Maker which is a party to any of the other Loan Documents.
(b) In the event of fraud or material misrepresentation by Maker or any guarantor in connection with the Loan Documents or the documents delivered by Maker, or the first full Monthly Installment on this Note is not paid when due, or if any petition or proceeding for bankruptcy, reorganization or arrangement pursuant to federal bankruptcy law, or any similar federal or state law, shall be filed by Maker (or if any such petition or proceeding was not so filed by Maker, but Maker or Guarantor or their respective agents, affiliates, officers or employees consented to, acquiesced in arranged or otherwise participated in bringing about the institution of such petition or proceeding), or if there shall occur any material breach or default under the provisions of Section 9 of the Mortgage (entitled "Single Purpose Entity/Separateness"), the limitations on recourse set forth in this Section 12, including the provisions of clauses (i), (ii) and (iii) of this Section 12 above, will be null and void and completely inapplicable, and this Note shall be full recourse to Maker.
(c) Nothing contained herein shall in any manner or way release, affect or impair the right of Payee to recoverobtain the appointment of a receiver; (v) impair the right of Payee to bring suit with respect to fraud or misrepresentation by Maker or Maker's Group in connection with the Deed of Trust, this Note, the Environmental Agreement, the Guaranty or the Other Security Documents; (vi) affect the validity or enforceability of the Environmental Agreement or limit the liability of Maker or Guarantor thereunder; or (vii) affect the validity or enforceability of the Guaranty or limit the liability of Guarantor thereunder.
(b) Nothing herein shall be deemed to be a waiver of any right which Payee may have under Section 506(a), 506(b), 1111(b) or any other provisions of the U.S. Bankruptcy Code to file a claim for the full amount of the Debt secured by the Deed of Trust or to require that all collateral shall continue to secure all of the debt owing to Payee in accordance with this Note, the Deed of Trust, the Environmental Agreement, the Guaranty and the Other Security Documents.
(c) Notwithstanding the foregoing provisions of this Section or any other provision in the Loan Documents, Maker and Guarantor, jointly and severally, shall be fully liable for and personally liable and subject to legal action, shall indemnify Payee for any or all loss, cost, expenseliability, damagejudgment, claim claim, damage or other obligation expense sustained, suffered or incurred by Payee (including including, without limitation reasonable limitation, Payee's attorneys' fees and court costsfees) incurred or suffered by Payee arising out of or attributable or relating to:
(i) fraud or misrepresentation by Maker's Group or Guarantor in connection with the following:Loan;
(ii) the gross negligence or willful misconduct of Maker's Group or Guarantor, their respective agents or employees (not including lessees or property managers), or physical waste of the Property by Maker or Guarantor;
(iii) the breach of provisions in the Deed of Trust or the Environmental Agreement concerning Environmental Laws, Hazardous Substances and Asbestos (as each such term is defined in the Deed of Trust), and any indemnification of Payee in the Deed of Trust or any other Loan Document with respect to such Environmental Laws, Hazardous Substances and Asbestos;
(iv) the removal or disposal of any portion of the Property after default under this Note, the Deed of Trust, the Environmental Agreement, the Guaranty or any other Loan Document;
(v) the misapplication or conversion by Maker or Guarantor of: (A) any continuing default beyond insurance proceeds paid by reason of any applicable cure periods loss, damage or destruction to the Property; (B) any awards or other amounts received in connection with the condemnation of all or a portion of the Environmental Liabilities Agreement executed Property; or (C) rents, issues, profits, proceeds, accounts or other amounts received by Maker for or Guarantor (in the benefit case of Payeeclause (C) following an Event of Default under this Note, dated the Deed of even date herewithTrust, including the indemnification provisions contained thereinEnvironmental Agreement, the Guaranty or any other Loan Document);
(Bvi) Maker's failure to pay taxes, assessments, charges for labor or materials or other charges that may result in liens on any portion of the Property; provided, however, that Maker's and Guarantor's liability hereunder shall cease with respect to such amounts incurred from and after such time, if any, that Payee forecloses the Deed of Trust or accepts a deed in lieu of foreclosure of the Deed of Trust;
(vii) Maker's failure to pay insurance deductibles or premiums in respect of any insurance required under the Loan Documents to be maintained in respect of the Property; provided, however, that Maker's and Guarantor's liability hereunder shall cease with respect to such amounts incurred from and after such time, if any, that Payee forecloses the Deed of Trust or accepts a deed in lieu of foreclosure of the Deed of Trust;
(viii) the deductible amount of any insurance maintained in respect of the Property;
(ix) the costs incurred by P▇▇▇▇ (including attorneys' fees) in connection with the collection or enforcement of the Debt;
(x) Maker's failure to make the Property repairs or alterations required under the Loan Documents, including, without limitation, alterations required in order to comply with the Americans With Disabilities Act;
(xi) Maker's failure to permit on-site inspections of the Property or to provide financial reports and information pertaining to the Property as required by the Deed of Trust, unless, in either case, such failure is the result of a good faith error and is cured within ten (10) days after notice;
(xii) any security deposits or advance deposits collected with respect to the Property which are not delivered to Payee upon a foreclosure of the Property or action in lieu thereof;
(xiii) Maker fails to obtain P▇▇▇▇'s written consent to any subordinate financing;
(xiv) Maker's failure to obtain ▇P▇▇▇▇'s prior written consent to any subordinate financing (except as permitted in Section 9(d) of the Mortgage) or any other encumbrance on the Mortgaged Property, or any transfer of the Mortgaged Property or majority ownership in Maker in violation of the Mortgage;
(C) the misapplication by Maker, its agents, affiliates, officers or employees of any funds derived from the Mortgaged Property, including security deposits, insurance proceeds and condemnation awards, ownership interest in violation of the Loan Documents;
(D) Maker's failure to apply proceeds of rents or any other payments in respect of the leases and other income from the Mortgaged Property or any other collateral when received to the costs of maintenance and operation of the Mortgaged Property and to the payment of taxes, lien claims, insurance premiums, monthly payments of principal and interest or escrow payments or other payments due under the Loan Documents to the extent the Loan Documents require such proceeds to be then so applied;
(E) any litigation or other legal proceeding related to the Debt filed by Maker or any guarantor or indemnitor that delays or impairs Payee's ability to preserve, enforce or foreclose its lien on the Mortgaged Property, including, but not limited to, the filing of a voluntary petition concerning Maker under the U.S. Bankruptcy Code, in which action a claim, counterclaim, or defense is asserted against Payee, other than any litigation or other legal proceeding in which a final, non-appealable judgment for money damages or injunctive relief is entered against Payee;
(F) the gross negligence or willful misconduct of Maker, its agents, affiliates, officers or employees which causes or results in a material diminution, or material loss of value, of the Mortgaged Property that is not reimbursed by insurance or which gross negligence or willful misconduct exposes Payee to claims, liability or costs of defense in any litigation or other legal proceeding;
(G) the seizure or forfeiture of the Mortgaged Property, or any portion thereof, or ▇▇▇▇▇'s interest therein, resulting from criminal wrongdoing by Maker, its agents, affiliates, officers or employees;
(H) waste to the Mortgaged Property caused by the acts or omissions of Maker, its agents, affiliates, officers, employees or contractors; or the removal or disposal of any portion of the Mortgaged Property by Maker its agents, affiliates, officers, employees or contractors after an Event of Default to the extent such Mortgaged Property is not replaced by Maker with like property of equivalent value, function and design; and
(Ixv) in Maker fails to comply with the event Payee has waived (or the Mortgage does not require) the monthly collection for real and personal property taxes, assessments, or insurance premiums, then failure by Maker to pay any or all such taxes, assessments or premiums in accordance with terms provisions of Section 11 of the Mortgage (except for taxes and assessment which accrue, and premiums which are payable, after either (1) the date that Payee takes title Deed of Trust pertaining to the Mortgaged Property by foreclosure, deedits single-in-lieu of foreclosure or otherwise or (2) ▇▇▇▇▇ obtains the appointment of a receiver or otherwise takes possession directly as a mortgagee in possession (provided, that, Maker has relinquished possession and control of the Mortgaged Property to such receiver or Payee and is not disputing the receivership or possession by the receiver or Payee))purpose entity status.
(d) In addition to Notwithstanding the foregoing, the agreement of Payee not to pursue recourse liability as set forth in subsection (a) above SHALL BE AND BECOME NULL AND VOID and shall be of no further force or effect if: (i) any financial information concerning Maker shall also be fully or Guarantor provided by Maker or Guarantor or any of their respective employees or agents is fraudulent in any respect, contains any fraudulent information or misrepresents in any material respect the financial condition of Maker or such Guarantor; (ii) a voluntary bankruptcy or insolvency proceeding is commenced by Maker or Maker’s managing member/general partner; or (iii) an involuntary bankruptcy or insolvency proceeding is commenced by any party against Maker or Maker’s managing member/general partner and personally liable to Payee for is not unconditionally dismissed within ninety (90) days of filing. Upon the occurrence of any amount which Maker is fully and personally liable to Payee for under Section 12 of the Crossed Note evidencing foregoing events, Maker and Guarantor shall have full joint and several recourse liability for all sums due under the Crossed LoanLoan Documents.
(e) Nothing in this Section shall be interpreted or construed to impair, limit the liability of or otherwise affect the terms, conditions, requirements and obligations of Guarantor under the Guaranty or Maker or Guarantor under the Environmental Agreement.
Appears in 1 contract
Sources: Deed of Trust Note (Equity Inns Inc)
Limitations on Recourse. Notwithstanding anything in the Loan Documents contained herein to the contrary, but subject to the qualifications each Lender and other provisions in clauses each Agent agree that (a)) in an action to collect any amounts due under, or otherwise in respect of, this Agreement, any Second-Lien Note or any other Second-Lien Loan Document, no future, current or former Holdings Partner (except, if any such Holdings Partner is a Loan Party or is otherwise a party to any Second-Lien Loan Documents, for such person's obligations as a Loan Party under such Second-Lien Loan Documents) in its capacity as such will be personally liable for any amounts due or any other liability under this Agreement, any Second-Lien Note or any other Second-Lien Loan Document, and no deficiency or personal judgment will be sought against any such Holdings Partner in its capacity as such for payment of the Indebtedness evidenced by this Agreement, any Second-Lien Note or any other Second-Lien Loan Document and (b) and no property or assets of any such future, current or former Holdings Partner (cexcept, if any such Holdings Partner is a Loan Party or is otherwise a party to any Second-Lien Loan Documents, for such person's obligations under such Second-Lien Loan Documents) of in its capacity as such shall be sold, levied upon or otherwise used to satisfy any judgment rendered in connection with any action brought with respect to this Agreement or any Second-Lien Note; provided, however, that nothing contained in this Section 12 below, Payee and Maker agree that: 9.19 shall (i) Maker shall be liable upon impair the Debt and for the other obligations arising under the Loan Documents to the full extent (but only to the extent) of all validity of the Mortgaged Property and any other itemsIndebtedness evidenced by this Agreement or the Second-Lien Notes, property or amounts which are collateral or security for the Loan; (ii) if a default occurs in prevent the timely and proper payment taking of all any action permitted by law against the Borrower or any part other Loan Party or the assets of the Debt, any judicial proceedings brought by Payee against Maker shall be limited to the preservation, enforcement and foreclosure, Borrower or any thereof, other Loan Party or the proceeds of the liens, security titles, estates, assignments, rights and security interests now such assets or at any time hereafter securing the payment of the Debt and/or the other obligations of Maker under the Loan Documents, and no attachment, execution or other writ of process shall be sought, issued or levied upon any assets, properties or funds of Maker other than the Mortgaged Property; and (iii) in the event of a foreclosure of such liens, security titles, estates, assignments, rights or security interests securing the payment of the Debt, no judgment for any deficiency upon the Debt shall be sought or obtained by Payee against Maker.
(a) Nothing contained in this Section 12 shall (1) be deemed to be a release or impairment of the Debt or the lien of the Loan Documents upon the Mortgaged Property, or (2) preclude Payee from foreclosing under the Loan Documents in case of any default or from enforcing any of the other rights of Payee, including naming Maker as a party defendant in any action or suit for foreclosure and sale under the Mortgage, or obtaining the appointment of a receiver or prohibit Payee from obtaining a personal judgment against Maker on the Debt to the extent (but only to the extent) such judgment may be required in order to enforce the liens, security titles, estates, assignments, rights and security interests securing payment of the Debt, or (3) limit or impair in any way whatsoever the Guaranty (the "Guaranty") of even date executed and delivered in connection with the indebtedness evidenced by this Note or release, relieve, reduce, waive or impair in any way whatsoever, any obligation of any party to the Guaranty or (4) release, relieve, reduce, waive or impair in any way whatsoever any obligations of any person other than Maker which is a party to any of the other Loan Documents.
(b) In the event of fraud or material misrepresentation by Maker or any guarantor in connection with the Loan Documents or the documents delivered by Maker, or the first full Monthly Installment on this Note is not paid when due, or if any petition or proceeding for bankruptcy, reorganization or arrangement pursuant to federal bankruptcy law, or any similar federal or state law, shall be filed by Maker (or if any such petition or proceeding was not so filed by Maker, but Maker or Guarantor or their respective agents, affiliates, officers or employees consented to, acquiesced in arranged or otherwise participated in bringing about the institution of such petition or proceeding), or if there shall occur any material breach or default under the provisions of Section 9 of the Mortgage (entitled "Single Purpose Entity/Separateness"), the limitations on recourse set forth in this Section 12, including the provisions of clauses (i), (ii) and (iii) of this Section 12 above, will be null and void and completely inapplicable, and this Note shall be full recourse to Maker.
(c) Nothing contained herein shall in any manner or way release, affect or impair the right of Payee any Agent or any Lender to recovertake any action permitted by law to realize upon any Mortgaged Property, and Maker shall be fully and personally liable and subject to legal action, for any loss, cost, expense, damage, claim or other obligation (including without limitation reasonable attorneys' fees and court costs) incurred or suffered by Payee arising out of or in connection with the following:
(A) any continuing default beyond any applicable cure periods of the Environmental Liabilities Agreement executed by Maker for the benefit of Payee, dated of even date herewith, including the indemnification provisions contained therein;
(B) Maker's failure to obtain ▇▇▇▇▇'s prior written consent to any subordinate financing (except as permitted in Section 9(d) of the Mortgage) Collateral or any other encumbrance on the Mortgaged Property, or security which may secure any transfer of the Mortgaged Property or majority ownership in Maker in violation of the Mortgage;
(C) the misapplication by Maker, its agents, affiliates, officers or employees of any funds derived from the Mortgaged Property, including security deposits, insurance proceeds and condemnation awards, in violation of the Loan Documents;
(D) MakerParty's failure to apply proceeds of rents or any other payments in respect of the leases and other income from the Mortgaged Property or any other collateral when received to the costs of maintenance and operation of the Mortgaged Property and to the payment of taxes, lien claims, insurance premiums, monthly payments of principal and interest or escrow payments or other payments due under the Loan Documents to the extent the Loan Documents require such proceeds to be then so applied;
(E) any litigation or other legal proceeding related to the Debt filed by Maker or any guarantor or indemnitor that delays or impairs Payee's ability to preserve, enforce or foreclose its lien on the Mortgaged Property, including, but not limited to, the filing of a voluntary petition concerning Maker under the U.S. Bankruptcy Code, in which action a claim, counterclaim, or defense is asserted against Payee, other than any litigation or other legal proceeding in which a final, non-appealable judgment for money damages or injunctive relief is entered against Payee;
(F) the gross negligence or willful misconduct of Maker, its agents, affiliates, officers or employees which causes or results in a material diminution, or material loss of value, of the Mortgaged Property that is not reimbursed by insurance or which gross negligence or willful misconduct exposes Payee to claims, liability or costs of defense in any litigation or other legal proceeding;
(G) the seizure or forfeiture of the Mortgaged Property, or any portion thereof, or ▇▇▇▇▇'s interest therein, resulting from criminal wrongdoing by Maker, its agents, affiliates, officers or employees;
(H) waste to the Mortgaged Property caused by the acts or omissions of Maker, its agents, affiliates, officers, employees or contractors; or the removal or disposal of any portion of the Mortgaged Property by Maker its agents, affiliates, officers, employees or contractors after an Event of Default to the extent such Mortgaged Property is not replaced by Maker with like property of equivalent value, function and design; and
(I) in the event Payee has waived (or the Mortgage does not require) the monthly collection for real and personal property taxes, assessments, or insurance premiums, then failure by Maker to pay any or all such taxes, assessments or premiums in accordance with terms of the Mortgage (except for taxes and assessment which accrue, and premiums which are payable, after either (1) the date that Payee takes title to the Mortgaged Property by foreclosure, deed-in-lieu of foreclosure or otherwise or (2) ▇▇▇▇▇ obtains the appointment of a receiver or otherwise takes possession directly as a mortgagee in possession (provided, that, Maker has relinquished possession and control of the Mortgaged Property to such receiver or Payee and is not disputing the receivership or possession by the receiver or Payee))obligations.
(d) In addition to the foregoing, Maker shall also be fully and personally liable to Payee for any amount which Maker is fully and personally liable to Payee for under Section 12 of the Crossed Note evidencing the Crossed Loan.
Appears in 1 contract
Sources: Second Lien Credit Agreement (Graham Packaging Holdings Co)
Limitations on Recourse. Notwithstanding anything Except as hereinafter in the Loan Documents to the contrary, but subject to the qualifications and other provisions in clauses (a), (b) and (c) of this Section 12 below, Payee and Maker agree that: (i) Maker shall be liable upon the Debt and for the other obligations arising under the Loan Documents to the full extent (but only to the extent) of all ----------------------- in Section 40 of the Mortgaged Property Mortgage specifically provided, Maker. Marriott Hanover Hotel Corporation ("MHHC") and any other items, property or amounts which are collateral or security for the Loan; (ii) if a default occurs in the timely and proper payment of all or any part partners of the Debt, any judicial proceedings brought by Payee against Maker shall not be limited to the preservation, enforcement and foreclosure, or any thereof, of the liens, security titles, estates, assignments, rights and security interests now or at any time hereafter securing personally liable for the payment of any sums due hereunder or the Debt and/or the other performance of any obligations of Maker hereunder or under any other Loan Document. No judgment for the repayment of the Indebtedness and no action to foreclose the Mortgage, or to collect any amount payable under the Loan Documents, and no attachment, execution or to satisfy any other writ claim relating thereto will be enforced against Maker or MHHC or any other partner of process shall be sought, issued Maker personally or levied upon any assets, properties property of Maker or funds MHHC or any other partner of Maker other than the Mortgaged Property; Security and (iii) any other security furnished under the Loan Documents in any action to foreclose the event of a foreclosure of such liens, Mortgage or to otherwise realize upon any security titles, estates, assignments, rights furnished under the Loan Documents or security interests securing to collect any amount payable under the payment of Loan Documents. Notwithstanding the Debt, no judgment for any deficiency upon the Debt shall be sought or obtained by Payee against Maker.foregoing:
(a) Nothing herein contained in this Section 12 shall (1) be deemed to be a release or impairment of the Debt or the lien of construed as prohibiting Holder from exercising any and all remedies which the Loan Documents upon the Mortgaged Property, or (2) preclude Payee from foreclosing under the Loan Documents in case of any default or from enforcing any of the other rights of Payeepermit, including naming the right to bring actions or proceedings against Maker as and/or MHHC and/or any other general partner of Maker and to enter a party defendant in any action or suit for foreclosure and sale under the Mortgage, or obtaining the appointment of a receiver or prohibit Payee from obtaining a personal judgment against Maker on and/or any other general partner in Maker, so long as the Debt to the extent (but only to the extent) such judgment may be required in order to enforce the liens, security titles, estates, assignments, rights and security interests securing payment of the Debt, or (3) limit or impair in any way whatsoever the Guaranty (the "Guaranty") of even date executed and delivered in connection with the indebtedness evidenced by this Note or release, relieve, reduce, waive or impair in any way whatsoever, any obligation exercise of any party remedy does not extend to the Guaranty execution against or (4) release, relieve, reduce, waive or impair in any way whatsoever any obligations recovery out of any person property of Maker and/or MHHC and/or any other partner other than Maker which is a party to any of the other Loan Documents.
(b) In the event of fraud or material misrepresentation by Maker or any guarantor in connection with the Loan Documents or the documents delivered by Maker, or the first full Monthly Installment on this Note is not paid when due, or if any petition or proceeding for bankruptcy, reorganization or arrangement pursuant to federal bankruptcy law, or any similar federal or state law, shall be filed by Maker (or if any such petition or proceeding was not so filed by Maker, but Maker or Guarantor or their respective agents, affiliates, officers or employees consented to, acquiesced in arranged or otherwise participated in bringing about the institution of such petition or proceeding), or if there shall occur any material breach or default security furnished under the provisions of Section 9 of the Mortgage (entitled "Single Purpose Entity/Separateness"), the limitations on recourse set forth in this Section 12, including the provisions of clauses (i), (ii) and (iii) of this Section 12 above, will be null and void and completely inapplicable, and this Note shall be full recourse to Maker.
(c) Nothing contained herein shall in any manner or way release, affect or impair the right of Payee to recover, and Maker shall be fully and personally liable and subject to legal action, for any loss, cost, expense, damage, claim or other obligation (including without limitation reasonable attorneys' fees and court costs) incurred or suffered by Payee arising out of or in connection with the following:
(A) any continuing default beyond any applicable cure periods of the Environmental Liabilities Agreement executed by Maker for the benefit of Payee, dated of even date herewith, including the indemnification provisions contained therein;
(B) Maker's failure to obtain ▇▇▇▇▇'s prior written consent to any subordinate financing (except as permitted in Section 9(d) of the Mortgage) or any other encumbrance on the Mortgaged Property, or any transfer of the Mortgaged Property or majority ownership in Maker in violation of the Mortgage;
(C) the misapplication by Maker, its agents, affiliates, officers or employees of any funds derived from the Mortgaged Property, including security deposits, insurance proceeds and condemnation awards, in violation of the Loan Documents;
(Db) Maker's failure to apply proceeds of rents or Maker and MHHC and any other payments in respect general partner of the leases and other income from the Mortgaged Property or any other collateral when received to the costs of maintenance and operation of the Mortgaged Property and to the payment of taxes, lien claims, insurance premiums, monthly payments of principal and interest or escrow payments or other payments due under the Loan Documents to the extent the Loan Documents require such proceeds to be then so applied;
(E) any litigation or other legal proceeding related to the Debt filed by Maker or any guarantor or indemnitor that delays or impairs Payee's ability to preserve, enforce or foreclose its lien on the Mortgaged Property, includingMaker, but not any limited to, the filing partner of a voluntary petition concerning Maker under the U.S. Bankruptcy Code, in which action a claim, counterclaim, or defense is asserted against Payee, other than any litigation or other legal proceeding in which a final, non-appealable judgment for money damages or injunctive relief is entered against Payee;
(F) the gross negligence or willful misconduct of Maker, its agents, affiliates, officers or employees which causes or results in a material diminution, or material loss of value, of the Mortgaged Property that who is not reimbursed by insurance or which gross negligence or willful misconduct exposes Payee to claimsalso a general partner, liability or costs of defense in any litigation or other legal proceeding;
(G) the seizure or forfeiture of the Mortgaged Property, or any portion thereof, or ▇▇▇▇▇'s interest therein, resulting from criminal wrongdoing by Maker, its agents, affiliates, officers or employees;
(H) waste to the Mortgaged Property caused by the acts or omissions of Maker, its agents, affiliates, officers, employees or contractors; or the removal or disposal of any portion of the Mortgaged Property by Maker its agents, affiliates, officers, employees or contractors after an Event of Default to the extent such Mortgaged Property is not replaced by Maker with like property of equivalent value, function and design; and
(I) in the event Payee has waived (or the Mortgage does not require) the monthly collection for real and personal property taxes, assessments, or insurance premiums, then failure by Maker to pay any or all such taxes, assessments or premiums in accordance with terms of the Mortgage (except for taxes and assessment which accrue, and premiums which are payable, after either (1) the date that Payee takes title to the Mortgaged Property by foreclosure, deed-in-lieu of foreclosure or otherwise or (2) ▇▇▇▇▇ obtains the appointment of a receiver or otherwise takes possession directly as a mortgagee in possession (provided, that, Maker has relinquished possession and control of the Mortgaged Property to such receiver or Payee and is not disputing the receivership or possession by the receiver or Payee)).
(d) In addition to the foregoing, Maker shall also be fully and personally liable to Payee for any amount which Maker is fully jointly and severally personally liable for (i) misapplying any condemnation proceeds or insurance proceeds attributable to Payee for under Section 12 the Real Property, to the full extent of such proceeds so misapplied, (ii) misapplying any security deposits attributable to the Crossed Note evidencing Real Property, to the Crossed Loanfull extent of such deposits so misapplied.
Appears in 1 contract
Sources: Assignment of Hotel Management Agreement (Hanover Marriott Limited Partnership)
Limitations on Recourse. Notwithstanding anything in the Loan Documents to the contrary, but subject (a) Subject to the qualifications and other provisions set forth in clauses this Section, neither Mortgagor nor Guarantor nor any partner, shareholder, officer, or director, manager, member or Affiliate of either of them or any successors or assigns of the foregoing (a)collectively, (bthe "EXCULPATED PARTIES") and (c) of this Section 12 below, Payee and Maker agree that: (i) Maker shall be personally liable upon the Debt and either at law or in equity for the other obligations arising under the Loan Documents to the full extent (but only to the extent) of all of the Mortgaged Property and any other items, property or amounts which are collateral or security for the Loan; (ii) if a default occurs in the timely and proper payment of all or any part of the Debt, any judicial proceedings brought by Payee against Maker shall be limited to the preservation, enforcement and foreclosure, or any thereof, of the liens, security titles, estates, assignments, rights and security interests now or at any time hereafter securing the payment of the Debt and/or the other obligations of Maker under the Loan Documents, and no attachment, execution or other writ of process shall be sought, issued or levied upon any assets, properties or funds of Maker other than the Mortgaged Property; and (iii) in the event of a foreclosure of such liens, security titles, estates, assignments, rights or security interests securing the payment of the Debt, no judgment for any deficiency upon the Debt shall be sought or obtained by Payee against Maker.
(a) Nothing contained in this Section 12 shall (1) be deemed to be a release or impairment repayment of the Debt or the lien failure of performance of any other obligation evidenced by the Note or contained in the Mortgage or the other Loan Documents and Mortgagee will satisfy any judgments, orders or decrees on account of the failure to repay such Debt and/or the failure to perform any such obligation, from the Property and any other real or personal property, tangible or intangible, as Mortgagor, Guarantor or any other entity shall have pledged or assigned to secure the Note by any of the Loan Documents Documents, except that Mortgagee may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Mortgagee to enforce and realize upon the Mortgaged PropertyNote, the Mortgage, the other Loan Documents, and the interests in the Property and any other collateral given to Mortgagee pursuant to the Mortgage and the other Loan Documents; PROVIDED, HOWEVER, that, except as specifically provided in this Section, any judgment in any such action or (2) preclude Payee from foreclosing under proceeding shall be enforceable against Mortgagor only to the extent of Mortgagor's interest in the Property and in any other collateral given to Mortgagee. Mortgagee, by accepting the Note, the Mortgage and the other Loan Documents, agrees that it shall not ▇▇▇ for, seek or demand any deficiency judgment against Mortgagor in any such action or proceeding, under, by reason of or in connection with the Mortgage, the Assignment, the other Loan Documents in case or the Note. The provisions of this Section shall not, however: (i) constitute a waiver, release or impairment of any default obligation evidenced or from enforcing any of secured by the Note this Mortgage or the other rights Loan Documents; (ii) impair the right of Payee, including naming Maker Mortgagee to name Mortgagor as a party defendant in any action or suit for foreclosure and sale under this Mortgage; (iii) affect the Mortgagevalidity or enforceability of the Guaranty Agreement, the Environmental Agreement or obtaining any other guaranty or indemnity made in connection with the Note, this Mortgage or the other Loan Documents; (iv) impair the right of Mortgagee to obtain the appointment of a receiver receiver; (v) impair the right of Mortgagee to bring suit with respect to fraud or prohibit Payee from obtaining a personal judgment against Maker on the Debt to the extent (but only to the extent) such judgment may be required in order to enforce the liens, security titles, estates, assignments, rights and security interests securing payment of the Debt, or (3) limit or impair in any way whatsoever the Guaranty (the "Guaranty") of even date executed and delivered misrepresentation by Mortgagor in connection with the indebtedness evidenced Note, this Mortgage or Loan Documents; (vi) affect the validity or impair the enforcement of the Loan Documents.
(b) Nothing herein shall be deemed to be a waiver of any right which Mortgagee may have under Sections 506(a), 506(b), 1111(b) or any other provisions of the U.S. Bankruptcy Code to file a claim for the full amount of the Debt secured by this Note Mortgage or releaseto require that all collateral shall continue to secure all of the debt owing to Mortgagee in accordance with the Note, relieve, reduce, waive or impair in any way whatsoever, any obligation of any party to the Guaranty or (4) release, relieve, reduce, waive or impair in any way whatsoever any obligations of any person other than Maker which is a party to any of this Mortgage and the other Loan Documents.
(bc) In Notwithstanding the event of fraud or material misrepresentation by Maker or any guarantor in connection with the Loan Documents or the documents delivered by Maker, or the first full Monthly Installment on this Note is not paid when due, or if any petition or proceeding for bankruptcy, reorganization or arrangement pursuant to federal bankruptcy law, or any similar federal or state law, shall be filed by Maker (or if any such petition or proceeding was not so filed by Maker, but Maker or Guarantor or their respective agents, affiliates, officers or employees consented to, acquiesced in arranged or otherwise participated in bringing about the institution of such petition or proceeding), or if there shall occur any material breach or default under the foregoing provisions of Section 9 of the Mortgage (entitled "Single Purpose Entity/Separateness"), the limitations on recourse set forth in this Section 12, including the provisions of clauses (i), (ii) and (iii) of this Section 12 aboveor any other provision in the Loan Documents, will be null Mortgagor and void Guarantor, jointly and completely inapplicableseverally, and this Note shall be full recourse to Maker.
(c) Nothing contained herein shall in any manner or way release, affect or impair the right of Payee to recover, and Maker shall be fully and personally liable to and subject to legal action, shall indemnify Mortgagee for any or all loss, cost, expenseliability, damagejudgment, claim claim, damage or other obligation expense sustained, suffered or incurred by Mortgagee (including including, without limitation reasonable limitation, Mortgagee's attorneys' fees and court costs) incurred or suffered by Payee arising out of or attributable or relating to:
(i) fraud or misrepresentation by Mortgagor or Guarantor in connection with the following:
(A) any continuing default beyond any applicable cure periods of the Environmental Liabilities Agreement executed by Maker for the benefit of Payee, dated of even date herewith, including the indemnification provisions contained thereinLoan;
(B) Maker's failure to obtain ▇▇▇▇▇'s prior written consent to any subordinate financing (except as permitted in Section 9(d) of the Mortgage) or any other encumbrance on the Mortgaged Property, or any transfer of the Mortgaged Property or majority ownership in Maker in violation of the Mortgage;
(C) the misapplication by Maker, its agents, affiliates, officers or employees of any funds derived from the Mortgaged Property, including security deposits, insurance proceeds and condemnation awards, in violation of the Loan Documents;
(D) Maker's failure to apply proceeds of rents or any other payments in respect of the leases and other income from the Mortgaged Property or any other collateral when received to the costs of maintenance and operation of the Mortgaged Property and to the payment of taxes, lien claims, insurance premiums, monthly payments of principal and interest or escrow payments or other payments due under the Loan Documents to the extent the Loan Documents require such proceeds to be then so applied;
(E) any litigation or other legal proceeding related to the Debt filed by Maker or any guarantor or indemnitor that delays or impairs Payee's ability to preserve, enforce or foreclose its lien on the Mortgaged Property, including, but not limited to, the filing of a voluntary petition concerning Maker under the U.S. Bankruptcy Code, in which action a claim, counterclaim, or defense is asserted against Payee, other than any litigation or other legal proceeding in which a final, non-appealable judgment for money damages or injunctive relief is entered against Payee;
(Fii) the gross negligence or willful misconduct of MakerMortgagor or Guarantor, its their agents, affiliatesmanagers, officers or employees which causes with respect to their obligations to Mortgagee or results in a material diminutionwith respect to the operation of the Property, or material loss of value, physical waste of the Mortgaged Property that is not reimbursed by insurance or which gross negligence or willful misconduct exposes Payee to claims, liability or costs of defense in any litigation or other legal proceedingProperty;
(Giii) the seizure breach of provisions in this Mortgage concerning Environmental Laws, Hazardous Substances and Asbestos, and any indemnification of Mortgagee herein or forfeiture of in the Mortgaged Property, Environmental Agreement or any portion thereofother Loan Document with respect to such Environmental Laws, or ▇▇▇▇▇'s interest therein, resulting from criminal wrongdoing by Maker, its agents, affiliates, officers or employeesHazardous Substances and Asbestos;
(Hiv) waste to other than in the Mortgaged Property caused by the acts or omissions ordinary course of Makerbusiness, its agents, affiliates, officers, employees or contractors; or the removal or disposal of any portion of the Mortgaged Property by Maker its agents, affiliates, officers, employees or contractors after an Event of Default under the Note, this Mortgage, or any other Loan Document;
(v) the misapplication or conversion by Mortgagor of: (A) any insurance proceeds paid by reason of any loss, damage or destruction to the extent such Mortgaged Property is not replaced Property; (B) any awards or other amounts received in connection with the condemnation of all or a portion of the Property; or (C) rents, issues, profits, proceeds, accounts, or other amounts received by Maker with like property Mortgagor or Guarantor (in the case of equivalent valueclause (C) following an Event of Default under the Note, function and design; andthis Mortgage or the other Loan Documents);
(Ivi) in the event Payee has waived (or the Mortgage does not require) the monthly collection for real and personal property taxesMortgagor's failure to pay Taxes, assessments, charges for labor or insurance premiums, then failure by Maker to pay materials or Other Charges that can result in liens on any or all such taxes, assessments or premiums in accordance with terms portion of the Mortgage (except for taxes Property, provided, however, that Mortgagor's and assessment which accrueGuarantor's liability hereunder shall cease with respect to such amounts incurred from and after such time, if any, that Mortgagee obtains legal and premiums which are payable, after either (1) the date that Payee takes beneficial title to the Mortgaged Property;
(vii) the deductible amount in respect of any insurance maintained in respect of the Property, provided, however, that Mortgagor's and Guarantor's liability hereunder shall cease with respect to such amounts incurred from and after such time, if any, that Mortgagee obtains legal and beneficial title to the Property;
(viii) the costs incurred by Mortgagee (including reasonable attorneys' fees) in connection with the collection or enforcement of the Debt;
(ix) any security deposits, advance deposits or retained rents and profits collected with respect to the Property by which are not delivered to Mortgagee upon a foreclosure of the Property or action in lieu thereof;
(x) the presence, disposal, escape, seepage, leakage, spillage, discharge, emission, release, or threatened release of any Hazardous Substance or Asbestos on, from, or affecting the Property or any other property, regardless of when discovered, which occurs prior to foreclosure, deed-in-transfer by deed in lieu of foreclosure or otherwise or (2) ▇▇▇▇▇ obtains the appointment of a receiver by Mortgagee;
(xi) any personal injury (including wrongful death) or otherwise takes possession directly as a mortgagee in possession property damage (providedreal or personal) arising out of or related to such Hazardous Substance or Asbestos;
(xii) any lawsuit brought or threatened, thatsettlement reached, Maker has relinquished possession and control or government order relating to such Hazardous Substance or Asbestos;
(xiii) any violation of the Mortgaged Property Environmental Laws, regardless of when discovered, which occurs prior to foreclosure, transfer by deed in lieu of foreclosure or the appointment of a receiver by Mortgagee, and which is based upon or in any way related to such receiver Hazardous Substance or Payee Asbestos including, without limitation, the costs and is not disputing expenses of any remedial action, reasonable out-of-pocket attorney's and consultant's fees, investigation and laboratory fees, court costs, and litigation expenses; and
(xiv) Mortgagor fails to comply with the receivership or possession by the receiver or Payee))provisions of Sections 11 and/or 13 of this Mortgage.
(d) In addition to Notwithstanding the foregoing, Maker the agreement of Mortgagee not to pursue recourse liability as set forth in subsection (a) above SHALL BE AND BECOME NULL AND VOID and shall also be fully and personally liable of no further force or effect if: (1) Mortgagor fails to Payee for any amount which Maker is fully and personally liable to Payee for under Section 12 permit reasonable on-site inspections of the Crossed Note evidencing Property upon reasonable advance oral notice or to provide financial reports and information pertaining to the Crossed LoanProperty as required by any Loan Document, unless such failure is the result of a good faith error and such failure is cured within ten (10) days after notice; (2) any financial information concerning Mortgagor or Guarantor provided by Mortgagor or Guarantor (or their respective agents, employees, or authorized representatives) is fraudulent in any respect, contains any fraudulent information or misrepresents in any material respect the financial condition of Mortgagor or Guarantor; (3) Mortgagor fails to obtain Payee's prior written consent, if consent is required under any Loan Document, to any subordinate financing; (4) Mortgagor fails to obtain Payee's prior written consent, if consent is required under any Loan Document, to any transfer of the Property or of any ownership interest in Mortgagor; and (5) Mortgagor or its Managing Member files for relief or protection under any federal, state or other bankruptcy, insolvency, reorganization or other creditor-relief laws, or an involuntary filing or petition is made under any of such laws, against Mortgagor by any of its creditors (other than Payee) and such involuntary filing is not unconditionally dismissed or vacated within ninety (90) days. Upon the occurrence of any of the foregoing events, Mortgagor and Guarantor shall have full joint and several recourse liability for all sums due under the Loan Documents.
(e) Nothing in this Section shall be interpreted or construed to impair, limit the liability of or otherwise affect the terms, conditions, requirements and obligations of Guarantor under that certain Guaranty Agreement dated as of the date hereof or the Mortgagor or Guarantor under the Environmental Agreement.
Appears in 1 contract
Limitations on Recourse. Notwithstanding anything in the Loan Documents to the contrary, but subject (a) Subject to the qualifications and other provisions set forth in clauses (a)this Section, (b) and (c) neither Maker nor Guarantor nor any member, manager, partner, shareholder, officer or director of this Section 12 below, Payee and Maker agree that: (i) Maker either of them shall be personally liable upon the Debt and either at law or in equity for the other obligations arising under the Loan Documents to the full extent (but only to the extent) of all of the Mortgaged Property and any other items, property or amounts which are collateral or security for the Loan; (ii) if a default occurs in the timely and proper payment of all or any part of the Debt, any judicial proceedings brought by Payee against Maker shall be limited to the preservation, enforcement and foreclosure, or any thereof, of the liens, security titles, estates, assignments, rights and security interests now or at any time hereafter securing the payment of the Debt and/or the other obligations of Maker under the Loan Documents, and no attachment, execution or other writ of process shall be sought, issued or levied upon any assets, properties or funds of Maker other than the Mortgaged Property; and (iii) in the event of a foreclosure of such liens, security titles, estates, assignments, rights or security interests securing the payment of the Debt, no judgment for any deficiency upon the Debt shall be sought or obtained by Payee against Maker.
(a) Nothing contained in this Section 12 shall (1) be deemed to be a release or impairment repayment of the Debt or the lien failure of performance of any other obligation evidenced by this Note or contained in the Mortgage or the other Loan Documents, and Payee will satisfy any judgments, orders or decrees on account of the failure to repay the Debt and/or the failure to perform any such obligation, from the Property and any other real or personal property, tangible or intangible, as the Maker, Guarantor or any other entity shall have pledged or assigned to secure this Note by any of the Loan Documents, except that Payee may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Payee to enforce and realize upon this Note, the Mortgage, the other Loan Documents, and the interests in the Property and any other collateral given to Payee pursuant to the Mortgage and the other Loan Documents; PROVIDED, HOWEVER, that, except as specifically provided in this Section, any judgment in any such action or proceeding shall be enforceable against Maker only to the extent of Maker's interest in the Property and in any other collateral given to Payee. Payee, by accepting this Note, the Mortgage,and the other Loan Documents, agrees that it shall not sue for, seek or demand any deficiency judgment against Maker in any such action or proceeding, under, by reason of or in connection with the Mortgage, the other Loan Documents upon or this Note. The provisions of this Section shall not, however: (1) constitute a waiver, release or impairment of any obligation evidenced or secured by the Mortgaged PropertyMortgage, the Assignment, the Environmental Agreement, the Guaranty Agreement, the Reserve or the Other Security Documents or this Note; (2) preclude impair the right of Payee from foreclosing under the Loan Documents in case of any default or from enforcing any of the other rights of Payee, including naming to name Maker as a party defendant in any action or suit for foreclosure and sale under the Mortgage, ; (3) affect the validity or obtaining enforceability of any of the Loan Documents or the guaranty or indemnity made in connection therewith; (4) impair the right of Payee to obtain the appointment of a receiver or prohibit Payee from obtaining a personal judgment against Maker on receiver; (5) impair the Debt to the extent (but only to the extent) such judgment may be required in order to enforce the liens, security titles, estates, assignments, rights and security interests securing payment enforcement of the Debt, Assignment; or (36) limit impair the right of Payee to bring suit with respect to fraud or impair in misrepresentation by Maker, any way whatsoever the Guaranty (the "Guaranty") of even date executed and delivered Guarantor or any other person or entity in connection with the indebtedness evidenced Mortgage, this Note, the Assignment, the Environmental Agreement, the Guaranty Agreement, the Reserve or the Other Security Documents.
(b) Nothing herein shall be deemed to be a waiver of any right which Payee may have under Section 506(a), 506(b), 1111(b) or any other provisions of the U.S. Bankruptcy Code to file a claim for the full amount of the Debt secured by the Mortgage or to require that all collateral shall continue to secure all of the debt owing to Payee in accordance with this Note or release, relieve, reduce, waive or impair in any way whatsoever, any obligation of any party to the Guaranty or (4) release, relieve, reduce, waive or impair in any way whatsoever any obligations of any person and other than Maker which is a party to any of the other Loan Documents.
(bc) In Notwithstanding the event foregoing provisions of this Section or any other provision in the Loan Documents, Maker and Guarantor, jointly and severally, shall be fully liable for and shall indemnify Payee for any or all loss, cost, liability, judgment, claim, damage or expense sustained, suffered or incurred by Payee (including, without limitation, Payee's attorneys' fees) arising out of or attributable or relating to (collectively and inclusive of (i) through (xiv) hereof):
(i) fraud or material misrepresentation by Maker or any guarantor Guarantor in connection with the Loan Documents or the documents delivered by Maker, or the first full Monthly Installment on this Note is not paid when due, or if any petition or proceeding for bankruptcy, reorganization or arrangement pursuant to federal bankruptcy law, or any similar federal or state law, shall be filed by Maker (or if any such petition or proceeding was not so filed by Maker, but Maker or Guarantor or their respective agents, affiliates, officers or employees consented to, acquiesced in arranged or otherwise participated in bringing about the institution of such petition or proceeding), or if there shall occur any material breach or default under the provisions of Section 9 of the Mortgage (entitled "Single Purpose Entity/Separateness"), the limitations on recourse set forth in this Section 12, including the provisions of clauses (i), (ii) and (iii) of this Section 12 above, will be null and void and completely inapplicable, and this Note shall be full recourse to Maker.
(c) Nothing contained herein shall in any manner or way release, affect or impair the right of Payee to recover, and Maker shall be fully and personally liable and subject to legal action, for any loss, cost, expense, damage, claim or other obligation (including without limitation reasonable attorneys' fees and court costs) incurred or suffered by Payee arising out of or in connection with the following:
(A) any continuing default beyond any applicable cure periods of the Environmental Liabilities Agreement executed by Maker for the benefit of Payee, dated of even date herewith, including the indemnification provisions contained thereinLoan;
(B) Maker's failure to obtain ▇▇▇▇▇'s prior written consent to any subordinate financing (except as permitted in Section 9(d) of the Mortgage) or any other encumbrance on the Mortgaged Property, or any transfer of the Mortgaged Property or majority ownership in Maker in violation of the Mortgage;
(C) the misapplication by Maker, its agents, affiliates, officers or employees of any funds derived from the Mortgaged Property, including security deposits, insurance proceeds and condemnation awards, in violation of the Loan Documents;
(D) Maker's failure to apply proceeds of rents or any other payments in respect of the leases and other income from the Mortgaged Property or any other collateral when received to the costs of maintenance and operation of the Mortgaged Property and to the payment of taxes, lien claims, insurance premiums, monthly payments of principal and interest or escrow payments or other payments due under the Loan Documents to the extent the Loan Documents require such proceeds to be then so applied;
(E) any litigation or other legal proceeding related to the Debt filed by Maker or any guarantor or indemnitor that delays or impairs Payee's ability to preserve, enforce or foreclose its lien on the Mortgaged Property, including, but not limited to, the filing of a voluntary petition concerning Maker under the U.S. Bankruptcy Code, in which action a claim, counterclaim, or defense is asserted against Payee, other than any litigation or other legal proceeding in which a final, non-appealable judgment for money damages or injunctive relief is entered against Payee;
(Fii) the gross negligence or willful misconduct of MakerMaker or Guarantor, its their respective agents, affiliates, managers or officers with respect to their obligations to Payee or employees which causes or results in a material diminutionwith respect to the operation of the Property, or material loss of value, the physical waste of the Mortgaged Property that is not reimbursed by insurance or which gross negligence or willful misconduct exposes Payee to claims, liability or costs of defense in any litigation or other legal proceedingProperty;
(Giii) the seizure breach of provisions in the Mortgage concerning Environmental Laws or forfeiture Hazardous Substances, and any indemnification of the Mortgaged Property, or any portion thereof, or ▇▇▇▇▇'s interest Payee therein, resulting from criminal wrongdoing by Maker, its agents, affiliates, officers in the Environmental Agreement or employeesin any other Loan Document with respect to such Environmental Laws or Hazardous Substances;
(Hiv) waste to the Mortgaged Property caused by the acts or omissions of Maker, its agents, affiliates, officers, employees or contractors; or the removal or disposal of any portion of the Mortgaged Property after default under this Note, the Mortgage or any other Loan Document;
(v) the misapplication or conversion by Maker its agentsof: (A) any insurance proceeds paid by reason of any loss, affiliatesdamage or destruction to the Property; (B) any awards or other amounts received in connection with the condemnation of all or a portion of the Property; or (C) rents, officersissues, employees profits, proceeds, accounts or contractors after other amounts received by Maker (in the case of clause (C), following an Event of Default to under this Note, the extent such Mortgaged Property is not replaced by Maker with like property Mortgage or any of equivalent value, function and design; andthe other Loan Documents);
(Ivi) in the event Payee has waived (or the Mortgage does not require) the monthly collection for real and personal property Maker's failure to pay taxes, assessments, charges for labor or insurance premiums, then failure by Maker to pay materials or other charges that result in liens on any or all such taxes, assessments or premiums in accordance with terms portion of the Mortgage (except for taxes Property; provided, however, that Maker's and assessment which accrueGuarantors' liability hereunder shall cease with respect to such amounts incurred from and after such time, and premiums which are payableif any, after either (1) the date that Payee takes title to the Mortgaged Property by foreclosure, deed-in-lieu of foreclosure or otherwise or (2) ▇▇▇▇▇ obtains legal and beneficial title to the Property;
(vii) the deductible amount in respect of any insurance maintained in respect of the Property; provided, however, that Maker's and Guarantor's liability hereunder shall cease with respect to such amounts incurred from and after such time, if any, that Payee obtains legal and beneficial title to the Property;
(viii) the costs incurred by ▇▇▇▇▇ (including attorneys' fees) in connection with the collection or enforcement of the Debt;
(ix) any security deposits, advance deposits or retained rents and profits collected with respect to the Property which are not delivered to Payee upon a foreclosure of the Property or action in lieu thereof;
(x) the presence, disposal, escape, seepage, leakage, spillage, discharge, emission, release, or threatened release of any Hazardous Substance or Asbestos on, from, or affecting the Property or any other property, regardless of when discovered, which occurs prior to foreclosure, transfer by deed in lieu of foreclosure or the appointment of a receiver by ▇▇▇▇▇;
(xi) any personal injury (including wrongful death) or otherwise takes possession directly as a mortgagee in possession property damage (providedreal or personal) arising out of or related to such Hazardous Substance or Asbestos;
(xii) any lawsuit brought or threatened, thatsettlement reached, Maker has relinquished possession and control or government order relating to such Hazardous Substance or Asbestos;
(xiii) any violation of the Mortgaged Property Environmental Laws, regardless of when discovered, which occurs prior to foreclosure, transfer by deed in lieu of foreclosure or the appointment of a receiver by ▇▇▇▇▇, and which are based upon or in any way related to such receiver Hazardous Substance or Payee Asbestos including, without limitation, the costs and is not disputing the receivership or possession by the receiver or Payee)).expenses of any remedial action, reasonable out-of-pocket attorney's and consultant's fees, investigation and laboratory fees, court costs, and litigation expenses; and
(dxiv) Maker fails to comply with the provisions of Sections 11 or 13 of the Mortgage. In addition to the foregoing, the agreement of Payee not to pursue recourse liability as set forth in subsection (b)(i) above SHALL BE AND BECOME NULL AND VOID and shall be of no further force or effect if: (1) Maker shall also be fully and personally liable fails to Payee for any amount which Maker is fully and personally liable to Payee for under Section 12 permit reasonable on-site inspections of the Crossed Note evidencing Property upon reasonable advance oral notice or to provide financial reports and information pertaining to the Crossed LoanProperty as required by any Loan Document, unless such failure is the result of a good faith error and such failure is cured within ten (10) days after notice; (2) any financial information concerning Maker or Guarantor provided by Maker or Guarantor (or their respective agents, employees, or authorized representatives) is fraudulent in any respect, contains any fraudulent information or misrepresents in any material respect the financial condition of Maker or Guarantor; (3) Maker fails to obtain Payee's prior written consent, if consent is required under any Loan Document, to any subordinate financing; (4) Maker fails to obtain Payee's prior written consent, if consent is required under any Loan Document, to any transfer of the Property or of any ownership interest in Maker; and (5) Maker or its Managing Member files for relief or protection under any federal, state or other bankruptcy, insolvency, reorganization or other creditor-relief laws, or an involuntary filing or petition is made under any of such laws, against Maker by any of its creditors (other than Payee) and such involuntary filing is not unconditionally dismissed or vacated within ninety (90) days.
(d) Nothing in this Section shall be interpreted or construed to impair, limit the liability of or otherwise affect the terms, conditions, requirements and obligations of Guarantor under that certain Guaranty Agreement dated as of the date hereof or Maker or Guarantor under the Environmental Agreement.
Appears in 1 contract
Limitations on Recourse. Notwithstanding anything in the Loan Documents to the contrary, but subject (a) Subject to the qualifications and other provisions set forth in clauses (a), (b) and (c) of this Section 12 belowSection, Payee shall not enforce the liability and obligation of Maker agree that: (i) Maker to perform and observe the obligations contained in this Note, the Loan Agreement, the Mortgage, the Assignment, the Other Security Documents or the other Loan Documents by an action or proceeding wherein a money judgment shall be liable sought against Maker, any member, stockholder, partner, employee, officer or director of Maker (each a "Related Party") except that Payee may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Payee to enforce and realize upon this Note, the Debt Mortgage, the Assignment, the Other Security Documents, and for the other obligations arising under the Loan Documents to the full extent (but only to the extent) of all of interests in the Mortgaged Property and any other itemscollateral given to Payee pursuant to the Mortgage, property the Assignment, the Other Security Documents and the other Loan Documents; provided, however, that, except as specifically provided in this Section, any judgment in any such action or amounts which are proceeding shall be enforceable against Maker only to the extent of each Maker's respective interest in the Mortgaged Property and in any other collateral given to Payee. Payee, by accepting this Note, the Loan Agreement, the Assignment, the Mortgage, the Other Security Documents and the other Loan Documents, agrees that it shall not sue for, seek or security for demand any personal liability of or any deficiency judgment against Maker or any Related Party in any such action or proceeding, under, by reason of or in connection with the LoanMortgage, the Loan Agreement, the Assignment, the Other Security Documents, this Note or the other Loan Documents. The provisions of this Section shall not, however: (i) constitute a waiver, release or impairment of any obligation evidenced or secured by the Mortgage, the Loan Agreement, the Assignment, the Environmental Agreement, the Other Security Documents, this Note or the other Loan Documents; (ii) if a default occurs in impair the timely and proper payment right of all or any part of the Debt, any judicial proceedings brought by Payee against Maker shall be limited to the preservation, enforcement and foreclosure, or any thereof, of the liens, security titles, estates, assignments, rights and security interests now or at any time hereafter securing the payment of the Debt and/or the other obligations of Maker under the Loan Documents, and no attachment, execution or other writ of process shall be sought, issued or levied upon any assets, properties or funds of Maker other than the Mortgaged Property; and (iii) in the event of a foreclosure of such liens, security titles, estates, assignments, rights or security interests securing the payment of the Debt, no judgment for any deficiency upon the Debt shall be sought or obtained by Payee against Maker.
(a) Nothing contained in this Section 12 shall (1) be deemed to be a release or impairment of the Debt or the lien of the Loan Documents upon the Mortgaged Property, or (2) preclude Payee from foreclosing under the Loan Documents in case of any default or from enforcing any of the other rights of Payee, including naming name Maker as a party defendant in any action or suit for foreclosure and sale under the Mortgage; (iii) affect the validity or enforceability of any guaranty or indemnity agreement made in connection with the Mortgage, the Loan Agreement, this Note, the Assignment, the Other Security Documents or obtaining the other Loan Documents; (iv) impair the right of Payee to obtain the appointment of a receiver or prohibit Payee from obtaining a personal judgment against Maker on receiver; (v) impair the Debt to the extent (but only to the extent) such judgment may be required in order to enforce the liens, security titles, estates, assignments, rights and security interests securing payment enforcement of the Debt, Assignment; (vi) impair the right of Payee to bring suit with respect to fraud or (3) limit intentional misrepresentation by Maker or impair in any way whatsoever the Guaranty (the "Guaranty") of even date executed and delivered other person or entity in connection with the indebtedness evidenced Mortgage, the Loan Agreement, this Note, the Assignment, the Environmental Agreement, the Other Security Documents or the other Loan Documents; or (vii) affect the validity or enforceability of the Environmental Agreement or limit the liability of Maker or any other party thereunder. Anything herein to the contrary notwithstanding, Payee shall have the right in a foreclosure action to name as defen▇▇▇▇▇ Maker and any guarantor of any of Maker's obligations hereunder, by reason of their potential liability for the entire Debt or Payee's losses, as the case may be, as more particularly set forth ▇▇ ▇▇is Section. Nothing herein shall limit any personal liability of a Related Party for the payment of the Debt or any other sum due under this Note Note, the Loan Agreement, the Mortgage, the Assignment, the Other Security Documents or releasethe other Loan Documents, relieve, reduce, waive or impair in for the performance or observance of any way whatsoever, any other obligation of Maker under any party guaranty, indemnity or similar agreement executed by such Related Party for personal obligations expressly set forth in such guaranty, indemnity or similar agreement.
(b) Nothing herein shall be deemed to the Guaranty or (4) release, relieve, reduce, waive or impair in any way whatsoever any obligations be a waiver of any person right which Payee may have under Section 506(a), 506(b), 1111(b) or any other than Maker which is provisions of the U.S. Bankruptcy Code to file a party claim for the full amount of the Debt secured by the Mortgage or to any require that all collateral shall continue to secure all of the debt owing to Payee in accordance with this Note, the Loan Agreement, the Mortgage, the Assignment, the Environmental Agreement, the Other Security Documents and the other Loan Documents.
(bc) In Notwithstanding the event of fraud or material misrepresentation by Maker or any guarantor in connection with the Loan Documents or the documents delivered by Maker, or the first full Monthly Installment on this Note is not paid when due, or if any petition or proceeding for bankruptcy, reorganization or arrangement pursuant to federal bankruptcy law, or any similar federal or state law, shall be filed by Maker (or if any such petition or proceeding was not so filed by Maker, but Maker or Guarantor or their respective agents, affiliates, officers or employees consented to, acquiesced in arranged or otherwise participated in bringing about the institution of such petition or proceeding), or if there shall occur any material breach or default under the foregoing provisions of Section 9 of the Mortgage (entitled "Single Purpose Entity/Separateness"), the limitations on recourse set forth in this Section 12, including the provisions of clauses (i), (ii) and (iii) of this Section 12 aboveor any other provision in the Loan Documents, will be null and void and completely inapplicableMaker (but not any Related Party, and this Note shall be full recourse other than pursuant to Maker.
(ca written instrument executed by such Related Party specifically providing for such liability) Nothing contained herein shall in any manner or way release, affect or impair the right of Payee to recover, and Maker shall be fully liable for and personally liable and subject to legal action, shall indemnify Payee for any or all loss, cost, expenseliability, damagejudgment, claim claim, damage or other obligation expense sustained, suffered or incurred by Payee (including including, without limitation limitation, Payee's reasonable attorneys' fees ▇▇▇▇ and court costsreasonable out of pocket expenses) incurred or suffered by Payee arising out of or in connection with the followingattributable or relating to:
(A) any continuing default beyond any applicable cure periods of the Environmental Liabilities Agreement executed by Maker for the benefit of Payee, dated of even date herewith, including the indemnification provisions contained therein;
(B) Maker's failure to obtain ▇▇▇▇▇'s prior written consent to any subordinate financing (except as permitted in Section 9(d) of the Mortgage) or any other encumbrance on the Mortgaged Property, or any transfer of the Mortgaged Property or majority ownership in Maker in violation of the Mortgage;
(C) the misapplication by Maker, its agents, affiliates, officers or employees of any funds derived from the Mortgaged Property, including security deposits, insurance proceeds and condemnation awards, in violation of the Loan Documents;
(D) Maker's failure to apply proceeds of rents or any other payments in respect of the leases and other income from the Mortgaged Property or any other collateral when received to the costs of maintenance and operation of the Mortgaged Property and to the payment of taxes, lien claims, insurance premiums, monthly payments of principal and interest or escrow payments or other payments due under the Loan Documents to the extent the Loan Documents require such proceeds to be then so applied;
(E) any litigation or other legal proceeding related to the Debt filed by Maker or any guarantor or indemnitor that delays or impairs Payee's ability to preserve, enforce or foreclose its lien on the Mortgaged Property, including, but not limited to, the filing of a voluntary petition concerning Maker under the U.S. Bankruptcy Code, in which action a claim, counterclaim, or defense is asserted against Payee, other than any litigation or other legal proceeding in which a final, non-appealable judgment for money damages or injunctive relief is entered against Payee;
(Fi) the gross negligence or willful misconduct of Maker, its agents, affiliates, officers or employees which causes of Maker's principals or results in a material diminution, or material loss of value, guarantor of the Mortgaged Property that is not reimbursed by insurance or which gross negligence or willful misconduct exposes Payee to claims, liability or costs of defense in any litigation or other legal proceedingLoan;
(Gii) the seizure physical waste or forfeiture willful destruction of the Mortgaged Property, or any portion thereof, or ▇▇▇▇▇'s interest therein, resulting from criminal wrongdoing by Maker, its agents, affiliates, officers or employees;
(Hiii) waste the breach of provisions in any of the Loan Documents concerning Environmental Laws, Hazardous Substances and Asbestos, and any indemnification of Payee or other indemnitor therein with respect to the Mortgaged Property caused by the acts or omissions of Makersuch Environmental Laws, its agents, affiliates, officers, employees or contractors; or Hazardous Substances and Asbestos;
(iv) the removal or disposal of any portion of the personal property comprising the Mortgaged Property by Maker its agents, affiliates, officers, employees in violation of the Loan Documents;
(v) the failure to satisfy and remove any mechanic or contractors after an Event of Default materialman liens against the Mortgaged Property to the extent such Mortgaged Property is not replaced by Maker with like property of equivalent value, function and design; and
(I) in there was available cash derived from the event Payee has waived (or the Mortgage does not require) the monthly collection for real and personal property taxes, assessments, or insurance premiums, then failure by Maker to pay any or all such taxes, assessments or premiums in accordance with terms of the Mortgage (except for taxes and assessment which accrue, and premiums which are payable, after either (1) the date that Payee takes title to the Mortgaged Property by foreclosure, deed-in-lieu of foreclosure or otherwise or (2) ▇▇▇▇▇ obtains the appointment of a receiver or otherwise takes possession directly as a mortgagee in possession (provided, that, Maker has relinquished possession and control operation of the Mortgaged Property to pay the same or the work relating to such receiver liens was not approved by Payee or permitted under the Loan Documents;
(vi) the failure to satisfy Taxes and Other Charges (as such terms are defined in the Loan Agreement) as required by Section 5 of the Loan Agreement to the extent there was available cash derived from the operation of the Mortgaged Property to pay same;
(vii) any security deposits or advance deposits collected with respect to the Mortgaged Property which are not delivered to Payee upon a foreclosure of the Mortgaged Property or action in lieu thereof;
(viii) the failure of Maker (A) to comply with the single purpose entity requirements and covenants set forth in Section 11 of the Loan Agreement, with Employee Retirement Income Security Act of 1974 (or any successor legislation thereto), as amended, (B) to pay brokers' commissions or fees, (C) maintain required insurance policies with respect to the Mortgaged Property and the operation thereof as set forth in Section 4 of the Loan Agreement, or (D) obtain prior consent of Maker with respect to material leases on or affecting the Mortgaged Property in accordance with the Loan Agreement and the Assignment;
(ix) any amendment, modification, cancellation or termination of any ground leases which constitute a portion of the Mortgaged Property without Payee's prior written consent;
(x) the misappropriation, misapplication, conversion or any application of insurance proceeds, condemnation awards, rents or security deposit in violation of the Loan documents (including interference with the operation of that certain Security Agreement and Lockbox Agreement dated as of the date hereof among Maker, Payee and is not disputing Maker's loan servicer; and/or
(xi) the receivership intentional failure of Maker to comply with other legal requirements applicable to the Mortgaged Property or possession by the receiver or Payee))operation thereof.
(d) In addition to Notwithstanding the foregoing, the agreement of Payee not to pursue recourse liability against Maker as set forth in subsection (a) above SHALL BECOME NULL AND VOID and shall be of no further force or effect in the event of: (i) any fraud or material intentional misrepresentation by Maker or any principal of Maker or guarantor of the Loan in connection with the Loan, including, without limitation, any financial information concerning Maker, principal of Maker or any guarantor of the Loan proving to be fraudulent in any respect, containing any fraudulent information or misrepresenting in any material respect the financial condition of Maker or any guarantor of the Loan; (ii) any contest of the validity or enforceability of any or all of the Loan Documents; provided, however, that Maker shall also be fully permitted to allege that no default occurred under the Loan Documents and personally liable to Payee for any amount which that Maker is fully and personally liable to Payee for under Section 12 in compliance with the Loan Documents; (iii) any violation of the Crossed Note evidencing due-on-sale or due-on-encumbrance provisions of Section 13 of the Crossed Loan Agreement; (iv) Maker's failure, which failure continues after expiration of all applicable notice and cure provisions, (A) to permit on-site inspections in accordance with the Loan Documents, (B) to deliver financial statements expressly required by the Loan Documents or (C) to deliver estoppel certificates concerning the status of the Loan in accordance with the Loan Documents; (iv) a voluntary bankruptcy filing by Maker, or an involuntary filing against Maker (if such case is not dismissed within ninety (90) days) provided such filing was facilitated, coordinated or directed by Maker, any of its principals or affiliates, or any guarantor of the Loan; provided, however, that, the failure of any of Maker's principals or affiliates to advance or contribute funds or assets shall not be deemed to be a facilitation of any such filing; (v) any amendment or modification of the organizational documents of Maker or any constituent partner, member or other person or entity, in each case without the prior written consent of Payee and in violation of the single purpose entity and/or bankruptcy remoteness requirements of Section 11 of the Loan Agreement; (ix) any violation of the provisions waiving jury trial or counterclaims (other than compulsory counterclaims) contained in the Loan Documents; and/or (x) any assertion in legal proceedings by Maker, any principal of Maker or any guarantor of the Loan that (a) Payee has modified the Loan Documents other than by written instrument signed by Payee, (b) Payee has waived the provisions of the Loan Documents by ▇▇▇▇ing to ▇▇▇▇ire Maker's strict performance of the terms thereof or (c) Maker's and Payee's relationship is other than that of a debtor/creditor arisin▇ ▇▇▇er the Loan Documents.
Appears in 1 contract
Sources: Mortgage Note (Lodgian Inc)
Limitations on Recourse. (a) Notwithstanding anything in the Loan Documents to the contrary, ----------------------- contrary set forth in this Agreement or in any of the other Credit Documents but subject to the qualifications last sentence of this Section 13.18(a) and other provisions in clauses (a), clause (b) and (c) of this Section 12 below13.18, Payee from and Maker agree that: (i) Maker after the REIT Conversion Date, the Borrower's Obligations hereunder and under the other Credit Documents shall be liable upon limited recourse obligations of the Debt Borrower, enforceable against the Borrower (and for its assets) only and not against any constituent partner in the other obligations arising Borrower. The foregoing provisions of this Section 13.18 shall not impair the liability of the Subsidiary Guarantors under the Loan Documents to Subsidiaries Guaranty or the full extent (but only to liens and security interests created by the extent) of all of the Mortgaged Property Pledge and any other items, property or amounts Security Agreement which are collateral or were granted as security for the Loan; (ii) if a default occurs in the timely and proper payment of all or any part Obligations of the Debt, any judicial proceedings brought by Payee against Maker shall be limited to Borrower and the preservation, enforcement and foreclosure, or any thereof, Guaranteed Obligations of the liens, security titles, estates, assignments, rights and security interests now or at any time hereafter securing the payment of the Debt and/or the other obligations of Maker under the Loan Documents, and no attachment, execution or other writ of process shall be sought, issued or levied upon any assets, properties or funds of Maker other than the Mortgaged Property; and (iii) in the event of a foreclosure of such liens, security titles, estates, assignments, rights or security interests securing the payment of the Debt, no judgment for any deficiency upon the Debt shall be sought or obtained by Payee against MakerSubsidiary Guarantors.
(b) Notwithstanding the foregoing provisions of clause (a) Nothing contained in of this Section 12 shall (1) be deemed to be a release or impairment 13.18, from and after the REIT Conversion Date and so long as Holdings is released from any guaranty given in respect of the Debt or Senior Notes, (x) the lien of Administrative Agent and the Loan Documents upon Banks shall have recourse to Host REIT (in its capacity as the Mortgaged Property, or (2general partner in the Borrower) preclude Payee from foreclosing under the Loan Documents in case of any default or from enforcing any of the other rights of Payee, including naming Maker as a party defendant in any action or suit for foreclosure and sale under the Mortgage, or obtaining the appointment of a receiver or prohibit Payee from obtaining a personal judgment against Maker on the Debt to the extent (but only to the extent) such judgment may be required in order to enforce the liens, security titles, estates, assignments, rights and security interests securing payment of the Debt, or (3) limit or impair in any way whatsoever the Guaranty (the "Guaranty") of even date executed and delivered in connection with the indebtedness evidenced by this Note or release, relieve, reduce, waive or impair in any way whatsoever, any obligation of any party to the Guaranty or (4) release, relieve, reduce, waive or impair in any way whatsoever any obligations of any person other than Maker which is a party to any of the other Loan Documents.
(b) In the event of fraud or material misrepresentation by Maker or any guarantor in connection with the Loan Documents or the documents delivered by Maker, or the first full Monthly Installment on this Note is not paid when due, or if any petition or proceeding for bankruptcy, reorganization or arrangement pursuant to federal bankruptcy law, or any similar federal or state law, shall be filed by Maker (or if any such petition or proceeding was not so filed by Maker, but Maker or Guarantor or their respective agents, affiliates, officers or employees consented to, acquiesced in arranged or otherwise participated in bringing about the institution of such petition or proceeding), or if there shall occur any material breach or default under the provisions of Section 9 of the Mortgage (entitled "Single Purpose Entity/Separateness"), the limitations on recourse set forth in this Section 12, including the provisions of clauses (i), (ii) and (iii) of this Section 12 above, will be null and void and completely inapplicable, and this Note shall be full recourse to Maker.
(c) Nothing contained herein shall in any manner or way release, affect or impair the right of Payee to recover, and Maker shall be fully and personally liable and subject to legal action, for any loss, cost, expense, damage, claim expense or other obligation liability incurred by the Administrative Agent or any of the Banks by reason of (including without limitation reasonable attorneys' fees i) any fraudulent misrepresentation made by Host REIT in or pursuant to the Credit Documents, (ii) any unlawful act on the part of Host REIT, or (iii) any misappropriation of funds by Host REIT in contravention of the provisions of the Credit Documents and court costs(y) incurred or suffered by Payee arising out of or in connection Host REIT shall automatically be and become jointly and severally obligated with the following:
(A) any continuing default beyond any applicable cure periods Borrower in respect of all of the Environmental Liabilities Agreement executed Obligations from and after any breach by Maker for Host REIT of the benefit of Payee, dated of even date herewith, including the indemnification provisions covenant contained therein;
(B) Maker's failure to obtain ▇▇▇▇▇'s prior written consent to any subordinate financing (except as permitted in Section 9(d9.16(b). Additionally, upon the occurrence of the event specified in clause (y) of the Mortgage) or any other encumbrance on preceding sentence, the Mortgaged Property, or any transfer Pledge and Security Agreement shall be reinstated as to Host REIT for purposes of securing the Mortgaged Property or majority ownership in Maker in violation joint and several liability of the Mortgage;
(C) the misapplication by Maker, its agents, affiliates, officers or employees of any funds derived from the Mortgaged Property, including security deposits, insurance proceeds and condemnation awards, in violation of the Loan Documents;
(D) Maker's failure to apply proceeds of rents or any other payments Host REIT in respect of the leases and other income from Obligations. At the Mortgaged Property or any other collateral when received to the costs of maintenance and operation request of the Mortgaged Property and to the payment of taxesAdministrative Agent, lien claims, insurance premiums, monthly payments of principal and interest or escrow payments or other payments due under the Loan Documents to the extent the Loan Documents require such proceeds to be then so applied;
Host REIT shall (Eat its expense) any litigation or other legal proceeding related to the Debt filed by Maker or any guarantor or indemnitor that delays or impairs Payee's ability to preserve, enforce or foreclose its lien on the Mortgaged Property, including, but not limited to, the filing of a voluntary petition concerning Maker under the U.S. Bankruptcy Code, in which action a claim, counterclaim, or defense is asserted against Payee, other than any litigation or other legal proceeding in which a final, non-appealable judgment for money damages or injunctive relief is entered against Payee;
(F) the gross negligence or willful misconduct of Maker, its agents, affiliates, officers or employees which causes or results in a material diminution, or material loss of value, of the Mortgaged Property that is not reimbursed by insurance or which gross negligence or willful misconduct exposes Payee to claims, liability or costs of defense in any litigation or other legal proceeding;
(G) the seizure or forfeiture of the Mortgaged Property, or any portion thereof, or ▇▇▇▇▇'s interest therein, resulting from criminal wrongdoing by Maker, its agents, affiliates, officers or employees;
(H) waste to the Mortgaged Property caused take all actions deemed reasonably necessary by the acts or omissions Administrative Agent to confirm the provisions of Maker, its agents, affiliates, officers, employees or contractors; or the removal or disposal of any portion of the Mortgaged Property by Maker its agents, affiliates, officers, employees or contractors after an Event of Default to the extent such Mortgaged Property is not replaced by Maker with like property of equivalent value, function and design; and
(I) in the event Payee has waived (or the Mortgage does not require) the monthly collection for real and personal property taxes, assessments, or insurance premiums, then failure by Maker to pay any or all such taxes, assessments or premiums in accordance with terms of the Mortgage (except for taxes and assessment which accrue, and premiums which are payable, after either (1) the date that Payee takes title to the Mortgaged Property by foreclosure, deed-in-lieu of foreclosure or otherwise or (2) ▇▇▇▇▇ obtains the appointment of a receiver or otherwise takes possession directly as a mortgagee in possession (provided, that, Maker has relinquished possession and control of the Mortgaged Property to such receiver or Payee and is not disputing the receivership or possession by the receiver or Payee)this Section 13.18(b).
(d) In addition to the foregoing, Maker shall also be fully and personally liable to Payee for any amount which Maker is fully and personally liable to Payee for under Section 12 of the Crossed Note evidencing the Crossed Loan.
Appears in 1 contract
Limitations on Recourse. Notwithstanding anything in the Loan Documents to the contrary, but subject to the qualifications and other provisions in clauses (a), (b) and (c) of this Section 12 below, Payee and Maker agree that: (i) Maker shall be liable upon the Debt and for the other obligations arising under the Loan Documents to the full extent (but only to the extent) of the security therefor, the same being all properties (whether real or personal), rights, estates and interests now or at any time hereafter securing the payment of the Mortgaged Property and any Debt and/or the other items, property or amounts which are collateral or security for obligations of Maker under the LoanLoan Documents; (ii) if a default occurs in the timely and proper payment of all or any part of the Debt, any judicial proceedings brought by Payee against Maker shall be limited to the preservation, enforcement and foreclosure, or any thereof, of the liens, security titles, estates, assignments, rights and security interests now or at any time hereafter securing the payment of the Debt and/or the other obligations of Maker under the Loan Documents, and no attachment, execution or other writ of process shall be sought, issued or levied upon any assets, properties or funds of Maker other than the Mortgaged Property; and (iii) in the event of a foreclosure of such liens, security titles, estates, assignments, rights or security interests securing the payment of the Debt, no judgment for any deficiency upon the Debt shall be sought or obtained by Payee against Maker.
(a) Nothing contained in this Section 12 shall (1) be deemed to be a release or impairment of the Debt or the lien of the Loan Documents upon the Mortgaged Property, or (2) preclude Payee from foreclosing under the Loan Documents in case of any default or from enforcing any of the other rights of Payee, including naming Maker as a party defendant in any action or suit for foreclosure and sale under the Mortgage, or obtaining the appointment of a receiver or prohibit Payee from obtaining a personal judgment against Maker on the Debt to the extent (but only to the extent) such judgment may be required in order to enforce the liens, security titles, estates, assignments, rights and security interests securing payment of the Debt, or (3) limit or impair in any way whatsoever the Guaranty (the "Guaranty") of even date executed and delivered in connection with the indebtedness evidenced by this Note or release, relieve, reduce, waive or impair in any way whatsoever, any obligation of any party to the Guaranty or (4) release, relieve, reduce, waive or impair in any way whatsoever any obligations of any person other than Maker which is a party to any of the other Loan Documents.
(b) In the event of fraud or material misrepresentation by Maker or any guarantor in connection with the Loan Documents or the documents delivered by Maker, or the first full Monthly Installment on this Note is not paid when due, or if any petition or proceeding for bankruptcy, reorganization or arrangement pursuant to federal bankruptcy law, or any similar federal or state law, shall be filed by Maker (or if any such petition or proceeding was not so filed by Maker, but Maker or Guarantor or their respective agents, affiliates, officers or employees consented to, acquiesced in arranged or otherwise participated in bringing about the institution of such petition or proceeding), or if there shall occur any material breach or default under the provisions of Section 9 .9 of the Mortgage (entitled "Single Purpose EntityEntitv/Separateness"), . the limitations on recourse set forth in this Section 12, including the provisions of clauses (i), (ii) and (iii) of this Section 12 above, will be null and void and completely inapplicable, and this Note shall be full recourse to Maker.
(c) Nothing contained herein shall in any manner or way release, affect or impair the right of Payee to recover, and Maker shall be fully and personally liable and subject to legal action, for any loss, cost, expense, damage, claim or other obligation (including without limitation reasonable attorneys' fees and court costs) incurred or suffered by Payee arising out of or in connection with the following:
(A) any continuing default beyond any applicable cure periods breach of the Environmental Liabilities Agreement executed by Maker for the benefit of Payee▇▇▇▇▇, dated of even date herewith, including the indemnification provisions contained therein;,
(B) Maker's failure to obtain ▇▇▇▇▇'s prior written consent to any subordinate financing (except as permitted in Section 9(d) of the Mortgage) or any other encumbrance on the Mortgaged Property, or any transfer of the Mortgaged Property Mortgaged'Property or majority ownership in Maker in violation of the Mortgage;
(C) the misapplication by Maker, its agents, affiliates, officers or employees of any funds derived from the Mortgaged Property, including security deposits, insurance proceeds and condemnation awards, in violation of the Loan Documents;
(D) Maker's failure to apply proceeds of rents or any other payments in respect of the leases and other income from the Mortgaged Property or any other collateral when received to the costs of maintenance and operation of the Mortgaged Property and to the payment of taxes, lien claims, insurance premiums, monthly payments of principal and interest or escrow payments or other payments due under the Loan Documents to the extent the Loan Documents require such proceeds to be then so applied;
(E) any litigation or other legal proceeding related to the Debt filed by Maker or any guarantor or indemnitor that delays or impairs Payee's ability to preserve, enforce or foreclose its lien on the Mortgaged Property, including, but not limited to, the filing of a voluntary petition concerning Maker under the U.S. Bankruptcy Code, in which action a claim, counterclaim, or defense is asserted against Payee, other than any litigation or other legal proceeding in which a final, non-appealable judgment for money damages or injunctive relief is entered against Payee;
(F) the gross negligence or willful misconduct of Maker, its agents, affiliates, officers or employees which causes or results in a material diminution, or material loss of value, of the Mortgaged Property that is not reimbursed by insurance or which gross negligence or willful misconduct exposes Payee to claims, liability or costs of defense in any litigation or other legal proceeding;
(G) the seizure or forfeiture of the Mortgaged Property, or any portion thereof, or ▇▇▇▇▇'s interest therein, resulting from criminal wrongdoing by Maker, its agents, affiliates, officers or employees;; and
(H) waste to the Mortgaged Property caused by the acts or omissions of Maker, its agents, affiliates, officers, employees or contractors; , or the removal or disposal of any portion of the Mortgaged Property by Maker its agents, affiliates, officers, employees or contractors after an Event of Default to the extent such Mortgaged Property is not replaced by Maker with like property of equivalent value, function and design; and
(I) in the event Payee has waived (or the Mortgage does not require) the monthly collection for real and personal property taxes, assessments, or insurance premiums, then failure by Maker to pay any or all such taxes, assessments or premiums in accordance with terms of the Mortgage (except for taxes and assessment which accrue, and premiums which are payable, after either (1) the date that Payee takes title to the Mortgaged Property by foreclosure, deed-in-lieu of foreclosure or otherwise or (2) ▇▇▇▇▇ obtains the appointment of a receiver or otherwise takes possession directly as a mortgagee in possession (provided, that, Maker has relinquished possession and control of the Mortgaged Property to such receiver or Payee and is not disputing the receivership or possession by the receiver or Payee)).
(d) In addition to the foregoing, Maker shall also be fully and personally liable to Payee for any amount which Maker is fully and personally liable to Payee for under Section 12 of the Crossed Note evidencing the Crossed Loan.
Appears in 1 contract
Limitations on Recourse. Notwithstanding anything in the Loan Documents to the contraryPayee agrees that, but subject to the qualifications and other provisions in clauses (a), (b) and (c) for payment of this Section 12 belowNote, Payee and Maker agree that: (i) Maker shall be liable upon the Debt and for the other obligations arising under the Loan Documents it will look solely to the full extent (but only to the extent) of all of the Mortgaged Property and any such other itemscollateral, property or amounts which are collateral or security for the Loan; (ii) if a default occurs in the timely and proper payment of all or any part of the Debtany, any judicial proceedings brought by Payee against Maker shall be limited to the preservation, enforcement and foreclosure, or any thereof, of the liens, security titles, estates, assignments, rights and security interests as may now or at any time hereafter securing be given to secure the payment of the Debt and/or the other obligations of Maker under the Loan Documentsthis Note, and no attachmentother property or assets of Maker or any other person, firm or entity, disclosed or undisclosed (each an "Exculpated Party"), other than a person, firm or entity who or which has expressly guaranteed some or all of the Maker's obligations under this Note or any other Loan Document to the extent of such guaranty (each a "Guarantor"), shall be subject to levy, execution or other writ of process shall be sought, issued or levied upon any assets, properties or funds of Maker other than enforcement procedure for the Mortgaged Property; and (iii) in the event of a foreclosure of such liens, security titles, estates, assignments, rights or security interests securing the payment satisfaction of the Debtremedies of Payee, no judgment or for any deficiency upon the Debt shall be sought or obtained by Payee against Maker.
(a) Nothing contained in this Section 12 shall (1) be deemed payment required to be a release made under this Note or impairment any other Loan Document or for the performance of the Debt or the lien of the Loan Documents upon the Mortgaged Property, or (2) preclude Payee from foreclosing under the Loan Documents in case of any default or from enforcing any of the covenants or warranties contained herein or therein; provided, however, that the foregoing provisions of this paragraph shall not (i) constitute a waiver of any obligation evidenced by this Note or secured by any other rights Loan Document, (ii) limit the right of PayeePayee to name Maker, including naming Maker any Exculpated Party or any Guarantor as a party defendant in any action or suit for judicial or non-judicial foreclosure and sale or any other action or suit under the Second Mortgage, Assignment of Leases or obtaining any other Loan Document, (iii) release or impair this Note or the appointment of a receiver or prohibit Payee from obtaining a personal judgment against Maker on the Debt to the extent (but only to the extent) such judgment may be required in order to enforce the liens, security titles, estates, assignments, rights and security interests securing payment lien of the DebtSecond Mortgage or any other Loan Document or, (iv) release, impair or (3) limit or impair affect in any way whatsoever the Guaranty validity or enforceability of any guaranty (the whether of payment, performance and/or otherwise) (a "Guaranty") of even date executed and delivered or indemnity agreement given to Payee in connection with the indebtedness loan evidenced hereby; and provided, further that if Maker, any one or more of the Exculpated Parties, any one or more of the Guarantors or any other person or entity (all of the foregoing are collectively referred to as "Persons and Entities") (i) commits any act of fraud in connection with the transactions contemplated by this Note or releaseany other Loan Document, relieve(ii) makes a material adverse misrepresentation of any facts or circumstances related to the Mortgaged Property, reduce, waive or impair in any way whatsoeverMaker, any obligation Exculpated Party or any Guarantor, or any constituent or sub-constituent (including, without limitation, a shareholder, partner, principal, trustee or beneficiary) of any party of the foregoing, (iii) is obligated to pay, but fails to pay or cause to be paid any taxes assessed or payable with respect to the Guaranty Mortgaged Property (to the extent that escrowed funds held or controlled by Payee are not available therefor), (iv) commits or (4as to any Person or Entity having title to or control of the Mortgaged Property) releasesuffers to exist, relieve, reduce, waive any waste with respect to the Mortgaged Property or impair in (v) misapplies (a) any way whatsoever any obligations revenues received from the Mortgaged Property by failing to apply the same solely to the expenses of the Mortgaged Property and/or to amounts due under the Loan Documents after the occurrence and during the continuance of any person Event of Default under this Note or any other than Loan Document, (b) insurance proceeds or condemnation awards received with respect to the Mortgaged Property, or (c) tax deposits or security deposits by tenants relating to the Mortgaged Property or any portion thereof, the Person or Entity committing such fraud, misrepresentation or failure to pay taxes, or so misapplying the aforesaid funds, shall be personally liable from his, her or its separate assets to Payee for any loss or damage resulting therefrom up to the value of the misapplied funds and any interest chargeable thereto (and in this regard, (I) any act by an employee or agent authorized to handle funds for any Person or Entity shall be deemed to be the act of such Person or Entity, and (II) any representation made or deemed made by Maker with respect to facts or circumstances that are particularly susceptible to the control or knowledge, directly or indirectly, of any constituent shareholder, partner, principal, trustee or beneficiary of Maker, or any affiliate of same, shall be deemed to be the representation of such partner, shareholder, principal, trustee, beneficiary or affiliate). Nothing in this paragraph shall be deemed to be a waiver of any right which is the Payee may have under any provision of the Bankruptcy Act of 1986, as amended, or any successor legislation, to file a party claim for the full amount of indebtedness owed by Maker to any Payee or to require that the Mortgaged Property shall continue to secure all of the indebtedness owed by Maker to Payee in accordance with the Second Mortgage and the other Loan Documents.
(b) In the event of fraud or material misrepresentation by Maker or any guarantor in connection with the Loan Documents or the documents delivered by Maker, or the first full Monthly Installment on this Note is not paid when due, or if any petition or proceeding for bankruptcy, reorganization or arrangement pursuant to federal bankruptcy law, or any similar federal or state law, shall be filed by Maker (or if any such petition or proceeding was not so filed by Maker, but Maker or Guarantor or their respective agents, affiliates, officers or employees consented to, acquiesced in arranged or otherwise participated in bringing about the institution of such petition or proceeding), or if there shall occur any material breach or default under the provisions of Section 9 of the Mortgage (entitled "Single Purpose Entity/Separateness"), the limitations on recourse set forth in this Section 12, including the provisions of clauses (i), (ii) and (iii) of this Section 12 above, will be null and void and completely inapplicable, and this Note shall be full recourse to Maker.
(c) Nothing contained herein shall in any manner or way release, affect or impair the right of Payee to recover, and Maker shall be fully and personally liable and subject to legal action, for any loss, cost, expense, damage, claim or other obligation (including without limitation reasonable attorneys' fees and court costs) incurred or suffered by Payee arising out of or in connection with the following:
(A) any continuing default beyond any applicable cure periods of the Environmental Liabilities Agreement executed by Maker for the benefit of Payee, dated of even date herewith, including the indemnification provisions contained therein;
(B) Maker's failure to obtain ▇▇▇▇▇'s prior written consent to any subordinate financing (except as permitted in Section 9(d) of the Mortgage) or any other encumbrance on the Mortgaged Property, or any transfer of the Mortgaged Property or majority ownership in Maker in violation of the Mortgage;
(C) the misapplication by Maker, its agents, affiliates, officers or employees of any funds derived from the Mortgaged Property, including security deposits, insurance proceeds and condemnation awards, in violation of the Loan Documents;
(D) Maker's failure to apply proceeds of rents or any other payments in respect of the leases and other income from the Mortgaged Property or any other collateral when received to the costs of maintenance and operation of the Mortgaged Property and to the payment of taxes, lien claims, insurance premiums, monthly payments of principal and interest or escrow payments or other payments due under the Loan Documents to the extent the Loan Documents require such proceeds to be then so applied;
(E) any litigation or other legal proceeding related to the Debt filed by Maker or any guarantor or indemnitor that delays or impairs Payee's ability to preserve, enforce or foreclose its lien on the Mortgaged Property, including, but not limited to, the filing of a voluntary petition concerning Maker under the U.S. Bankruptcy Code, in which action a claim, counterclaim, or defense is asserted against Payee, other than any litigation or other legal proceeding in which a final, non-appealable judgment for money damages or injunctive relief is entered against Payee;
(F) the gross negligence or willful misconduct of Maker, its agents, affiliates, officers or employees which causes or results in a material diminution, or material loss of value, of the Mortgaged Property that is not reimbursed by insurance or which gross negligence or willful misconduct exposes Payee to claims, liability or costs of defense in any litigation or other legal proceeding;
(G) the seizure or forfeiture of the Mortgaged Property, or any portion thereof, or ▇▇▇▇▇'s interest therein, resulting from criminal wrongdoing by Maker, its agents, affiliates, officers or employees;
(H) waste to the Mortgaged Property caused by the acts or omissions of Maker, its agents, affiliates, officers, employees or contractors; or the removal or disposal of any portion of the Mortgaged Property by Maker its agents, affiliates, officers, employees or contractors after an Event of Default to the extent such Mortgaged Property is not replaced by Maker with like property of equivalent value, function and design; and
(I) in the event Payee has waived (or the Mortgage does not require) the monthly collection for real and personal property taxes, assessments, or insurance premiums, then failure by Maker to pay any or all such taxes, assessments or premiums in accordance with terms of the Mortgage (except for taxes and assessment which accrue, and premiums which are payable, after either (1) the date that Payee takes title to the Mortgaged Property by foreclosure, deed-in-lieu of foreclosure or otherwise or (2) ▇▇▇▇▇ obtains the appointment of a receiver or otherwise takes possession directly as a mortgagee in possession (provided, that, Maker has relinquished possession and control of the Mortgaged Property to such receiver or Payee and is not disputing the receivership or possession by the receiver or Payee)).
(d) In addition to the foregoing, Maker shall also be fully and personally liable to Payee for any amount which Maker is fully and personally liable to Payee for under Section 12 of the Crossed Note evidencing the Crossed Loan.
Appears in 1 contract
Sources: Note (Sepracor Inc /De/)
Limitations on Recourse. (a) Notwithstanding anything in the Loan Documents to the contrary, but subject to the qualifications and other provisions in clauses (ab), (bc) and (cd) of this Section 12 below, Payee and Maker agree that: (i) Maker shall be liable upon the Debt and for the other obligations arising under the Loan Documents to the full extent (but only to the extent) of the security therefor, the same being all properties (whether real or personal), rights, estates and interests now or at any time hereafter securing the payment of the Mortgaged Property and any Debt and/or the other items, property or amounts which are collateral or security for obligations of Maker under the LoanLoan Documents; (ii) if a default occurs in the timely and proper payment of all or any part of the Debt, any judicial proceedings brought by Payee against Maker shall be limited to the preservation, enforcement and foreclosure, or any thereof, of the liens, security titles, estates, assignments, rights and security interests now or at any time hereafter securing the payment of the Debt and/or the other obligations of Maker under the Loan Documents, and no attachment, execution or other writ of process shall be sought, issued or levied upon any assets, properties or funds of Maker other than the Mortgaged Property; and (iii) in the event of a foreclosure of such liens, security titles, estates, assignments, rights or security interests securing the payment of the Debt, no judgment for any deficiency upon the Debt shall be sought or obtained by Payee against Maker.
(ab) Nothing contained in this Section 12 shall (1A) be deemed to be a release or impairment of the Debt or the lien of the Loan Documents upon the Mortgaged Property, or (2B) preclude Payee from foreclosing under the Loan Documents in case of any default or from enforcing any of the other rights of Payee, including naming Maker as a party defendant in any action or suit for foreclosure and sale under the Mortgage, or obtaining the appointment of a receiver or prohibit Payee from obtaining a personal judgment against Maker on the Debt to the extent (but only to the extent) such judgment may be required in order to enforce the liens, security titles, estates, assignments, rights and security interests securing payment of the Debt, or (3C) limit or impair in any way whatsoever the any Guaranty (the "“Guaranty"”) of even date executed and delivered in connection with the indebtedness evidenced by this Note or release, relieve, reduce, waive or impair in any way whatsoever, any obligation of any party to the Guaranty Guaranty, or (4D) release, relieve, reduce, waive or impair in any way whatsoever any obligations of any person other than Maker which is a party to any of the other Loan Documents.
(bc) In the event of fraud or material misrepresentation by Maker or any guarantor in connection with the Loan Documents or the documents delivered by Maker, or the first full Monthly Installment on this Note is not paid when due, or if (1) any petition or proceeding for bankruptcy, reorganization or arrangement pursuant to federal bankruptcy law, or any similar federal or state law, shall be filed by Maker, or against Maker (by any Affiliate of Maker, or if any such petition or proceeding was not so filed by Maker, but Maker or Guarantor any Affiliate of Maker or their respective agentsagents (at the direction of Maker or such Affiliate of Maker), affiliates, officers or employees consented consent to, acquiesced in arranged acquiesce in, arrange or otherwise participated participate in bringing about the institution of such petition or proceedingproceeding against any Maker (without Payee’s prior written consent), or (2) if there shall occur subsequent to the commencement of any material breach voluntary bankruptcy proceeding with respect to Maker, any involuntary bankruptcy proceeding is brought by Payee against Maker and Maker or default under its Affiliate files any motion contesting the provisions of Section 9 same (each of the Mortgage facts, events, acts or circumstances described in the foregoing clauses (entitled "Single Purpose Entity/Separateness"1) and (2) with respect to Maker is herein referred to as a “Special Recourse Event with respect to Maker), then, the limitations on recourse set forth in this Section 12, including the provisions of clauses (i), (ii) and (iii) of this Section 12 12(a) above, will shall be null and void and completely inapplicableinapplicable with respect to Maker, and this Note shall be full recourse to MakerMaker to which the limitations on recourse set forth in this Section 12 are inapplicable.
(cd) Nothing contained herein shall in any manner or way release, affect or impair the right of Payee to recover, and Maker shall be fully and personally liable liable, and subject to legal action, for any loss, cost, expense, damage, claim or other obligation (including without limitation reasonable attorneys' ’ fees and court costs) incurred or suffered by Payee (“Payee’s Costs”) arising out of or in connection with the following:
(Ai) any continuing default beyond fraud or intentional material misrepresentation by Maker or any applicable cure periods of its Maker Affiliates in connection with the Loan Documents, but not for fraud or material misrepresentation by any other person comprising Maker or such other person’s affiliates;
(ii) any breach of the Environmental Liabilities Agreement executed by Maker and any guarantor therein for the benefit of Payee, dated of even on or about the date herewithhereof, including the indemnification provisions contained therein;
(Biii) Maker's failure to obtain ▇▇▇▇▇'s prior written consent to any subordinate financing (except as permitted in Section 9(d) of the Mortgage) or any other encumbrance on the Mortgaged Property, or any transfer of the Mortgaged Property or majority ownership in Maker application in violation of the Mortgage;
(C) the misapplication Loan Documents by Maker, such Maker or any of its agents, affiliates, officers or employees Maker Affiliates of any funds derived from the Mortgaged Property, including security deposits, insurance proceeds and condemnation awards, in violation of the Loan Documents;
(Div) Maker's after the occurrence of an Event of Default or otherwise to the extent the Loan Documents require such application, the failure of Maker or any of its Maker Affiliates to apply proceeds of rents (including rents collected in advance) or any other payments receipts in respect of the leases (lease termination and modification payments and recoveries upon defaulted leases) and other income or funds derived from the Mortgaged Property or any other collateral when received to the costs of maintenance and operation of the Mortgaged Property and to the payment of taxes, lien claims, insurance premiums, monthly payments of principal and interest or escrow payments or other payments due under the Loan Documents to the extent the Loan Documents require such proceeds to be then so appliedDocuments;
(Ev) any litigation or other legal proceeding related to the Debt filed by if Maker or any guarantor of its Maker Affiliates or indemnitor that delays their respective agents (at the direction of Maker or impairs Payee's ability to preserve, enforce or foreclose any of its lien on the Mortgaged Property, including, but not limited to, the filing of a voluntary petition concerning Maker under the U.S. Bankruptcy Code, in which action a claim, counterclaim, or defense is asserted against Payee, other than any litigation or other legal proceeding in which a final, non-appealable judgment for money damages or injunctive relief is entered against Payee;
(F) the gross negligence or willful misconduct of Maker, its agentsAffiliates), affiliates, officers or employees which causes contests or results in a material diminutionany way interferes with, directly or indirectly, any foreclosure action or sale commenced by Payee or with any other enforcement of Payee’s rights, powers or remedies under any of the Loan Documents or under any document evidencing, securing or otherwise relating to the Property or any other collateral for the Debt (whether by making any motion, bringing any counterclaim, claiming any defense, seeking any injunction or other restraint, commencing any action seeking to consolidate any such foreclosure or other enforcement with any other action, or material loss of valueotherwise), of the Mortgaged Property that is not reimbursed by insurance or which gross negligence or willful misconduct exposes Payee to claims, liability or costs of defense other than contests brought in any litigation or other legal proceedinggood faith;
(Gvi) the seizure or forfeiture of the Mortgaged Property, or any portion thereof, or ▇▇▇▇▇'s Payee’s interest therein, resulting from criminal wrongdoing by Maker, Maker or any of its agentsMaker Affiliates or their respective agents (at the direction of Maker or such Maker Affiliate), affiliates, officers or employees;
(H) waste to the Mortgaged Property caused by the acts or omissions of Maker, its agents, affiliates, officers, employees or contractors; or the removal or disposal of any portion of the Mortgaged Property by Maker its agents, affiliates, officers, employees or contractors after an Event of Default to the extent such Mortgaged Property is not replaced by Maker with like property of equivalent value, function and design; and
(Ivii) in the event Payee has waived (or Maker has failed to pay or the Mortgage does not require) the monthly collection for real and personal property taxes, assessments, or insurance premiums, or ground rents, then failure by Maker to pay any or all such taxes, assessments assessments, premiums and rents to the extent funds are available to Maker from the Property and Maker has not applied available funds to the Property;
(viii) material intentional physical waste of the Property caused by the acts or premiums omissions of Maker or any of its Maker Affiliates;
(ix) any knowing failure by Maker to insure the Property in accordance with terms the Loan Documents to the extent that funds are available to Maker from the Property and Maker has not applied the funds to the Property;
(x) the removal or disposal of any portion of the Property by Maker or any of its Maker Affiliates after an Event of Default to the extent such Property is not replaced by Maker with like property of equivalent value, function and design;
(xi) if there shall occur any material Event of Default by Maker under the provisions of Section 9 of the Mortgage (except for taxes and assessment which accrueentitled “Single Purpose Entity/Separateness”), and premiums which are payable, after either other than any breach of Sections 9(d) (1) the date that Payee takes title with respect to the Mortgaged Property by foreclosurepayment of permitted trade debt only), deed-in-lieu of foreclosure or otherwise or (29(f), 9(k) ▇▇▇▇▇ obtains the appointment of a receiver or otherwise takes possession directly as a mortgagee in possession (provided, that, Maker has relinquished possession and control of the Mortgaged Property to such receiver or Payee and is not disputing the receivership or possession by the receiver or Payee)).9(p) thereof;
(dxii) In addition to if there shall occur any material Event of Default by Maker under the foregoing, Maker shall also be fully and personally liable to Payee for any amount which Maker is fully and personally liable to Payee for under provisions of Section 12 of the Crossed Note evidencing Mortgage (entitled “Transfer or Encumbrance of the Crossed LoanProperty”); and
(xiii) if in the absence of the Payee’s prior written consent, or unless otherwise permitted under the Loan Documents, Maker enters into any amendment to, modification of or termination of the Master Lease (as defined in the Mortgage).
Appears in 1 contract
Limitations on Recourse. Notwithstanding anything in the Loan Documents to the contrary, but subject (a) Subject to the qualifications set forth in this Section 9.1, the Lender shall not enforce the liability of the Borrower to pay and perform the Obligations by an action or proceeding wherein a money judgment shall be sought against the Borrower, except that the Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable the Lender to enforce this Agreement and the Related Documents and realize upon any Collateral; PROVIDED, HOWEVER, that, except as specifically provided in this Section, any judgment in any such action or proceeding shall be enforceable against the Borrower only to the extent of the interest of the Borrower in the Collateral. By accepting this Agreement and the Related Documents, the Lender agrees that it shall not ▇▇▇ for, seek or demand any deficiency judgment against the Borrower in any such action or proceeding under, by reason of or in connection with this Agreement or the Related Documents. The provisions in clauses (a), (b) and (c) of this Section 12 belowshall not, Payee and Maker agree thathowever: (i) Maker shall be liable upon constitute a waiver, release or impairment of any obligation evidenced or secured by this Agreement or the Debt and for the other obligations arising under the Loan Documents to the full extent (but only to the extent) of all of the Mortgaged Property and any other items, property or amounts which are collateral or security for the LoanRelated Documents; (ii) if a default occurs affect the validity or enforceability of any guaranty or indemnity made in the timely and proper payment connection with this Agreement or of all or any part of the Debt, any judicial proceedings brought by Payee against Maker shall be limited to the preservation, enforcement and foreclosure, or any thereof, of the liens, security titles, estates, assignments, rights and security interests now or at any time hereafter securing the payment of the Debt and/or the other obligations of Maker under the Loan Documents, and no attachment, execution or other writ of process shall be sought, issued or levied upon any assets, properties or funds of Maker other than the Mortgaged PropertyCollateral therefor; and (iii) in impair the event right of the Lender to obtain the appointment of a foreclosure of such liens, security titles, estates, assignments, rights or security interests securing receiver; (iv) impair the payment right of the Debt, no judgment for Lender to bring suit with respect to fraud or intentional misrepresentation by the Borrower or any deficiency upon other Person in connection with this Agreement or the Debt shall be sought Related Documents; or obtained by Payee against Maker(v) affect the validity or enforceability of this Agreement or the Related Documents or limit (except as expressly provided) the liability of the Borrower or any other party thereunder.
(ab) Nothing contained in this Section 12 herein shall (1) be deemed to be a release waiver of any right which the Lender may have under Section 506(a), 506(b), 1111(b) or impairment any other provisions of the Debt or U.S. Bankruptcy Code to file a claim for the lien full amount of the Loan Documents upon Loans or to require that all Collateral shall continue to secure all of the Mortgaged PropertyObligations owing to the Lender in accordance with this Agreement and the Related Documents.
(c) Notwithstanding the foregoing provisions of this Section or any other provision in this Agreement or any of the Related Documents, the Borrower, the Principal, SLGM, SLGP and any other guarantor of the Loans shall be fully liable for and shall indemnify the Lender for any and all loss, cost, liability, judgment, claim, damage or expense sustained, suffered or incurred by the Lender (2including, without limitation, Lender's reasonable attorneys' fees) preclude Payee from foreclosing under arising out of or attributable or relating to:
(i) Physical waste of all or any portion of the Loan Documents Collateral, any property in case which the Collateral represents a direct or indirect interest or any property included in the Portfolio;
(ii) The wrongful removal or disposal of any default portion of the Collateral, any property in which the Collateral represents a direct or from enforcing indirect interest or any property included in the Portfolio after a Default under this Agreement or any of the Related Documents;
(iii) The failure to have in effect the insurance coverages required under this Agreement or any of the Related Documents, which failure continues unremedied for a period of thirty (30) days after notice thereof to the party obligated to maintain such insurance and the Borrower by the Lender; and
(iv) The breach of any indemnification obligation owing to the Lender or any other indemnitee under this Agreement or any of the Related Documents which breach continues unremedied for a period of thirty (30) days after notice thereof to the breaching party and the Borrower by the Lender;
(d) Notwithstanding the foregoing, the agreement of the Lender not to pursue recourse liability as set forth in subsection (a) above SHALL BECOME NULL AND VOID and shall be of no further force or effect in the event: (i) of a voluntary bankruptcy or insolvency proceeding of the Borrower, the Principal, SLGM, SLGP or any other guarantor of the Loans; (ii) of the Borrower's, SLGP's or any other guarantor's failure to permit or cause its Affiliates to permit, as applicable, inspections of properties, books and records as provided herein or in any of the other rights Related Documents or to provide financial reports and information as required by this Agreement; (iii) any financial information concerning the Borrower, the Principal, SLGM, SLGP or any other guarantor of Payee, including naming Maker as a party defendant the Loans proving to be fraudulent or misrepresenting in any action material respect the financial condition of the Borrower, the Principal, SLGM, SLGP or suit for foreclosure and sale under any other guarantor of the MortgageLoans; (iv) the misapplication or conversion of any distributions, insurance proceeds, awards, rents, issues, profits, proceeds, accounts, or obtaining other amounts received by the appointment of a receiver Borrower, the Principal, SLGM, SLGP or prohibit Payee from obtaining a personal judgment against Maker on the Debt to the extent (but only to the extent) such judgment may be required in order to enforce the liens, security titles, estates, assignments, rights and security interests securing payment any other guarantor of the Debt, or Loans; (3v) limit or impair in any way whatsoever the Guaranty (the "Guaranty") of even date executed and delivered in connection with the indebtedness evidenced by this Note or release, relieve, reduce, waive or impair in any way whatsoever, any obligation of any party to the Guaranty or (4) release, relieve, reduce, waive or impair in any way whatsoever any obligations of any person other than Maker which is a party to any of the other Loan Documents.
(b) In the event of fraud or material misrepresentation by Maker the Borrower, the Principal, SLGM, SLGP or any other guarantor of the Loans in connection with the Loan Documents or the documents delivered by Maker, or the first full Monthly Installment on this Note is not paid when due, or if any petition or proceeding for bankruptcy, reorganization or arrangement pursuant to federal bankruptcy law, or any similar federal or state law, shall be filed by Maker Loans; (or if any such petition or proceeding was not so filed by Maker, but Maker or Guarantor or their respective agents, affiliates, officers or employees consented to, acquiesced in arranged or otherwise participated in bringing about the institution of such petition or proceeding), or if there shall occur any material breach or default under the provisions of Section 9 of the Mortgage (entitled "Single Purpose Entity/Separateness"), the limitations on recourse set forth in this Section 12, including the provisions of clauses (i), (ii) and (iii) of this Section 12 above, will be null and void and completely inapplicable, and this Note shall be full recourse to Maker.
(c) Nothing contained herein shall in any manner or way release, affect or impair the right of Payee to recover, and Maker shall be fully and personally liable and subject to legal action, for any loss, cost, expense, damage, claim or other obligation (including without limitation reasonable attorneys' fees and court costs) incurred or suffered by Payee arising out of or in connection with the following:
(A) any continuing default beyond any applicable cure periods of the Environmental Liabilities Agreement executed by Maker for the benefit of Payee, dated of even date herewith, including the indemnification provisions contained therein;
(B) Maker's failure to obtain ▇▇▇▇▇'s prior written consent to any subordinate financing (except as permitted in Section 9(d) of the Mortgage) or any other encumbrance on the Mortgaged Property, or any transfer of the Mortgaged Property or majority ownership in Maker in violation of the Mortgage;
(C) the misapplication by Maker, its agents, affiliates, officers or employees of any funds derived from the Mortgaged Property, including security deposits, insurance proceeds and condemnation awards, in violation of the Loan Documents;
(D) Maker's failure to apply proceeds of rents or any other payments in respect of the leases and other income from the Mortgaged Property or any other collateral when received to the costs of maintenance and operation of the Mortgaged Property and to the payment of taxes, lien claims, insurance premiums, monthly payments of principal and interest or escrow payments or other payments due under the Loan Documents to the extent the Loan Documents require such proceeds to be then so applied;
(E) any litigation or other legal proceeding related to the Debt filed by Maker or any guarantor or indemnitor that delays or impairs Payee's ability to preserve, enforce or foreclose its lien on the Mortgaged Property, including, but not limited to, the filing of a voluntary petition concerning Maker under the U.S. Bankruptcy Code, in which action a claim, counterclaim, or defense is asserted against Payee, other than any litigation or other legal proceeding in which a final, non-appealable judgment for money damages or injunctive relief is entered against Payee;
(Fvi) the gross negligence or willful misconduct of Makerthe Borrower, its agentsthe Principal, affiliatesSLGM, officers SLGP or employees which causes their respective agents or results in a material diminutionemployees; or (vii) the Borrower, the Principal, SLGM, SLGP or any other guarantor of the Loans contests the validity or enforceability of this Agreement or any of the Related Documents and/or asserts defenses for the sole purpose of delaying, hindering, or material loss of value, of impairing the Mortgaged Property that is not reimbursed by insurance Lender's rights or which gross negligence or willful misconduct exposes Payee to claims, liability or costs of defense in any litigation or other legal proceeding;
(G) the seizure or forfeiture of the Mortgaged Property, or any portion thereof, or ▇▇▇▇▇'s interest therein, resulting from criminal wrongdoing by Maker, its agents, affiliates, officers or employees;
(H) waste to the Mortgaged Property caused by the acts or omissions of Maker, its agents, affiliates, officers, employees or contractors; remedies under this Agreement or the removal or disposal of any portion of the Mortgaged Property by Maker its agents, affiliates, officers, employees or contractors after an Event of Default to the extent such Mortgaged Property is not replaced by Maker with like property of equivalent value, function and design; and
(I) in the event Payee has waived (or the Mortgage does not require) the monthly collection for real and personal property taxes, assessments, or insurance premiums, then failure by Maker to pay any or all such taxes, assessments or premiums in accordance with terms of the Mortgage (except for taxes and assessment which accrue, and premiums which are payable, after either (1) the date that Payee takes title to the Mortgaged Property by foreclosure, deed-in-lieu of foreclosure or otherwise or (2) ▇▇▇▇▇ obtains the appointment of a receiver or otherwise takes possession directly as a mortgagee in possession (provided, that, Maker has relinquished possession and control of the Mortgaged Property to such receiver or Payee and is not disputing the receivership or possession by the receiver or Payee))Related Documents.
(d) In addition to the foregoing, Maker shall also be fully and personally liable to Payee for any amount which Maker is fully and personally liable to Payee for under Section 12 of the Crossed Note evidencing the Crossed Loan.
Appears in 1 contract
Limitations on Recourse. Notwithstanding anything any contrary provision in the Loan Documents to the contrary, but subject to the qualifications and other provisions in clauses (a), (b) and (c) of this Section 12 below, Payee and Maker agree that: (i) Maker shall be liable upon the Debt and for the other obligations arising under the Loan Documents to the full extent (but only to the extent) of all of the Mortgaged Property and any other items, property or amounts which are collateral or security for the Loan; (ii) if a default occurs in the timely and proper payment of all Mortgage Note or any part of the Debt, any judicial proceedings brought by Payee against Maker shall be limited to the preservation, enforcement and foreclosure, or any thereof, of the liens, security titles, estates, assignments, rights and security interests now or at any time hereafter securing the payment of the Debt and/or the other obligations of Maker under the Loan Documents, and no attachmentit is hereby expressly agreed that, execution except as otherwise provided in this SECTION 5 or other writ in any section of process any Loan Document that is substantially similar to this SECTION 5, there shall be sought, issued or levied upon any assets, properties or funds no recourse to the assets of Maker or any of its Members (other than against the Mortgaged Property; Collateral and (iii) in the event of a foreclosure of such liens, any other property given as security titles, estates, assignments, rights or security interests securing for the payment of this Mortgage Note) for (i) the Debtpayment of principal, no judgment interest, Defeasance Deposits, Yield Maintenance Payments or other charges hereunder or for any deficiency upon the Debt shall be sought other amount that is or obtained may become due and owing to Holder by Payee against Maker.
(a) Nothing contained in Maker under this Section 12 shall (1) be deemed to be a release or impairment of the Debt or the lien of the Loan Documents upon the Mortgaged Property, or (2) preclude Payee from foreclosing under the Loan Documents in case of any default or from enforcing any of the other rights of Payee, including naming Maker as a party defendant in any action or suit for foreclosure and sale under the Mortgage, or obtaining the appointment of a receiver or prohibit Payee from obtaining a personal judgment against Maker on the Debt to the extent (but only to the extent) such judgment may be required in order to enforce the liens, security titles, estates, assignments, rights and security interests securing payment of the Debt, or (3) limit or impair in any way whatsoever the Guaranty (the "Guaranty") of even date executed and delivered in connection with the indebtedness evidenced by this Mortgage Note or release, relieve, reduce, waive or impair in any way whatsoever, any obligation of any party to the Guaranty or (4) release, relieve, reduce, waive or impair in any way whatsoever any obligations of any person other than Maker which is a party to any of the other Loan Documents or (ii) the performance or discharge of any covenant or undertaking hereunder or under the other Loan Documents.
(b) In , and in the event of fraud any Event of Default hereunder or material misrepresentation by thereunder, Hold▇▇ ▇▇▇ees to proceed solely against the Collateral and any other property given as security for payment of this Mortgage Note, and Holder shall not seek or claim recourse against Maker or any guarantor in connection with Member (other than against the Loan Documents Collateral and any other property given as security for payment of this Mortgage Note) for any deficiency or for any personal judgment after a foreclosure of the documents delivered by Maker, or the first full Monthly Installment on this Note is not paid when due, or if any petition or proceeding for bankruptcy, reorganization or arrangement pursuant to federal bankruptcy law, or any similar federal or state law, shall be filed by Maker (or if any such petition or proceeding was not so filed by Maker, but Maker or Guarantor or their respective agents, affiliates, officers or employees consented to, acquiesced in arranged or otherwise participated in bringing about the institution of such petition or proceeding), or if there shall occur any material breach or default under the provisions of Section 9 lien of the Mortgage or other Security Documents or for the performance or discharge of any covenants or undertakings of Maker hereunder or under any other Loan Documents (entitled "Single Purpose Entity/Separateness"except that Maker may be made a party to a proceeding to the extent legally necessary for the conduct of a foreclosure or the exercise of other similar remedies under the Mortgage or other Security Documents). Notwithstanding the foregoing, the limitations on recourse set forth nothing contained in this Section 12, including the provisions SECTION 5 shall relieve Maker or any Member of clauses (i), (ii) and (iii) of this Section 12 above, will be null and void and completely inapplicable, and this Note shall be full recourse to Maker.
(c) Nothing contained herein shall in any manner or way release, affect or impair the right of Payee to recover, and Maker shall be fully and personally liable and subject to legal action, personal liability for any loss, cost, expense, damage, claim damage or other obligation (including without limitation reasonable attorneys' fees and court costs) incurred liability arising or suffered by Payee arising out of or in connection with the following:
resulting from (A) any continuing default beyond breach of any applicable cure periods of representation or warranty made in the Environmental Liabilities Loan Agreement executed by Maker for the benefit of Payeethat was materially incorrect when made and that was made with fraudulent intent, dated of even date herewith, including the indemnification provisions contained therein;
(B) Maker's failure any amount paid or distributed to obtain ▇▇▇▇▇'s prior written consent to any subordinate financing (except as permitted in Section 9(d) of the Mortgage) Members, the Manager or any other encumbrance on the Mortgaged Property, or Affiliate of any transfer of the Mortgaged Property or majority ownership in Maker them in violation of the Mortgage;
(C) the misapplication by Maker, its agents, affiliates, officers or employees of any funds derived from the Mortgaged Property, including security deposits, insurance proceeds and condemnation awards, in violation provisions of the Loan Documents;
, (C) fraud or breach of trust, including misapplication of Loan proceeds or any Insurance Proceeds or Awards or other sums that are part of the Collateral that may come into the possession or control of Maker or a Member or any Affiliate of any of them, (D) Maker's failure to apply proceeds of rents or any other payments in respect of the leases and other income from the Mortgaged Property or any other collateral when received to the costs of maintenance and operation of the Mortgaged Property and to the payment of taxes, lien claims, insurance premiums, monthly payments of principal and interest or escrow payments or other payments due liability under the Loan Documents to the extent the Loan Documents require such proceeds to be then so applied;
Environmental Indemnity Agreement or (E) any litigation or other legal proceeding related to the Debt filed by Maker or any guarantor or indemnitor that delays or impairs Payee's ability to preserve, enforce or foreclose its lien on the Mortgaged Property, including, but not limited to, the filing of a voluntary petition concerning Maker under the U.S. Bankruptcy Code, in which action a claim, counterclaim, or defense is asserted against Payee, other than any litigation or other legal proceeding in which a final, non-appealable judgment for money damages or injunctive relief is entered against Payee;
(F) the gross negligence or willful misconduct of Maker, its agents, affiliates, officers or employees which causes or results in a material diminution, or material loss of value, of the Mortgaged Property that is not reimbursed by insurance or which gross negligence or willful misconduct exposes Payee to claims, liability or costs of defense in any litigation or other legal proceeding;
(G) the seizure or forfeiture of the Mortgaged Property, or any portion thereof, or ▇▇▇▇▇'s interest therein, resulting from criminal wrongdoing by Maker, its agents, affiliates, officers or employees;
(H) waste to the Mortgaged Property caused by the acts or omissions of Maker, its agents, affiliates, officers, employees or contractors; or the removal or disposal of any portion of the Mortgaged Property by Maker its agents, affiliates, officers, employees or contractors after an Event of Default to the extent such Mortgaged Property is not replaced by Maker with like property of equivalent value, function and design; and
(I) in the event Payee has waived (or the Mortgage does not require) the monthly collection for real and personal property taxes, assessments, or insurance premiums, then failure by Maker to pay any or all such taxes, assessments or premiums in accordance with terms of the Mortgage (except for taxes and assessment which accrue, and premiums which are payable, after either (1) the date that Payee takes title to the Mortgaged Property by foreclosure, deed-in-lieu of foreclosure or otherwise or (2) ▇▇▇▇▇ obtains the appointment of a receiver or otherwise takes possession directly as a mortgagee in possession (provided, that, Maker has relinquished possession and control of the Mortgaged Property to such receiver or Payee and is not disputing the receivership or possession by the receiver or Payee)).
(d) In addition to the foregoing, Maker shall also be fully and personally liable to Payee for any amount which Maker is fully and personally liable to Payee for under Section 12 of the Crossed Note evidencing the Crossed Loan.
Appears in 1 contract
Sources: Mortgage Note (Arden Realty Inc)
Limitations on Recourse. Notwithstanding anything Subject to the provisions and qualifications of this Article, Lender shall not enforce the liability and obligation of the Borrower to perform and observe any of their obligations that may be contained in the Note, this Loan Documents Agreement, the Mortgage or any other Loan Document by any action or proceeding wherein a money judgment shall be sought against Borrower, except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender to enforce and realize upon its interest under the Note, this Agreement, the Mortgage and the other Loan Documents, or in the Property, the Rents, or any other Collateral pursuant to the contraryLoan Documents; provided, but subject to the qualifications and other provisions however, that, except as specifically provided herein, any judgment in clauses (a), (b) and (c) of this Section 12 below, Payee and Maker agree that: (i) Maker any such action or proceeding shall be liable upon the Debt and for the other obligations arising under the Loan Documents to the full extent (but enforceable against Borrower only to the extent) extent of all of Borrower’s interest in the Mortgaged Property Property, in the Rents and in any other itemsCollateral. Lender, property by accepting the Note, this Loan Agreement, the Mortgage and the other Loan Documents, shall not s▇▇ for, seek or amounts which are collateral demand any monetary judgment against any Borrower in any such action or security for proceeding under or by reason of or under or in connection with the Loan; (ii) if a default occurs Note, this Loan Agreement, the Mortgage or the other Loan Documents. Notwithstanding anything to the contrary in this Loan Agreement, the timely and proper payment of all Mortgage or any part of the Debt, any judicial proceedings brought by Payee against Maker shall be limited to the preservation, enforcement and foreclosure, or any thereof, of the liens, security titles, estates, assignments, rights and security interests now or at any time hereafter securing the payment of the Debt and/or the other obligations of Maker under the Loan Documents, the provisions of this Section 12.1 and no attachment, execution or the other writ of process shall be sought, issued or levied upon any assets, properties or funds of Maker other than the Mortgaged Property; and (iii) in the event of a foreclosure of such liens, security titles, estates, assignments, rights or security interests securing the payment provisions of the DebtLoan Documents shall not, no judgment for any deficiency upon the Debt shall be sought or obtained by Payee against Maker.
however: (a) Nothing contained constitute a waiver of any right which Lender 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 Obligations secured by the Mortgage or to require that all Collateral shall continue to secure all of the Obligations owing to Lender in this Section 12 shall 87 accordance with the Loan Documents; (1b) be deemed to be constitute a waiver, release or impairment of the Debt any obligation evidenced or the lien secured by any of the Loan Documents upon Documents; (c) impair the Mortgaged Property, or (2) preclude Payee from foreclosing under the Loan Documents in case right of any default or from enforcing any of the other rights of Payee, including naming Maker Lender to name Borrower as a party defendant in any action or suit for foreclosure and sale under the Mortgage, Mortgage or obtaining other Loan Documents; (d) impair the right of Lender to obtain the appointment of a receiver receiver; (e) impair the enforcement of the Assignment of Leases; or prohibit Payee from obtaining (f) constitute a personal prohibition against Lender to seek a deficiency judgment against Maker on the Debt to the extent (but only to the extent) such judgment may be required Borrower in order to enforce fully realize the liens, security titles, estates, assignments, rights granted by the Mortgage and security interests securing payment of the Debt, or (3) limit or impair in any way whatsoever the Guaranty (the "Guaranty") of even date executed and delivered in connection with the indebtedness evidenced by this Note or release, relieve, reduce, waive or impair in any way whatsoever, any obligation of any party to the Guaranty or (4) release, relieve, reduce, waive or impair in any way whatsoever any obligations of any person other than Maker which is a party to any of the other Loan Documents.
(b) In the event of fraud or material misrepresentation by Maker or any guarantor in connection with the Loan Documents or the documents delivered by Maker, or the first full Monthly Installment on this Note is not paid when due, or if to commence any petition other appropriate action or proceeding in order for bankruptcy, reorganization or arrangement pursuant Lender to federal bankruptcy law, or any similar federal or state law, shall be filed by Maker (or if any such petition or proceeding was not so filed by Maker, but Maker or Guarantor or their respective agents, affiliates, officers or employees consented to, acquiesced in arranged or otherwise participated in bringing about exercise its remedies against the institution of such petition or proceeding), or if there shall occur any material breach or default under the provisions of Section 9 of the Mortgage (entitled "Single Purpose Entity/Separateness"), the limitations on recourse set forth in this Section 12, including the provisions of clauses (i), (ii) and (iii) of this Section 12 above, will be null and void and completely inapplicable, and this Note shall be full recourse to Maker.
(c) Nothing contained herein shall in any manner or way release, affect or impair the right of Payee to recover, and Maker shall be fully and personally liable and subject to legal action, for any loss, cost, expense, damage, claim or other obligation (including without limitation reasonable attorneys' fees and court costs) incurred or suffered by Payee arising out of or in connection with the following:
(A) any continuing default beyond any applicable cure periods of the Environmental Liabilities Agreement executed by Maker for the benefit of Payee, dated of even date herewith, including the indemnification provisions contained therein;
(B) Maker's failure to obtain ▇▇▇▇▇'s prior written consent to any subordinate financing (except as permitted in Section 9(d) of the Mortgage) or any other encumbrance on the Mortgaged Property, or any transfer of the Mortgaged Property or majority ownership in Maker in violation of the Mortgage;
(C) the misapplication by Maker, its agents, affiliates, officers or employees of any funds derived from the Mortgaged Property, including security deposits, insurance proceeds and condemnation awards, in violation of the Loan Documents;
(D) Maker's failure to apply proceeds of rents or any other payments in respect of the leases and other income from the Mortgaged Property or any other collateral when received to the costs of maintenance and operation of the Mortgaged Property and to the payment of taxes, lien claims, insurance premiums, monthly payments of principal and interest or escrow payments or other payments due under the Loan Documents to the extent the Loan Documents require such proceeds to be then so applied;
(E) any litigation or other legal proceeding related to the Debt filed by Maker or any guarantor or indemnitor that delays or impairs Payee's ability to preserve, enforce or foreclose its lien on the Mortgaged Property, including, but not limited to, the filing of a voluntary petition concerning Maker under the U.S. Bankruptcy Code, in which action a claim, counterclaim, or defense is asserted against Payee, other than any litigation or other legal proceeding in which a final, non-appealable judgment for money damages or injunctive relief is entered against Payee;
(F) the gross negligence or willful misconduct of Maker, its agents, affiliates, officers or employees which causes or results in a material diminution, or material loss of value, of the Mortgaged Property that is not reimbursed by insurance or which gross negligence or willful misconduct exposes Payee to claims, liability or costs of defense in any litigation or other legal proceeding;
(G) the seizure or forfeiture of the Mortgaged Property, or any portion thereof, or ▇▇▇▇▇'s interest therein, resulting from criminal wrongdoing by Maker, its agents, affiliates, officers or employees;
(H) waste to the Mortgaged Property caused by the acts or omissions of Maker, its agents, affiliates, officers, employees or contractors; or the removal or disposal of any portion of the Mortgaged Property by Maker its agents, affiliates, officers, employees or contractors after an Event of Default to the extent such Mortgaged Property is not replaced by Maker with like property of equivalent value, function and design; and
(I) in the event Payee has waived (or the Mortgage does not require) the monthly collection for real and personal property taxes, assessments, or insurance premiums, then failure by Maker to pay any or all such taxes, assessments or premiums in accordance with terms of the Mortgage (except for taxes and assessment which accrue, and premiums which are payable, after either (1) the date that Payee takes title to the Mortgaged Property by foreclosure, deed-in-lieu of foreclosure or otherwise or (2) ▇▇▇▇▇ obtains the appointment of a receiver or otherwise takes possession directly as a mortgagee in possession (provided, that, Maker has relinquished possession and control of the Mortgaged Property to such receiver or Payee and is not disputing the receivership or possession by the receiver or Payee))Collateral.
(d) In addition to the foregoing, Maker shall also be fully and personally liable to Payee for any amount which Maker is fully and personally liable to Payee for under Section 12 of the Crossed Note evidencing the Crossed Loan.
Appears in 1 contract
Limitations on Recourse. Notwithstanding anything Except as hereinafter in the Loan Documents to the contrary, but subject to the qualifications and other provisions in clauses (a), (b) and (c) of this Section 12 below, Payee and Maker agree that: (i) Maker shall be liable upon the Debt and for the other obligations arising under the Loan Documents to the full extent (but only to the extent) of all in ----------------------- Section 40 of the Mortgaged Property Mortgage specifically provided, Maker, Marriott Hanover Hotel Corporation ("MHHC") and any other items, property or amounts which are collateral or security for the Loan; (ii) if a default occurs in the timely and proper payment of all or any part partners of the Debt, any judicial proceedings brought by Payee against Maker shall not be limited to the preservation, enforcement and foreclosure, or any thereof, of the liens, security titles, estates, assignments, rights and security interests now or at any time hereafter securing personally liable for the payment of any sums due hereunder or the Debt and/or the other performance of any obligations of Maker hereunder or under any other Loan Document. No judgment for the repayment of the Indebtedness and no action to foreclose the Mortgage, or to collect any amount payable under the Loan Documents, and no attachment, execution or to satisfy any other writ claim relating thereto will be enforced against Maker or MHHC or any other partner of process shall be sought, issued Maker personally or levied upon any assets, properties property of Maker or funds MHHC or any other partner of Maker other than the Mortgaged Property; Security and (iii) any other security furnished under the Loan Documents in any action to foreclose the event of a foreclosure of such liens, Mortgage or to otherwise realize upon any security titles, estates, assignments, rights furnished under the Loan Documents or security interests securing to collect any amount payable under the payment of Loan Documents. Notwithstanding the Debt, no judgment for any deficiency upon the Debt shall be sought or obtained by Payee against Maker.foregoing:
(a) Nothing herein contained in this Section 12 shall (1) be deemed to be a release or impairment of the Debt or the lien of construed as prohibiting Holder from exercising any and all remedies which the Loan Documents upon permit, including the Mortgaged Propertyright to bring actions or proceedings against Maker and/or MHHC and/or any other general partner of Maker and to enter a judgment against Maker and/or MHHC and/or any other general partner in Maker, so long as the exercise of any remedy does not extend to execution against or (2) preclude Payee from foreclosing recovery out of any property of Maker and/or MHHC and/or any other partner other than the security furnished under the Loan Documents in case of any default or from enforcing any of the other rights of Payee, including naming Maker as a party defendant in any action or suit for foreclosure and sale under the Mortgage, or obtaining the appointment of a receiver or prohibit Payee from obtaining a personal judgment against Maker on the Debt to the extent (but only to the extent) such judgment may be required in order to enforce the liens, security titles, estates, assignments, rights and security interests securing payment of the Debt, or (3) limit or impair in any way whatsoever the Guaranty (the "Guaranty") of even date executed and delivered in connection with the indebtedness evidenced by this Note or release, relieve, reduce, waive or impair in any way whatsoever, any obligation of any party to the Guaranty or (4) release, relieve, reduce, waive or impair in any way whatsoever any obligations of any person other than Maker which is a party to any of the other Loan Documents.;
(b) In the event Maker and MHHC and any other general partner of fraud or material misrepresentation by Maker or any guarantor in connection with the Loan Documents or the documents delivered by Maker, or the first full Monthly Installment on this Note is not paid when due, or if any petition or proceeding for bankruptcy, reorganization or arrangement pursuant to federal bankruptcy law, or any similar federal or state law, shall be filed by Maker (or if any such petition or proceeding was not so filed by Maker, but not any limited partner of Maker or Guarantor or their respective agentswho is not also a general partner, affiliates, officers or employees consented to, acquiesced in arranged or otherwise participated in bringing about the institution of such petition or proceeding), or if there shall occur any material breach or default under the provisions of Section 9 of the Mortgage (entitled "Single Purpose Entity/Separateness"), the limitations on recourse set forth in this Section 12, including the provisions of clauses (i), (ii) and (iii) of this Section 12 above, will be null and void and completely inapplicable, and this Note shall be full recourse to Maker.
(c) Nothing contained herein shall in any manner or way release, affect or impair the right of Payee to recover, and Maker shall be fully and personally jointly and severally personally liable for (i) misapplying any condemnation proceeds or insurance proceeds attributable to the Real Property, to the full extent of such proceeds so misapplied, (ii) misapplying any security deposits attributable to the Real Property, to the full extent of such deposits so misapplied, (iii) collecting any Rents (defined in the Mortgage), Revenues (defined in the Mortgage) and subject any other revenues and income generated by the operation of the hotel on the Real Property (defined in the Mortgage) in advance in violation of any covenant contained in any of the Loan Documents (except for deposits to legal actionhold advance room reservations which occur in the ordinary course of business), for any lossto the full extent of such Rents, costRevenues and other revenues and income collected in advance, expense(iv) committing fraud, damage, claim misrepresentation or other obligation (including without limitation reasonable attorneys' fees and court costs) incurred or suffered by Payee arising out of or waste in connection with the following:
(A) any continuing default beyond any applicable cure periods operation of the Environmental Liabilities Agreement executed by Maker for Security or the benefit making of Payeethe loan evidenced hereby, dated to the full extent of even date herewithany remedies available at law or in equity, including not to exceed Holder's actual damages, except that no such limit shall apply or be imposed if Maker, or its general partner(s) intentionally commit(s)s fraud, misrepresentation or waste, (v) Gross Revenues (as defined in the indemnification provisions contained therein;
(B) Maker's failure to obtain ▇▇▇▇▇'s prior written consent to any subordinate financing (except Hotel Management Agreement, as permitted defined in Section 9(d) of the Mortgage) from the Real Property are sufficient to pay any portion of the indebtedness, operating expenses, maintenance expenses, insurance premiums, reserve or escrow account deposits, sales and occupancy taxes, wages, salaries, taxes and benefits relating to hotel employees, employment and withholding taxes, or other sums required to be paid pursuant to the terms of the Loan Documents, and Mortgagor fails to make any or all such payments or deposits when due, all to the extent of any funds diverted from such obligations, payments and/or expenses during the twelve (12) months prior to Mortgagee's notice of acceleration through the date Mortgagee takes title to the Real Property; (vi) failing to pay all or any portion of the real estate taxes and assessments which are a lien against the Real Property during the period of Maker's ownership at a time when there were sufficient Gross Revenues available to pay all or any portion of such real estate taxes and assessments, to the full extent of such unpaid real estate taxes and assessments; and (vii) failing to maintain the coverages and levels of insurance required under the Mortgage or any other encumbrance on the Mortgaged Property, or any transfer of the Mortgaged Property Loan Documents, to the extent that a casualty or majority ownership other liability occurs or arises and insurance proceeds would have been available had such insurance coverages and levels been maintained, in Maker in violation the amount of the Mortgage;
(C) difference between the misapplication by Maker, its agents, affiliates, officers or employees of any funds derived from the Mortgaged Property, including security deposits, actual insurance proceeds and condemnation awards, in violation the insurance proceeds that would have been available had such levels and coverages of insurance been maintained as required by the terms of the Loan Documents;
(Dc) There shall be no limitation, in any event, of Maker's failure personal liability under, and the exercise of any of Holder's rights under any separate indemnity agreement from Maker to apply proceeds of rents or any other payments in respect of the leases and other income from the Mortgaged Property or any other collateral when received to the costs of maintenance and operation of the Mortgaged Property and to the payment of taxesHolder which may be entered into, lien claims, insurance premiums, monthly payments of principal and interest or escrow payments or other payments due under the Loan Documents to the extent the Loan Documents require such proceeds to be then so applied;
(E) any litigation or other legal proceeding related to the Debt filed by Maker or any guarantor or indemnitor that delays or impairs Payee's ability to preserve, enforce or foreclose its lien on the Mortgaged Property, including, including but not limited to, the filing Environmental Indemnification Agreement of a voluntary petition concerning even date herewith from Maker under the U.S. Bankruptcy Code, in which action a claim, counterclaim, or defense is asserted against Payee, other than any litigation or other legal proceeding in which a final, non-appealable judgment for money damages or injunctive relief is entered against Payee;
(F) the gross negligence or willful misconduct of Maker, its agents, affiliates, officers or employees which causes or results in a material diminution, or material loss of value, of the Mortgaged Property that is not reimbursed by insurance or which gross negligence or willful misconduct exposes Payee and Marriott Hanover Hotel Corporation to claims, liability or costs of defense in any litigation or other legal proceeding;
(G) the seizure or forfeiture of the Mortgaged Property, or any portion thereof, or ▇▇▇▇▇'s interest therein, resulting from criminal wrongdoing by Maker, its agents, affiliates, officers or employees;
(H) waste Holder with regard to the Mortgaged Property caused by the acts or omissions of Maker, its agents, affiliates, officers, employees or contractors; or the removal or disposal of any portion of the Mortgaged Property by Maker its agents, affiliates, officers, employees or contractors after an Event of Default to the extent such Mortgaged Property is not replaced by Maker with like property of equivalent value, function and design; and
(I) in the event Payee has waived (or the Mortgage does not require) the monthly collection for real and personal property taxes, assessments, or insurance premiums, then failure by Maker to pay any or all such taxes, assessments or premiums in accordance with terms of the Mortgage (Security except for taxes and assessment which accrue, and premiums which are payable, after either (1) the date that Payee takes title to the Mortgaged Property by foreclosure, deed-in-lieu of foreclosure or otherwise or (2) ▇▇▇▇▇ obtains the appointment of a receiver or otherwise takes possession directly as a mortgagee in possession (provided, that, Maker has relinquished possession and control of the Mortgaged Property to such receiver or Payee and is not disputing the receivership or possession by the receiver or Payee)).may be expressly set forth therein;
(d) In addition Nothing contained in this Section shall be deemed to prejudice the rights of Holder to proceed against any entity or person whatsoever, including the Maker, with respect to the foregoing, Maker shall also be fully and personally liable to Payee for any amount which Maker is fully and personally liable to Payee for under Section 12 enforcement of the Crossed Note evidencing the Crossed LoanAgreement Concerning Hotel Management Agreement and any guarantees, leases, master leases, or similar rights of payment.
Appears in 1 contract
Sources: Promissory Note (Hanover Marriott Limited Partnership)
Limitations on Recourse. Notwithstanding anything in the Loan Documents to the contrary, but subject Subject to the qualifications below, Lender shall not enforce the liability and obligation of Borrower to perform and observe the Obligations by any action or proceeding wherein a money judgment shall be sought against Borrower, except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender to enforce and realize upon its interest under the Note, this Agreement, the Mortgage and the other Loan Documents, or in the Project and/or the Property, or any other collateral given to the Lender pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower’s interest in the Project and/or the Property, and in any other collateral given to Lender to secure the Obligations, and Lender, as applicable, by accepting the Note, this Agreement, the Mortgage and the other Loan Documents, shall not sue for, seek or demand any deficiency judgment against Borrower in any such action or proceeding under or by reason of or under or in connection with the Note, this Agreement, the Mortgage or the other Loan Documents. The provisions in clauses (a), (b) and (c) of this Section 12 belowshall not, Payee and Maker agree that: however, (i) Maker shall be liable upon the Debt and for the other obligations arising under constitute a waiver, release or impairment of any Obligation evidenced or secured by any of the Loan Documents to the full extent (but only to the extent) of all of the Mortgaged Property and any other items, property or amounts which are collateral or security for the LoanDocuments; (ii) if a default occurs in impair the timely and proper payment of all or any part of the Debt, any judicial proceedings brought by Payee against Maker shall be limited to the preservation, enforcement and foreclosure, or any thereof, of the liens, security titles, estates, assignments, rights and security interests now or at any time hereafter securing the payment of the Debt and/or the other obligations of Maker under the Loan Documents, and no attachment, execution or other writ of process shall be sought, issued or levied upon any assets, properties or funds of Maker other than the Mortgaged Property; and (iii) in the event of a foreclosure of such liens, security titles, estates, assignments, rights or security interests securing the payment of the Debt, no judgment for any deficiency upon the Debt shall be sought or obtained by Payee against Maker.
(a) Nothing contained in this Section 12 shall (1) be deemed to be a release or impairment of the Debt or the lien of the Loan Documents upon the Mortgaged Property, or (2) preclude Payee from foreclosing under the Loan Documents in case right of any default or from enforcing any of the other rights of Payee, including naming Maker Lender to name Borrower as a party defendant in any action or suit for foreclosure and sale under the Mortgage, ; (iii) affect the validity or obtaining the appointment of a receiver or prohibit Payee from obtaining a personal judgment against Maker on the Debt to the extent (but only to the extent) such judgment may be required in order to enforce the liens, security titles, estates, assignments, rights and security interests securing payment of the Debt, or (3) limit or impair in any way whatsoever the Guaranty (the "Guaranty") of even date executed and delivered in connection with the indebtedness evidenced by this Note or release, relieve, reduce, waive or impair in any way whatsoever, any obligation enforceability of any party to the Guaranty or (4) release, relieve, reduce, waive or impair in any way whatsoever any obligations of any person other than Maker which is a party to any of the other Loan Documents.
(b) In the event of fraud or material misrepresentation by Maker or any guarantor guaranty made in connection with the Loan Documents or the documents delivered by Maker, or the first full Monthly Installment on this Note is not paid when due, or if any petition or proceeding for bankruptcy, reorganization or arrangement pursuant to federal bankruptcy law, or any similar federal or state law, shall be filed by Maker (or if any such petition or proceeding was not so filed by Maker, but Maker or Guarantor or their respective agents, affiliates, officers or employees consented to, acquiesced in arranged or otherwise participated in bringing about the institution of such petition or proceeding), or if there shall occur any material breach or default under the provisions of Section 9 of the Mortgage rights and remedies of Lender thereunder; (entitled "Single Purpose Entity/Separateness"), the limitations on recourse set forth in this Section 12, including the provisions of clauses (i), (iiiv) and (iii) of this Section 12 above, will be null and void and completely inapplicable, and this Note shall be full recourse to Maker.
(c) Nothing contained herein shall in any manner or way release, affect or impair the right of Payee Lender to recoverobtain the appointment of a receiver; (v) constitute a prohibition against Lender to commence any appropriate action or proceeding in order for Lender to exercise its remedies against the Project and/or the Property, or (vi) constitute a waiver of the right of Lender to enforce the liability and Maker shall be fully and personally liable and subject obligation of Borrower, by money judgment or otherwise, to legal action, for the extent of any loss, damage, cost, expense, damageliability, claim or other obligation (including including, without limitation reasonable limitation, attorneys' fees and court costs) costs reasonably incurred), causes of action, suits, claims, demands and judgments of any nature or description whatsoever, that may be imposed upon, incurred by or suffered by Payee awarded against Lender or any affiliate thereof as a result of, arising out of or in connection with (and Borrower shall be personally liable and shall indemnify Lender for) the following:
(A) any continuing default beyond any applicable cure periods of the Environmental Liabilities Agreement executed by Maker for the benefit of Payee, dated of even date herewith, including the indemnification provisions contained therein;
(B) Maker's failure to obtain : ▇▇▇▇▇▇▇▇'s prior written consent conviction of a criminal act by a court of competent jurisdiction; Borrower's failure to any subordinate financing (except as permitted in Section 9(d) permit on-site inspections of the Mortgage) or any other encumbrance on Project and/or the Mortgaged Property, or to provide the financial reports and other financial information, each as required by, and in accordance with the terms and provisions of, this Agreement and the other Loan Documents; the misappropriation by Borrower or any transfer of the Mortgaged Property or majority ownership in Maker in violation of the Mortgage;
(C) the misapplication by Maker, its agents, affiliates, officers or employees Borrower Party of any funds derived from the Mortgaged Project and/or the Property, including including, without limitation, security deposits, insurance proceeds Rents, Insurance Proceeds and condemnation awards, Condemnation Awards in violation contravention of the provisions of the Loan Documents;
(D) Maker's failure to apply proceeds of rents or any other payments in respect of the leases and other income from the Mortgaged Property or any other collateral when received to the costs of maintenance and operation of the Mortgaged Property and to the payment of taxes, lien claims, insurance premiums, monthly payments of principal and interest or escrow payments or other payments due under the Loan Documents to the extent the Loan Documents require such proceeds to be then so applied;
(E) any litigation or other legal proceeding related to the Debt filed by Maker or any guarantor or indemnitor that delays or impairs Payee's ability to preserve, enforce or foreclose its lien on the Mortgaged Property, including, but not limited to, the filing of a voluntary petition concerning Maker under the U.S. Bankruptcy Code, in which action a claim, counterclaim, or defense is asserted against Payee, other than any litigation or other legal proceeding in which a final, non-appealable judgment for money damages or injunctive relief is entered against Payee;
(F) the gross negligence or willful misconduct of Maker, its agents, affiliates, officers or employees which causes or results in a material diminution, or material loss of value, of the Mortgaged Property that is not reimbursed by insurance or which gross negligence or willful misconduct exposes Payee to claims, liability or costs of defense in any litigation or other legal proceeding;
(G) the seizure or forfeiture of the Mortgaged Property, or any portion thereof, or ▇▇▇▇▇'s interest therein, resulting from criminal wrongdoing by Maker, its agents, affiliates, officers or employees;
(H) waste to the Mortgaged Property caused by the acts or omissions of Maker, its agents, affiliates, officers, employees or contractors; or the removal or disposal of any portion of the Mortgaged Property by Maker its agents, affiliates, officers, employees or contractors after an Event of Default to the extent such Mortgaged Property is not replaced by Maker with like property of equivalent value, function and design; and
(I) in the event Payee has waived (or the Mortgage does not require) the monthly collection for real and personal property taxes, assessments, or insurance premiums, then failure by Maker to pay any or all such taxes, assessments or premiums in accordance with terms of the Mortgage (except for taxes and assessment which accrue, and premiums which are payable, after either (1) the date that Payee takes title to the Mortgaged Property by foreclosure, deed-in-lieu of foreclosure or otherwise or (2) ▇▇▇▇▇ obtains the appointment of a receiver or otherwise takes possession directly as a mortgagee in possession (provided, that, Maker has relinquished possession and control of the Mortgaged Property to such receiver or Payee and is not disputing the receivership or possession by the receiver or Payee)).
(d) In addition to the foregoing, Maker shall also be fully and personally liable to Payee for any amount which Maker is fully and personally liable to Payee for under Section 12 of the Crossed Note evidencing the Crossed Loan.
Appears in 1 contract
Sources: Construction Loan Agreement
Limitations on Recourse. Notwithstanding anything in the Loan Documents to the contrary, but subject (a) Subject to the qualifications and other provisions in clauses (a), (b) and (c) of this Section 12 set forth below, Payee Mortgagee shall not enforce the liability and Maker agree that: (i) Maker obligation of Mortgagor to perform and observe the obligations contained in the Note and this Mortgage by an action or proceeding wherein a money judgment shall be liable sought against Mortgagor, except that Mortgagee may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Mortgagee to enforce and realize upon the Debt and for Note, this Mortgage, the other obligations arising under the Loan Documents to the full extent (but only to the extent) of all of Documents, and Mortgagor's interests in the Mortgaged Property and any other itemscollateral given to Mortgagee pursuant to this Mortgage and the other Loan Documents; provided, property however, that, except as specifically provided in this Section, any judgment in any such action or amounts which are collateral or security for proceeding shall be enforceable against Mortgagor only to the Loan; (ii) if a default occurs extent of Mortgagor's interest in the timely Mortgaged Property and proper payment of all or in any part of the Debt, any judicial proceedings brought by Payee against Maker shall be limited other collateral given to Mortgagee. Subject to the preservationqualifications set forth below, enforcement Mortgagee, by accepting this Note, the Mortgage and foreclosure, or any thereof, of the liens, security titles, estates, assignments, rights and security interests now or at any time hereafter securing the payment of the Debt and/or the other obligations of Maker under the Loan Documents, agrees that, except with respect to the Environmental Indemnification Agreement and/or that certain Indemnification Agreement of even date herewith (the "Indemnification Agreement") by ▇▇▇▇▇▇▇ Land and no attachmentNurseries, execution or other writ of process shall be sought, issued or levied upon any assets, properties or funds of Maker other than Inc. (the Mortgaged Property; and (iii"Indemnitor") in the event favor of a foreclosure of such liensMortgagee, security titlesit shall not ▇▇▇ for, estates, assignments, rights seek or security interests securing the payment of the Debt, no judgment for demand any deficiency upon judgment against Mortgagor in any such action or proceeding, under, by reason of or in connection with this Note or the Debt shall be sought or obtained by Payee against Maker.
(a) Nothing contained in Mortgage. The provisions of this Section 12 shall not, however (1A) be deemed to be constitute a waiver, release or impairment of any obligation evidenced or secured by the Debt Note, this Mortgage or the lien other Loan Documents; (B) impair the right of the Loan Documents upon the Mortgaged Property, or (2) preclude Payee from foreclosing under the Loan Documents in case of any default or from enforcing any of the other rights of Payee, including naming Maker Mortgagee to name Mortgagor as a party defendant in any action or suit for foreclosure and sale under this Mortgage; (C) affect the validity or enforceability of any indemnity made in connection with the Note, this Mortgage, or the other Loan Documents; (D) impair the right of Mortgagee to obtain the appointment of a receiver; (E) impair the enforcement of any other Loan Document; (F) impair the right of Mortgagee to bring suit with respect to fraud or misrepresentation by Mortgagor or any other person or entity in connection with the Loan, this Note, the Mortgage, or obtaining the appointment of a receiver other Loan Documents or prohibit Payee from obtaining a personal judgment against Maker on (G) affect the Debt to the extent (but only to the extent) such judgment may be required in order to enforce the liens, security titles, estates, assignments, rights and security interests securing payment validity or enforceability of the Debt, Environmental Indemnification Agreement or limit the liability or recourse of Mortgagor or any other party thereunder; or (3I) affect the validity or enforceability of the Indemnification Agreement or limit the liability or impair recourse of Mortgagor or any other party thereunder. Nothing set forth in this Mortgage shall be deemed to be a waiver of any way whatsoever right which Mortgagee may have under Section 506(a), 506(b), 1111(b) or any other provisions of the Guaranty U.S. Bankruptcy Code to file a claim for the full amount of the Indebtedness or to require that all collateral shall continue to secure all of the Indebtedness owing to Mortgagee in accordance with the Note and the other Loan Documents. Notwithstanding any other provisions in the Note, this Mortgage or the other Loan Documents, Mortgagor shall be fully liable for and shall indemnify Mortgagee for any or all loss, cost, liability, judgment, claim, damage or expense sustained, suffered or incurred by Mortgagee (including, without limitation, Mortgagee's reasonable attorneys' fees) arising out of or attributable or relating to (collectively and inclusive of (A) through (H) hereof):
(A) fraud, misrepresentation or criminal acts by Mortgagor or any guarantor of the "Guaranty") of even date executed and delivered Loan or their respective members, officers, directors, principals, agents, employee or affiliates in connection with the indebtedness evidenced by this Note or release, relieve, reduce, waive or impair in any way whatsoever, any obligation of any party to the Guaranty or (4) release, relieve, reduce, waive or impair in any way whatsoever any obligations of any person other than Maker which is a party to any of the other Loan Documents.
(b) In the event of fraud or material misrepresentation by Maker or any guarantor in connection with the Loan Documents or the documents delivered by Maker, or the first full Monthly Installment on this Note is not paid when due, or if any petition or proceeding for bankruptcy, reorganization or arrangement pursuant to federal bankruptcy law, or any similar federal or state law, shall be filed by Maker (or if any such petition or proceeding was not so filed by Maker, but Maker or Guarantor or their respective agents, affiliates, officers or employees consented to, acquiesced in arranged or otherwise participated in bringing about the institution of such petition or proceeding), or if there shall occur any material breach or default under the provisions of Section 9 of the Mortgage (entitled "Single Purpose Entity/Separateness"), the limitations on recourse set forth in this Section 12, including the provisions of clauses (i), (ii) and (iii) of this Section 12 above, will be null and void and completely inapplicable, and this Note shall be full recourse to Maker.
(c) Nothing contained herein shall in any manner or way release, affect or impair the right of Payee to recover, and Maker shall be fully and personally liable and subject to legal action, for any loss, cost, expense, damage, claim or other obligation (including without limitation reasonable attorneys' fees and court costs) incurred or suffered by Payee arising out of or in connection with the following:
(A) any continuing default beyond any applicable cure periods of the Environmental Liabilities Agreement executed by Maker for the benefit of Payee, dated of even date herewith, including the indemnification provisions contained thereinLoan;
(B) Maker's failure to obtain ▇▇▇▇▇'s prior written consent to any subordinate financing (except as permitted in Section 9(d) of the Mortgage) or any other encumbrance on the Mortgaged Property, or any transfer of the Mortgaged Property or majority ownership in Maker in violation of the Mortgage;
(C) the misapplication by Maker, its agents, affiliates, officers or employees of any funds derived from the Mortgaged Property, including security deposits, insurance proceeds and condemnation awards, in violation of the Loan Documents;
(D) Maker's failure to apply proceeds of rents or any other payments in respect of the leases and other income from the Mortgaged Property or any other collateral when received to the costs of maintenance and operation of the Mortgaged Property and to the payment of taxes, lien claims, insurance premiums, monthly payments of principal and interest or escrow payments or other payments due under the Loan Documents to the extent the Loan Documents require such proceeds to be then so applied;
(E) any litigation or other legal proceeding related to the Debt filed by Maker or any guarantor or indemnitor that delays or impairs Payee's ability to preserve, enforce or foreclose its lien on the Mortgaged Property, including, but not limited to, the filing of a voluntary petition concerning Maker under the U.S. Bankruptcy Code, in which action a claim, counterclaim, or defense is asserted against Payee, other than any litigation or other legal proceeding in which a final, non-appealable judgment for money damages or injunctive relief is entered against Payee;
(F) the gross negligence or willful misconduct of MakerMortgagor or any guarantor of the Loan or their respective members, its officers, directors, principals, agents, affiliates, officers employees or employees which causes affiliates with respect to their obligations to Mortgagee or results in a material diminution, or material loss of value, of with respect to the Mortgaged Property that is not reimbursed by insurance or which gross negligence or willful misconduct exposes Payee to claims, liability or costs of defense in any litigation or other legal proceeding;
(G) the seizure or forfeiture operation of the Mortgaged Property, or any portion thereof, or ▇▇▇▇▇'s interest therein, resulting from criminal wrongdoing by Maker, its agents, affiliates, officers or employeesthe physical waste of the Mortgaged Property;
(HC) waste breach of provisions in the Mortgage concerning the Environmental Laws, and/or Hazardous Substances (as such terms are defined in the Mortgage), and any indemnification of Mortgagor therein, in the Environmental Indemnification Agreement or in any other Loan Document with respect to the Mortgaged Property caused by the acts or omissions of Maker, its agents, affiliates, officers, employees or contractors; or the such Environmental Laws and/or Hazardous Substances;
(D) removal or disposal of any portion of the Mortgaged Property after default under this Note, the Mortgage, the Environmental Indemnification Agreement, or any other Loan Document;
(E) misapplication or conversion by Maker its agentsMortgagor or any guarantor of (1) any insurance proceeds paid by reason of any loss, affiliatesdamage or destruction to the Mortgaged Property; (2) any awards or other amounts received in connection with the condemnation of all or a portion of the Mortgaged Property; or (3) rents, officersincome, employees accounts receivable, issues, profits, proceeds, accounts or contractors after other amounts received by Mortgagor or any guarantor (in the case of clause (3), following an Event of Default under this Note, the Mortgage or any of the other Loan Documents);
(F) Mortgagor's failure to pay taxes, assessments, charges for labor or materials or other charges that result in liens on any portion of the Mortgaged Property, to the extent that such Mortgaged Property is not replaced by Maker with like property of equivalent value, function and design; and
(I) in the event Payee has waived (or the Mortgage does not require) the monthly collection for real and personal property taxes, assessments, or insurance premiumscharges are due following an Event of Default under this Mortgage the Note, then failure by Maker or any of the other Loan Documents, and rental income was available to pay any or all such taxes, assessments or premiums in accordance charges on a timely basis;
(G) any security deposits, advance deposits or retained rents and profits collected with terms of the Mortgage (except for taxes and assessment which accrue, and premiums which are payable, after either (1) the date that Payee takes title respect to the Mortgaged Property by foreclosure, deed-in-lieu of which are not delivered to Mortgagee upon a foreclosure or otherwise or (2) ▇▇▇▇▇ obtains the appointment of a receiver or otherwise takes possession directly as a mortgagee in possession (provided, that, Maker has relinquished possession and control of the Mortgaged Property or action in lieu thereof. The agreement of Mortgagee not to pursue recourse liability as set forth above SHALL BE AND BECOME NULL AND VOID and shall be of no further force and effect if:
(A) Mortgagor files for relief or protection under any federal, state or other bankruptcy, insolvency, reorganization or other creditor-relief laws, or an involuntary filing or petition is made, under any of such receiver or Payee laws, against Mortgagor by any of their respective creditors (other than Mortgagee) and such involuntary filing is not disputing the receivership unconditionally dismissed or possession by the receiver or Payee)).vacated within ninety (90) days; or
(dB) In addition any financial information concerning Mortgagor or any guarantor provided by Mortgagor or any guarantor (or their agents, employees or authorized representatives) is fraudulent in any material respect, contains any material fraudulent information or misrepresents in any material respect the financial condition of Mortgagor or any guarantor or Mortgagor fails to deliver such financial information. Upon the foregoing, Maker shall also be fully and personally liable to Payee for occurrence of any amount which Maker is fully and personally liable to Payee for under Section 12 of the Crossed Note evidencing foregoing events, Mortgagor shall have full recourse liability for all sums due under the Crossed LoanLoan Documents, jointly and severally with any guarantors of repayment of such sums. Nothing in this Section shall be interpreted or construed to impair, limit the liability of or otherwise affect the terms, conditions, requirements and obligations of the Guarantor under the Guaranty Agreement or Mortgagor or any indemnitor under the Environmental Indemnification Agreement or the Indemnification Agreement.
Appears in 1 contract
Sources: Open End Mortgage Deed and Security Agreement (Griffin Land & Nurseries Inc)
Limitations on Recourse. Notwithstanding anything Subject to the provisions and qualifications of this Article, Lender shall not enforce the liability and obligation of Borrower to perform and observe the obligations contained in the Note, this Agreement, the Pledge Agreement or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against Borrower, except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender to enforce and realize upon its interest under the Note, this Agreement, the Pledge Agreement and the other Loan Documents, or in the Collateral pursuant to the contraryLoan Documents; provided, but subject to the qualifications and other provisions however, that, except as specifically provided herein, any judgment in clauses (a), (b) and (c) of this Section 12 below, Payee and Maker agree that: (i) Maker any such action or proceeding shall be liable upon the Debt and for the other obligations arising under the Loan Documents to the full extent (but enforceable against Borrower only to the extent) extent of all of the Mortgaged Property and any other items, property or amounts which are collateral or security for the Loan; (ii) if a default occurs Borrower’s interest in the timely Collateral, and proper payment Lender, by accepting the Note, this Agreement, the Pledge Agreement and the other Loan Documents, shall not ▇▇▇ for, seek or demand any deficiency judgment against Borrower in any such action or proceeding under or by reason of all or under or in connection with the Note, this Agreement, the Pledge Agreement or the other Loan Documents. Notwithstanding anything to the contrary in this Agreement, the Pledge Agreement or any part of the Debt, any judicial proceedings brought by Payee against Maker shall be limited to the preservation, enforcement and foreclosure, or any thereof, of the liens, security titles, estates, assignments, rights and security interests now or at any time hereafter securing the payment of the Debt and/or the other obligations of Maker under the Loan Documents, the provisions of this Section 12.1 and no attachment, execution or the other writ of process shall be sought, issued or levied upon any assets, properties or funds of Maker other than the Mortgaged Property; and (iii) in the event of a foreclosure of such liens, security titles, estates, assignments, rights or security interests securing the payment provisions of the DebtLoan Documents shall not, no judgment for any deficiency upon the Debt shall be sought or obtained by Payee against Maker.
however: (a) Nothing contained constitute a waiver of 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 Obligations secured by the Collateral or to require that all Collateral shall continue to secure all of the Obligations owing to Lender in this Section 12 shall accordance with the Loan Documents; (1b) be deemed to be constitute a waiver, release or impairment of the Debt any obligation evidenced or the lien secured by any of the Loan Documents upon Documents; (c) impair the Mortgaged Property, or (2) preclude Payee from foreclosing under the Loan Documents in case right of any default or from enforcing any of the other rights of Payee, including naming Maker Lender to name Borrower as a party defendant in any action or suit for foreclosure and sale under the Mortgage, Pledge Agreement or obtaining other Loan Documents; (d) impair the right of Lender to obtain the appointment of a receiver or prohibit Payee from obtaining a personal judgment against Maker on the Debt to the extent receiver; (but only to the extente) such judgment may be required in order to enforce the liens, security titles, estates, assignments, rights and security interests securing payment of the Debt, or (3) limit or impair in any way whatsoever the Guaranty (the "Guaranty") of even date executed and delivered in connection with the indebtedness evidenced by this Note or release, relieve, reduce, waive or impair in any way whatsoever, any obligation of any party to the Guaranty or (4) release, relieve, reduce, waive or impair in any way whatsoever any obligations of any person other than Maker which is a party to any of the other Loan Documents.
(b) In the event of fraud or material misrepresentation by Maker or any guarantor in connection with the Loan Documents or the documents delivered by Maker, or the first full Monthly Installment on this Note is not paid when due, or if any petition or proceeding for bankruptcy, reorganization or arrangement pursuant to federal bankruptcy law, or any similar federal or state law, shall be filed by Maker (or if any such petition or proceeding was not so filed by Maker, but Maker or Guarantor or their respective agents, affiliates, officers or employees consented to, acquiesced in arranged or otherwise participated in bringing about the institution of such petition or proceeding), or if there shall occur any material breach or default under the provisions of Section 9 of the Mortgage (entitled "Single Purpose Entity/Separateness"), the limitations on recourse set forth in this Section 12, including the provisions of clauses (i), (ii) and (iii) of this Section 12 above, will be null and void and completely inapplicable, and this Note shall be full recourse to Maker.
(c) Nothing contained herein shall in any manner or way release, affect or impair the right of Payee to recover, and Maker shall be fully and personally liable and subject to legal action, for any loss, cost, expense, damage, claim or other obligation (including without limitation reasonable attorneys' fees and court costs) incurred or suffered by Payee arising out of or in connection with the following:
(A) any continuing default beyond any applicable cure periods of the Environmental Liabilities Agreement executed by Maker for the benefit of Payee, dated of even date herewith, including the indemnification provisions contained therein;
(B) Maker's failure to obtain ▇▇▇▇▇'s prior written consent to any subordinate financing (except as permitted in Section 9(d) of the Mortgage) or any other encumbrance on the Mortgaged Property, or any transfer of the Mortgaged Property or majority ownership in Maker in violation of the Mortgage;
(C) the misapplication by Maker, its agents, affiliates, officers or employees of any funds derived from the Mortgaged Property, including security deposits, insurance proceeds and condemnation awards, in violation enforcement of the Loan Documents;
; or (Df) Maker's failure constitute a prohibition against Lender to apply proceeds of rents seek a deficiency judgment against Borrower (to be realized, subject to Sections 12.2 and 12.3 below, solely from the Collateral and Borrower’s equity interest, if any, in the Collateral) in order to fully realize the security granted by the Pledge Agreement and other Loan Documents or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against the Pledged Collateral or any other payments in respect of the leases and other income from the Mortgaged Property or any other collateral when received to the costs of maintenance and operation of the Mortgaged Property and to the payment of taxes, lien claims, insurance premiums, monthly payments of principal and interest or escrow payments or other payments due under the Loan Documents to the extent the Loan Documents require such proceeds to be then so applied;
(E) any litigation or other legal proceeding related to the Debt filed by Maker or any guarantor or indemnitor that delays or impairs Payee's ability to preserve, enforce or foreclose its lien on the Mortgaged Property, including, but not limited to, the filing of a voluntary petition concerning Maker under the U.S. Bankruptcy Code, in which action a claim, counterclaim, or defense is asserted against Payee, other than any litigation or other legal proceeding in which a final, non-appealable judgment for money damages or injunctive relief is entered against Payee;
(F) the gross negligence or willful misconduct of Maker, its agents, affiliates, officers or employees which causes or results in a material diminution, or material loss of value, of the Mortgaged Property that is not reimbursed by insurance or which gross negligence or willful misconduct exposes Payee to claims, liability or costs of defense in any litigation or other legal proceeding;
(G) the seizure or forfeiture of the Mortgaged Property, or any portion thereof, or ▇▇▇▇▇'s interest therein, resulting from criminal wrongdoing by Maker, its agents, affiliates, officers or employees;
(H) waste to the Mortgaged Property caused by the acts or omissions of Maker, its agents, affiliates, officers, employees or contractors; or the removal or disposal of any portion of the Mortgaged Property by Maker its agents, affiliates, officers, employees or contractors after an Event of Default to the extent such Mortgaged Property is not replaced by Maker with like property of equivalent value, function and design; and
(I) in the event Payee has waived (or the Mortgage does not require) the monthly collection for real and personal property taxes, assessments, or insurance premiums, then failure by Maker to pay any or all such taxes, assessments or premiums in accordance with terms of the Mortgage (except for taxes and assessment which accrue, and premiums which are payable, after either (1) the date that Payee takes title to the Mortgaged Property by foreclosure, deed-in-lieu of foreclosure or otherwise or (2) ▇▇▇▇▇ obtains the appointment of a receiver or otherwise takes possession directly as a mortgagee in possession (provided, that, Maker has relinquished possession and control of the Mortgaged Property to such receiver or Payee and is not disputing the receivership or possession by the receiver or Payee))Collateral.
(d) In addition to the foregoing, Maker shall also be fully and personally liable to Payee for any amount which Maker is fully and personally liable to Payee for under Section 12 of the Crossed Note evidencing the Crossed Loan.
Appears in 1 contract
Sources: Mezzanine Loan Agreement (Strategic Storage Trust II, Inc.)
Limitations on Recourse. Notwithstanding anything in the Loan Documents to the contrary, but subject to the qualifications and other provisions in clauses (a)) The Certificate Purchasers, (b) the Trustees and (c) of this Section 12 below, Payee and Maker the Investment Trust agree that: (i) Maker shall be liable upon the Debt and for the other obligations arising under the Loan Documents to the full extent (but only to the extent) of all that their rights in respect of the Mortgaged Property obligations of Deepwater to pay Charter Hire, and any other items, property claim or amounts which are collateral or security for the Loan; (ii) if a default occurs in the timely and proper payment of all liability under this Agreement or any part of the Debt, any judicial proceedings brought by Payee against Maker other Transaction Document shall be limited to satisfaction out of, and enforcement against, the preservationCollateral. The Certificate Purchasers, enforcement the Trustees and foreclosure, the Investment Trust hereby acknowledge and agree that none of the Non-Recourse Parties shall have any liability to all or any thereof, of the liensCertificate Purchasers, security titles, estates, assignments, rights and security interests now the Trustees or at any time hereafter securing the Investment Trust for the payment of any sums now or hereafter owing by Deepwater under this Agreement or any other Transaction Document or for the Debt and/or performance of any of the other obligations of Maker under Deepwater contained herein or therein or shall otherwise be liable or responsible with respect thereto (such liability, including such as may arise by operation of law, being hereby expressly waived), except as provided in this Section 12.13. If (i) any Event of Default shall occur and be continuing or (ii) any claim of any Certificate Purchasers, the Loan Documents, Investment Trust and no attachment, execution the Trustees against or other writ alleged liability to such Persons of process Deepwater shall be soughtasserted under this Agreement or any other Transaction Document, issued the Certificate Purchasers, the Trustees and the Investment Trust agree that they shall not have the right to proceed directly or levied upon any assets, indirectly against the Non-Recourse Parties or against their respective properties or funds of Maker and assets (other than the Mortgaged Property; and (iiiCollateral) in for the event satisfaction of a foreclosure of such liens, security titles, estates, assignments, rights or security interests securing the payment any of the Debt, no judgment obligations of Deepwater to pay Charter Hire or of any such claim or liability or for any deficiency upon judgment (except to the Debt shall be sought extent enforceable out of the Collateral) in respect of such obligations or obtained by Payee against Maker.
(a) Nothing any such claim or liability. The foregoing notwithstanding, it is expressly understood and agreed that nothing contained in this Section 12 12.13 shall (1) be deemed to be a (a) release any Non- Recourse Party from liability for its fraudulent actions or impairment of the Debt or the lien of the Loan Documents upon the Mortgaged Property, willful misconduct or (2b) preclude Payee from foreclosing limit or affect the obligations of any Non-Recourse Party in accordance with the terms of this Agreement or any other Transaction Document creating such obligation to which such Non-Recourse Party is a party, including, without limitation, the obligations of Conoco or R&B Falcon under the Loan Documents in case of any default Drilling Contract Guaranties or from enforcing any of the other rights of Payee, including naming Maker as a party defendant in any action or suit for foreclosure and sale under the Mortgage, or obtaining the appointment of a receiver or prohibit Payee from obtaining a personal judgment against Maker on the Debt with respect to the extent (but only to the extent) such judgment may be required in order to enforce the liens, security titles, estates, assignments, rights and security interests securing payment of the DebtResidual Guaranty Amount, or (3) limit or impair in any way whatsoever the Guaranty (the "Guaranty") of even date executed and delivered in connection with the indebtedness evidenced by this Note or release, relieve, reduce, waive or impair in any way whatsoever, any obligation of any party to the Guaranty or (4) release, relieve, reduce, waive or impair in any way whatsoever any obligations of the Drilling Parties under the Drilling Contracts. The foregoing acknowledgments, agreements and waivers shall be enforceable by any person other than Maker which is a party to any of the other Loan DocumentsNon-Recourse Party.
(b) In Deepwater, Conoco and R&B Falcon hereby acknowledge and agree that none of the event Documentation Agent, the Trustees and the Certificate Purchasers shall have any personal liability whatsoever to Deepwater, Conoco, R&B Falcon or their respective successors or assigns for any claim based on or in respect of fraud this Agreement or material misrepresentation by Maker arising from the transactions contemplated hereby. Subject to Section 6.1 of the Master Charter, the sole recourse of Deepwater, Conoco or R&B Falcon or any guarantor in connection with Person claiming through or on behalf thereof for any such claims arising hereunder will be to the Loan Documents Trust Estate. Each of Deepwater, Conoco and R&B Falcon further acknowledges and agrees that it has no rights (as third-party beneficiary or otherwise) or standing under any agreement between the documents delivered by MakerTrustees and any or all of the Investment Trust, the Documentation Agent, or the first full Monthly Installment on this Note is Certificate Purchasers which agreements are not paid when dueby their terms intended for the benefit of other parties other than Sections 5.2,5.3, or if any petition or proceeding for bankruptcy, reorganization or arrangement pursuant to federal bankruptcy law, or any similar federal or state law, shall be filed by Maker (or if any such petition or proceeding was not so filed by Maker, but Maker or Guarantor or their respective agents, affiliates, officers or employees consented to, acquiesced in arranged or otherwise participated in bringing about the institution of such petition or proceeding), or if there shall occur any material breach or default under the provisions of Section 9 5.4 and 5.5 of the Mortgage (entitled "Single Purpose Entity/Separateness")Charter Trust Agreement and Sections 5.2, 5.3, 5.4 and 5.5 of the limitations on recourse set forth in this Section 12, including the provisions of clauses (i), (ii) and (iii) of this Section 12 above, will be null and void and completely inapplicable, and this Note shall be full recourse to MakerInvestment Trust Agreement.
(c) Nothing contained It is expressly understood and agreed by the parties hereto that (a) this Agreement and the other Transactions Documents executed by either Trustee, are not being executed in such Trustee s respective personal capacities, except as expressly stated herein shall or therein, but solely (i) in any manner or way releasethe case of Wilmington Trust Company, affect or impair (x) as charter trustee under the right of Payee Charter Trust Agreement and, (y) solely with respect to recoverthe Depository Agreement, as Depository and Securities Intermediary thereunder, and Maker (ii) in the case of Wilmington Trust FSB, as investment trustee under the Investment Trust Agreement and (b) under no circumstances shall either Trustee be fully and personally liable and subject to legal action, for any loss, cost, expense, damage, claim or other obligation (including without limitation reasonable attorneys' fees and court costs) incurred or suffered by Payee arising out of or in connection with the following:
(A) any continuing default beyond any applicable cure periods of the Environmental Liabilities Agreement executed by Maker for the benefit of Payee, dated of even date herewith, including the indemnification provisions contained therein;
(B) Maker's failure to obtain ▇▇▇▇▇'s prior written consent to any subordinate financing (except as permitted in Section 9(d) of the Mortgage) or any other encumbrance on the Mortgaged Property, or any transfer of the Mortgaged Property or majority ownership in Maker in violation of the Mortgage;
(C) the misapplication by Maker, its agents, affiliates, officers or employees of any funds derived from the Mortgaged Property, including security deposits, insurance proceeds and condemnation awards, in violation of the Loan Documents;
(D) Maker's failure to apply proceeds of rents or any other payments in respect of the leases and other income from the Mortgaged Property or any other collateral when received to the costs of maintenance and operation of the Mortgaged Property and to the payment of taxesany indebtedness or expenses of the Charter Trust or the Investment Trust, lien claimsas applicable, insurance premiumsor be liable for the breach or failure of any obligation, monthly payments of principal and interest representation, warranty or escrow payments covenant made or undertaken by the Charter Trustee or Investment Trust, as applicable, under this Agreement, any other payments due under the Loan Documents Transaction Document or any related agreement, except to the extent the Loan Documents require such proceeds to be then so applied;
(E) any litigation or other legal proceeding related to the Debt filed by Maker or any guarantor or indemnitor that delays or impairs Payee's ability to preserve, enforce or foreclose its lien on the Mortgaged Property, including, but not limited to, the filing of a voluntary petition concerning Maker under the U.S. Bankruptcy Code, in which action a claim, counterclaim, or defense is asserted against Payee, other than any litigation or other legal proceeding in which a final, non-appealable judgment for money damages or injunctive relief is entered against Payee;
(F) the gross negligence or willful misconduct of Maker, its agents, affiliates, officers or employees which causes or results in a material diminution, or material loss of value, of the Mortgaged Property that is not reimbursed by insurance or which gross negligence or willful misconduct exposes Payee to claimsCharter Trust Estate and the Investment Trust Estate, liability or costs of defense in any litigation or other legal proceeding;
(G) the seizure or forfeiture of the Mortgaged Property, or any portion thereof, or ▇▇▇▇▇'s interest therein, resulting from criminal wrongdoing by Maker, its agents, affiliates, officers or employees;
(H) waste to the Mortgaged Property caused by the acts or omissions of Maker, its agents, affiliates, officers, employees or contractors; or the removal or disposal of any portion of the Mortgaged Property by Maker its agents, affiliates, officers, employees or contractors after an Event of Default to the extent such Mortgaged Property is not replaced by Maker with like property of equivalent value, function and design; and
(I) in the event Payee has waived (or the Mortgage does not require) the monthly collection for real and personal property taxes, assessments, or insurance premiums, then failure by Maker to pay any or all such taxes, assessments or premiums in accordance with terms of the Mortgage (except for taxes and assessment which accrue, and premiums which are payable, after either (1) the date that Payee takes title to the Mortgaged Property by foreclosure, deed-in-lieu of foreclosure or otherwise or (2) ▇▇▇▇▇ obtains the appointment of a receiver or otherwise takes possession directly as a mortgagee in possession (provided, that, Maker has relinquished possession and control of the Mortgaged Property to such receiver or Payee and is not disputing the receivership or possession by the receiver or Payee))respectively.
(d) In addition to the foregoing, Maker shall also be fully and personally liable to Payee for any amount which Maker is fully and personally liable to Payee for under Section 12 of the Crossed Note evidencing the Crossed Loan.
Appears in 1 contract
Limitations on Recourse. (a) Notwithstanding anything in the Loan Documents to the contrary----------------------- contrary set forth in this Agreement or in any of the other Credit Documents, but subject to the qualifications last sentence of this Section 12.18(a) and other provisions in clauses (a), clause (b) and (c) of this Section 12 below12.18, Payee the Borrower's Obligations hereunder and Maker agree that: (i) Maker under the other Credit Documents shall be liable upon limited recourse obligations of the Debt Borrower, enforceable against the Borrower (and for its assets) only and not against any constituent partner in the other obligations arising Borrower. The foregoing provisions of this Section 12.18 shall not impair the liability of the Subsidiary Guarantors under the Loan Documents to Subsidiaries Guaranty or the full extent (but only to liens and security interests created by the extent) of all of the Mortgaged Property Pledge and any other items, property or amounts Security Agreement which are collateral or were granted as security for the Loan; Obligations of the Borrower and the Guaranteed Obligations (ii) if a default occurs as defined in the timely and proper payment of all or any part Subsidiaries Guaranty) of the Debt, any judicial proceedings brought by Payee against Maker shall be limited to the preservation, enforcement and foreclosure, or any thereof, of the liens, security titles, estates, assignments, rights and security interests now or at any time hereafter securing the payment of the Debt and/or the other obligations of Maker under the Loan Documents, and no attachment, execution or other writ of process shall be sought, issued or levied upon any assets, properties or funds of Maker other than the Mortgaged Property; and (iii) in the event of a foreclosure of such liens, security titles, estates, assignments, rights or security interests securing the payment of the Debt, no judgment for any deficiency upon the Debt shall be sought or obtained by Payee against MakerSubsidiary Guarantors.
(b) Notwithstanding the foregoing provisions of clause (a) Nothing contained in of this Section 12 12.18, (x) the Administrative Agent and the Banks shall have recourse to Holdings (1in its capacity as the general partner in the Borrower) be deemed to be a release or impairment of the Debt or the lien of the Loan Documents upon the Mortgaged Property, or (2) preclude Payee from foreclosing under the Loan Documents in case of any default or from enforcing any of the other rights of Payee, including naming Maker as a party defendant in any action or suit for foreclosure and sale under the Mortgage, or obtaining the appointment of a receiver or prohibit Payee from obtaining a personal judgment against Maker on the Debt to the extent (but only to the extent) such judgment may be required in order to enforce the liens, security titles, estates, assignments, rights and security interests securing payment of the Debt, or (3) limit or impair in any way whatsoever the Guaranty (the "Guaranty") of even date executed and delivered in connection with the indebtedness evidenced by this Note or release, relieve, reduce, waive or impair in any way whatsoever, any obligation of any party to the Guaranty or (4) release, relieve, reduce, waive or impair in any way whatsoever any obligations of any person other than Maker which is a party to any of the other Loan Documents.
(b) In the event of fraud or material misrepresentation by Maker or any guarantor in connection with the Loan Documents or the documents delivered by Maker, or the first full Monthly Installment on this Note is not paid when due, or if any petition or proceeding for bankruptcy, reorganization or arrangement pursuant to federal bankruptcy law, or any similar federal or state law, shall be filed by Maker (or if any such petition or proceeding was not so filed by Maker, but Maker or Guarantor or their respective agents, affiliates, officers or employees consented to, acquiesced in arranged or otherwise participated in bringing about the institution of such petition or proceeding), or if there shall occur any material breach or default under the provisions of Section 9 of the Mortgage (entitled "Single Purpose Entity/Separateness"), the limitations on recourse set forth in this Section 12, including the provisions of clauses (i), (ii) and (iii) of this Section 12 above, will be null and void and completely inapplicable, and this Note shall be full recourse to Maker.
(c) Nothing contained herein shall in any manner or way release, affect or impair the right of Payee to recover, and Maker shall be fully and personally liable and subject to legal action, for any loss, cost, expense, damage, claim expense or other obligation liability incurred by the Administrative Agent or any of the Banks by reason of (including without limitation reasonable attorneys' fees i) any fraudulent misrepresentation made by Holdings in or pursuant to the Credit Documents, (ii) any unlawful act on the part of Holdings, or (iii) any misappropriation of funds by Holdings in contravention of the provisions of the Credit Documents and court costs(y) incurred or suffered by Payee arising out of or in connection Holdings shall automatically be and become jointly and severally obligated with the following:
(A) any continuing default beyond any applicable cure periods Borrower in respect of all of the Environmental Liabilities Agreement executed Obligations from and after any breach by Maker for Holdings of the benefit of Payee, dated of even date herewith, including the indemnification provisions covenant contained therein;
(B) Maker's failure to obtain ▇▇▇▇▇'s prior written consent to any subordinate financing (except as permitted in Section 9(d8.16(b). Additionally, upon the occurrence of the event specified in clause (y) of the Mortgage) or any other encumbrance on preceding sentence, the Mortgaged Property, or any transfer Pledge and Security Agreement shall be reinstated as to Holdings for purposes of securing the Mortgaged Property or majority ownership in Maker in violation joint and several liability of the Mortgage;
(C) the misapplication by Maker, its agents, affiliates, officers or employees of any funds derived from the Mortgaged Property, including security deposits, insurance proceeds and condemnation awards, in violation of the Loan Documents;
(D) Maker's failure to apply proceeds of rents or any other payments Holdings in respect of the leases and other income from Obligations. At the Mortgaged Property or any other collateral when received to the costs of maintenance and operation request of the Mortgaged Property and to the payment of taxesAdministrative Agent, lien claims, insurance premiums, monthly payments of principal and interest or escrow payments or other payments due under the Loan Documents to the extent the Loan Documents require such proceeds to be then so applied;
Holdings shall (Eat its expense) any litigation or other legal proceeding related to the Debt filed by Maker or any guarantor or indemnitor that delays or impairs Payee's ability to preserve, enforce or foreclose its lien on the Mortgaged Property, including, but not limited to, the filing of a voluntary petition concerning Maker under the U.S. Bankruptcy Code, in which action a claim, counterclaim, or defense is asserted against Payee, other than any litigation or other legal proceeding in which a final, non-appealable judgment for money damages or injunctive relief is entered against Payee;
(F) the gross negligence or willful misconduct of Maker, its agents, affiliates, officers or employees which causes or results in a material diminution, or material loss of value, of the Mortgaged Property that is not reimbursed by insurance or which gross negligence or willful misconduct exposes Payee to claims, liability or costs of defense in any litigation or other legal proceeding;
(G) the seizure or forfeiture of the Mortgaged Property, or any portion thereof, or ▇▇▇▇▇'s interest therein, resulting from criminal wrongdoing by Maker, its agents, affiliates, officers or employees;
(H) waste to the Mortgaged Property caused take all actions deemed reasonably necessary by the acts or omissions Administrative Agent to confirm the provisions of Maker, its agents, affiliates, officers, employees or contractors; or the removal or disposal of any portion of the Mortgaged Property by Maker its agents, affiliates, officers, employees or contractors after an Event of Default to the extent such Mortgaged Property is not replaced by Maker with like property of equivalent value, function and design; and
(I) in the event Payee has waived (or the Mortgage does not require) the monthly collection for real and personal property taxes, assessments, or insurance premiums, then failure by Maker to pay any or all such taxes, assessments or premiums in accordance with terms of the Mortgage (except for taxes and assessment which accrue, and premiums which are payable, after either (1) the date that Payee takes title to the Mortgaged Property by foreclosure, deed-in-lieu of foreclosure or otherwise or (2) ▇▇▇▇▇ obtains the appointment of a receiver or otherwise takes possession directly as a mortgagee in possession (provided, that, Maker has relinquished possession and control of the Mortgaged Property to such receiver or Payee and is not disputing the receivership or possession by the receiver or Payeethis Section 12.18(b)).
(d) In addition to the foregoing, Maker shall also be fully and personally liable to Payee for any amount which Maker is fully and personally liable to Payee for under Section 12 of the Crossed Note evidencing the Crossed Loan.. * * *
Appears in 1 contract
Limitations on Recourse. Notwithstanding anything in the Loan Documents to the contraryThe Borrower hereby agrees that, but subject to the qualifications and other provisions in clauses (a), (b) and (c) of this Section 12 below, Payee and Maker agree that: (i) Maker shall be liable upon the Debt and for the other obligations arising under the Loan Documents to the full extent (but only to the extent) of all of the Mortgaged Property and any other items, property or amounts which are collateral or security for the Loan; (ii) if a default occurs in the timely and proper payment of all or any part of the Debtexcept ----------------------- as hereinafter set forth, any judicial proceedings brought claim or liability under this Agreement, the Notes, the Letters of Credit or the Collateral Security Documents asserted against the Owner Trustee by Payee against Maker it shall be limited to satisfaction out of, and enforcement against, the preservationTrust Estate (as defined in the Trust Agreement). Notwithstanding anything to the contrary contained herein or in any other document, enforcement certificate or instrument executed by the Owner Trustee pursuant hereto or thereto, the Borrower hereby acknowledges and foreclosureagrees that neither the Owner Trustee, Linden Owner Partnership nor any officer, employee, partner, servant, controlling Person, manager, agent, authorized representative or any thereof, Affiliate of the liensOwner Trustee or Linden Owner Partnership (collectively, security titlesthe "Non-Recourse Persons") shall have any liability -------------------- to the Borrower or the General Partner (such liability, estatesincluding such as may arise by operation of law, assignments, rights and security interests now or at being hereby expressly waived) for the performance of any time hereafter securing the payment of the Debt and/or the other obligations of Maker the Owner Trustee contained herein or therein or shall otherwise be liable or responsible with respect thereto, except as hereinafter set forth. If any claim of the Borrower against the Owner Trustee or alleged liability to the Borrower of the Owner Trustee shall be asserted under this Agreement or the Loan Collateral Security Documents, the Borrower agrees that, except as hereinafter set forth, it shall not have the right to proceed directly or indirectly against the Non-Recourse Persons or against their respective properties and no attachment, execution or other writ of process shall be sought, issued or levied upon any assets, properties or funds of Maker assets (other than the Mortgaged Property; and Trust Estate) for the satisfaction of any such claim or liability (iiiexcept to the extent enforceable out of the Trust Estate) in the event respect of a foreclosure of any such liens, security titles, estates, assignments, rights claim or security interests securing the payment liability. Notwithstanding any of the Debtforegoing, no judgment for any deficiency upon the Debt shall be sought or obtained by Payee against Maker.
(a) Nothing it is expressly understood and agreed, however, that nothing contained in this Section 12 shall (1) be deemed to be a release or impairment of the Debt or the lien of the Loan Documents upon the Mortgaged Property, or (2) preclude Payee from foreclosing under the Loan Documents in case of any default or from enforcing any of the other rights of Payee, including naming Maker as a party defendant in any action or suit for foreclosure and sale under the Mortgage, or obtaining the appointment of a receiver or prohibit Payee from obtaining a personal judgment against Maker on the Debt to the extent (but only to the extent) such judgment may be required in order to enforce the liens, security titles, estates, assignments, rights and security interests securing payment of the Debt, or (3) limit or impair in any way whatsoever the Guaranty (the "Guaranty") of even date executed and delivered in connection with the indebtedness evidenced by this Note or release, relieve, reduce, waive or impair in any way whatsoever, any obligation of any party to the Guaranty or (4) release, relieve, reduce, waive or impair in any way whatsoever any obligations of any person other than Maker which is a party to any of the other Loan Documents.
(b) In the event of fraud or material misrepresentation by Maker or any guarantor in connection with the Loan Documents or the documents delivered by Maker, or the first full Monthly Installment on this Note is not paid when due, or if any petition or proceeding for bankruptcy, reorganization or arrangement pursuant to federal bankruptcy law, or any similar federal or state law, shall be filed by Maker (or if any such petition or proceeding was not so filed by Maker, but Maker or Guarantor or their respective agents, affiliates, officers or employees consented to, acquiesced in arranged or otherwise participated in bringing about the institution of such petition or proceeding), or if there shall occur any material breach or default under the provisions of Section 9 of the Mortgage (entitled "Single Purpose Entity/Separateness"), the limitations on recourse set forth in this Section 12, including the provisions of clauses (i), (ii) and (iii) of this Section 12 above, will be null and void and completely inapplicable, and this Note shall be full recourse to Maker.
(c) Nothing contained herein subsection 9.16 shall in any manner or any way release, (a) affect or impair the right diminish any obligation, covenant or agreement of Payee to recover, and Maker shall be fully and personally liable and subject to legal action, for any loss, cost, expense, damage, claim or other obligation (including without limitation reasonable attorneys' fees and court costs) incurred or suffered by Payee arising out of or Non-Recourse Person made expressly in connection with the following:
(A) its individual capacity under any continuing default beyond any applicable cure periods of the Environmental Liabilities Agreement certificate executed by Maker for the such Non- Recourse Person on its own behalf or any right or benefit of Payee, dated any party hereto under any such certificate or (b) affect or diminish any rights of even date herewith, including the indemnification provisions contained therein;
(B) Maker's failure to obtain ▇▇▇▇▇'s prior written consent to any subordinate financing (except as permitted in Section 9(d) of the Mortgage) or Person against any other encumbrance on the Mortgaged Property, Person arising from misappropriation or any transfer of the Mortgaged Property or majority ownership in Maker in violation of the Mortgage;
(C) the misapplication by Maker, its agents, affiliates, officers or employees of any funds derived from the Mortgaged Propertyor for such other Person's fraud, including security deposits, insurance proceeds and condemnation awards, in violation of the Loan Documents;
(D) Maker's failure to apply proceeds of rents or any other payments in respect of the leases and other income from the Mortgaged Property or any other collateral when received to the costs of maintenance and operation of the Mortgaged Property and to the payment of taxes, lien claims, insurance premiums, monthly payments of principal and interest or escrow payments or other payments due under the Loan Documents to the extent the Loan Documents require such proceeds to be then so applied;
(E) any litigation or other legal proceeding related to the Debt filed by Maker or any guarantor or indemnitor that delays or impairs Payee's ability to preserve, enforce or foreclose its lien on the Mortgaged Property, including, but not limited to, the filing of a voluntary petition concerning Maker under the U.S. Bankruptcy Code, in which action a claim, counterclaim, or defense is asserted against Payee, other than any litigation or other legal proceeding in which a final, non-appealable judgment for money damages or injunctive relief is entered against Payee;
(F) the gross negligence or willful misconduct misconduct. The foregoing acknowledgements, agreements and waivers shall survive the termination of Maker, its agents, affiliates, officers or employees which causes or results in a material diminution, or material loss of value, of the Mortgaged Property that is not reimbursed this Agreement and shall be enforceable by insurance or which gross negligence or willful misconduct exposes Payee to claims, liability or costs of defense in any litigation or other legal proceeding;
(G) the seizure or forfeiture of the Mortgaged Property, or any portion thereof, or ▇▇▇▇▇'s interest therein, resulting from criminal wrongdoing by Maker, its agents, affiliates, officers or employees;
(H) waste to the Mortgaged Property caused by the acts or omissions of Maker, its agents, affiliates, officers, employees or contractors; or the removal or disposal of any portion of the Mortgaged Property by Maker its agents, affiliates, officers, employees or contractors after an Event of Default to the extent such Mortgaged Property is not replaced by Maker with like property of equivalent value, function and design; and
(I) in the event Payee has waived (or the Mortgage does not require) the monthly collection for real and personal property taxes, assessments, or insurance premiums, then failure by Maker to pay any or all such taxes, assessments or premiums in accordance with terms of the Mortgage (except for taxes and assessment which accrue, and premiums which are payable, after either (1) the date that Payee takes title to the Mortgaged Property by foreclosure, deedNon-in-lieu of foreclosure or otherwise or (2) ▇▇▇▇▇ obtains the appointment of a receiver or otherwise takes possession directly as a mortgagee in possession (provided, that, Maker has relinquished possession and control of the Mortgaged Property to such receiver or Payee and is not disputing the receivership or possession by the receiver or Payee))Recourse Person.
(d) In addition to the foregoing, Maker shall also be fully and personally liable to Payee for any amount which Maker is fully and personally liable to Payee for under Section 12 of the Crossed Note evidencing the Crossed Loan.
Appears in 1 contract
Limitations on Recourse. Notwithstanding anything The parties hereto agree that except as specifically set forth in the Loan Documents Master Lease or in any other Operative Document, neither the Lessor Trust nor the Agent Certificate Holders shall have any personal liability whatsoever to the contraryLessee or its respective successors and assigns for any claim based on or in respect of the Master Lease or any of the other Operative Documents or arising in any way from the transactions contemplated hereby or thereby and the recourse shall be solely had against the Lessor Trust's or the Agent Certificate Holders in the Properties; provided, but subject to however, that the qualifications Lessor Trust and other provisions in clauses (a), (b) and (c) each of this Section 12 below, Payee and Maker agree that: (i) Maker the Agent Certificate Holders shall be liable upon the Debt and for the other obligations arising under the Loan Documents to the full extent (but only to the extent) of all of the Mortgaged Property and any other items, property or amounts which are collateral or security for the Loan; (ii) if a default occurs in the timely and proper payment of all or any part of the Debt, any judicial proceedings brought by Payee against Maker shall be limited to the preservation, enforcement and foreclosure, or any thereof, of the liens, security titles, estates, assignments, rights and security interests now or at any time hereafter securing the payment of the Debt and/or the other obligations of Maker under the Loan Documents, and no attachment, execution or other writ of process shall be sought, issued or levied upon any assets, properties or funds of Maker other than the Mortgaged Property; and (iii) in the event of a foreclosure of such liens, security titles, estates, assignments, rights or security interests securing the payment of the Debt, no judgment for any deficiency upon the Debt shall be sought or obtained by Payee against Maker.its individual capacity:
(a) Nothing contained for its own willful misconduct or gross negligence (or negligence in this Section 12 shall (1) be deemed the handling of funds, including, without limitation, failure to be a release or impairment of the Debt or the lien of the Loan Documents upon the Mortgaged Property, or (2) preclude Payee from foreclosing under the Loan Documents in case of any default or from enforcing any of the other rights of Payee, including naming Maker as a party defendant in any action or suit for foreclosure and sale under the Mortgage, or obtaining the appointment of a receiver or prohibit Payee from obtaining a personal judgment against Maker on the Debt make Advances to the extent (but only to Lessee or Construction Agent as contemplated by the extent) such judgment may be required in order to enforce the liens, security titles, estates, assignments, rights and security interests securing payment of the Debt, or (3) limit or impair in any way whatsoever the Guaranty (the "Guaranty") of even date executed and delivered in connection with the indebtedness evidenced by this Note or release, relieve, reduce, waive or impair in any way whatsoever, any obligation of any party to the Guaranty or (4) release, relieve, reduce, waive or impair in any way whatsoever any obligations of any person other than Maker which is a party to any of the other Loan Operative Documents.),
(b) In for breach of any of its representations, warranties or covenants under the event of fraud or material misrepresentation by Maker or Operative Documents, including, without limitation, any guarantor in connection with failure to convey the Loan Documents or Properties to the documents delivered by Maker, or the first full Monthly Installment on this Note is not paid when due, or if any petition or proceeding for bankruptcy, reorganization or arrangement Lessee pursuant to federal bankruptcy lawthe Operative Documents, or any similar federal or state law, shall be filed by Maker (or if any such petition or proceeding was not so filed by Maker, but Maker or Guarantor or their respective agents, affiliates, officers or employees consented to, acquiesced in arranged or otherwise participated in bringing about the institution of such petition or proceeding), or if there shall occur any material breach or default under the provisions of Section 9 of the Mortgage (entitled "Single Purpose Entity/Separateness"), the limitations on recourse set forth in this Section 12, including the provisions of clauses (i), (ii) and (iii) of this Section 12 above, will be null and void and completely inapplicable, and this Note shall be full recourse to Maker.or
(c) Nothing contained herein shall in any manner or way release, affect or impair the right of Payee to recover, and Maker shall be fully and personally liable and subject to legal action, for any lossTax based on or measured by any fees, costcommission or compensation received by it for acting as the Agent Certificate Holders as contemplated by the Operative Documents. It is understood and agreed that, expense, damage, claim or other obligation (including without limitation reasonable attorneys' fees and court costs) incurred or suffered by Payee arising out of or except as provided in connection with the followingpreceding sentence:
(Ai) neither the Lessor Trust nor the Agent Certificate Holders shall have any continuing default beyond personal liability under any applicable cure periods of the Environmental Liabilities Agreement executed by Maker for the benefit Operative Documents as a result of Payee, dated of even date herewith, including the indemnification provisions contained therein;
(B) Maker's failure acting pursuant to obtain ▇▇▇▇▇'s prior written consent to and consistent with any subordinate financing (except as permitted in Section 9(d) of the Mortgage) or any other encumbrance on the Mortgaged Property, or any transfer of the Mortgaged Property or majority ownership in Maker in violation of the Mortgage;
(C) the misapplication by Maker, its agents, affiliates, officers or employees of any funds derived from the Mortgaged Property, including security deposits, insurance proceeds and condemnation awards, in violation of the Loan Operative Documents;
(Dii) Maker's failure to apply proceeds of rents or any other payments in respect all obligations of the leases Lessor Trust and other income from the Mortgaged Property or any other collateral when received each Agent Certificate Holder to the costs of maintenance and operation of the Mortgaged Property and to the payment of taxes, lien claims, insurance premiums, monthly payments of principal and interest or escrow payments or other payments due under the Loan Documents Lessee are solely nonrecourse obligations except to the extent that the Loan Documents require Lessor Trust or such proceeds to be then so applied;
(E) any litigation or other legal proceeding related to the Debt filed by Maker or any guarantor or indemnitor that delays or impairs Payee's ability to preserve, enforce or foreclose its lien on the Mortgaged Property, including, but not limited to, the filing of a voluntary petition concerning Maker under the U.S. Bankruptcy Code, in which action a claim, counterclaim, or defense is asserted against Payee, other than any litigation or other legal proceeding in which a final, non-appealable judgment for money damages or injunctive relief is entered against Payee;
(F) the gross negligence or willful misconduct of Maker, its agents, affiliates, officers or employees which causes or results in a material diminution, or material loss of value, of the Mortgaged Property that is not reimbursed by insurance or which gross negligence or willful misconduct exposes Payee to claims, liability or costs of defense in any litigation or other legal proceeding;
(G) the seizure or forfeiture of the Mortgaged Property, or any portion thereof, or ▇▇▇▇▇'s interest therein, resulting Agent Certificate Holder has received payment from criminal wrongdoing by Maker, its agents, affiliates, officers or employees;
(H) waste to the Mortgaged Property caused by the acts or omissions of Maker, its agents, affiliates, officers, employees or contractors; or the removal or disposal of any portion of the Mortgaged Property by Maker its agents, affiliates, officers, employees or contractors after an Event of Default to the extent such Mortgaged Property is not replaced by Maker with like property of equivalent value, function and designothers; and
(Iiii) in the event Payee has waived (or the Mortgage does not require) the monthly collection for real and personal property taxes, assessments, or insurance premiums, then failure by Maker to pay any or all such taxes, assessments or premiums in accordance with terms personal liability of the Mortgage (except for taxes Lessor Trust and assessment which accrueeach such Agent Certificate Holder is expressly waived and released as a condition of, and premiums which are payableas consideration for, after either (1) the date that Payee takes title to the Mortgaged Property by foreclosure, deed-in-lieu of foreclosure or otherwise or (2) ▇▇▇▇▇ obtains the appointment of a receiver or otherwise takes possession directly as a mortgagee in possession (provided, that, Maker has relinquished possession execution and control delivery of the Mortgaged Property to such receiver or Payee and is not disputing the receivership or possession Operative Documents by the receiver or Payee))Lessor Trust and each such Agent Certificate Holder.
(d) In addition to the foregoing, Maker shall also be fully and personally liable to Payee for any amount which Maker is fully and personally liable to Payee for under Section 12 of the Crossed Note evidencing the Crossed Loan.
Appears in 1 contract
Limitations on Recourse. Notwithstanding anything in the Loan Documents to the contrary, but subject (a) Subject to the qualifications and other provisions set forth in clauses this Section, neither Maker nor Guarantor nor any partner, member, shareholder, officer or director of either of them (a)collectively, (bthe "Maker Group") and (c) of this Section 12 below, Payee and Maker agree that: (i) Maker shall be personally liable upon the Debt and either at law or in equity for the other obligations arising under the Loan Documents to the full extent (but only to the extent) of all of the Mortgaged Property and any other items, property or amounts which are collateral or security for the Loan; (ii) if a default occurs in the timely and proper payment of all or any part of the Debt, any judicial proceedings brought by Payee against Maker shall be limited to the preservation, enforcement and foreclosure, or any thereof, of the liens, security titles, estates, assignments, rights and security interests now or at any time hereafter securing the payment of the Debt and/or the other obligations of Maker under the Loan Documents, and no attachment, execution or other writ of process shall be sought, issued or levied upon any assets, properties or funds of Maker other than the Mortgaged Property; and (iii) in the event of a foreclosure of such liens, security titles, estates, assignments, rights or security interests securing the payment of the Debt, no judgment for any deficiency upon the Debt shall be sought or obtained by Payee against Maker.
(a) Nothing contained in this Section 12 shall (1) be deemed to be a release or impairment repayment of the Debt or the lien failure of performance of any other obligation evidenced by the Note or contained in the Deed of Trust or the Other Security Documents, and Pay▇▇ ▇▇ll satisfy any judgments, orders or decrees on account of the failure to repay such Debt and/or the failure to perform any such obligation, from the Property and any other real or personal property, tangible or intangible, as Maker, Guarantor or any other entity shall have pledged or assigned to secure this Note by any of the Loan Documents, except that Payee may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Payee to enforce and realize upon this Note, the Deed of Trust, the Other Security Documents, and the interests in the Property and any other collateral given to Payee pursuant to the Deed of Trust and the Other Security Documents; provided, however, that, except as specifically provided in this Section, any judgment in any such action or proceeding shall be enforceable against Maker Group only to the extent of Maker Group's interest in the Property and in any other collateral given to Payee. Pay▇▇, ▇y accepting this Note, the Deed of Trust and the Other Security Documents, agrees that it shall not sue for, seek or demand any deficiency judgment against Maker Group in any such action or proceeding, under, by reason of or in connection with the Deed of Trust, the Other Security Documents upon the Mortgaged Propertyor this Note. The provisions of this Section shall not, however: (i) constitute a waiver, release or (2) preclude Payee from foreclosing under the Loan Documents in case impairment of any default obligation evidenced or from enforcing any secured by the Deed of Trust, the other rights Environmental Agreement, the Guaranty or the Other Security Documents or this Note; (ii) impair the right of Payee, including naming Payee to name Maker as a party defendant in any action or suit for foreclosure and sale under the Mortgage, Deed of Trust; (iii) affect the validity or obtaining the appointment enforceability of a receiver any guaranty or prohibit Payee from obtaining a personal judgment against Maker on the Debt to the extent (but only to the extent) such judgment may be required in order to enforce the liens, security titles, estates, assignments, rights and security interests securing payment of the Debt, or (3) limit or impair in any way whatsoever the Guaranty (the "Guaranty") of even date executed and delivered indemnity made in connection with the indebtedness evidenced by Deed of Trust, this Note or release, relieve, reduce, waive or impair in any way whatsoever, any obligation of any party to the Guaranty or Other Security Documents; (4iv) release, relieve, reduce, waive or impair in any way whatsoever any obligations of any person other than Maker which is a party to any of the other Loan Documents.
(b) In the event of fraud or material misrepresentation by Maker or any guarantor in connection with the Loan Documents or the documents delivered by Maker, or the first full Monthly Installment on this Note is not paid when due, or if any petition or proceeding for bankruptcy, reorganization or arrangement pursuant to federal bankruptcy law, or any similar federal or state law, shall be filed by Maker (or if any such petition or proceeding was not so filed by Maker, but Maker or Guarantor or their respective agents, affiliates, officers or employees consented to, acquiesced in arranged or otherwise participated in bringing about the institution of such petition or proceeding), or if there shall occur any material breach or default under the provisions of Section 9 of the Mortgage (entitled "Single Purpose Entity/Separateness"), the limitations on recourse set forth in this Section 12, including the provisions of clauses (i), (ii) and (iii) of this Section 12 above, will be null and void and completely inapplicable, and this Note shall be full recourse to Maker.
(c) Nothing contained herein shall in any manner or way release, affect or impair the right of Payee to recover, and obtain the appointment of a receiver; (v) impair the right of Payee to bring suit with respect to fraud or misrepresentation by Maker shall be fully and personally liable and subject to legal action, for any loss, cost, expense, damage, claim or other obligation (including without limitation reasonable attorneys' fees and court costs) incurred or suffered by Payee arising out of or Maker Group in connection with the followingDeed of Trust, this Note, the Environmental Agreement, the Guaranty or the Other Security Documents; (vi) affect the validity or enforceability of the Environmental Agreement or limit the liability of Maker or Guarantor thereunder; or (vii) affect the validity or enforceability of the Guaranty or limit the liability of Guarantor thereunder.
(b) Nothing herein shall be deemed to be a waiver of any right which Payee may have under Section 506(a), 506(b), 1111(b) or any other provisions of the U.S. Bankruptcy Code to file a claim for the full amount of the Debt secured by the Deed of Trust or to require that all collateral shall continue to secure all of the debt owing to Payee in accordance with this Note, the Deed of Trust, the Environmental Agreement, the Guaranty and the Other Security Documents.
(c) NOTWITHSTANDING THE FOREGOING PROVISIONS OF THIS SECTION OR ANY OTHER PROVISION IN THE LOAN DOCUMENTS, MAKER AND GUARANTOR, JOINTLY AND SEVERALLY, SHALL BE FULLY LIABLE FOR AND SHALL INDEMNIFY PAYEE FOR ANY OR ALL LOSS, COST, LIABILITY, JUDGMENT, CLAIM, DAMAGE OR EXPENSE SUSTAINED, SUFFERED OR INCURRED BY PAY▇▇ (▇NCLUDING, WITHOUT LIMITATION, PAYEE'S ATTORNEYS' FEES) ARISING OUT OF OR ATTRIBUTABLE OR RELATING TO:
(Ai) any continuing default beyond any applicable cure periods of the Environmental Liabilities Agreement executed by Maker for the benefit of Payee, dated of even date herewith, including the indemnification provisions contained thereinFRAUD OR MISREPRESENTATION BY MAKER GROUP OR GUARANTOR IN CONNECTION WITH THE LOAN;
(ii) THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF MAKER GROUP OR GUARANTOR, THEIR RESPECTIVE AGENTS OR EMPLOYEES (NOT INCLUDING LESSEES OR PROPERTY MANAGERS), OR PHYSICAL WASTE OF THE PROPERTY BY MAKER OR GUARANTOR;
(iii) THE BREACH OF PROVISIONS IN THE DEED OF TRUST OR THE ENVIRONMENTAL AGREEMENT CONCERNING ENVIRONMENTAL LAWS, HAZARDOUS SUBSTANCES AND ASBESTOS (AS EACH SUCH TERM IS DEFINED IN THE DEED OF TRUST), AND ANY INDEMNIFICATION OF PAYEE IN THE DEED OF TRUST OR ANY OTHER LOAN DOCUMENT WITH RESPECT TO SUCH ENVIRONMENTAL LAWS, HAZARDOUS SUBSTANCES AND ASBESTOS;
(iv) THE REMOVAL OR DISPOSAL OF ANY PORTION OF THE PROPERTY AFTER DEFAULT UNDER THIS NOTE, THE DEED OF TRUST, THE ENVIRONMENTAL AGREEMENT, THE GUARANTY OR ANY OTHER LOAN DOCUMENT;
(v) THE MISAPPLICATION OR CONVERSION BY MAKER OR GUARANTOR OF: (A) ANY INSURANCE PROCEEDS PAID BY REASON OF ANY LOSS, DAMAGE OR DESTRUCTION TO THE PROPERTY; (B) ANY AWARDS OR OTHER AMOUNTS RECEIVED IN CONNECTION WITH THE CONDEMNATION OF ALL OR A PORTION OF THE PROPERTY; OR (C) RENTS, ISSUES, PROFITS, PROCEEDS, ACCOUNTS OR OTHER AMOUNTS RECEIVED BY MAKER OR GUARANTOR (IN THE CASE OF CLAUSE (C) FOLLOWING AN EVENT OF DEFAULT UNDER THIS NOTE, THE DEED OF TRUST, THE ENVIRONMENTAL AGREEMENT, THE GUARANTY OR ANY OTHER LOAN DOCUMENT);
(vi) Maker's failure to obtain pay taxes, assessments, charges for labor or materials or other charges that may result in liens on any portion of the Property; provided, however, that Maker's and Guarantor's liability hereunder shall cease with respect to such amounts incurred from and after such time, if any, that Payee forecloses the Deed of Trust or accepts a deed in lieu of foreclosure of the Deed of Trust;
(vii) MAKER'S FAILURE TO PAY INSURANCE DEDUCTIBLES OR PREMIUMS IN RESPECT OF ANY INSURANCE REQUIRED UNDER THE LOAN DOCUMENTS TO BE MAINTAINED IN RESPECT OF THE PROPERTY; PROVIDED, HOWEVER, THAT MAKER'S AND GUA▇▇▇▇▇'s prior written consent to any subordinate financing (except as permitted in Section 9(d) of the Mortgage) or any other encumbrance on the Mortgaged Property▇'▇ LIABILITY HEREUNDER SHALL CEASE WITH RESPECT TO SUCH AMOUNTS INCURRED FROM AND AFTER SUCH TIME, or any transfer of the Mortgaged Property or majority ownership in Maker in violation of the MortgageIF ANY, THAT PAYEE FORECLOSES THE DEED OF TRUST OR ACCEPTS A DEED IN LIEU OF FORECLOSURE OF THE DEED OF TRUST;
(Cviii) the misapplication by Maker, its agents, affiliates, officers or employees of any funds derived from the Mortgaged Property, including security deposits, insurance proceeds and condemnation awards, in violation of the Loan DocumentsTHE DEDUCTIBLE AMOUNT OF ANY INSURANCE MAINTAINED IN RESPECT OF THE PROPERTY;
(Dix) Maker's failure to apply proceeds of rents or any other payments in respect of the leases and other income from the Mortgaged Property or any other collateral when received to the costs of maintenance and operation of the Mortgaged Property and to the payment of taxes, lien claims, insurance premiums, monthly payments of principal and interest or escrow payments or other payments due under the Loan Documents to the extent the Loan Documents require such proceeds to be then so appliedTHE COSTS INCURRED BY PAY▇▇ (▇NCLUDING ATTORNEYS' FEES) IN CONNECTION WITH THE COLLECTION OR ENFORCEMENT OF THE DEBT;
(Ex) any litigation or other legal proceeding related to the Debt filed by Maker or any guarantor or indemnitor that delays or impairs Payee's ability to preserveMAKER'S FAILURE TO MAKE THE PROPERTY REPAIRS OR ALTERATIONS REQUIRED UNDER THE LOAN DOCUMENTS, enforce or foreclose its lien on the Mortgaged PropertyINCLUDING, includingWITHOUT LIMITATION, but not limited to, the filing of a voluntary petition concerning Maker under the U.S. Bankruptcy Code, in which action a claim, counterclaim, or defense is asserted against Payee, other than any litigation or other legal proceeding in which a final, non-appealable judgment for money damages or injunctive relief is entered against PayeeALTERATIONS REQUIRED IN ORDER TO COMPLY WITH THE AMERICANS WITH DISABILITIES ACT;
(Fxi) the gross negligence or willful misconduct of MakerMAKER'S FAILURE TO PERMIT ON-SITE INSPECTIONS OF THE PROPERTY OR TO PROVIDE FINANCIAL REPORTS AND INFORMATION PERTAINING TO THE PROPERTY AS REQUIRED BY THE DEED OF TRUST, its agentsUNLESS, affiliatesIN EITHER CASE, officers or employees which causes or results in a material diminution, or material loss of value, of the Mortgaged Property that is not reimbursed by insurance or which gross negligence or willful misconduct exposes Payee to claims, liability or costs of defense in any litigation or other legal proceedingSUCH FAILURE IS THE RESULT OF A GOOD FAITH ERROR AND IS CURED WITHIN TEN (10) DAYS AFTER NOTICE;
(Gxii) the seizure or forfeiture of the Mortgaged Property, or any portion thereof, or ▇▇▇▇▇'s interest therein, resulting from criminal wrongdoing by Maker, its agents, affiliates, officers or employeesANY SECURITY DEPOSITS OR ADVANCE DEPOSITS COLLECTED WITH RESPECT TO THE PROPERTY WHICH ARE NOT DELIVERED TO PAYEE UPON A FORECLOSURE OF THE PROPERTY OR ACTION IN LIEU THEREOF;
(Hxiii) waste to the Mortgaged Property caused by the acts or omissions of Maker, its agents, affiliates, officers, employees or contractors; or the removal or disposal of any portion of the Mortgaged Property by Maker its agents, affiliates, officers, employees or contractors after an Event of Default to the extent such Mortgaged Property is not replaced by Maker with like property of equivalent value, function and design; andMAKER FAILS TO OBTAIN PAY▇▇'▇ WRITTEN CONSENT TO ANY SUBORDINATE FINANCING;
(Ixiv) in the event Payee has waived (or the Mortgage does not require) the monthly collection for real and personal property taxes, assessments, or insurance premiums, then failure by Maker to pay any or all such taxes, assessments or premiums in accordance with terms of the Mortgage (except for taxes and assessment which accrue, and premiums which are payable, after either (1) the date that Payee takes title to the Mortgaged Property by foreclosure, deed-in-lieu of foreclosure or otherwise or (2) MAKER'S FAILURE TO OBTAIN PAY▇▇▇▇'▇ obtains the appointment of a receiver or otherwise takes possession directly as a mortgagee in possession PRIOR WRITTEN CONSENT TO ANY TRANSFER OF THE PROPERTY OR OF ANY OWNERSHIP INTEREST IN MAKER; AND
(provided, that, Maker has relinquished possession and control of the Mortgaged Property to such receiver or Payee and is not disputing the receivership or possession by the receiver or Payee))xv) MAKER FAILS TO COMPLY WITH THE PROVISIONS OF SECTION 11 OF THE DEED OF TRUST PERTAINING TO ITS SINGLE-PURPOSE ENTITY STATUS.
(d) In addition to Notwithstanding the foregoing, the agreement of Payee not to pursue recourse liability as set forth in subsection (a) above SHALL BE AND BECOME NULL AND VOID and shall be of no further force or effect if: (i) any financial information concerning Maker shall also be fully or Guarantor provided by Maker or Guarantor or any of their respective employees or agents is fraudulent in any respect, contains any fraudulent information or misrepresents in any material respect the financial condition of Maker or such Guarantor; (ii) a voluntary bankruptcy or insolvency proceeding is commenced by Maker or Maker’s managing member/general partner; or (iii) an involuntary bankruptcy or insolvency proceeding is commenced by any party against Maker or Maker’s managing member/general partner and personally liable to Payee for is not unconditionally dismissed within ninety (90) days of filing. Upon the occurrence of any amount which Maker is fully and personally liable to Payee for under Section 12 of the Crossed Note evidencing foregoing events, Maker and Guarantor shall have full joint and several recourse liability for all sums due under the Crossed LoanLoan Documents.
(e) Nothing in this Section shall be interpreted or construed to impair, limit the liability of or otherwise affect the terms, conditions, requirements and obligations of Guarantor under the Guaranty or Maker or Guarantor under the Environmental Agreement.
Appears in 1 contract
Sources: Deed of Trust Note (Equity Inns Inc)
Limitations on Recourse. Notwithstanding anything in the Loan Documents to the contrary, but subject to the qualifications and other provisions in clauses (a), (b) and (c) of this Section 12 below, Payee and Maker agree that: (i) Maker shall be liable upon the Debt and for the other obligations arising under the Loan Documents to the full extent (but only to the extent) of all of the Mortgaged Property and any other items, property or amounts which are collateral or security for the Loan; (ii) if a default occurs in the timely and proper payment of all or any part of the Debt, any judicial proceedings brought by Payee against Maker shall be limited to the preservation, enforcement and foreclosure, or any thereof, of the liens, security titles, estates, assignments, rights and security interests now or at any time hereafter securing the payment of the Debt and/or the other obligations of Maker under the Loan Documents, and no attachment, execution or other writ of process shall be sought, issued or levied upon any assets, properties or funds of Maker other than the Mortgaged Property; and (iii) in the event of a foreclosure of such liens, security titles, estates, assignments, rights or security interests securing the payment of the Debt, no judgment for any deficiency upon the Debt shall be sought or obtained by Payee against Maker.
(a) Nothing contained in this Section 12 shall (1) be deemed to be a release or impairment of the Debt or the lien of the Loan Documents upon the Mortgaged Property, or (2) preclude Payee from foreclosing under the Loan Documents in case of any default or from enforcing any of the other rights of Payee, including naming Maker as a party defendant in any action or suit for foreclosure and sale under the Mortgage, or obtaining the appointment of a receiver or prohibit Payee from obtaining a personal judgment against Maker on the Debt to the extent (but only to the extent) such judgment may be required in order to enforce the liens, security titles, estates, assignments, rights and security interests securing payment of the Debt, or (3) limit or impair in any way whatsoever the Guaranty (the "Guaranty") of even date executed and delivered in connection with the indebtedness evidenced by this Note or release, relieve, reduce, waive or impair in any way whatsoever, any obligation of any party to the Guaranty or (4) release, relieve, reduce, waive or impair in any way whatsoever any obligations of any person other than Maker which is a party to any of the other Loan Documents.
(b) In the event of fraud or material misrepresentation by Maker or any guarantor in connection with the Loan Documents or the documents delivered by Maker, or the first full Monthly Installment monthly payment on this Note is not paid when due, or if any petition or proceeding for bankruptcy, reorganization or arrangement pursuant to federal bankruptcy law, or any similar federal or state law, shall be filed by Maker (or if any such petition or proceeding was not so filed by Maker, but Maker or Guarantor or their respective agents, affiliates, officers or employees consented to, acquiesced in arranged or otherwise participated in bringing about the institution of such petition or proceeding), or if there shall occur any material breach or default under the provisions of Section 9 of the Mortgage (entitled "Single Purpose Entity/Separateness"), the limitations on recourse set forth in this Section 12, including the provisions of clauses (i), (ii) and (iii) of this Section 12 above, will be null and void and completely inapplicable, and this Note shall be full recourse to Maker.
(c) Nothing contained herein shall in any manner or way release, affect or impair the right of Payee to recover, and Maker shall be fully and personally liable and subject to legal action, for any loss, cost, expense, damage, claim or other obligation (including without limitation reasonable attorneys' fees and court costs) incurred or suffered by Payee arising out of or in connection with the following:
(A) any continuing default beyond any applicable cure periods of the Environmental Liabilities Agreement executed by Maker for the benefit of Payee, dated of even date herewith, including the indemnification provisions contained therein;
(B) Maker's failure to obtain ▇▇▇▇▇Payee's prior written consent to any subordinate financing financi▇▇ (except ▇xcept as permitted in Section 9(d) of the Mortgage) or any other encumbrance on the Mortgaged Property, or any transfer of the Mortgaged Property or majority ownership in Maker in violation of the Mortgage;
(C) the misapplication by Maker, its agents, affiliates, officers or employees of any funds derived from the Mortgaged Property, including security deposits, insurance proceeds and condemnation awards, in violation of the Loan Documents;
(D) Maker's failure to apply proceeds of rents or any other payments in respect of the leases and other income from the Mortgaged Property or any other collateral when received to the costs of maintenance and operation of the Mortgaged Property and to the payment of taxes, lien claims, insurance premiums, monthly payments of principal and interest or escrow payments or other payments due under the Loan Documents to the extent the Loan Documents require such proceeds to be then so applied;
(E) any litigation or other legal proceeding related to the Debt filed by Maker or any guarantor or indemnitor that delays or impairs Payee's ability to preserve, enforce or foreclose its lien on the Mortgaged Property, including, but not limited to, the filing of a voluntary petition concerning Maker under the U.S. Bankruptcy Code, in which action a claim, counterclaim, or defense is asserted against Payee, other than any litigation or other legal proceeding in which a final, non-appealable judgment for money damages or injunctive relief is entered against Payee;
(F) the gross negligence or willful misconduct of Maker, its agents, affiliates, officers or employees which causes or results in a material diminution, or material loss of value, of the Mortgaged Property that is not reimbursed by insurance or which gross negligence or willful misconduct exposes Payee to claims, liability or costs of defense in any litigation or other legal proceeding;
(G) the seizure or forfeiture of the Mortgaged Property, or any portion thereof, or ▇▇▇▇▇Payee's interest therein, resulting from criminal wrongdoing wrongd▇▇▇▇ by Maker, its agents, affiliates, officers or employees;; and
(H) waste to the Mortgaged Property caused by the acts or omissions of Maker, its agents, affiliates, officers, employees or contractors; or the removal or disposal of any portion of the Mortgaged Property by Maker its agents, affiliates, officers, employees or contractors after an Event of Default to the extent such Mortgaged Property is not replaced by Maker with like property of equivalent value, function and design; and
(I) in the event Payee has waived (or the Mortgage does not require) the monthly collection for real and personal property taxes, assessments, or insurance premiums, then failure by Maker to pay any or all such taxes, assessments or premiums in accordance with terms of the Mortgage (except for taxes and assessment which accrue, and premiums which are payable, after either (1) the date that Payee takes title to the Mortgaged Property by foreclosure, deed-in-lieu of foreclosure or otherwise or (2) ▇▇▇▇▇ obtains the appointment of a receiver or otherwise takes possession directly as a mortgagee in possession (provided, that, Maker has relinquished possession and control of the Mortgaged Property to such receiver or Payee and is not disputing the receivership or possession by the receiver or Payee)).
(d) In addition to the foregoing, Maker shall also be fully and personally liable to Payee for any amount which Maker is fully and personally liable to Payee for under Section 12 of the Crossed Note evidencing the Crossed Loan.
Appears in 1 contract
Sources: Fixed Rate Note (Ramco Gershenson Properties Trust)
Limitations on Recourse. Notwithstanding anything The Funding Participants, the ------------------------- Trustees and the Investment Trust agree that their rights in the Loan Documents to the contrary, but subject to the qualifications and other provisions in clauses (a), (b) and (c) of this Section 12 below, Payee and Maker agree that: (i) Maker shall be liable upon the Debt and for the other obligations arising under the Loan Documents to the full extent (but only to the extent) of all respect of the Mortgaged Property obligations of Deepwater to pay Charter Hire, and any other items, property claim or amounts which are collateral or security for the Loan; (ii) if a default occurs in the timely and proper payment of all liability under this Agreement or any part of the Debt, any judicial proceedings brought by Payee against Maker other Transaction Document shall be limited to satisfaction out of, and enforcement against, the preservationCollateral. The Funding Participants, enforcement the Trustees and foreclosure, the Investment Trust hereby acknowledge and agree that none of the Non-Recourse Parties shall have any liability to all or any thereof, of the liensFunding Participants, security titles, estates, assignments, rights and security interests now the Trustees or at any time hereafter securing the Investment Trust for the payment of any sums now or hereafter owing by Deepwater under this Agreement or any other Transaction Document or for the Debt and/or performance of any of the other obligations of Maker under Deepwater contained herein or therein or shall otherwise be liable or responsible with respect thereto (such liability, including such as may arise by operation of law, being hereby expressly waived), except as provided in this Section 12.13. If (i) any Charter ------------- Event of Default shall occur and be continuing or (ii) any claim of any Funding Participant, the Loan Documents, Investment Trust and no attachment, execution the Trustees against or other writ alleged liability to such Persons of process Deepwater shall be soughtasserted under this Agreement or any other Transaction Document, issued the Funding Participants, the Trustees and the Investment Trust agree that they shall not have the right to proceed directly or levied upon any assets, indirectly against the Non-Recourse Parties or against their respective properties or funds of Maker and assets (other than the Mortgaged Property; and (iiiCollateral) in for the event satisfaction of a foreclosure of such liens, security titles, estates, assignments, rights or security interests securing the payment any of the Debt, no judgment obligations of Deepwater to pay Charter Hire or of any such claim or liability or for any deficiency upon judgment (except to the Debt shall be sought extent enforceable out of the Collateral) in respect of such obligations or obtained by Payee against Maker.
(a) Nothing any such claim or liability. The foregoing notwithstanding, it is expressly understood and agreed that nothing contained in this Section 12 12.13 shall (1) be deemed to be a (a) release any Non-Recourse ------------- Party from liability for its fraudulent actions or impairment of the Debt or the lien of the Loan Documents upon the Mortgaged Property, willful misconduct or (2b) preclude Payee from foreclosing limit or affect the obligations of any Non-Recourse Party in accordance with the terms of this Agreement or any other Transaction Document creating such obligation to which such Non-Recourse Party is a party, including, without limitation, the obligations of Conoco or Transocean under the Loan Documents in case of any default Drilling Contract Guaranties or from enforcing any of the other rights of Payee, including naming Maker as a party defendant in any action or suit for foreclosure and sale under the Mortgage, or obtaining the appointment of a receiver or prohibit Payee from obtaining a personal judgment against Maker on the Debt with respect to the extent (but only to the extent) such judgment may be required in order to enforce the liens, security titles, estates, assignments, rights and security interests securing payment of the Debt, or (3) limit or impair in any way whatsoever the Residual Guaranty (the "Guaranty") of even date executed and delivered in connection with the indebtedness evidenced by this Note or release, relieve, reduce, waive or impair in any way whatsoever, any obligation of any party to the Guaranty or (4) release, relieve, reduce, waive or impair in any way whatsoever any obligations of any person other than Maker which is a party to any of the other Loan Documents.
(b) In the event of fraud or material misrepresentation by Maker or any guarantor in connection with the Loan Documents or the documents delivered by MakerAmount, or the first full Monthly Installment on this Note is not paid when dueobligations of the Drilling Parties under the Drilling Contracts. The foregoing acknowledgments, or if any petition or proceeding for bankruptcy, reorganization or arrangement pursuant to federal bankruptcy law, or any similar federal or state law, agreements and waivers shall be filed enforceable by Maker (or if any such petition or proceeding was not so filed by Maker, but Maker or Guarantor or their respective agents, affiliates, officers or employees consented to, acquiesced in arranged or otherwise participated in bringing about the institution of such petition or proceeding), or if there shall occur any material breach or default under the provisions of Section 9 of the Mortgage (entitled "Single Purpose Entity/Separateness"), the limitations on recourse set forth in this Section 12, including the provisions of clauses (i), (ii) and (iii) of this Section 12 above, will be null and void and completely inapplicable, and this Note shall be full recourse to MakerNon-Recourse Party.
(c) Nothing contained herein shall in any manner or way release, affect or impair the right of Payee to recover, and Maker shall be fully and personally liable and subject to legal action, for any loss, cost, expense, damage, claim or other obligation (including without limitation reasonable attorneys' fees and court costs) incurred or suffered by Payee arising out of or in connection with the following:
(A) any continuing default beyond any applicable cure periods of the Environmental Liabilities Agreement executed by Maker for the benefit of Payee, dated of even date herewith, including the indemnification provisions contained therein;
(B) Maker's failure to obtain ▇▇▇▇▇'s prior written consent to any subordinate financing (except as permitted in Section 9(d) of the Mortgage) or any other encumbrance on the Mortgaged Property, or any transfer of the Mortgaged Property or majority ownership in Maker in violation of the Mortgage;
(C) the misapplication by Maker, its agents, affiliates, officers or employees of any funds derived from the Mortgaged Property, including security deposits, insurance proceeds and condemnation awards, in violation of the Loan Documents;
(D) Maker's failure to apply proceeds of rents or any other payments in respect of the leases and other income from the Mortgaged Property or any other collateral when received to the costs of maintenance and operation of the Mortgaged Property and to the payment of taxes, lien claims, insurance premiums, monthly payments of principal and interest or escrow payments or other payments due under the Loan Documents to the extent the Loan Documents require such proceeds to be then so applied;
(E) any litigation or other legal proceeding related to the Debt filed by Maker or any guarantor or indemnitor that delays or impairs Payee's ability to preserve, enforce or foreclose its lien on the Mortgaged Property, including, but not limited to, the filing of a voluntary petition concerning Maker under the U.S. Bankruptcy Code, in which action a claim, counterclaim, or defense is asserted against Payee, other than any litigation or other legal proceeding in which a final, non-appealable judgment for money damages or injunctive relief is entered against Payee;
(F) the gross negligence or willful misconduct of Maker, its agents, affiliates, officers or employees which causes or results in a material diminution, or material loss of value, of the Mortgaged Property that is not reimbursed by insurance or which gross negligence or willful misconduct exposes Payee to claims, liability or costs of defense in any litigation or other legal proceeding;
(G) the seizure or forfeiture of the Mortgaged Property, or any portion thereof, or ▇▇▇▇▇'s interest therein, resulting from criminal wrongdoing by Maker, its agents, affiliates, officers or employees;
(H) waste to the Mortgaged Property caused by the acts or omissions of Maker, its agents, affiliates, officers, employees or contractors; or the removal or disposal of any portion of the Mortgaged Property by Maker its agents, affiliates, officers, employees or contractors after an Event of Default to the extent such Mortgaged Property is not replaced by Maker with like property of equivalent value, function and design; and
(I) in the event Payee has waived (or the Mortgage does not require) the monthly collection for real and personal property taxes, assessments, or insurance premiums, then failure by Maker to pay any or all such taxes, assessments or premiums in accordance with terms of the Mortgage (except for taxes and assessment which accrue, and premiums which are payable, after either (1) the date that Payee takes title to the Mortgaged Property by foreclosure, deed-in-lieu of foreclosure or otherwise or (2) ▇▇▇▇▇ obtains the appointment of a receiver or otherwise takes possession directly as a mortgagee in possession (provided, that, Maker has relinquished possession and control of the Mortgaged Property to such receiver or Payee and is not disputing the receivership or possession by the receiver or Payee)).
(d) In addition to the foregoing, Maker shall also be fully and personally liable to Payee for any amount which Maker is fully and personally liable to Payee for under Section 12 of the Crossed Note evidencing the Crossed Loan.
Appears in 1 contract
Sources: Participation Agreement (Transocean Sedco Forex Inc)
Limitations on Recourse. (a) Subject to the qualifications set forth in this Section, this Agreement shall be non-recourse against SRA, and S&W shall not enforce the liability and obligations to perform and observe the obligations contained in the Note, this Agreement or any of the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against SRA except that the S&W may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable S&W to enforce and realize upon the Note, this Agreement and the other Loan Documents, its interest in the Property and any other collateral given to S&W pursuant to this Agreement and the other Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against SRA only to the extent of SRA's interest in the Property and in any other collateral given to S&W, and S&W, by accepting the Note, this Agreement and any other Loan Document, agrees that it shall not ▇▇▇ for, seek or demand any deficiency judgment against SRA, in any such action or proceeding, under or by reason of or in connection with the Note, this Agreement or any of the other Loan Documents.
(b) Notwithstanding anything in the Loan Documents contained herein to the contrary, but subject to the qualifications and other provisions in clauses (a), (b) and (c) of this Section 12 belowshall not (A) constitute a waiver, Payee and Maker agree that: (i) Maker shall be liable upon the Debt and for the other obligations arising under the Loan Documents to the full extent (but only to the extent) of all of the Mortgaged Property and any other items, property or amounts which are collateral or security for the Loan; (ii) if a default occurs in the timely and proper payment of all or any part of the Debt, any judicial proceedings brought by Payee against Maker shall be limited to the preservation, enforcement and foreclosure, or any thereof, of the liens, security titles, estates, assignments, rights and security interests now or at any time hereafter securing the payment of the Debt and/or the other obligations of Maker under the Loan Documents, and no attachment, execution or other writ of process shall be sought, issued or levied upon any assets, properties or funds of Maker other than the Mortgaged Property; and (iii) in the event of a foreclosure of such liens, security titles, estates, assignments, rights or security interests securing the payment of the Debt, no judgment for any deficiency upon the Debt shall be sought or obtained by Payee against Maker.
(a) Nothing contained in this Section 12 shall (1) be deemed to be a release or impairment of any obligation evidenced or secured by the Debt Note, this Agreement or the lien other Loan Documents; (B) impair the right of the Loan Documents upon the Mortgaged Property, or (2) preclude Payee from foreclosing under the Loan Documents in case of any default or from enforcing any of the other rights of Payee, including naming Maker S&W to name SRA as a party defendant in any action or suit for foreclosure and sale under this Agreement; (C) affect the Mortgagevalidity or enforceability of any guaranty or indemnity made in connection with the Note, this Agreement, or obtaining the other Loan Documents; (D) impair the right of S&W to obtain the appointment of a receiver or prohibit Payee from obtaining a personal judgment against Maker on receiver; (E) impair the Debt to the extent (but only to the extent) such judgment may be required in order to enforce the liens, security titles, estates, assignments, rights and security interests securing payment enforcement of the Debt, any other Loan Document; or (3F) limit impair the right of S&W to bring suit with respect to fraud or impair in misrepresentation by SRA, any way whatsoever the Guaranty (the "Guaranty") of even date executed and delivered guarantor or any other person or entity in connection with the indebtedness evidenced by Loan, the Note, this Note Agreement, or release, relieve, reduce, waive or impair in any way whatsoever, any obligation of any party to the Guaranty or (4) release, relieve, reduce, waive or impair in any way whatsoever any obligations of any person other than Maker which is a party to any of the other Loan Documents.
(bc) In the event Nothing set forth in this Agreement shall be deemed to be a waiver of fraud or material misrepresentation by Maker any right which S&W may have under Section 506(a), 506(b), 1111(b) or any guarantor other provisions of the U.S. Bankruptcy Code to file a claim for the full amount of the Indebtedness (as defined in the Mortgage) or to require that all collateral shall continue to secure all of the Indebtedness.
(d) Notwithstanding any provision in the Note, this Agreement or the other Loan Documents to the contrary, SRA shall be fully liable for and shall indemnify S&W for any or all loss, cost, liability, judgment, claim, damage or expense sustained, suffered or incurred by S&W (including, without limitation, S&W's reasonable attorneys' fees) arising out of or attributable or relating to (collectively and inclusive of (A) through (D) hereof):
(A) fraud, intentional misrepresentation or criminal acts by SRA or its members, officers, directors, principals, agents, employees or affiliates in connection with the Loan Documents or the documents delivered by Maker, or the first full Monthly Installment on this Note is not paid when due, or if any petition or proceeding for bankruptcy, reorganization or arrangement pursuant to federal bankruptcy law, or any similar federal or state law, shall be filed by Maker (or if any such petition or proceeding was not so filed by Maker, but Maker or Guarantor or their respective agents, affiliates, officers or employees consented to, acquiesced in arranged or otherwise participated in bringing about the institution of such petition or proceeding), or if there shall occur any material breach or default under the provisions of Section 9 of the Mortgage (entitled "Single Purpose Entity/Separateness"), the limitations on recourse set forth in this Section 12, including the provisions of clauses (i), (ii) and (iii) of this Section 12 above, will be null and void and completely inapplicable, and this Note shall be full recourse to Maker.
(c) Nothing contained herein shall in any manner or way release, affect or impair the right of Payee to recover, and Maker shall be fully and personally liable and subject to legal action, for any loss, cost, expense, damage, claim or other obligation (including without limitation reasonable attorneys' fees and court costs) incurred or suffered by Payee arising out of or in connection with the following:
(A) any continuing default beyond any applicable cure periods of the Environmental Liabilities Agreement executed by Maker for the benefit of Payee, dated of even date herewith, including the indemnification provisions contained thereinIndebtedness;
(B) Maker's failure to obtain ▇▇▇▇▇'s prior written consent to any subordinate financing (except as permitted in Section 9(d) the physical waste of the Mortgage) or any other encumbrance on the Mortgaged Property, or any transfer of the Mortgaged Property or majority ownership in Maker in violation of the Mortgage;
(C) the misapplication caused by Maker, its agents, affiliates, officers or employees of any funds derived from the Mortgaged Property, including security deposits, insurance proceeds and condemnation awards, in violation of the Loan Documents;
(D) Maker's failure to apply proceeds of rents or any other payments in respect of the leases and other income from the Mortgaged Property or any other collateral when received to the costs of maintenance and operation of the Mortgaged Property and to the payment of taxes, lien claims, insurance premiums, monthly payments of principal and interest or escrow payments or other payments due under the Loan Documents to the extent the Loan Documents require such proceeds to be then so applied;
(E) any litigation or other legal proceeding related to the Debt filed by Maker or any guarantor or indemnitor that delays or impairs Payee's ability to preserve, enforce or foreclose its lien on the Mortgaged Property, including, but not limited to, the filing of a voluntary petition concerning Maker under the U.S. Bankruptcy Code, in which action a claim, counterclaim, or defense is asserted against Payee, other than any litigation or other legal proceeding in which a final, non-appealable judgment for money damages or injunctive relief is entered against Payee;
(F) the gross negligence or willful misconduct of MakerSRA or its members, its officers, directors, principals, agents, affiliates, officers employees or employees which causes or results affiliates in a material diminution, or material loss of value, of failing to perform SRA's obligations to S&W under the Mortgaged Property that is not reimbursed by insurance or which gross negligence or willful misconduct exposes Payee to claims, liability or costs of defense in any litigation or other legal proceedingLoan Documents;
(GC) the seizure misapplication or forfeiture conversion by SRA of the Mortgaged Property(1) any insurance proceeds paid by reason of any loss, damage or any portion thereof, or ▇▇▇▇▇'s interest therein, resulting from criminal wrongdoing by Maker, its agents, affiliates, officers or employees;
(H) waste destruction to the Mortgaged Property caused by Property; (2) any awards or other amounts received in connection with the acts condemnation of all or omissions of Maker, its agents, affiliates, officers, employees or contractors; or the removal or disposal of any a portion of the Mortgaged Property; or (3) rents, income, accounts receivable, issues, profits, proceeds from the sale of the Property or otherwise, accounts or other amounts received by Maker its agents, affiliates, officers, employees or contractors after an Event of Default to SRA in connection with the extent such Mortgaged Property is not replaced by Maker with like property of equivalent value, function and designProperty; andor
(ID) the costs incurred by S&W (including reasonable attorneys' fees) in connection with the event Payee has waived (collection or enforcement of this Agreement, the Note or the Mortgage does not require) the monthly collection for real and personal property taxes, assessments, or insurance premiums, then failure by Maker to pay any or all such taxes, assessments or premiums in accordance with terms of the Mortgage (except for taxes and assessment which accrue, and premiums which are payable, after either (1) the date that Payee takes title to the Mortgaged Property by foreclosure, deed-in-lieu of foreclosure or otherwise or (2) ▇▇▇▇▇ obtains the appointment of a receiver or otherwise takes possession directly as a mortgagee in possession (provided, that, Maker has relinquished possession and control of the Mortgaged Property to such receiver or Payee and is not disputing the receivership or possession by the receiver or Payee))other Loan Documents.
(d) In addition to the foregoing, Maker shall also be fully and personally liable to Payee for any amount which Maker is fully and personally liable to Payee for under Section 12 of the Crossed Note evidencing the Crossed Loan.
Appears in 1 contract
Sources: Environmental Agreement (Smith & Wesson Holding Corp)
Limitations on Recourse. Notwithstanding anything any contrary provision in the Loan Documents to the contrary, but subject to the qualifications and other provisions in clauses (a), (b) and (c) of this Section 12 below, Payee and Maker agree that: (i) Maker shall be liable upon the Debt and for the other obligations arising under the Loan Documents to the full extent (but only to the extent) of all of the Mortgaged Property and any other items, property or amounts which are collateral or security for the Loan; (ii) if a default occurs in the timely and proper payment of all Mortgage Note or any part of the Debt, any judicial proceedings brought by Payee against Maker shall be limited to the preservation, enforcement and foreclosure, or any thereof, of the liens, security titles, estates, assignments, rights and security interests now or at any time hereafter securing the payment of the Debt and/or the other obligations of Maker under the Loan Documents, and no attachmentit is hereby expressly agreed that, execution except as otherwise provided in this SECTION 5 or other writ in any section of process any Loan Document that is substantially similar to this SECTION 5, there shall be sought, issued or levied upon any assets, properties or funds no recourse to the assets of Maker or either of its Partners (other than against the Mortgaged Property; Collateral and (iii) in the event of a foreclosure of such liens, any other property given as security titles, estates, assignments, rights or security interests securing for the payment of this Mortgage Note) for (i) the Debtpayment of principal, no judgment interest, Defeasance Deposits, Yield Maintenance Payments or other charges hereunder or for any deficiency upon the Debt shall be sought other amount that is or obtained may become due and owing to Holder by Payee against Maker.
(a) Nothing contained in Maker under this Section 12 shall (1) be deemed to be a release or impairment of the Debt or the lien of the Loan Documents upon the Mortgaged Property, or (2) preclude Payee from foreclosing under the Loan Documents in case of any default or from enforcing any of the other rights of Payee, including naming Maker as a party defendant in any action or suit for foreclosure and sale under the Mortgage, or obtaining the appointment of a receiver or prohibit Payee from obtaining a personal judgment against Maker on the Debt to the extent (but only to the extent) such judgment may be required in order to enforce the liens, security titles, estates, assignments, rights and security interests securing payment of the Debt, or (3) limit or impair in any way whatsoever the Guaranty (the "Guaranty") of even date executed and delivered in connection with the indebtedness evidenced by this Mortgage Note or release, relieve, reduce, waive or impair in any way whatsoever, any obligation of any party to the Guaranty or (4) release, relieve, reduce, waive or impair in any way whatsoever any obligations of any person other than Maker which is a party to any of the other Loan Documents or (ii) the performance or discharge of any covenant or undertaking hereunder or under the other Loan Documents.
(b) In , and in the event of fraud any Event of Default hereunder or material misrepresentation by thereunder, Holder agrees to proceed solely against the Collateral and any other property given as security for payment of this Mortgage Note, and Holder shall not seek or claim recourse against Maker or the General Partner (other than against the Collateral and any guarantor in connection with other property given as security for payment of this Mortgage Note) for any deficiency or for any personal judgment after a foreclosure of the Loan Documents or the documents delivered by Maker, or the first full Monthly Installment on this Note is not paid when due, or if any petition or proceeding for bankruptcy, reorganization or arrangement pursuant to federal bankruptcy law, or any similar federal or state law, shall be filed by Maker (or if any such petition or proceeding was not so filed by Maker, but Maker or Guarantor or their respective agents, affiliates, officers or employees consented to, acquiesced in arranged or otherwise participated in bringing about the institution of such petition or proceeding), or if there shall occur any material breach or default under the provisions of Section 9 lien of the Mortgage or other Security Documents or for the performance or discharge of any covenants or undertakings of Maker hereunder or under any other Loan Documents (entitled "Single Purpose Entity/Separateness"except that Maker may be made a party to a proceeding to the extent legally necessary for the conduct of a foreclosure or the exercise of other similar remedies under the Mortgage or other Security Documents). Notwithstanding the foregoing, the limitations on recourse set forth nothing contained in this Section 12, including SECTION 5 shall relieve Maker or the provisions General Partner of clauses (i), (ii) and (iii) of this Section 12 above, will be null and void and completely inapplicable, and this Note shall be full recourse to Maker.
(c) Nothing contained herein shall in any manner or way release, affect or impair the right of Payee to recover, and Maker shall be fully and personally liable and subject to legal action, personal liability for any loss, cost, expense, damage, claim damage or other obligation (including without limitation reasonable attorneys' fees and court costs) incurred liability arising or suffered by Payee arising out of or in connection with the following:
resulting from (A) any continuing default beyond breach of any applicable cure periods of representation or warranty made in the Environmental Liabilities Loan Agreement executed by Maker for the benefit of Payeethat was materially incorrect when made and that was made with fraudulent intent, dated of even date herewith, including the indemnification provisions contained therein;
(B) Maker's failure any amount paid or distributed to obtain ▇▇▇▇▇'s prior written consent to any subordinate financing (except as permitted in Section 9(d) of the Mortgage) Partners, the Manager or any other encumbrance on the Mortgaged Property, or Affiliate of any transfer of the Mortgaged Property or majority ownership in Maker them in violation of the Mortgage;
(C) the misapplication by Maker, its agents, affiliates, officers or employees of any funds derived from the Mortgaged Property, including security deposits, insurance proceeds and condemnation awards, in violation provisions of the Loan Documents;
, (C) fraud or breach of trust, including misapplication of Loan proceeds or any Insurance Proceeds or Awards or other sums that are part of the Collateral that may come into the possession or control of Maker or the General Partner or any Affiliate of any of them, (D) Maker's liability under the Environmental Indemnity Agreement or (E) following the occurrence of a Lockbox Event, the willful failure of Maker to apply proceeds of rents or any other payments in respect of the leases and other income from the Mortgaged Property or any other collateral when received to the costs of maintenance and operation instruct Tenants of the Mortgaged Property and Properties to the payment of taxes, lien claims, insurance premiums, monthly make payments of Rents into the Lockbox Account or the failure of Borrower or the Manager to deposit payments of Rents received by Borrower or Manager into the Lockbox Account promptly upon receipt thereof. It is hereby expressly agreed that neither the General Partner nor any director, officer, shareholder, partner or employee of Maker or the General Partner, nor the legal or personal representative, successor or assign of any of the foregoing, nor any other principal and interest of Maker or escrow payments the General Partner, whether disclosed or other payments due undisclosed, shall have any personal liability under the Loan Documents Agreement or any of the other Loan Documents, except as personal liability may be specifically imposed upon the General Partner in accordance with clauses (A), (B), (C), (D) or (E) of this SECTION 5, and in no event shall any limited partner of Maker have any liability whatsoever with respect to the extent Loan or any monetary obligations with respect thereto, or any of the matters described in clause (A), (B), (C), (D) or (E) above. It is the intention of the parties hereto that this SECTION 5 shall govern every other provision of the Loan Documents require such proceeds and that the absence of explicit reference to be then so applied;
(E) this SECTION 5 in any litigation or other legal proceeding related to the Debt filed by Maker or any guarantor or indemnitor that delays or impairs Payee's ability to preserve, enforce or foreclose its lien on the Mortgaged Property, including, but not limited to, the filing of a voluntary petition concerning Maker under the U.S. Bankruptcy Code, in which action a claim, counterclaim, or defense is asserted against Payee, other than any litigation or other legal proceeding in which a final, non-appealable judgment for money damages or injunctive relief is entered against Payee;
(F) the gross negligence or willful misconduct of Maker, its agents, affiliates, officers or employees which causes or results in a material diminution, or material loss of value, provision of the Mortgaged Property that is not reimbursed by insurance Loan Documents or which gross negligence or willful misconduct exposes Payee the absence of any Section similar to claims, liability or costs of defense this SECTION 5 in any litigation or Loan Document shall not be construed to deny the application of this SECTION 5 to such provision, notwithstanding the presence of explicit reference to this SECTION 5 in other legal proceeding;
(G) the seizure or forfeiture provisions of the Mortgaged Property, or any portion thereof, or ▇▇▇▇▇'s interest therein, resulting from criminal wrongdoing by Maker, its agents, affiliates, officers or employees;
(H) waste to the Mortgaged Property caused by the acts or omissions of Maker, its agents, affiliates, officers, employees or contractors; or the removal or disposal of any portion of the Mortgaged Property by Maker its agents, affiliates, officers, employees or contractors after an Event of Default to the extent such Mortgaged Property is not replaced by Maker with like property of equivalent value, function and design; and
(I) in the event Payee has waived (or the Mortgage does not require) the monthly collection for real and personal property taxes, assessments, or insurance premiums, then failure by Maker to pay any or all such taxes, assessments or premiums in accordance with terms of the Mortgage (except for taxes and assessment which accrue, and premiums which are payable, after either (1) the date that Payee takes title to the Mortgaged Property by foreclosure, deed-in-lieu of foreclosure or otherwise or (2) ▇▇▇▇▇ obtains the appointment of a receiver or otherwise takes possession directly as a mortgagee in possession (provided, that, Maker has relinquished possession and control of the Mortgaged Property to such receiver or Payee and is not disputing the receivership or possession by the receiver or Payee))Loan Documents.
(d) In addition to the foregoing, Maker shall also be fully and personally liable to Payee for any amount which Maker is fully and personally liable to Payee for under Section 12 of the Crossed Note evidencing the Crossed Loan.
Appears in 1 contract
Sources: Loan Agreement (Arden Realty Inc)
Limitations on Recourse. Notwithstanding anything in the Loan Documents to the contrary, but subject (a) Subject to the qualifications set forth in this Section, Payee shall not enforce the liability and other provisions obligation of Maker to perform and observe the obligations contained in clauses the Note, the Loan Agreement, the Mortgage, the Assignment or the Other Security Documents by an action or proceeding wherein a money judgment shall be sought against Maker (aor any partner thereof), (b) except that Payee may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Payee to enforce and (c) of realize upon this Section 12 belowNote, Payee the Mortgage, the Assignment, the Other Security Documents, and Maker agree that: (i) Maker shall be liable upon the Debt and for the other obligations arising under the Loan Documents to the full extent (but only to the extent) of all of interests in the Mortgaged Property and any other itemscollateral given to Payee pursuant to the Mortgage, property the Assignment and the Other Security Documents; provided, however, that, except as specifically provided in this Section, any judgment in any such action or amounts which are proceeding shall be enforceable only to the extent of each Maker's respective interest in the Mortgaged Property and in any other collateral given to Payee. Payee, by accepting this Note, the Loan Agreement, the Assignment, the Mortgage and the Other Security Documents, agrees that it shall not sue for, seek or security demand any deficiency judgment against Maker (or any partner thereof) in any such action or proceeding, under, by reason of or in connection with the Mortgage, the Loan Agreement, the Assignment, the Other Security Documents or this Note. Except as may be expressly provided for herein, the Loanprovisions of this Section shall not: (i) constitute a waiver, release or impairment of any obligation evidenced or secured by the Mortgage, the Loan Agreement, the Assignment, the Environmental Agreement or the Other Security Documents or this Note; (ii) if a default occurs in impair the timely and proper payment right of all or any part of the Debt, any judicial proceedings brought by Payee against Maker shall be limited to the preservation, enforcement and foreclosure, or any thereof, of the liens, security titles, estates, assignments, rights and security interests now or at any time hereafter securing the payment of the Debt and/or the other obligations of Maker under the Loan Documents, and no attachment, execution or other writ of process shall be sought, issued or levied upon any assets, properties or funds of Maker other than the Mortgaged Property; and (iii) in the event of a foreclosure of such liens, security titles, estates, assignments, rights or security interests securing the payment of the Debt, no judgment for any deficiency upon the Debt shall be sought or obtained by Payee against Maker.
(a) Nothing contained in this Section 12 shall (1) be deemed to be a release or impairment of the Debt or the lien of the Loan Documents upon the Mortgaged Property, or (2) preclude Payee from foreclosing under the Loan Documents in case of any default or from enforcing any of the other rights of Payee, including naming name Maker as a party defendant in any action or suit for foreclosure and sale under the Mortgage, ; (iii) affect the validity or obtaining the appointment enforceability of a receiver any guaranty or prohibit Payee from obtaining a personal judgment against Maker on the Debt to the extent (but only to the extent) such judgment may be required in order to enforce the liens, security titles, estates, assignments, rights and security interests securing payment of the Debt, or (3) limit or impair in any way whatsoever the Guaranty (the "Guaranty") of even date executed and delivered indemnity made in connection with the indebtedness evidenced by this Note or releaseMortgage, relieve, reduce, waive or impair in any way whatsoever, any obligation of any party to the Guaranty or (4) release, relieve, reduce, waive or impair in any way whatsoever any obligations of any person other than Maker which is a party to any of the other Loan Documents.
(b) In the event of fraud or material misrepresentation by Maker or any guarantor in connection with the Loan Documents Agreement, this Note, the Assignment or the documents delivered by Maker, or the first full Monthly Installment on this Note is not paid when due, or if any petition or proceeding for bankruptcy, reorganization or arrangement pursuant to federal bankruptcy law, or any similar federal or state law, shall be filed by Maker Other Security Documents; (or if any such petition or proceeding was not so filed by Maker, but Maker or Guarantor or their respective agents, affiliates, officers or employees consented to, acquiesced in arranged or otherwise participated in bringing about the institution of such petition or proceeding), or if there shall occur any material breach or default under the provisions of Section 9 of the Mortgage (entitled "Single Purpose Entity/Separateness"), the limitations on recourse set forth in this Section 12, including the provisions of clauses (i), (iiiv) and (iii) of this Section 12 above, will be null and void and completely inapplicable, and this Note shall be full recourse to Maker.
(c) Nothing contained herein shall in any manner or way release, affect or impair the right of Payee to recover, and obtain the appointment of a receiver; (v) impair the enforcement of the Assignment (vi) impair the right of Payee to bring suit with respect to fraud or intentional misrepresentation by Maker shall be fully and personally liable and subject to legal action, for or any loss, cost, expense, damage, claim other person or other obligation (including without limitation reasonable attorneys' fees and court costs) incurred or suffered by Payee arising out of or entity in connection with the following:
Mortgage, the Loan Agreement, this Note, the Assignment, the Environmental Agreement or the Other Security Documents; or (Avii) any continuing default beyond any applicable cure periods affect the validity or enforceability of the Environmental Liabilities Agreement executed by or limit the liability of Maker for or any other party thereunder. Nothing herein shall impair the benefit right of Payee, dated of even date herewith, including the indemnification provisions contained therein;
(B) Maker's failure Payee to obtain ▇▇▇▇▇'s prior written consent a deficiency judgment in any action or proceeding in order to any subordinate financing (except as permitted in Section 9(d) preserve its rights and remedies including, without limitation, foreclosure, non-judicial foreclosure or the exercise of a power of sale, under the Mortgage; provided, however, that Payee shall not enforce any such deficiency judgment against Maker (or any partner thereof) or any other encumbrance on the Mortgaged Property, assets of Maker (or any transfer of partner thereof) other than the Mortgaged Property or majority ownership in Maker in violation the exercise of the Mortgage;
(C) the misapplication by Maker, its agents, affiliates, officers or employees of any funds derived from the Mortgaged Property, including security deposits, insurance proceeds rights and condemnation awards, in violation of remedies under the Loan Documents;
(D) Maker's failure to apply proceeds of rents or any other payments in respect of the leases and other income from the Mortgaged Property or any other collateral when received to the costs of maintenance and operation of the Mortgaged Property and to the payment of taxes, lien claims, insurance premiums, monthly payments of principal and interest or escrow payments or other payments due under the Loan Documents to the extent the Loan Documents require such proceeds to be then so applied;
(E) any litigation or other legal proceeding related to the Debt filed by Maker or any guarantor or indemnitor that delays or impairs Payee's ability to preserve, enforce or foreclose its lien on the Mortgaged Property, including, but not limited to, the filing of a voluntary petition concerning Maker under the U.S. Bankruptcy Code, in which action a claim, counterclaim, or defense is asserted against Payee, other than any litigation or other legal proceeding in which a final, non-appealable judgment for money damages or injunctive relief is entered against Payee;
(F) the gross negligence or willful misconduct of Maker, its agents, affiliates, officers or employees which causes or results in a material diminution, or material loss of value, of the Mortgaged Property that is not reimbursed by insurance or which gross negligence or willful misconduct exposes Payee to claims, liability or costs of defense in any litigation or other legal proceeding;
(G) the seizure or forfeiture of the Mortgaged Property, or any portion thereof, or ▇▇▇▇▇'s interest therein, resulting from criminal wrongdoing by Maker, its agents, affiliates, officers or employees;
(H) waste to the Mortgaged Property caused by the acts or omissions of Maker, its agents, affiliates, officers, employees or contractors; or the removal or disposal of any portion of the Mortgaged Property by Maker its agents, affiliates, officers, employees or contractors after an Event of Default to the extent such Mortgaged Property is not replaced by Maker with like property of equivalent value, function and design; and
(I) in the event Payee has waived (or the Mortgage does not require) the monthly collection for real and personal property taxes, assessments, or insurance premiums, then failure by Maker to pay any or all such taxes, assessments or premiums in accordance with terms of the Mortgage (except for taxes and assessment which accrue, and premiums which are payable, after either (1) the date that Payee takes title to the Mortgaged Property by foreclosure, deed-in-lieu of foreclosure or otherwise or (2) ▇▇▇▇▇ obtains the appointment of a receiver or otherwise takes possession directly as a mortgagee in possession (provided, that, Maker has relinquished possession and control of the Mortgaged Property to such receiver or Payee and is not disputing the receivership or possession by the receiver or Payee)).
(d) In addition to the foregoing, Maker shall also be fully and personally liable to Payee for any amount which Maker is fully and personally liable to Payee for under Section 12 of the Crossed Note evidencing the Crossed Loan.
Appears in 1 contract
Limitations on Recourse. Notwithstanding anything in Subject to the provisions of this Article, and notwithstanding any provision of the Loan Documents to the contraryother than this Article, but subject to the qualifications and other provisions in clauses (a), (b) and (c) of this Section 12 below, Payee and Maker agree that: (i) Maker no personal liability shall be liable upon the Debt and for the other obligations arising under the Loan Documents to the full extent (but only to the extent) of all of the Mortgaged Property and any other itemsasserted, property or amounts which are collateral or security for the Loan; (ii) if a default occurs in the timely and proper payment of all or any part of the Debt, any judicial proceedings brought by Payee against Maker shall be limited to the preservation, enforcement and foreclosure, or any thereof, of the liens, security titles, estates, assignments, rights and security interests now or at any time hereafter securing the payment of the Debt and/or the other obligations of Maker under the Loan Documents, and no attachment, execution or other writ of process shall be sought, issued or levied upon any assets, properties or funds of Maker other than the Mortgaged Property; and (iii) in the event of a foreclosure of such liens, security titles, estates, assignments, rights or security interests securing the payment of the Debt, no judgment for any deficiency upon the Debt shall be sought or obtained by Payee Lender or enforceable against Maker.
(a) Nothing contained in this Section 12 shall (1) be deemed to be a release or impairment of the Debt or the lien of the Loan Documents upon the Mortgaged Property, or (2) preclude Payee from foreclosing under the Loan Documents in case of any default or from enforcing any of the other rights of Payee, including naming Maker as a party defendant in any action or suit for foreclosure and sale under the Mortgage, or obtaining the appointment of a receiver or prohibit Payee from obtaining a personal judgment against Maker on the Debt to the extent (but only to the extent) such judgment may be required in order to enforce the liens, security titles, estates, assignments, rights and security interests securing payment of the Debt, or (3) limit or impair in any way whatsoever the Guaranty (the "Guaranty") of even date executed and delivered in connection with the indebtedness evidenced by this Note or release, relieve, reduce, waive or impair in any way whatsoever, any obligation of any party to the Guaranty or (4) release, relieve, reduce, waive or impair in any way whatsoever any obligations of any person other than Maker which is a party to any of the other Loan Documents.
(b) In the event of fraud or material misrepresentation by Maker or any guarantor in connection with the Loan Documents or the documents delivered by Maker, or the first full Monthly Installment on this Note is not paid when due, or if any petition or proceeding for bankruptcy, reorganization or arrangement pursuant to federal bankruptcy law, or any similar federal or state law, shall be filed by Maker (or if any such petition or proceeding was not so filed by Maker, but Maker or Guarantor or their respective agents, affiliates, officers or employees consented to, acquiesced in arranged or otherwise participated in bringing about the institution of such petition or proceeding), or if there shall occur any material breach or default under the provisions of Section 9 of the Mortgage (entitled "Single Purpose Entity/Separateness"), the limitations on recourse set forth in this Section 12, including the provisions of clauses (i)) any Borrower Party, (ii) and any Affiliate of any Borrower Party, (iii) any Person owning, directly or indirectly, any legal or beneficial interest in any Borrower Party or any Affiliate of any Borrower Party or (iv) any partner, member, principal, officer, controlling person, beneficiary, trustee, advisor, shareholder, employee, agent, Affiliate or director of any Persons described in clauses (i) through (iv) above (collectively, the "Exculpated Parties") by Lender in respect of the Obligations, this Section 12 aboveLoan Agreement, will be null the Mortgages, the Note, the Properties or any other Loan Document, or the making, issuance or transfer thereof, all such liability, if any, being expressly waived by Lender and void each successive holder of the Note and completely inapplicablethe Mortgages shall accept the Note and the Mortgages upon the express condition that Lender's sole recourse for the Obligations and the performance and observance of the obligations contained in this Loan Agreement, the Note, the Mortgages and this Note the other Loan Documents shall be full recourse to Maker.
(c) Nothing contained herein shall in exercise any manner or way releaseall of its rights and remedies with respect to the Properties, affect the Rents and other Collateral including, without limitation, any or impair the right all of Payee to recover, and Maker shall be fully and personally liable and subject to legal action, for any loss, cost, expense, damage, claim or other obligation (including without limitation reasonable attorneys' fees and court costs) incurred or suffered by Payee arising out of or in connection with the following:
(Ai) any continuing default beyond any applicable cure periods Foreclosure of the Environmental Liabilities Agreement executed by Maker for lien of the benefit of Payee, dated of even date herewith, including Mortgages in accordance with the indemnification terms and provisions contained thereinset forth in the Mortgages;
(Bii) Maker's failure Action against any other security at any time given to obtain ▇▇▇▇▇'s prior written consent to any subordinate financing (except as permitted in Section 9(d) secure the payment of the Mortgage) or any Note and under the other encumbrance on the Mortgaged Property, or any transfer of the Mortgaged Property or majority ownership in Maker in violation of the Mortgage;
(C) the misapplication by Maker, its agents, affiliates, officers or employees of any funds derived from the Mortgaged Property, including security deposits, insurance proceeds and condemnation awards, in violation of the Loan Documents;
(Diii) Maker's failure to apply proceeds Exercise of rents any other remedy set forth in this Loan Agreement, the Mortgages or any other payments Loan Document. Notwithstanding anything to the contrary in respect this Loan Agreement, the Mortgages or any of the leases and other income from the Mortgaged Property 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 collateral when received to the costs of maintenance and operation provisions of the Mortgaged Property and Bankruptcy Code to file a claim for the payment of taxes, lien claims, insurance premiums, monthly payments of principal and interest or escrow payments or other payments due under the Loan Documents to the extent the Loan Documents require such proceeds to be then so applied;
(E) any litigation or other legal proceeding related to the Debt filed by Maker or any guarantor or indemnitor that delays or impairs Payee's ability to preserve, enforce or foreclose its lien on the Mortgaged Property, including, but not limited to, the filing of a voluntary petition concerning Maker under the U.S. Bankruptcy Code, in which action a claim, counterclaim, or defense is asserted against Payee, other than any litigation or other legal proceeding in which a final, non-appealable judgment for money damages or injunctive relief is entered against Payee;
(F) the gross negligence or willful misconduct of Maker, its agents, affiliates, officers or employees which causes or results in a material diminution, or material loss of value, full amount of the Mortgaged Property Obligations secured by the Mortgages or to require that is not reimbursed by insurance or which gross negligence or willful misconduct exposes Payee all collateral shall continue to claims, liability or costs of defense in any litigation or other legal proceeding;
(G) the seizure or forfeiture secure all of the Mortgaged Property, or any portion thereof, or ▇▇▇▇▇'s interest therein, resulting from criminal wrongdoing by Maker, its agents, affiliates, officers or employees;
(H) waste Obligations owing to the Mortgaged Property caused by the acts or omissions of Maker, its agents, affiliates, officers, employees or contractors; or the removal or disposal of any portion of the Mortgaged Property by Maker its agents, affiliates, officers, employees or contractors after an Event of Default to the extent such Mortgaged Property is not replaced by Maker with like property of equivalent value, function and design; and
(I) in the event Payee has waived (or the Mortgage does not require) the monthly collection for real and personal property taxes, assessments, or insurance premiums, then failure by Maker to pay any or all such taxes, assessments or premiums Lender in accordance with terms of the Mortgage (except for taxes and assessment which accrue, and premiums which are payable, after either (1) the date that Payee takes title to the Mortgaged Property by foreclosure, deed-in-lieu of foreclosure or otherwise or (2) ▇▇▇▇▇ obtains the appointment of a receiver or otherwise takes possession directly as a mortgagee in possession (provided, that, Maker has relinquished possession and control of the Mortgaged Property to such receiver or Payee and is not disputing the receivership or possession by the receiver or Payee))Loan Documents.
(d) In addition to the foregoing, Maker shall also be fully and personally liable to Payee for any amount which Maker is fully and personally liable to Payee for under Section 12 of the Crossed Note evidencing the Crossed Loan.
Appears in 1 contract
Sources: Loan and Security Agreement (HRPT Properties Trust)