Limitations on Remedies 7.1 IN NO EVENT WHATSOEVER SHALL SELLER OR ANY OF THE TEKNI-PLEX COMPANIES OR ANY OF ITS OR THEIR EMPLOYEES, AGENTS OR SUPPLIERS HAVE ANY LIABILITY, WHETHER BASED ON BREACH OF CONTRACT, WARRANTY, BREACH OF STATUTORY DUTY, NEGLIGENCE, TORT, STRICT LIABILITY OR OTHERWISE, IN AN AMOUNT IN EXCESS OF THE AMOUNT ACTUALLY RECEIVED BY SELLER FROM BUYER AS PURCHASE PRICE FOR THE PRODUCTS OR SERVICES WHICH ARE THE SUBJECT OF A CLAIM OR SERIES OF RELATED CLAIMS. IN NO EVENT WHATSOEVER SHALL SELLER OR ANY OF ITS EMPLOYEES, AGENTS OR SUPPLIERS HAVE ANY LIABILITY FOR ANY: LOSS OF INCOME; LOSS OF ACTUAL OR ANTICIPATED PROFITS; LOSS OF BUSINESS; LOSS OF CONTRACTS; LOSS OF GOODWILL OR REPUTATION; LOSS OF ANTICIPATED SAVINGS; LOSS OF, DAMAGE TO OR CORRUPTION OF DATA; BUYER’S ATTORNEY FEES OR ANY OTHER TYPE OF LUCRUM CESSANS; ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, STATUTORY, PUNITIVE OR EXEMPLARY DAMAGES, EVEN IF SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING BUT NOT LIMITED TO ANY DAMAGES ARISING FROM OR RELATING TO ANY INJURY TO PERSONS; LOSS OF VALUE OR USE (INCLUDING WITHOUT LIMITATION, DIMINUTION IN VALUE OR STIGMA DAMAGES); LOSS OF ANTICIPATED REVENUE OR PROFIT; COST OF CAPITAL; DAMAGE TO OR LOSS OF OTHER PROPERTY OR EQUIPMENT; CLAIMS MADE BY END-USERS; OR COST OF SUBSTITUTE SUPPLIES, FACILITIES OR SERVICES, WHETHER BASED IN TORT, CONTRACT, BREACH OF STATUTORY DUTY, NEGLIGENCE, STRICT LIABILITY OR ANY OTHER LEGAL THEORY.
7.2 Without prejudice to any other provisions of this Agreement (including, but not limited to Section
Limitation on Remedies In addition to any other limitation on remedies or limitations of liability set forth in our Terms of Service or in applicable law or regulations, the Company shall not be liable for any delay or failure to provide Service at any time or from time to time, or any interruption or degradation of Service quality that is caused by any of the following: (a) an act or omission of an underlying carrier, service provider, vendor or other third party; (b) equipment, network or facility failure, including failure caused by the loss of power; (c) equipment, network or facility upgrade or modification; (d) force majeure events such as (but not limited to) acts of God, acts of nature, strikes, fire, war, riot, acts of terrorism and government actions; (e) equipment or facility shortage; (f) equipment or facility relocation; (g) any act or omission by you or any person using your Service; (h) theft, fraud or abuse of Service; or (i) any other cause that is beyond the Company’s reasonable control. THE EXTENT PERMITTED BY LAW, OUR TOTAL LIABILITY FOR ANY CLAIM UNDER THIS AGREEMENT, INCLUDING FOR ANY EXPRESS OR IMPLIED WARRANTIES, IS LIMITED TO THE AMOUNT YOU PAID US FOR THE AFFECTED SERVICE OR FACILITIES, WHETHER SUCH CLAIM OR REMEDY IS SOUGHT IN CONTRACT OR TORT, INCLUDING NEGLIGENCE, STRICT LIABILITY OR OTHERWISE. TO THE EXTENT PERMITTED BY LAW, WE SHALL NOT BE LIABLE TO YOU FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, PUNITIVE, SPECIAL OR TREBLED OR ENHANCED DAMAGES, INCLUDING, BUT NOT LIMITED TO LOST PROFITS, LOST BUSINESS, OR OTHER COMMERCIAL OR ECONOMIC LOSS, WHETHER SUCH DAMAGES ARE CLAIMED FOR BREACH OF CONTRACT, NEGLIGENCE OR OTHERWISE AND WHETHER OR NOT WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Limitations on Recourse (a) Notwithstanding anything in the Loan Documents to the contrary, but subject to the qualifications and other provisions in clauses (b), (c) and (d) of this Section 12 below, Lender and Borrower agree that: (i) 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 Debt and/or the other obligations of Borrower under the Loan 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 L▇▇▇▇▇ against 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 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 Borrower other than the 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 Lender against Borrower.
(b) Nothing contained in this Section 12 shall (A) be deemed to be a release or impairment of the Debt or the lien of the Loan Documents upon the Property, (B) preclude Lender from foreclosing under the Loan Documents in case of any default or from enforcing any of the other rights of Lender, including naming 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 Lender from obtaining a personal judgment against 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, (C) 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 (D) release, relieve, reduce, waive or impair in any way whatsoever any obligations of any person other than Borrower which is a party to any of the other Loan Documents.
(c) In the event of fraud or material misrepresentation by Borrower or Guarantor or any of their agents, affiliates, officers or employees in connection with the Loan Documents or the documents delivered by any of them, or if 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 Borrower (or if any such petition or proceeding was not so filed by Borrower, but Borrower 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”) 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 this Section 12(a) above, will be null and void and completely inapplicable, and this Note shall be full recourse to Borrower.
(d) Nothing contained herein shall in any manner or way release, affect or impair the right of Lender to recover, and 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 Lender arising out of or in connection with the following:
(i) any breach of the Environmental Liabilities Agreement executed by B▇▇▇▇▇▇▇ and Guarantor for the benefit of Lender, dated on or about the date hereof, including the indemnification provisions contained therein;
(ii) any failure to comply with the provisions of the Loan Documents prohibiting subordinate financing or the sale, transfer or encumbrance of the Property or any direct or indirect ownership interest in Borrower;
(iii) any application in violation of the Loan Documents or other misapplication by Borrower, its agents, affiliates, officers or employees of any funds derived from the Property, including security deposits, insurance proceeds and condemnation awards;
(iv) 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 receipts in respect of the leases (lease termination and modification payments and recoveries upon defaulted leases) and other income or funds derived from the Property or any other collateral when received to the costs of maintenance and operation of the 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;
(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 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 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▇▇▇▇▇▇▇;
(vi) the seizure or forfeiture of the Property, or any portion thereof, or L▇▇▇▇▇’s interest therein, resulting from criminal wrongdoing by Borrower, its agents, affiliates, officers or employees;
(vii) in the event 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, insurance premiums, or ground rents, then failure by Borrower to pay any or all such taxes, assessments, premiums and rents;
(viii) waste of the Property;
(ix) any failure by Borrower to insure the Property in accordance with the Loan Documents;
(x) the removal or disposal of any portion of the Property after an Event of Default to the extent such Property is necessary to the operation, preservation or protection of the Property in Lender’s reasonable discretion and is not replaced by Borrower with like property of equivalent value, function and design;
(xi) any payments made by Borrower to any affiliated property manager or other Affiliate of Borrower after the occurrence and during the continuance of an Event of Default;
(xii) B▇▇▇▇▇▇▇’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 modification of 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 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 connection with the enforcement by Lender of any obligations of Borrower for which Borrower is personally liable hereunder and under the Environmental Liabilities Agreement, together with interest accrued for any such unpaid obligations at the Default Rate.