Limited Recourse Liability. Except to the extent set forth in Paragraph 8 and Paragraph 9 of this Note, neither the Borrower nor any general partner(s) of Borrower (singularly or collectively, the "Exculpated Parties") shall have any personal liability for the Obligations. Notwithstanding the preceding sentence, Lender may bring a foreclosure action or other appropriate action to enforce the Documents or realize upon and protect the Property (including, without limitation, naming the Exculpated Parties in the actions) and in addition THE EXCULPATED PARTIES SHALL HAVE PERSONAL LIABILITY FOR: (a) any indemnity, guaranty, master lease or similar instrument furnished in connection with the Loan (including, without limitation, the provisions of Sections 8.03, 8.04, 8.05, 8.06 and 8.07 of the Instrument); (b) any assessments and taxes (accrued and/or payable) with respect to the Property which are not paid and applicable to Borrower's period of ownership; (c) any security deposits of tenants (i) not turned over to Lender upon foreclosure, sale (pursuant to power of sale), or conveyance in lieu thereof, or (ii) not turned over to a receiver or trustee for the Property after appointment; (d) any insurance proceeds or condemnation awards neither turned over to Lender nor used in compliance with Section 3.07 and 3.08 of the Instrument; (e) waste of the Property; (f) any rents or other income from the Property received by any of the Exculpated Parties after a default under the Documents and not otherwise applied to the Obligations evidenced by this Note or to the current (not deferred) operating expenses of the Property; PROVIDED, HOWEVER, THAT THE EXCULPATED PARTIES SHALL HAVE PERSONAL LIABILITY for amounts paid as expenses to a person or entity related to or affiliated with any of the Exculpated Parties unless the payments are expressly permitted in the Documents; (g) Borr▇▇▇▇'▇ ▇ailure to maintain any letter of credit required under the Documents; and (h) all actual legal fees, including the allocated costs of Lend▇▇'▇ ▇taff attorneys, and other expenses incurred by Lend▇▇ ▇▇ enforcing the Documents if Borrower contests, delays, or otherwise hinders or opposes (including, without limitation, the filing of a bankruptcy) any of Lender's enforcement actions.
Appears in 1 contract
Limited Recourse Liability. Except to the extent set forth in Paragraph 8 and Paragraph 9 of this Note, neither the Borrower nor any general partner(s) of Borrower (singularly or collectively, the "Exculpated Parties") shall not have any personal liability for the ObligationsLoan or any obligations set forth in the Documents. Notwithstanding the preceding sentence, Lender may bring a foreclosure action or other appropriate action to enforce the Documents or realize upon and protect the Property (including, without limitation, naming the Exculpated Parties Borrower and any other necessary parties in the actions) and in addition IN ADDITION THE EXCULPATED RECOURSE PARTIES SHALL HAVE JOINT AND SEVERAL PERSONAL LIABILITY FOR:
(a) any indemnityamounts accrued and/or payable under any indemnities, guarantyguaranties, master lease leases or similar instrument instruments furnished in connection with the Loan (including, without limitation, the provisions of Sections 8.037.03, 8.047.04, 8.057.05, 8.06 7.06 and 8.07 of 7.07 below and the InstrumentEnvironmental and ERISA Indemnity);. CENTRAL\31200109.7 -32-
(b) the amount of any assessments and taxes (accrued and/or payable) with respect to the Property which are not paid and applicable to Borrower's period of ownershipProperty;
(c) the amount of any security deposits deposits, rents prepaid more than one (1) month in advance, or prepaid expenses of tenants to the extent not turned over to (i) Lender upon foreclosure, sale (pursuant to power of sale), or conveyance in lieu thereof, or (ii) a receiver or trustee for the Property after appointment;
(d) the amount of any insurance proceeds or condemnation awards neither turned over to Lender nor used in compliance with the Documents;
(e) actual damages suffered or incurred by Lender as a result of Borrower (i) entering into a new Lease, (ii) entering into an amendment or termination of an existing Lease (other than a Primary Lease, which is covered in Section 7.01(E) below), (iii) accepting a termination, cancellation or surrender of an existing Lease in breach of the leasing restrictions set forth in the Assignments of Leases, or (iv) entering into leases or other agreements regarding occupancy of guest rooms at any Individual Property for in excess of thirty (30) days on other than market terms and rents;
(f) damages suffered or incurred by Lender by reason of any intentional waste of the Property;
(g) the amount of any Rents or other income from the Property received by any of the Recourse Parties after delivery of notice of a default under the Documents (but only if such default is not cured prior to the expiration of the applicable cure period, if any) and not otherwise applied to the indebtedness under the Notes or to the current (not deferred) operating expenses of the Property; PROVIDED, HOWEVER, THAT THE RECOURSE PARTIES SHALL HAVE PERSONAL LIABILITY for amounts, if any, paid as expenses to a person or entity related to or affiliated with any of the Recourse Parties except for any such amount paid to a related or affiliated person or entity for (A) reasonable salaries for on-site employees, (B) a reasonable allocation of the salaries of off-site employees for accounting and management, and (C) out-of-pocket expenses of Borrower’s management company relating to the Property, but in no event shall such expenses include any profit or be greater than prevailing market rates for any such services. For purposes of this subsection, Manager, any of its subsidiaries and any successor third-party, unaffiliated management company shall not be deemed to be related or affiliated with Borrower or any of the Recourse Parties by virtue of being Manager;
(h) the face amount of any letter of credit required under the Documents or otherwise in connection with the Loan that Borrower fails to maintain;
(i) following a default under the Documents, all reasonable attorneys’ fees, including allocated costs of Lender’s staff attorneys, and other expenses incurred by Lender in enforcing the Documents if Borrower contests, delays, or otherwise hinders or opposes (including, without limitation, the filing of a bankruptcy) any of Lender’s enforcement actions; provided, however, that if in such action Borrower successfully proves that no default occurred under the Documents, Borrower shall not be required to reimburse Lender for such attorneys’ fees, allocated costs and other expenses; and
(j) actual damages suffered or incurred by Lender as a result of Borrower’s breach or violation of the Special Purpose Entity Requirements (other than Section 2(m) and 2(q) set forth in CENTRAL\31200109.7 -33- Exhibit C attached hereto, breach or violation of which shall not result in personal liability under this subsection 7.01(j)).
(k) all fees, costs, expenses, penalties and other sums (accrued and/or payable prior to the date upon which Lender actually takes title to an Individual Property through foreclosure, deed in lieu of foreclosure or otherwise (the “Property Transition Date”)) relating to any Franchise Agreement affecting any Individual Property and any related software and/or hardware licensing, communications and technical support agreements;
(l) all Make-Whole Fees payable in connection with assuming Borrower’s rights and interest under any Franchise Agreement upon foreclosure, sale (pursuant to power of sale), or conveyance in lieu thereof;
(m) all termination fees, costs, expenses and other sums payable on account of any voluntary termination of any Hotel Franchise Agreement by any of the Recourse Parties without Lender’s prior written consent, as required under the Documents;
(n) all fees, costs, expenses and other sums payable upon a voluntary termination of any Hotel Franchise Agreement by any of the Recourse Parties without Lender’s prior written consent, as required under the Documents, in connection with (i) reinstating any Hotel Franchise Agreement upon foreclosure, sale (pursuant to power of sale), or conveyance in lieu thereof, and (ii) securing any new hotel franchise agreement for an Individual Property with a franchisor of hotel properties of equivalent (but not better) class as that of the Property, upon foreclosure, sale (pursuant to power of sale), or conveyance in lieu thereof if, after good faith and reasonable efforts by Lender to reinstate the Hotel Franchise Agreement, Lender is unable to do so; provided, however, that no liability shall accrue under this subsection (n) if, within thirty (30) days after any voluntary termination of any Hotel Franchise Agreement by any of the Recourse Parties without Lender’s prior written consent as required under the Documents, Borrower shall have entered into a new Acceptable Hotel Franchise Agreement. Borrower acknowledges that the terms of this subsection (n) are solely intended to govern the question of liability under this subsection (n) and shall in no way be considered in determining whether or not an Event of Default shall have occurred and shall in no way be reflective of any standards to which Lender shall be subject in granting or withholding consent to any termination of or amendment to any Hotel Franchise Agreement; and
(o) any security or other deposits for conventions, banquets or catering, or the booking of guest rooms that are not applied in accordance with the terms of the agreement with the depositor (i) not turned over to Lender upon foreclosure, sale (pursuant to power of sale), or conveyance in lieu thereof, or (ii) not turned over to a receiver or trustee for the Property after his/her appointment;
(d) any insurance proceeds or condemnation awards neither turned over to Lender nor used in compliance with Section 3.07 and 3.08 of . Notwithstanding the Instrument;
(e) waste of foregoing, the Property;
(f) any rents or other income from the Property received by any of the Exculpated Parties after a default under the Documents and not otherwise applied to the Obligations evidenced by this Note or to the current (not deferred) operating expenses of the Property; PROVIDED, HOWEVER, THAT THE EXCULPATED RECOURSE PARTIES SHALL HAVE PERSONAL LIABILITY for amounts paid all indebtedness evidenced by the Notes and all obligations set forth in the Documents (except as expenses set forth in subsection 7.01(D) below) if:
(A) there shall be any breach or violation of Section 5.01 above; provided, however, if Borrower (1) establishes that the breach or violation (x) was inadvertent, and (y) did not involve the transfer or disposition, or encumbrance with a monetary lien, of the Property or any part thereof, (2) promptly gives Lender written notice of such event, and (3) cures the same to a person or entity related to or affiliated with the reasonable satisfaction of Lender within thirty (30) days after any senior officer CENTRAL\31200109.7 -34- of any of the Exculpated Recourse Parties unless first had actual knowledge thereof (regardless of whether Lender shall have given any notice of default or other notice on account thereof), the payments are expressly permitted Recourse Parties shall be personally liable only for any actual damages suffered or incurred by Lender as a result of the breach or violation; or
(B) there shall be any fraud or material misrepresentation by any of the Recourse Parties in connection with the Property, the Documents;, the Loan Application, or any other aspect of the Loan; provided, however, if, with respect to a material misrepresentation only, Borrower (1) establishes that the misrepresentation was inadvertent, (2) promptly gives Lender written notice of the misrepresentation, and (3) cures the same to the reasonable satisfaction of Lender within thirty (30) days after any senior officer of any of the Recourse Parties first had actual knowledge thereof (regardless of whether Lender shall have given any notice of default or other notice on account thereof), the Recourse Parties shall be personally liable only for any actual damages suffered or incurred by Lender as a result of the misrepresentation; or
(gC) Borr▇▇▇▇'▇ ▇ailure to maintain the Property or any letter part thereof shall become an asset in (i) a voluntary bankruptcy or insolvency proceeding or (ii) an involuntary bankruptcy or insolvency proceeding which is not dismissed within ninety (90) days of credit required under filing; provided, however, that this subsection 7.01(C) shall not apply if (A) an involuntary bankruptcy is filed by Lender or (B) an involuntary filing was initiated by a third-party creditor independent of any collusive action, participation or collusive communication by (1) Borrower, (2) any partner, shareholder or member of Borrower or Borrower’s general partner or managing member, or (3) any of the Documentsother Recourse Parties; andor
(hD) all actual legal feesany Individual Property located in California is determined to be “environmentally impaired” pursuant to the provisions of Section 726.5 of the California Code of Civil Procedure; provided that the liability of the Recourse Parties under this subsection (D) shall be equal to the amount that Borrower would be obligated to pay to Lender under Section 5.03 above to obtain a Release of the environmentally impaired Individual Property (as if such Individual Property were a Release Property), including the allocated costs of Lend▇▇'▇ ▇taff attorneys, and other expenses incurred by Lend▇▇ ▇▇ enforcing the Documents if Borrower contests, delays, or otherwise hinders or opposes (including, without limitation, the filing applicable Prepayment Premium, all accrued interest with respect to the allocated loan amount applicable to the environmentally impaired Individual Property, and any amount necessary to either increase the Debt Service Coverage Ratio or reduce the Loan to Value Ratio of a bankruptcythe other Property (those Individual Properties that are not environmentally impaired) to the required level set forth in Section 5.03 above; or
(E) any of the Recourse Parties executes or authorizes an amendment or termination of any Primary Lease without Lender's enforcement actions’s prior written consent; provided, however, if Borrower (1) establishes that the execution or authorization of the amendment or termination was inadvertent, (2) promptly gives Lender written notice of such amendment or termination, and (3) cures the same to the reasonable satisfaction of Lender within thirty (30) days after any senior officer of Borrower or any of the other Recourse Parties first had actual knowledge thereof (regardless of whether Lender shall have given any notice of default or other notice on account thereof), the Recourse Parties shall be personally liable only for any actual damages suffered or incurred by Lender as a result of the amendment or termination.
Appears in 1 contract
Limited Recourse Liability. Except to the extent set forth in Paragraph 8 and Paragraph 9 of this Note, neither Sections 3.11 and 3.12 of the Instrument, and the Environmental Indemnity, Borrower nor any general partner(s) of Borrower (singularly or collectively, the "Exculpated Parties") shall have any no personal liability for the Obligations. Notwithstanding the preceding sentence, Lender may bring a foreclosure action or other appropriate action to enforce the Documents or realize upon and protect the Property (including, without limitation, naming the Exculpated Parties Borrower and any other necessary parties in the actions) and in addition THE IN ADDITION BORROWER (BUT NOT ANY EXCULPATED PARTIES PARTY) SHALL HAVE PERSONAL LIABILITY FOR:
(a) any indemnityamounts accrued and/or payable under any indemnities, guarantyguaranties, master lease leases or similar instrument instruments furnished by Borrower in connection with the Loan (including, without limitation, the provisions of Sections 8.03, 8.04, 8.05, 8.06 and 8.07 of the InstrumentInstrument and the Environmental Indemnity);
(b) any assessments and taxes (accrued and/or payable) with respect to the Property which are not paid and applicable to Borrower's period amounts in excess of ownership;
(c) any security deposits of tenants (i) not turned over to Lender upon foreclosure, sale (pursuant to power of sale), or conveyance in lieu thereof, or (ii) not turned over to a receiver or trustee for the Property after appointment;
(d) any insurance proceeds or condemnation awards neither turned over to Lender nor used in compliance with Section 3.07 and 3.08 of the Instrument;
(e) waste of the Property;
(f) any rents or other income revenues collected by Lender from the operation of Property received by any from and after acceleration of the Exculpated Parties after a default under Loan until the Documents Conveyance Date (defined below), which amounts are necessary to pay real estate taxes, special assessments and not otherwise applied insurance premiums (to the Obligations evidenced by this Note or extent not previously deposited with Lender pursuant to the current (not deferred) operating expenses Documents), and amounts required to fulfill Borrower’s obligations as lessor under any Leases of the Property; PROVIDED, HOWEVERin each case, THAT THE EXCULPATED PARTIES SHALL HAVE PERSONAL LIABILITY for amounts paid as expenses to a person or entity related to or affiliated with any of the Exculpated Parties unless the payments are expressly permitted in the Documents;
(g) Borrby ▇▇▇▇'▇ ▇ailure to maintain any letter of credit required under the Documents; and
(h) all actual legal fees, including the allocated costs of Lend▇▇'▇ ▇taff attorneys, and other expenses incurred by Lend▇▇ ▇▇ enforcing the Documents if Borrower contests, delaysand not reimbursed prior to, or otherwise hinders remaining due or opposes (including, without limitation, delinquent on the filing date of sale by foreclosure or power of sale or delivery of a bankruptcy) any deed in lieu thereof. For purposes hereof, “Conveyance Date” shall mean the date of Lender's enforcement actions.sale of the Property by foreclosure or power of sale or acceptance by Lender of a deed in lieu thereof;
Appears in 1 contract
Sources: Promissory Note (Pennsylvania Real Estate Investment Trust)
Limited Recourse Liability. Except to the extent set forth in Paragraph 8 and Paragraph 9 of this Note, neither the Borrower nor any general partner(s) of Borrower (singularly or collectively, the "Exculpated Parties") shall have any personal liability for the Obligations. Notwithstanding the preceding sentence, Lender may bring a foreclosure action or other appropriate action to enforce the Documents or realize upon and protect the Property (including, without limitation, naming the Exculpated Parties in the actions) and in addition THE EXCULPATED PARTIES SHALL HAVE PERSONAL LIABILITY FOR:
(a) any indemnity, guaranty, master lease or similar instrument furnished in connection with the Loan (including, without limitation, the provisions of Sections Section 8.03, 8.04, 8.05, 8.06 and 8.07 of the Instrument);
(b) any assessments and taxes (accrued and/or payable) with respect to the Property which are not paid and applicable to Borrower's period of ownership;
(c) any security deposits of tenants (i) not turned over to Lender upon foreclosure, sale (pursuant to power of sale), or conveyance in lieu thereof, or (ii) not turned over to a receiver or trustee for the Property after appointment;
(d) any insurance proceeds or condemnation awards neither turned over to Lender nor used in compliance with Section 3.07 and 3.08 of the Instrument;
(e) waste of the Property;
(f) any rents or other income from the Property received by any of the Exculpated Parties after a default under the Documents and not otherwise applied to the Obligations evidenced by this Note or to the current (not deferred) operating expenses of the Property; PROVIDED, HOWEVER, THAT THE EXCULPATED PARTIES SHALL HAVE PERSONAL LIABILITY for amounts paid as expenses to a person or entity related to or affiliated with any of the Exculpated Parties unless the payments are expressly permitted in the Documents;
(g) Borr▇▇▇▇'▇ ▇ailure to maintain any letter of credit required under the Documents; and
(h) all actual legal fees, including the allocated costs of Lend▇▇'▇ ▇taff attorneys, and other expenses incurred by Lend▇▇ ▇▇ enforcing the Documents if Borrower contests, delays, or otherwise hinders or opposes (including, without limitation, the filing of a bankruptcy) any of Lender's enforcement actions.
Appears in 1 contract
Limited Recourse Liability. Except to the extent set forth in this Paragraph 8 and Paragraph 9 of this Note, neither none of Borrower, the Borrower nor any general partner(s) partner of Borrower or FelCor Lodging Limited Partnership (singularly or collectively, the "Exculpated PartiesEXCULPATED PARTIES") shall have any personal liability for the Obligations. Notwithstanding the preceding sentence, Lender may bring a foreclosure action or other appropriate action to enforce the Loan Documents or realize upon and protect all or any number of the Property Properties (including, without limitation, naming the Exculpated Parties in the actions) and in addition THE EXCULPATED PARTIES PARTIES, JOINTLY AND SEVERALLY, SHALL HAVE PERSONAL LIABILITY FORFOR THE FOLLOWING:
(a) any indemnityseparate indemnity agreement, guaranty, master lease or similar instrument furnished in connection with the Loan (including, without limitation, the provisions of Sections 8.03, 8.04, 8.05, 8.06 Environmental Indemnity and 8.07 of the InstrumentERISA Certificate and Indemnification Agreement);
(b) any assessments and taxes Assessments (accrued and/or payable) with respect to the Property which are not paid and applicable to Borrower's period of ownershipProperties, whether payable by Borrower or DJONT Operations, L.L.C. ("LESSEE");
(c) any security deposits of tenants or subtenants whether held by Borrower or Lessee (other than a Successor Lessee) (i) not turned over to Lender upon foreclosure, sale (pursuant to power of sale), or conveyance in lieu thereof, or (ii) not turned over to a receiver or trustee for the Property Properties after appointment;
(d) any insurance proceeds or condemnation awards neither turned over to Lender nor used in compliance with Section 3.07 and 3.08 of the InstrumentLoan Documents whether held by Borrower or Lessee (other than a Successor Lessee);
(e) if any of the Exculpated Parties or Lessee (other than a Successor Lessee) executes an amendment or termination of any lease in violation of any provision of the Loan Documents (other than any Primary Lease [as defined in the Instruments] which is addressed in Paragraph 9(d) below) without Lend▇▇'▇ ▇rior written consent (and Lend▇▇'▇ ▇onsent was required under the Loan Documents), the Exculpated Parties shall have personal liability for the greater of:
(i) the present value (calculated at the Discount Rate) of the aggregate total dollar amount (if any) by which (A) rental income and/or other tenant obligations prior to the amendment of such lease exceeds (B) rental income and/or other tenant obligations after the amendment of such lease; or
(ii) any termination fee or other consideration paid;
(f) intentional waste of the all or any portion of any Property;
(fg) any rents or other income from the any Property received by any of the Exculpated Parties or Lessee (other than a Successor Lessee) after a default under the Loan Documents and not otherwise applied by Lessee to the rent payable under the Primary Lessee, or by Borrower to the Obligations evidenced by this Note or to the current (not deferred) operating expenses of the such Property; PROVIDED, HOWEVER, THAT THE EXCULPATED PARTIES SHALL HAVE PERSONAL LIABILITY for amounts paid as expenses to a person or entity related to or affiliated with any of the Exculpated Parties unless the payments are expressly permitted in the Documents;
(g) Borr▇▇▇▇'▇ ▇ailure to maintain any letter of credit required under the Loan Documents; and
(h) all actual legal feesand further provided, including the allocated costs that for purposes of Lend▇▇'▇ ▇taff attorneys, and other expenses incurred by Lend▇▇ ▇▇ enforcing the Documents if Borrower contests, delays, or otherwise hinders or opposes (including, without limitation, the filing of a bankruptcy) any of Lender's enforcement actions.this Paragraph 8
Appears in 1 contract
Limited Recourse Liability. Except to the extent set forth in Paragraph 8 and Paragraph 9 of this Note, neither the Borrower nor any general partner(s) of Borrower (singularly or collectively, the "Exculpated Parties") shall have any personal liability for the Obligations. Notwithstanding the preceding sentence, Lender may bring a foreclosure action or other appropriate action to enforce the Documents or realize upon and protect the Property (including, without limitation, naming the Exculpated Parties in the actions) and in addition THE EXCULPATED PARTIES SHALL HAVE PERSONAL LIABILITY FOR:
(a) any indemnity, guaranty, master lease or similar instrument furnished in connection with the Loan (including, without limitation, the provisions of Sections Section 8.03, 8.04, 8.05, 8.06 and 8.07 of the Instrument);; Prudential Loan No.: 6 102 639 Robe▇▇▇ ▇▇▇idential\promissory note BORR▇▇▇▇'▇ ▇NITIALS: /s/ CSR ------- 433047.2/2555.181 3
(b) any assessments and taxes (accrued and/or payable) with respect to the Property which are not paid and applicable to Borrower's period of ownership;
(c) any security deposits of tenants (i) not turned over to Lender upon foreclosure, sale (pursuant to power of sale), or conveyance in lieu thereof, or (ii) not turned over to a receiver or trustee for the Property after appointment;
(d) any insurance proceeds or condemnation awards neither turned over to Lender nor used in compliance with Section 3.07 and 3.08 of the Instrument;
(e) waste of the Property;
(f) any rents or other income from the Property received by any of the Exculpated Parties after a default under the Documents and not otherwise applied to the Obligations evidenced by this Note or to the current (not deferred) operating expenses of the Property; PROVIDED, HOWEVER, THAT THE EXCULPATED PARTIES SHALL HAVE PERSONAL LIABILITY for amounts paid as expenses to a person or entity related to or affiliated with any of the Exculpated Parties unless the payments are expressly permitted in the Documents;
(g) Borr▇▇▇▇'▇ ▇ailure to maintain any letter of credit required under the Documents; and
(h) all actual legal fees, including the allocated costs of Lend▇▇'▇ ▇taff attorneys, and other expenses incurred by Lend▇▇ ▇▇ enforcing the Documents if Borrower contests, delays, or otherwise hinders or opposes (including, without limitation, the filing of a bankruptcy) any of Lender's enforcement actions.
Appears in 1 contract
Limited Recourse Liability. Except to the extent set forth in Paragraph 8 and Paragraph 9 of this Note, neither the Borrower nor any general partner(s) of Borrower nor ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ nor ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ (singularly or collectively, the "“Exculpated Parties"”) shall have any personal liability for the Obligations. Notwithstanding the preceding sentence, Lender may bring a foreclosure action or other appropriate action to enforce the Documents or realize upon and protect the Property (including, without limitation, naming the Exculpated Parties in the actions) and in addition THE EXCULPATED PARTIES SHALL HAVE PERSONAL LIABILITY FOR:
(a) FOR and be subject to legal action for any indemnityand all fees, guarantycosts, master lease or similar instrument furnished in connection with the Loan expenses, damages and losses (including, without limitation, legal fees and costs) incurred or suffered by Lender, resulting from or otherwise relating to the provisions following:
(a) The misapplication or misappropriation by Borrower of Sections 8.03any or all money collected, 8.04paid or received, 8.05or to which Borrower is entitled, 8.06 relating to the Loan or the Property, including, but not limited to, insurance proceeds, condemnation awards, lease security and 8.07 of the Instrument)other deposits and rent;
(b) Rents, issues, profits and revenues of all or any assessments and taxes (accrued and/or payable) with respect to portion of the Property received or applicable to a period after the occurrence of any Event of Default or after any event which, with the giving of notice and/or the passage of time, would constitute an Event of Default, which are not paid applied to pay, first (i) real estate taxes and applicable other charges which, if unpaid, could result in liens superior to Borrower's period that of ownershipthe Instrument, and (ii) premiums on insurance policies required under the Documents and, second, the other ordinary and necessary expenses of owning and operating the Property;
(c) any security deposits of tenants (i) not turned over to Lender upon foreclosure, sale (pursuant to power of sale), or conveyance in lieu thereof, or (ii) not turned over to a receiver or trustee for Waste committed on the Property after appointmentor damage to the Property as a result of intentional misconduct or gross negligence or the removal of all or any portion of the Property in violation of the terms of the Documents;
(d) Fraud or material misrepresentation or failure to disclose a material fact (including, without limitation, with respect to any insurance proceeds such fraud, misrepresentation or condemnation awards neither turned over failure to Lender nor used disclose in compliance any materials delivered to Lender) by any of the Exculpated Parties or by any other person or entity authorized or apparently authorized to make statements or representations on behalf of any of the Exculpated Parties in connection with the Loan application, Loan closing or security of or for the Loan, or otherwise in connection with the Property or the Loan;
(e) Any of the Exculpated Parties violates the provisions of Section 3.07 and 3.08 11.04 of the Instrument;
(e) waste of the Property;
(f) Borrower fails to obtain Lender’s prior written consent to any rents subordinate financing or other income from voluntary lien encumbering the Property received by any of the Exculpated Parties after a default under the Documents and not otherwise applied or direct or indirect interests in Borrower (but only to the Obligations evidenced extent such prior written consent is required by this Note or to the current (not deferred) operating expenses of the Property; PROVIDED, HOWEVER, THAT THE EXCULPATED PARTIES SHALL HAVE PERSONAL LIABILITY for amounts paid as expenses to a person or entity related to or affiliated with any of the Exculpated Parties unless the payments are expressly permitted in the Documents;); and/or
(g) Borr▇▇▇▇'▇ ▇ailure Borrower fails to maintain obtain Lender’s prior written consent to any letter assignment, transfer or conveyance of credit the Property or any portion thereof or any interest therein or directly or indirectly in Borrower (but only to the extent such prior written consent is required under by the Documents; and
(h) all actual legal fees). Notwithstanding anything to the contrary above or otherwise in the Documents, including in the allocated costs of Lend▇▇'▇ ▇taff attorneysevent that any petition for bankruptcy, and other expenses incurred by Lend▇▇ ▇▇ enforcing the Documents if Borrower contests, delaysreorganization or arrangement pursuant to state or federal bankruptcy law, or otherwise hinders any similar federal or opposes state law, shall be filed or consented to, or acquiesced in by any Exculpated Party, or any Exculpated Party seeks (includingor consents to, without limitation, or acquiesces in) the filing appointment of a bankruptcyreceiver, liquidator or trustee, or any proceeding for the dissolution or liquidation of Borrower or any Exculpated Party shall be instituted or consented to, or acquiesced in by any Exculpated Party, then (i) the Loan shall be fully recourse to the Exculpated Parties; and (ii) Lender shall not be deemed to have waived any right which Lender may have under Section 506 (a), 506 (b), 1111(b) or any other provisions of Lender's enforcement actionsthe U.S. Bankruptcy Code as same may be amended or replaced to file a claim for the full amount of the Loan or to require that all collateral shall continue to secure all of the indebtedness owing to Lender in accordance with the Documents.
Appears in 1 contract
Limited Recourse Liability. Except to the extent set forth in Paragraph 8 and Paragraph 9 of this Note, neither the Borrower nor any general partner(s) of Borrower (singularly or collectively, the "Exculpated Parties") shall not have any personal liability for the Obligations. Notwithstanding the preceding sentence, Lender may bring a foreclosure action or other appropriate action to enforce the Documents or realize upon and protect the Property (including, without limitation, naming the Exculpated Parties Borrower and any other necessary parties in the actions) and in addition IN ADDITION BORROWER AND ▇▇▇▇ CENTERS, INC. (SINGULARLY OR COLLECTIVELY, THE EXCULPATED PARTIES “RECOURSE PARTIES”) SHALL HAVE JOINT AND SEVERAL PERSONAL LIABILITY FOR:
(a) any indemnity, guaranty, master lease amounts accrued and/or payable under any Anti-Terrorism Laws provisions and indemnities or similar instrument furnished guaranties and any environmental and ERISA provisions and indemnities in connection the Documents and the duty to defend with respect to such indemnities as set forth in the Loan Documents (including, without limitation, the provisions of Sections 8.03, 8.04, 8.05, 8.06 and 8.07 of the InstrumentInstrument and the Environmental Indemnity);
(b) the amount of any assessments and taxes (accrued and/or payable) with respect to the Property which are not paid and applicable the amount of any recordation or similar such tax payable with respect to Borrower's period the recording of ownershipthe Instrument;
(c) the amount of any unapplied security deposits (and the amount of security deposits that were applied to a Lease during the period when an Event of Default under the Documents was continuing), rents prepaid more than one (1) month in advance or prepaid expenses of tenants (i) to the extent not turned over to (i) Lender upon foreclosure, sale (pursuant to power of sale), or conveyance in lieu thereof, or (ii) not turned over to a receiver or trustee for the Property after appointment;
(d) the amount of any insurance proceeds or condemnation awards neither turned over to Lender nor used in compliance with Section Sections 3.07 and 3.08 of the Instrument;
(e) damages suffered or incurred by Lender as a result of Borrower (i) entering into a new Lease, (ii) entering into an amendment or termination of an existing Lease, or (iii) accepting a termination, cancellation or surrender of an existing Lease (other than with respect to a Lease with a Major Tenant which is addressed in Paragraphs 8(n) and 9(d) below), in each case to the extent such action is in breach of the leasing restrictions set forth in Section 7 of the Assignment (as defined in the Instrument);
(f) damages suffered or incurred by ▇▇▇▇▇▇ by reason of any waste of the Property;
(fg) the amount of any rents Rents or other income from the Property received by any of the Exculpated Recourse Parties (i) during the period of time after a default an Event of Default under the Documents and until the earlier to occur of (A) the cure of such Event of Default and (B) the Transfer of Possession Date (defined below) and (ii) not otherwise applied to the Obligations evidenced by this Note indebtedness under the Documents or to the current (not deferred) operating expenses of the Property. As used in this subparagraph 8(g), the term “Transfer of Possession Date” shall mean the first to occur of: (i) the date on which Lender obtains title to the Property as a result of a foreclosure, (ii) the date on which a receiver is appointed for the benefit of the Property, or (iii) the date on which Borrower conveys the Property to Lender in compliance with all of the following requirements, which shall require that Borrower, at Borrower’s sole cost and expense, shall deliver or cause to be delivered to Lender (A) a duly executed and acknowledged deed, in customary form for the jurisdiction in which the Property is located and in form and substance satisfactory to Lender, duly signed and acknowledged by ▇▇▇▇▇▇▇▇ conveying all of Borrower’s right title and interest in the Property to Lender or Lender’s nominee, as determined by ▇▇▇▇▇▇ in its sole discretion, (B) a duly executed and acknowledged ▇▇▇▇ of sale and assignment (in form and substance satisfactory to Lender) conveying to Prudential Loan No. 706108495 ▇▇▇▇▇▇▇▇’S INITIALS: Clarendon Center \Promissory Note Lender or ▇▇▇▇▇▇’s nominee all of ▇▇▇▇▇▇▇▇’s right, title and interest to all Personal Property, (C) a duly executed affidavit (in form and substance satisfactory to Lender) of Borrower stating Borrower’s United States taxpayer identification number and that Borrower is not a foreign person as defined in Internal Revenue Code Section 1445, (D) a duly executed release of Lender and/or ▇▇▇▇▇▇’s nominee (in form and substance satisfactory to Lender) by ▇▇▇▇▇▇▇▇ and any guarantor, (E) originals of leases, licenses and permits pertaining to the Property, (F) a duly executed settlement statement (in form and substance satisfactory to Lender), (G) the irrevocable and unconditional commitment of a title company acceptable to Lender to issue the owner’s title insurance policy described below, (H) appropriate UCC searches and/or certificates evidencing that there are no liens against any of Borrower’s personal property pertaining to the Property, (I) all other documents affecting title to or possession of the Property and necessary to transfer or assign such title or possession to Lender, or at Lender’s option, ▇▇▇▇▇▇’s nominee, (J) the amount of all funds applicable to the Property and in the possession of Borrower or Borrower’s management company, (K) a non merger endorsement to ▇▇▇▇▇▇’s existing mortgagee’s title policy, (L) any and all state, county, or local transfer tax forms covering the transfer provided hereby, all of which must be duly executed by ▇▇▇▇▇▇▇▇, (M) a Form 1099, duly executed by ▇▇▇▇▇▇▇▇, setting forth its name, address, tax identification number, description of the Property and the funding date of the Loan, (N) an amount in cash equal to the sum of (i) all transfer or similar taxes payable in connection with such transfer, (ii) all legal fees and expenses incurred by Lender in connection with reviewing all documentation and closing such deed in lieu transfer, (iii) the cost of the owner’s title policy described below, and (iv) all other third party costs and expenses incurred by Lender in connection with such deed in lieu transfer, (O) all other customary documents, instruments or forms (all in form and substance satisfactory to Lender) required for the transfer of title in the jurisdiction in which the Property is located, duly signed and acknowledged by ▇▇▇▇▇▇▇▇, (P) such owner’s affidavits and other certifications, duly signed and acknowledged by ▇▇▇▇▇▇▇▇, as may be reasonably necessary for Lender to obtain an ALTA owner’s policy of title insurance for the Property, which shall show no liens, encumbrances or exceptions to title other than those set forth in Lender’s mortgagee’s policy of title insurance obtained by Lender in connection with the Loan and issued on or about the date of this Instrument, (Q) a property condition report and an environmental assessment report both of which must be prepared by consultants approved by ▇▇▇▇▇▇ and both such reports must show no conditions with respect to the Property that are unacceptable to Lender, and (R) such other documents, deliveries, and certifications as Lender shall reasonably require; PROVIDED, HOWEVER, THAT THE EXCULPATED RECOURSE PARTIES SHALL HAVE PERSONAL LIABILITY for amounts paid as expenses to a person or entity related to or affiliated with any of the Exculpated Recourse Parties unless except for (A) reasonable salaries for on-site employees, (B) a reasonable allocation of the payments are expressly permitted in the Documents;
(g) Borr▇▇▇▇'▇ ▇ailure to maintain any letter salaries of credit required under the Documents; and
(h) all actual legal fees, including the allocated costs of Lend▇▇'▇ ▇taff attorneysoff-site employees for accounting and management, and other (C) management fees and out-of-pocket expenses incurred by Lend▇▇ ▇▇ enforcing of Borrower’s management company (including management fees and expenses paid to Borrower’s affiliated management company) relating to the Documents if Borrower contestsProperty, delays, but in no event shall such fees or otherwise hinders or opposes (including, without limitation, the filing of a bankruptcy) expenses be greater than prevailing market rates for any of Lender's enforcement actions.such services;
Appears in 1 contract
Sources: Promissory Note (Saul Centers Inc)
Limited Recourse Liability. Except to the extent set forth in Paragraph 8 and Paragraph 9 of this Note, neither the Borrower nor any general partner(s) of Borrower (singularly or collectively, the "Exculpated Parties") shall not have any personal liability for the Obligations. Notwithstanding the preceding sentence, Lender may bring a foreclosure action or other appropriate action to enforce the Documents or realize upon and protect the Property (including, without limitation, naming the Exculpated Parties Borrower and any other necessary parties in the actions) and in addition THE EXCULPATED PARTIES IN ADDITION BORROWER SHALL HAVE PERSONAL LIABILITY FOR:
(a) any indemnityamounts accrued and/or payable under any indemnities, guarantyguaranties, master lease leases or similar instrument instruments furnished in connection with the Loan (including, without limitation, the provisions of Sections 8.03, 8.04, 8.05, 8.06 and 8.07 of the InstrumentInstrument and the Environmental Indemnity);
(b) the amount of any assessments and taxes (accrued and/or payable) with respect to the Property which are not paid and applicable to Borrower's period of ownershipProperty;
(c) the amount of any security deposits deposits, rents prepaid more than one (1) month in advance, or prepaid expenses of tenants (i) not turned over to Lender upon foreclosure, sale (pursuant to power of sale), or conveyance in lieu thereof, or (ii) not turned over to a receiver or trustee for the Property after appointment;
(d) the amount of any insurance proceeds or condemnation awards neither turned over to Lender nor used in compliance with Section Sections 3.07 and 3.08 of the Instrument;
(e) damages suffered or incurred by ▇▇▇▇▇▇ as a result of Borrower entering into a new Lease or an amendment or termination of an existing Lease (other than with respect to a Lease with a Major Tenant which is addressed in Paragraph 9(d) below) in breach of the leasing restrictions set forth in Section 8 of the Assignment;
(f) damages suffered or incurred by ▇▇▇▇▇▇ by reason of any waste of the Property;
(fg) the amount of any rents or other income from the Property received by any of the Exculpated Parties Borrower after a default under the Documents and not otherwise applied to the Obligations evidenced by this Note or to the current (not deferred) operating expenses of the Property; PROVIDED, HOWEVER, THAT THE EXCULPATED PARTIES BORROWER SHALL HAVE PERSONAL LIABILITY for amounts paid as expenses to a person or entity related to or affiliated with any Borrower except for (A) reasonable salaries for on-site employees, (B) a reasonable allocation of the Exculpated Parties unless salaries of off-site employees for accounting and management, and (C) out-of-pocket expenses of Borrower’s management company relating to the payments are expressly permitted Property, but in the Documentsno event shall such expenses include any profit or be greater than prevailing market rates for any such services;
(gh) Borr▇▇▇▇'▇ ▇ailure to maintain the face amount of any letter of credit required under the Documents; andDocuments or otherwise in connection with the Loan that Borrower fails to maintain;
(hi) the amount of any security deposit (a “Security Deposit”) cashed or applied by Borrower or any termination fee, cancellation fee or any other fee (collectively, a “Termination Fee”) received by Borrower (x) in connection with a lease termination, cancellation or expiration within one hundred twenty (120) days prior to or after an Event of Default under the Documents, (y) which is greater than one (1) month’s base rent for the Lease to which the Security Deposit and/or Termination Fee applies, and (z) which is not paid to Lender (or an escrow agent selected by ▇▇▇▇▇▇) to be disbursed for the payment of Lender approved (1) tenant improvements and/or (2) market leasing commissions;
(j) following a default under the Documents, all actual legal attorneys’ fees, including the allocated costs of Lend▇▇'▇ ▇taff ▇▇▇’s staff attorneys, and other expenses incurred by Lend▇▇ ▇▇ Lender in enforcing the Documents if Borrower contests, delays, or otherwise hinders or opposes (including, without limitation, the filing of a bankruptcy) any of Lender's ’s enforcement actions; provided, however, that if in such action Borrower successfully proves that no default occurred under the Documents, Borrower shall not be required to reimburse Lender for such attorneys’ fees, allocated costs and other expenses; and
(k) damages suffered or incurred by ▇▇▇▇▇▇ as a result of ▇▇▇▇▇▇▇▇’s breach or violation of the Sections 2.10, 3.21 and 9.09 of the Instrument.
Appears in 1 contract
Sources: Promissory Note (Hines Real Estate Investment Trust Inc)
Limited Recourse Liability. Except to the extent set forth in Paragraph 8 and Paragraph 9 this Agreement, in the Recourse Liabilities Guaranties executed on the same date of this NoteAgreement by the Recourse Parties (as defined below) other than Borrowers and in the Partial Recourse Guaranty executed on the same date of this Agreement by the Recourse Parties other than Borrowers, neither the Borrower nor any general partner(s) of Borrower (singularly or collectively, the "Exculpated Parties") Borrowers shall not have any personal liability for the Pool Obligations. Notwithstanding the preceding sentence, Lender may bring a foreclosure action or other appropriate action to enforce the Documents or realize upon and protect the Property (including, without limitation, naming the Exculpated Parties Borrowers and any other necessary parties in the actions) and in addition IN ADDITION BORROWERS AND CHT REIT (SINGULARLY OR COLLECTIVELY, THE EXCULPATED PARTIES “RECOURSE PARTIES”) SHALL HAVE JOINT AND SEVERAL PERSONAL LIABILITY FOR:
(a) any indemnity, guaranty, master lease or similar instrument furnished amounts accrued and/or payable under the indemnities and guaranties contained in connection with the Loan Documents (including, without limitation, the indemnities in the Documents respecting Executive Order 13224 [the “OFAC Indemnity”], the provisions of Sections 8.03, 8.04, 8.05, 8.06 and 8.07 (as it relates to the foregoing indemnities) of this Agreement, the InstrumentEnvironmental Indemnities and the ERISA Indemnities); provided, however, that the Recourse Parties shall not have any liability under the OFAC Indemnity for any loss relating to Individual Beneficiaries or Individual Shareholders;
(b) the amount of any assessments and taxes with respect to any Individual Property (accrued and/or payable) with respect payable prior to acquisition of such Individual Property by Lender or the appointment of a receiver for such Individual Property), except to the Property which are not paid and applicable extent of amounts (if any) deposited with Lender for payment thereof pursuant to Borrower's period of ownershipthe Documents;
(c) the amount of any security deposits deposits, rents prepaid more than one (1) month in advance, or prepaid expenses of tenants Tenants (whether paid directly or by means of any third-party payments) to the extent (i) not turned over to Lender upon foreclosure, sale (pursuant to power of sale), or conveyance in lieu thereof, or (ii) not turned over to a receiver or trustee for the applicable Individual Property after appointment;
(d) the amount of any insurance proceeds or condemnation awards neither turned over to Lender nor used in compliance with Section Sections 3.07 and 3.08 of the Instrumentthis Agreement;
(e) waste damages suffered or incurred by Lender as a result of any Borrower’s (i) entering into a new Lease in breach of the Propertyleasing restrictions set forth in Section 3.23 of this Agreement, (ii) entering into an amendment or termination of an existing Lease in breach of the leasing restrictions set forth in Section 3.23 of this Agreement, or (iii) accepting a termination, cancellation or surrender of an existing Lease in breach of the leasing restrictions set forth in Section 3.23 of this Agreement;
(f) damages suffered or incurred by Lender by reason of any physical waste of any Individual Property by any of the Recourse Parties, any of their agents or employees or any Tenant at the Property (but, with respect to a Tenant, only to the extent the Recourse Parties were not enforcing their rights under the applicable Tenant’s lease);
(g) the amount of any rents or other income from the any Individual Property received by any of the Exculpated Recourse Parties after a default under the Documents and not otherwise applied to the Obligations evidenced by this Note indebtedness under the Documents or to the current (not deferred) operating expenses of the applicable Individual Property; PROVIDED, HOWEVER, THAT THE EXCULPATED RECOURSE PARTIES SHALL HAVE PERSONAL LIABILITY for amounts paid as expenses to a person or entity related to or affiliated with any of the Exculpated Recourse Parties unless except for (x) reasonable salaries for on-site employees, (y) a reasonable allocation of the payments are expressly permitted salaries of off-site employees for accounting and management, and (z) management fees for services rendered pursuant to a property management agreement approved by Lender, plus out-of-pocket expenses of Borrowers’ management company relating to the applicable Individual Property, but in the Documentsno event shall such expenses include any profit or be greater than prevailing market rates for any such services;
(g) Borr▇▇▇▇'▇ ▇ailure to maintain any letter of credit required under the Documents; and
(h) all actual legal fees[INTENTIONALLY OMITTED];
(i) [INTENTIONALLY OMITTED];
(j) the amount of (i) any security deposit under any Lease cashed or applied by, including or on behalf of, any of the allocated costs Recourse Parties (a “Security Deposit”), (ii) any termination fee, cancellation fee or any other fee under a Lease (a “Termination Fee”) received by, or on behalf of, any of Lend▇▇'▇ ▇taff attorneysthe Recourse Parties, in each case (x) in connection with any lease termination, cancellation, surrender or expiration of a Lease within one hundred twenty (120) days prior to or after an Event of Default under the Documents, (y) which is greater than one (1) month’s base rent payable under the Lease to which the Security Deposit and/or the Termination Fee applies, and (z) which is not paid to Lender (or an escrow agent selected by Lender) to be disbursed for the payment of Lender approved (1) tenant improvements and/or (2) market leasing commissions;
(k) following an Event of Default under the Documents which is not cured within any applicable grace period, all reasonable attorneys’ fees and other reasonable expenses incurred by Lend▇▇ ▇▇ Lender in enforcing the Documents if Borrower any of the Recourse Parties contests, delays, or otherwise hinders or opposes (including, without limitation, the filing of a bankruptcybankruptcy by any of the Recourse Parties) any of Lender's ’s enforcement actions; provided, however, that if in such action the Recourse Parties prevail, the Recourse Parties shall not be required to reimburse Lender for such attorneys’ fees, allocated costs and other expenses;
(l) damages suffered or incurred by Lender as a result of any Borrower’s failure to pay all insurance premiums and maintain all insurance required under the Documents, except to the extent of amounts (if any) deposited with Lender for payment thereof pursuant to the Documents;
(m) damages suffered or incurred by Lender as a result of any Borrower’s breach or violation of Sections 2.10, 3.21 and/or 3.22 of this Agreement (it being understood that in the absence of a violation of any provisions of Section 3.22 of this Agreement, the Recourse Parties shall not have any recourse liability for any requirement in said Section which requires Borrower to remain solvent after the date of this Agreement);
(n) damages suffered or incurred by Lender on account of any material misrepresentation by any of the Recourse Parties in connection with the Property, the Documents, the Loan application or any other aspect of the Loan;
(o) damages suffered or incurred by Lender by reason of any loss, suspension or revocation of any Healthcare Permits;
(p) damages suffered or incurred by Lender by reason of any failure to comply with the provisions of Section 6.04 of this Agreement; and
(q) damages suffered or incurred by Lender as a result of any Recourse Party (A) executing an amendment or termination of any Operating Lease (except as otherwise expressly permitted under the Documents), or (B) permitting any Borrower, pursuant to the terms of any Operating Lease, to execute an amendment or termination of such Operating Lease (except as otherwise expressly permitted under the Documents), in either such case without Lender’s prior written consent.
Appears in 1 contract
Limited Recourse Liability. Except to the extent set forth in Paragraph 8 this Agreement and Paragraph 9 in the Recourse Liabilities Guaranties executed on the same date of this NoteAgreement by the Recourse Parties (as defined below) other than Borrowers, neither the Borrower nor any general partner(s) of Borrower (singularly or collectively, the "Exculpated Parties") Borrowers shall not have any personal liability for the Pool Obligations. Notwithstanding the preceding sentence, Lender may bring a foreclosure action or other Prudential Loan Nos. 706109200, 706109202-203 & 706109205-206 CNL MOB Portfolio Loan Agreement appropriate action to enforce the Documents or realize upon and protect the Property (including, without limitation, naming the Exculpated Parties Borrowers and any other necessary parties in the actions) and in addition IN ADDITION BORROWERS AND CHP REIT (SINGULARLY OR COLLECTIVELY, THE EXCULPATED PARTIES “RECOURSE PARTIES”) SHALL HAVE JOINT AND SEVERAL PERSONAL LIABILITY FOR:
(a) any indemnity, guaranty, master lease or similar instrument furnished amounts accrued and/or payable under any indemnities and guaranties contained in connection with the Loan Documents (including, without limitation, the indemnities in the Documents respecting Executive Order 13224 [the “OFAC Indemnity”], the provisions of Sections 8.03, 8.04, 8.05, 8.06 and 8.07 (as it relates to the foregoing indemnities) of this Agreement, the Instrument)Environmental Indemnities and the ERISA Indemnities; provided, however, that the Recourse Parties shall not have any liability under the OFAC Indemnity for any loss relating to Individual Beneficiaries or Individual Shareholders;
(b) the amount of any assessments and taxes with respect to any Individual Property (accrued and/or payable) with respect prior to acquisition of such Individual Property by Lender or the appointment of a receiver for such Individual Property), except to the Property which are not paid and applicable extent of amounts (if any) deposited with Lender for payment thereof pursuant to Borrower's period of ownershipthe Documents;
(c) the amount of any security deposits deposits, rents prepaid more than one (1) month in advance, or prepaid expenses of tenants Tenants (whether paid directly or by means of any third party payments) to the extent (i) not turned over to Lender upon foreclosure, sale (pursuant to power of sale), or conveyance in lieu thereof, or (ii) not turned over to a receiver or trustee for the applicable Individual Property after appointment;
(d) the amount of any insurance proceeds or condemnation awards neither turned over to Lender nor used in compliance with Section Sections 3.07 and 3.08 of the Instrumentthis Agreement;
(e) waste damages suffered or incurred by Lender as a result of any Borrower’s (i) entering into a new Lease in breach of the Propertyleasing restrictions set forth in Section 3.23 of this Agreement, (ii) entering into an amendment or termination of an existing Lease in breach of the leasing restrictions set forth in Section 3.23 of this Agreement, or (iii) accepting a termination, cancellation or surrender of an existing Lease (other than with respect to a Lease with a Major Tenant which is addressed in Section 8.02(e) below) in breach of the leasing restrictions set forth in Section 3.23 of this Agreement;
(f) damages suffered or incurred by Lender by reason of any physical waste of any Individual Property by any of the Recourse Parties, any of their agents or employees or any Tenant at the Property (but, with respect to a Tenant, only to the extent the Recourse Parties were not enforcing their rights under the applicable Tenant’s Lease);
(g) the amount of any rents or other income from the any Individual Property received by any of the Exculpated Recourse Parties after a default under the Documents and not otherwise applied to the Obligations evidenced by this Note indebtedness under the Documents or to the current (not deferred) operating expenses of the applicable Individual Property; PROVIDED, HOWEVER, THAT THE EXCULPATED RECOURSE PARTIES SHALL HAVE PERSONAL LIABILITY for amounts paid as expenses to a person or entity related to or affiliated with any of the Exculpated Recourse Parties unless except for (x) reasonable salaries for on-site employees, (y) a reasonable allocation of the payments are expressly permitted salaries of off-site employees for accounting and management, and (z) management fees for services rendered pursuant to a property management agreement approved by Lender, plus out-of-pocket expenses of Borrowers’ management company relating to the applicable Individual Property, but in the Documents;
(g) Borr▇▇▇▇'▇ ▇ailure to maintain no event shall such expenses include any letter of credit required under the Documentsprofit or be greater than prevailing market rates for any such services; andPrudential Loan Nos. 706109200, 706109202-203 & 706109205-206 CNL MOB Portfolio Loan Agreement
(h) in the event of (i) any prepayment of any Individual Loan prior to the Lock Out Date following the occurrence of an Event of Default or (ii) the purchase of any Individual Loan by JCL (or any successors or assigns under one or both of the JCL Ground Leases) prior to the Lock Out Date (a “JCL Purchase”), an amount equal to all actual legal feessums payable under Sections 1.04(c) and 1.06(c) of this Agreement with respect to any such prepayment (and, including for purposes of calculating such amount, a JCL Purchase shall deemed to be a prepayment);
(i) with respect to any Lease that provides more than five percent (5%) of the allocated costs gross annual income from an Individual Property during any twelve month period during the term of Lend▇▇'▇ ▇taff attorneysthe Loan, the amount of (1) any security deposit under any Lease cashed or applied by, or on behalf of, any of the Recourse Parties (a “Security Deposit”), (2) any termination fee, cancellation fee or any other fee under a Lease (a “Termination Fee”) received by, or on behalf of, any of the Recourse Parties, or (3) any judgment, settlement or other recovery received by, or on behalf of, any of the Recourse Parties against or from any Tenant under, or any guarantor of, any Lease, in each case (x) in connection with any lease termination, cancellation, surrender or expiration of a Lease within one hundred twenty (120) days prior to or after an Event of Default under the Documents, (y) which is greater than one (1) month’s base rent payable under the Lease to which the Security Deposit and/or Termination Fee applies, and (z) which is not paid to Lender (or an escrow agent selected by Lender) to be disbursed for the payment of Lender-approved (A) tenant improvements and/or (B) market leasing commissions;
(j) [INTENTIONALLY OMITTED];
(k) following an Event of Default under the Documents which is not cured within any applicable grace period, all reasonable attorneys’ fees and other reasonable expenses incurred by Lend▇▇ ▇▇ Lender in enforcing the Documents if Borrower any of the Recourse Parties contests, delays, or otherwise hinders or opposes (including, without limitation, the filing of a bankruptcybankruptcy by any of the Recourse Parties) any of Lender's ’s enforcement actions; provided, however, that if in such action the Recourse Parties prevail, the Recourse Parties shall not be required to reimburse Lender for such attorneys’ fees, allocated costs and other expenses;
(l) damages suffered or incurred by Lender as a result of any Borrower’s failure to pay all Insurance Premiums and maintain all insurance required under the Documents, except to the extent of amounts (if any) deposited with Lender for payment thereof pursuant to the Documents;
(m) damages suffered or incurred by Lender as a result of Borrower’s breach or violation of Sections 2.10, 3.21 and/or 3.22 of this Agreement (it being understood that in the absence of a violation of any provisions of Section 3.22 of this Agreement, the Recourse Parties shall not have any recourse liability for any requirement in said Section which requires Borrowers to remain solvent after the date of this Agreement);
(n) damages suffered or incurred by Lender on account of any material misrepresentation by any of the Recourse Parties in connection with the Property, the Documents, the Loan application or any other aspect of the Loan; and Prudential Loan Nos. 706109200, 706109202-203 & 706109205-206 CNL MOB Portfolio Loan Agreement
(o) damages suffered or incurred by Lender by reason of any loss, suspension or revocation of any license necessary to operate any Individual Property.
Appears in 1 contract
Limited Recourse Liability. Except to the extent set forth in Paragraph 8 and Paragraph 9 of this Note, neither the Borrower nor any general partner(s) of Borrower nor ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ nor ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ (singularly or collectively, the "“Exculpated Parties"”) shall have any personal liability for the Obligations. Notwithstanding the preceding sentence, Lender may bring a foreclosure action or other appropriate action to enforce the Documents or realize upon and protect the Property (including, without limitation, naming the Exculpated Parties in the actions) and in addition THE EXCULPATED PARTIES SHALL HAVE PERSONAL LIABILITY FOR:
(a) FOR and be subject to legal action for any indemnityand all fees, guarantycosts, master lease or similar instrument furnished in connection with the Loan expenses, damages and losses (including, without limitation, legal fees and costs) incurred or suffered by Lender, resulting from or otherwise relating to the provisions following:
(a) The misapplication or misappropriation by Borrower of Sections 8.03any or all money collected, 8.04paid or received, 8.05or to which Borrower is entitled, 8.06 relating to the Loan or the Property, including, but not limited to, insurance proceeds, condemnation awards, lease security and 8.07 of the Instrument)other deposits and rent;
(b) Rents, issues, profits and revenues of all or any assessments and taxes (accrued and/or payable) with respect to portion of the Property received or applicable to a period after the occurrence of any Event of Default or after any event which, with the giving of notice and/or the passage of time, would constitute an Event of Default, which are not paid applied to pay, first (i) real estate taxes and applicable other charges which, if unpaid, could result in liens superior to Borrower's period that of ownershipthe Instrument, and (ii) premiums on insurance policies required under the Documents and, second, the other ordinary and necessary expenses of owning and operating the Property;
(c) any security deposits of tenants (i) not turned over to Lender upon foreclosure, sale (pursuant to power of sale), or conveyance in lieu thereof, or (ii) not turned over to a receiver or trustee for Waste committed on the Property after appointmentor damage to the Property as a result of intentional misconduct or gross negligence or the removal of all or any portion of the Property in violation of the terms of the Documents;
(d) Fraud or material misrepresentation or failure to disclose a material fact (including, without limitation, with respect to any insurance proceeds such fraud, misrepresentation or condemnation awards neither turned over failure to Lender nor used disclose in compliance with Section 3.07 and 3.08 of the Instrument;
(eany materials delivered to Lender) waste of the Property;
(f) any rents or other income from the Property received by any of the Exculpated Parties after a default under the Documents and not otherwise applied to the Obligations evidenced or by this Note or to the current (not deferred) operating expenses of the Property; PROVIDED, HOWEVER, THAT THE EXCULPATED PARTIES SHALL HAVE PERSONAL LIABILITY for amounts paid as expenses to a any other person or entity related authorized or apparently authorized to make statements or affiliated with representations on behalf of any of the Exculpated Parties unless in connection with the payments are expressly permitted Loan application, Loan closing or security of or for the Loan, or otherwise in connection with the Property or the Loan;
(e) Any of the Exculpated Parties violates the provisions of Section 11.04 of the Instrument; Prudential Loan No. 7061xxxxx ▇▇▇▇ Building Supplemental Loan Mortgage Note Secured by Second Priority Mortgage BORROWER’S INITIALS:
(f) ▇▇▇▇▇▇▇▇ fails to obtain ▇▇▇▇▇▇’s prior written consent to any subordinate financing or other voluntary lien encumbering the Property or direct or indirect interests in Borrower (but only to the extent such prior written consent is required by the Documents);
(g) Borr▇▇▇▇'▇▇▇▇ fails to obtain ▇ailure ▇▇▇▇▇’s prior written consent to maintain any letter assignment, transfer or conveyance of credit the Property or any portion thereof or any interest therein or directly or indirectly in Borrower (but only to the extent such prior written consent is required under by the Documents); andand/or
(h) all actual legal fees, including the allocated costs of Lenddamages suffered or incurred by ▇▇'▇ ▇taff attorneys, and other expenses incurred by Lend▇▇▇ as a result of ▇▇ enforcing ▇▇▇▇▇▇▇’s breach or violation of Section 2.10 and/or 3.21 of the Documents if Borrower contestsInstrument. Notwithstanding anything to the contrary above or otherwise in the Documents, delaysin the event that any petition for bankruptcy, reorganization or arrangement pursuant to state or federal bankruptcy law, or otherwise hinders any similar federal or opposes state law, shall be filed or consented to, or acquiesced in by any Exculpated Party, or any Exculpated Party seeks (includingor consents to, without limitation, or acquiesces in) the filing appointment of a bankruptcyreceiver, liquidator or trustee, or any proceeding for the dissolution or liquidation of Borrower or any Exculpated Party shall be instituted or consented to, or acquiesced in by any Exculpated Party, then (i) the Loan shall be fully recourse to the Exculpated Parties; and (ii) Lender shall not be deemed to have waived any right which Lender may have under Section 506 (a), 506 (b), 1111(b) or any other provisions of Lender's enforcement actionsthe U.S. Bankruptcy Code as same may be amended or replaced to file a claim for the full amount of the Loan or to require that all collateral shall continue to secure all of the indebtedness owing to Lender in accordance with the Documents.
Appears in 1 contract
Limited Recourse Liability. Except to the extent set forth in Paragraph 8 this Agreement and Paragraph 9 in the Recourse Liabilities Guaranties executed on December 2, 2013 and on the same date of this NoteAgreement, neither as applicable, by the Borrower nor any general partner(sRecourse Parties (as defined below) of Borrower (singularly or collectivelyother than Borrowers, the "Exculpated Parties") Borrowers shall not have any personal liability for the Pool Obligations. Notwithstanding the preceding sentence, Lender may bring a foreclosure action or other appropriate action to enforce the Documents or realize upon and protect the Property (including, without limitation, naming the Exculpated Parties Borrowers and any other necessary parties in the actions) and in addition IN ADDITION BORROWERS AND CHP REIT (SINGULARLY OR COLLECTIVELY, THE EXCULPATED PARTIES “RECOURSE PARTIES”) SHALL HAVE JOINT AND SEVERAL PERSONAL LIABILITY FOR:
(a) any indemnity, guaranty, master lease or similar instrument furnished amounts accrued and/or payable under the indemnities and guaranties contained in connection with the Loan Documents (including, without limitation, the indemnities in the Documents respecting Executive Order 13224 [the “OFAC Indemnity”], the provisions of Sections 8.03, 8.04, 8.05, 8.06 and 8.07 (as it relates to the foregoing indemnities) of this Agreement, the InstrumentEnvironmental Indemnities and the ERISA Indemnities);; provided, however, that the Recourse Parties shall not have any liability under the OFAC Indemnity for any loss relating to Individual Beneficiaries or Individual Shareholders; Prudential Loan Nos. 706109321 - 706109336 CNL BV Portfolio Amended and Restated Loan Agreement
(b) the amount of any assessments and taxes with respect to any Individual Property (accrued and/or payable) with respect payable prior to acquisition of such Individual Property by Lender or the appointment of a receiver for such Individual Property), except to the Property which are not paid and applicable extent of amounts (if any) deposited with Lender for payment thereof pursuant to Borrower's period of ownershipthe Documents;
(c) the amount of any security deposits deposits, rents prepaid more than one (1) month in advance, or prepaid expenses of tenants Tenants (whether paid directly or by means of any third-party payments) to the extent (i) not turned over to Lender upon foreclosure, sale (pursuant to power of sale), or conveyance in lieu thereof, or (ii) not turned over to a receiver or trustee for the applicable Individual Property after appointment;
(d) the amount of any insurance proceeds or condemnation awards neither turned over to Lender nor used in compliance with Section Sections 3.07 and 3.08 of the Instrumentthis Agreement;
(e) waste damages suffered or incurred by Lender as a result of any Borrower’s (i) entering into a new Lease in breach of the Propertyleasing restrictions set forth in Section 3.23 of this Agreement, (ii) entering into an amendment or termination of an existing Lease in breach of the leasing restrictions set forth in Section 3.23 of this Agreement, or (iii) accepting a termination, cancellation or surrender of an existing Lease in breach of the leasing restrictions set forth in Section 3.23 of this Agreement;
(f) damages suffered or incurred by Lender by reason of any physical waste of any Individual Property by any of the Recourse Parties, any of their agents or employees or any Tenant at the Property (but, with respect to a Tenant, only to the extent the Recourse Parties were not enforcing their rights under the applicable Tenant’s lease);
(g) the amount of any rents or other income from the any Individual Property received by any of the Exculpated Recourse Parties after a default under the Documents and not otherwise applied to the Obligations evidenced by this Note indebtedness under the Documents or to the current (not deferred) operating expenses of the applicable Individual Property; PROVIDED, HOWEVER, THAT THE EXCULPATED RECOURSE PARTIES SHALL HAVE PERSONAL LIABILITY for amounts paid as expenses to a person or entity related to or affiliated with any of the Exculpated Recourse Parties unless except for (x) reasonable salaries for on-site employees, (y) a reasonable allocation of the payments are expressly permitted salaries of off-site employees for accounting and management, and (z) management fees for services rendered pursuant to a property management agreement approved by Lender, plus out-of-pocket expenses of Borrowers’ management company relating to the applicable Individual Property, but in the Documentsno event shall such expenses include any profit or be greater than prevailing market rates for any such services;
(g) Borr▇▇▇▇'▇ ▇ailure to maintain any letter of credit required under the Documents; and
(h) all actual legal fees[INTENTIONALLY OMITTED];
(i) [INTENTIONALLY OMITTED];
(j) the amount of (i) any security deposit under any Lease cashed or applied by, including or on behalf of, any of the allocated costs Recourse Parties (a “Security Deposit”), (ii) any termination fee, cancellation fee or any other fee under a Lease (a “Termination Fee”) received by, or on behalf of, any of Lend▇▇'▇ ▇taff attorneysthe Recourse Parties, in each case (x) in connection with any lease termination, cancellation, surrender or expiration of a Lease within one hundred twenty (120) days prior to or after an Event of Default under the Documents, (y) which is greater than one (1) month’s base rent payable under the Lease to which the Security Deposit and/or the Termination Fee applies, and (z) which is not paid to Lender (or an escrow agent selected by Lender) to be disbursed for the payment of Lender approved (1) tenant improvements and/or (2) market leasing commissions; Prudential Loan Nos. 706109321 - 706109336 CNL BV Portfolio Amended and Restated Loan Agreement
(k) following an Event of Default under the Documents which is not cured within any applicable grace period, all reasonable attorneys’ fees and other reasonable expenses incurred by Lend▇▇ ▇▇ Lender in enforcing the Documents if Borrower any of the Recourse Parties contests, delays, or otherwise hinders or opposes (including, without limitation, the filing of a bankruptcybankruptcy by any of the Recourse Parties) any of Lender's ’s enforcement actions; provided, however, that if in such action the Recourse Parties prevail, the Recourse Parties shall not be required to reimburse Lender for such attorneys’ fees, allocated costs and other expenses;
(l) damages suffered or incurred by Lender as a result of any Borrower’s failure to pay all insurance premiums and maintain all insurance required under the Documents, except to the extent of amounts (if any) deposited with Lender for payment thereof pursuant to the Documents;
(m) damages suffered or incurred by Lender as a result of any Borrower’s breach or violation of Sections 2.10, 3.21 and/or 3.22 of this Agreement (it being understood that in the absence of a violation of any provisions of Section 3.22 of this Agreement, the Recourse Parties shall not have any recourse liability for any requirement in said Section which requires Borrower to remain solvent after the date of this Agreement);
(n) damages suffered or incurred by Lender on account of any material misrepresentation by any of the Recourse Parties in connection with the Property, the Documents, the Application or any other aspect of the Loan;
(o) damages suffered or incurred by Lender by reason of any loss, suspension or revocation of any Healthcare Permits;
(p) damages suffered or incurred by Lender by reason of any failure to comply with the provisions of Section 6.04 of this Agreement; and
(q) damages suffered or incurred by Lender as a result of any Recourse Party (A) executing an amendment or termination of any Operating Lease (except as otherwise expressly permitted under the Documents), or (B) permitting any Borrower, pursuant to the terms of any Operating Lease, to execute an amendment or termination of such Operating Lease (except as otherwise expressly permitted under the Documents), in either such case without Lender’s prior written consent.
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Limited Recourse Liability. Except Lender will not hold Borrower personally liable for repayment of the Obligations or any other sums due under the Loan Documents, or for any deficiency established after judicial foreclosure or a trustee’s sale, except to the extent set forth of Borrower’s interest in Paragraph 8 the Property and Paragraph 9 all other collateral given as security for the Loan; provided, however, that:
(a) the foregoing limitation of this Noteliability shall not affect Borrower’s liability under the Environmental Indemnity;
(b) Borrower shall be subject to full personal liability to the extent of any and all actual Losses of any kind whatsoever (but excluding consequential, neither special, punitive or exemplary damages and diminution of the value of the Property that was not caused by the acts or omissions of any Borrower nor Party, except to the extent that such consequential, special, punitive or exemplary damages are required to be paid by Lender to a third party), incurred or suffered by Lender and its successors and assigns as a result of any general partner(sof the following:
(i) Borrower’s misapplication or misappropriation of Tenant security deposits, Rents paid more than thirty (30) days in advance, insurance proceeds, Awards or other sums received in connection with the Property (to the extent of the amount misapplied or misappropriated);
(ii) Borrower’s failure to apply Rents to the Obligations or to the normal operating expenses of the Property in violation of the Loan Documents or Law, to the extent of rents wrongfully applied; provided that, prior to the occurrence of an Event of Default of which Borrower has knowledge, Borrower shall be entitled to make distributions to its partners, shareholders, members or other owners in the ordinary course of business until such Rents are applied in violation of the Loan Documents or Law;
(iii) Borrower’s failure to deliver to Lender or its assignee(s), at its or their request and following foreclosure of the Property, any tangible Personal Property, including Leases, books, records and files relating to the leasing, use, enjoyment, occupancy, operation or maintenance of the Property in Borrower’s possession that are not confidential or proprietary, or any Personal Property taken from the Property by or on behalf of Borrower and not replaced with Personal Property of substantially the same utility and of the same or greater value;
(singularly iv) any willful misconduct, material misrepresentation or collectivelytheft by any Borrower Party in connection with the Loan or the Property;
(v) Borrower’s failure to pay when due any Impositions with respect to the Property, or to maintain terrorism insurance with respect to the "Exculpated Parties") Property if required, in each case to the extent the cash flow of the Property is sufficient to pay such Impositions and other premiums; provided, however, Borrower shall not have any personal liability for under this clause (v) if the Obligations. Notwithstanding Deposits held by Lender contain sufficient funds to pay such Impositions and other premiums;
(vi) the preceding sentence, Lender may bring a foreclosure action or other appropriate action to enforce the Documents or realize upon costs and protect the Property expenses (including, without limitation, naming the Exculpated Parties Attorneys’ Fees) incurred by Lender in the actions) enforcing its rights and in addition THE EXCULPATED PARTIES SHALL HAVE PERSONAL LIABILITY FOR:remedies under this Article VII;
(avii) any indemnityact of intentional waste committed by any Borrower Party; provided the failure to restore, guarantyrepair, master lease or similar instrument furnished maintain the Property shall not constitute intentional waste if the cash flow of the Property is insufficient to pay the same;
(viii) Borrower or any Borrower Party contests, delays or otherwise hinders any action taken by Lender in connection with the appointment of a receiver for the Property or the foreclosure of the liens, mortgages or other security interests created by the Loan Documents or the Cross Collateralizing Security Documents encumbering the Property; and
(including, without limitationix) if Borrower is a single member limited liability company, the provisions of Sections 8.03, 8.04, 8.05, 8.06 and 8.07 bankruptcy or insolvency of the Instrument);
(b) any assessments and taxes (accrued and/or payable) with respect sole member of Borrower which causes Borrower to the Property which are not paid and applicable cease to Borrower's period of ownership;exist.
(c) any security deposits the foregoing limitation of tenants liability shall not apply and the Loan will be fully recourse to Borrower in the event:
(i) of any fraud or act of arson by any Borrower Party related to the Property or the Loan;
(ii) of a Prohibited Transfer;
(iii) that Borrower, Principal, Principal General Partner, REIT or any other REIT Subsidiary commences a voluntary Bankruptcy Proceeding; provided, however, that in the case of any other REIT Subsidiary, the bankruptcy of such REIT Subsidiary results in a substantive consolidation with Borrower;
(iv) that (1) any Affiliate of Borrower or of any Principal (except any Public REIT Shareholders) becomes a creditor of Borrower or of any Principal in any involuntary Bankruptcy Proceeding; or (2) an involuntary Bankruptcy Proceeding is commenced against Borrower, Principal, Principal General Partner, REIT, or, if the bankruptcy of such REIT Subsidiary results in a substantive consolidation with Borrower, any other REIT Subsidiary by an Affiliate of Borrower or of any Principal (except any Public REIT Shareholders), and in any event such Bankruptcy Proceeding is not turned over dismissed within ninety (90) days of filing; or that the Property or any part thereof becomes an asset in a voluntary Bankruptcy Proceeding that is not dismissed within ninety (90) days of filing. Notwithstanding anything to Lender upon foreclosurethe contrary contained herein, sale no present or future, direct or indirect, shareholder, officer, director, employee, trustee, beneficiary, advisor, member, partner, principal, participant or agent of or in Borrower (pursuant to power of sale“Constituent Member”), or conveyance of or in lieu thereofany Person that is or becomes a Constituent Member in Borrower (other than Principal and Principal General Partner under the Limited Guaranty and Environmental Indemnity), shall have any personal liability, directly or indirectly, under or in connection with this Instrument, the Loan Documents, and each of the parties hereto, on behalf of itself and its successors and assigns, hereby waives any and all such personal liability, provided, however, that the foregoing shall not release any individual from any tort claims actually committed by such individual. For purposes hereof, to the extent applicable, neither the negative capital account of any Constituent Member in Borrower, nor any obligation of any Constituent Member in Borrower to restore a negative capital account or to contribute or loan capital to Borrower or to any other Constituent Member in Borrower shall at any time be deemed to be the property or an asset of Borrower (iior any such other Constituent Member) not turned over to a receiver or trustee for the Property after appointment;
(d) any insurance proceeds or condemnation awards and neither turned over to Lender nor used in compliance with Section 3.07 and 3.08 of the Instrument;
(e) waste of the Property;
(f) any rents or other income from the Property received by any of the Exculpated Parties after a default under the Documents and not otherwise applied its successors or assigns shall have any right to the Obligations evidenced by this Note collect, enforce or proceed against with respect to the current (not deferred) operating expenses of the Property; PROVIDEDany such negative capital account or obligation to restore, HOWEVER, THAT THE EXCULPATED PARTIES SHALL HAVE PERSONAL LIABILITY for amounts paid as expenses to a person contribute or entity related to or affiliated with any of the Exculpated Parties unless the payments are expressly permitted in the Documents;
(g) Borr▇▇▇▇'▇ ▇ailure to maintain any letter of credit required under the Documents; and
(h) all actual legal fees, including the allocated costs of Lend▇▇'▇ ▇taff attorneys, and other expenses incurred by Lend▇▇ ▇▇ enforcing the Documents if Borrower contests, delays, or otherwise hinders or opposes (including, without limitation, the filing of a bankruptcy) any of Lender's enforcement actionsloan.
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