Limitations on Recourse. Notwithstanding any contrary provision in this Mortgage Note or any of the Loan Documents, it is hereby expressly agreed that, except as otherwise provided in this SECTION 5 or in any section of any Loan Document that is substantially similar to this SECTION 5, there shall be no recourse to the assets of Maker or any of its Members (other than against the Collateral and any other property given as security for the payment of this Mortgage Note) for (i) the payment of principal, interest, Defeasance Deposits, Yield Maintenance Payments or other charges hereunder or for any other amount that is or may become due and owing to Holder by Maker under this Mortgage Note or any of the other Loan Documents or (ii) the performance or discharge of any covenant or undertaking hereunder or under the other Loan Documents, and in the event of any Event of Default hereunder or thereunder, Holdxx xxxees to proceed solely against the Collateral and any other property given as security for payment of this Mortgage Note, and Holder shall not seek or claim recourse against Maker or any Member (other than against the Collateral and any other property given as security for payment of this Mortgage Note) for any deficiency or for any personal judgment after a foreclosure of the lien of the Mortgage or other Security Documents or for the performance or discharge of any covenants or undertakings of Maker hereunder or under any other Loan Documents (except that Maker may be made a party to a proceeding to the extent legally necessary for the conduct of a foreclosure or the exercise of other similar remedies under the Mortgage or other Security Documents). Notwithstanding the foregoing, nothing contained in this SECTION 5 shall relieve Maker or any Member of any personal liability for any loss, cost, expense, damage or liability arising or resulting from (A) any breach of any representation or warranty made in the Loan Agreement that was materially incorrect when made and that was made with fraudulent intent, (B) any amount paid or distributed to the Members, the Manager or any Affiliate of any of them in violation of the provisions of the Loan Documents, (C) fraud or breach of trust, including misapplication of Loan proceeds or any Insurance Proceeds or Awards or other sums that are part of the Collateral that may come into the possession or control of Maker or a Member or any Affiliate of any of them, (D) liability under the Environmental Indemnity Agreement or (E)
Appears in 1 contract
Samples: Mortgage Note (Arden Realty Inc)
Limitations on Recourse. Notwithstanding The parties hereto agree that the Lessor ----------------------- shall have no personal liability whatsoever to the Lessee or its respective successors and assigns for any contrary provision claim based on or in respect of this Mortgage Note Lease or any of the Loan other Operative Documents or arising in any way from the transactions contemplated hereby or thereby; provided, however, that the Lessor shall be -------- ------- liable in its individual capacity (a) for its own willful misconduct or gross negligence (or negligence in the handling of funds), (b) for liabilities that may result from the incorrectness of any representation or warranty expressly made by it in Section 8.1 of the Participation Agreement or (c) for any Taxes ------------------------------------------ based on or measured by any fees, commission or compensation received by it for acting as the Lessor as contemplated by the Operative Documents, it . It is hereby expressly understood and agreed that, except as otherwise provided in this SECTION 5 or in any section of any Loan Document that is substantially similar to this SECTION 5, there shall be no recourse to the assets of Maker or any of its Members (other than against the Collateral and any other property given as security for the payment of this Mortgage Note) for preceding proviso: (i) the payment of principal, interest, Defeasance Deposits, Yield Maintenance Payments or other charges hereunder or for any other amount that is or may become due and owing to Holder by Maker Lessor shall have no personal liability under this Mortgage Note or any of the other Loan Operative Documents or as a result of acting pursuant to and consistent with any of the Operative Documents; (ii) all obligations of the performance or discharge of any covenant or undertaking hereunder or under Lessor to the other Loan Documents, Lessee are solely nonrecourse obligations except to the extent that it has received payment from others and in the event of any Event of Default hereunder or thereunder, Holdxx xxxees to proceed are enforceable solely against the Collateral Lessor's interest in the Property; and any other property given (iii) all such personal liability of the Lessor is expressly waived and released as security for payment a condition of, and as consideration for, the execution and delivery of the Operative Documents by the Lessor. Notwithstanding anything contained herein, the restriction stated in the preceding provisions of this Mortgage Note, and Holder Section 31.7 ------------ shall not seek or claim recourse against Maker or any Member (other than against the Collateral and any other property given as security for payment of this Mortgage Note) for any deficiency or for any personal judgment after a foreclosure apply to liability of the lien Lessor arising because of a breach of the Mortgage Lessor's obligation to remove Lessor Liens or other Security Documents because of its receiving Advances and failing to disburse Advances to Lessee in accordance with the Operative Documents, or for the performance or discharge of any covenants or undertakings of Maker hereunder or under any other Loan Documents (except that Maker may be made a party failure to a proceeding to the extent legally necessary for the conduct of a foreclosure or the exercise of other similar remedies under the Mortgage or other Security Documents). Notwithstanding the foregoing, nothing contained in this SECTION 5 shall relieve Maker or any Member of any personal liability for any loss, cost, expense, damage or liability arising or resulting disburse proceeds from (A) any breach of any representation or warranty made in the Loan Agreement that was materially incorrect when made and that was made with fraudulent intent, (B) any amount paid or distributed to the Members, the Manager or any Affiliate of any of them in violation sale of the provisions of the Loan Documents, (C) fraud or breach of trust, including misapplication of Loan proceeds or any Insurance Proceeds or Awards or other sums that are part of the Collateral that may come into the possession or control of Maker or a Member or any Affiliate of any of them, (D) liability under the Environmental Indemnity Agreement or (E)Property in accordance with this Lease.
Appears in 1 contract
Samples: Master Lease (Quantum Corp /De/)
Limitations on Recourse. Notwithstanding any contrary provision (a) Subject to the qualifications set forth in this Mortgage Section, neither Mortgagor nor Guarantor nor any partner, shareholder, officer, or director, manager, member or Affiliate of either of them or any successors or assigns of the foregoing (collectively, the "EXCULPATED PARTIES") shall be personally liable either at law or in equity for the repayment of the Debt or the failure of performance of any other obligation evidenced by the Note or contained in the Mortgage or the other Loan Documents and Mortgagee will satisfy any judgments, orders or decrees on account of the failure to repay such Debt and/or the failure to perform any such obligation, from the Property and any other real or personal property, tangible or intangible, as Mortgagor, Guarantor or any other entity shall have pledged or assigned to secure the Note by any of the Loan Documents, it is hereby expressly agreed thatexcept that Mortgagee may bring a foreclosure action, except as otherwise provided in this SECTION 5 or in any section of any Loan Document that is substantially similar to this SECTION 5, there shall be no recourse to the assets of Maker an action for specific performance or any of its Members (other than against appropriate action or proceeding to enable Mortgagee to enforce and realize upon the Collateral and any other property given as security for Note, the payment of this Mortgage Note) for (i) the payment of principalMortgage, interest, Defeasance Deposits, Yield Maintenance Payments or other charges hereunder or for any other amount that is or may become due and owing to Holder by Maker under this Mortgage Note or any of the other Loan Documents or (ii) the performance or discharge of any covenant or undertaking hereunder or under the other Loan Documents, and the interests in the event Property and any other collateral given to Mortgagee pursuant to the Mortgage and the other Loan Documents; PROVIDED, HOWEVER, that, except as specifically provided in this Section, any judgment in any such action or proceeding shall be enforceable against Mortgagor only to the extent of Mortgagor's interest in the Property and in any other collateral given to Mortgagee. Mortgagee, by accepting the Note, the Mortgage and the other Loan Documents, agrees that it shall not xxx for, seek or demand any deficiency judgment against Mortgagor in any such action or proceeding, under, by reason of or in connection with the Mortgage, the Assignment, the other Loan Documents or the Note. The provisions of this Section shall not, however: (i) constitute a waiver, release or impairment of any obligation evidenced or secured by the Note this Mortgage or the other Loan Documents; (ii) impair the right of Mortgagee to name Mortgagor as a party defendant in any action or suit for foreclosure and sale under this Mortgage; (iii) affect the validity or enforceability of the Guaranty Agreement, the Environmental Agreement or any other guaranty or indemnity made in connection with the Note, this Mortgage or the other Loan Documents; (iv) impair the right of Mortgagee to obtain the appointment of a receiver; (v) impair the right of Mortgagee to bring suit with respect to fraud or misrepresentation by Mortgagor in connection with the Note, this Mortgage or Loan Documents; (vi) affect the validity or impair the enforcement of the Loan Documents.
(b) Nothing herein shall be deemed to be a waiver of any right which Mortgagee may have under Sections 506(a), 506(b), 1111(b) or any other provisions of the U.S. Bankruptcy Code to file a claim for the full amount of the Debt secured by this Mortgage or to require that all collateral shall continue to secure all of the debt owing to Mortgagee in accordance with the Note, this Mortgage and the other Loan Documents.
(c) Notwithstanding the foregoing provisions of this Section or any other provision in the Loan Documents, Mortgagor and Guarantor, jointly and severally, shall be fully and personally liable to and shall indemnify Mortgagee for any or all loss, cost, liability, judgment, claim, damage or expense sustained, suffered or incurred by Mortgagee (including, without limitation, Mortgagee's attorneys' fees and costs) arising out of or attributable or relating to:
(i) fraud or misrepresentation by Mortgagor or Guarantor in connection with the Loan;
(ii) the gross negligence or willful misconduct of Mortgagor or Guarantor, their agents, managers, officers or employees with respect to their obligations to Mortgagee or with respect to the operation of the Property, or physical waste of the Property;
(iii) the breach of provisions in this Mortgage concerning Environmental Laws, Hazardous Substances and Asbestos, and any indemnification of Mortgagee herein or in the Environmental Agreement or any other Loan Document with respect to such Environmental Laws, Hazardous Substances and Asbestos;
(iv) other than in the ordinary course of business, the removal or disposal of any portion of the Property after an Event of Default hereunder under the Note, this Mortgage, or thereunder, Holdxx xxxees to proceed solely against the Collateral and any other property given as security for payment Loan Document;
(v) the misapplication or conversion by Mortgagor of: (A) any insurance proceeds paid by reason of any loss, damage or destruction to the Property; (B) any awards or other amounts received in connection with the condemnation of all or a portion of the Property; or (C) rents, issues, profits, proceeds, accounts, or other amounts received by Mortgagor or Guarantor (in the case of clause (C) following an Event of Default under the Note, this Mortgage Noteor the other Loan Documents);
(vi) Mortgagor's failure to pay Taxes, assessments, charges for labor or materials or Other Charges that can result in liens on any portion of the Property, provided, however, that Mortgagor's and Holder Guarantor's liability hereunder shall cease with respect to such amounts incurred from and after such time, if any, that Mortgagee obtains legal and beneficial title to the Property;
(vii) the deductible amount in respect of any insurance maintained in respect of the Property, provided, however, that Mortgagor's and Guarantor's liability hereunder shall cease with respect to such amounts incurred from and after such time, if any, that Mortgagee obtains legal and beneficial title to the Property;
(viii) the costs incurred by Mortgagee (including reasonable attorneys' fees) in connection with the collection or enforcement of the Debt;
(ix) any security deposits, advance deposits or retained rents and profits collected with respect to the Property which are not seek or claim recourse against Maker or any Member (other than against the Collateral and any other property given as security for payment of this Mortgage Note) for any deficiency or for any personal judgment after delivered to Mortgagee upon a foreclosure of the lien of Property or action in lieu thereof;
(x) the Mortgage presence, disposal, escape, seepage, leakage, spillage, discharge, emission, release, or other Security Documents or for the performance or discharge threatened release of any covenants Hazardous Substance or undertakings of Maker hereunder Asbestos on, from, or under affecting the Property or any other Loan Documents (except that Maker may be made a party property, regardless of when discovered, which occurs prior to a proceeding to the extent legally necessary for the conduct foreclosure, transfer by deed in lieu of a foreclosure or the exercise appointment of other similar remedies under a receiver by Mortgagee;
(xi) any personal injury (including wrongful death) or property damage (real or personal) arising out of or related to such Hazardous Substance or Asbestos;
(xii) any lawsuit brought or threatened, settlement reached, or government order relating to such Hazardous Substance or Asbestos;
(xiii) any violation of the Mortgage Environmental Laws, regardless of when discovered, which occurs prior to foreclosure, transfer by deed in lieu of foreclosure or other Security Documents). the appointment of a receiver by Mortgagee, and which is based upon or in any way related to such Hazardous Substance or Asbestos including, without limitation, the costs and expenses of any remedial action, reasonable out-of-pocket attorney's and consultant's fees, investigation and laboratory fees, court costs, and litigation expenses; and
(xiv) Mortgagor fails to comply with the provisions of Sections 11 and/or 13 of this Mortgage.
(d) Notwithstanding the foregoing, nothing contained the agreement of Mortgagee not to pursue recourse liability as set forth in this SECTION 5 subsection (a) above SHALL BE AND BECOME NULL AND VOID and shall relieve Maker be of no further force or effect if: (1) Mortgagor fails to permit reasonable on-site inspections of the Property upon reasonable advance oral notice or to provide financial reports and information pertaining to the Property as required by any Member Loan Document, unless such failure is the result of a good faith error and such failure is cured within ten (10) days after notice; (2) any financial information concerning Mortgagor or Guarantor provided by Mortgagor or Guarantor (or their respective agents, employees, or authorized representatives) is fraudulent in any respect, contains any fraudulent information or misrepresents in any material respect the financial condition of Mortgagor or Guarantor; (3) Mortgagor fails to obtain Payee's prior written consent, if consent is required under any Loan Document, to any subordinate financing; (4) Mortgagor fails to obtain Payee's prior written consent, if consent is required under any Loan Document, to any transfer of the Property or of any personal liability ownership interest in Mortgagor; and (5) Mortgagor or its Managing Member files for relief or protection under any lossfederal, coststate or other bankruptcy, expenseinsolvency, damage reorganization or liability arising other creditor-relief laws, or resulting from an involuntary filing or petition is made under any of such laws, against Mortgagor by any of its creditors (Aother than Payee) any breach of any representation and such involuntary filing is not unconditionally dismissed or warranty made in vacated within ninety (90) days. Upon the Loan Agreement that was materially incorrect when made and that was made with fraudulent intent, (B) any amount paid or distributed to the Members, the Manager or any Affiliate occurrence of any of them in violation of the provisions of foregoing events, Mortgagor and Guarantor shall have full joint and several recourse liability for all sums due under the Loan Documents.
(e) Nothing in this Section shall be interpreted or construed to impair, (C) fraud limit the liability of or breach otherwise affect the terms, conditions, requirements and obligations of trust, including misapplication of Loan proceeds or any Insurance Proceeds or Awards or other sums Guarantor under that are part certain Guaranty Agreement dated as of the Collateral that may come into date hereof or the possession Mortgagor or control of Maker or a Member or any Affiliate of any of them, (D) liability Guarantor under the Environmental Indemnity Agreement or (E)Agreement.
Appears in 1 contract
Limitations on Recourse. Notwithstanding any contrary provision (a) Subject to the qualifications set forth in this Mortgage Section, neither Maker nor Guarantor nor any partner, member, shareholder, officer or director of either of them (collectively, the "Maker Group") shall be personally liable either at law or in equity for the repayment of the Debt or the failure of performance of any other obligation evidenced by the Note or contained in the Deed of Trust or the Other Security Documents, and Payxx xxll satisfy any judgments, orders or decrees on account of the failure to repay such Debt and/or the failure to perform any such obligation, from the Property and any other real or personal property, tangible or intangible, as Maker, Guarantor or any other entity shall have pledged or assigned to secure this Note by any of the Loan Documents, it is hereby expressly agreed except that Payee may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Payee to enforce and realize upon this Note, the Deed of Trust, the Other Security Documents, and the interests in the Property and any other collateral given to Payee pursuant to the Deed of Trust and the Other Security Documents; provided, however, that, except as otherwise specifically provided in this SECTION 5 Section, any judgment in any such action or proceeding shall be enforceable against Maker Group only to the extent of Maker Group's interest in the Property and in any other collateral given to Payee. Payxx, xy accepting this Note, the Deed of Trust and the Other Security Documents, agrees that it shall not sue for, seek or demand any deficiency judgment against Maker Group in any such action or proceeding, under, by reason of or in any section connection with the Deed of Trust, the Other Security Documents or this Note. The provisions of this Section shall not, however: (i) constitute a waiver, release or impairment of any Loan Document that is substantially similar obligation evidenced or secured by the Deed of Trust, the Environmental Agreement, the Guaranty or the Other Security Documents or this Note; (ii) impair the right of Payee to name Maker as a party defendant in any action or suit for foreclosure and sale under the Deed of Trust; (iii) affect the validity or enforceability of any guaranty or indemnity made in connection with the Deed of Trust, this SECTION 5Note or the Other Security Documents; (iv) impair the right of Payee to obtain the appointment of a receiver; (v) impair the right of Payee to bring suit with respect to fraud or misrepresentation by Maker or Maker Group in connection with the Deed of Trust, there shall be no recourse to this Note, the assets Environmental Agreement, the Guaranty or the Other Security Documents; (vi) affect the validity or enforceability of the Environmental Agreement or limit the liability of Maker or Guarantor thereunder; or (vii) affect the validity or enforceability of the Guaranty or limit the liability of Guarantor thereunder.
(b) Nothing herein shall be deemed to be a waiver of any of its Members (other than against the Collateral and right which Payee may have under Section 506(a), 506(b), 1111(b) or any other property given as security provisions of the U.S. Bankruptcy Code to file a claim for the payment full amount of the Debt secured by the Deed of Trust or to require that all collateral shall continue to secure all of the debt owing to Payee in accordance with this Mortgage Note, the Deed of Trust, the Environmental Agreement, the Guaranty and the Other Security Documents.
(c) for NOTWITHSTANDING THE FOREGOING PROVISIONS OF THIS SECTION OR ANY OTHER PROVISION IN THE LOAN DOCUMENTS, MAKER AND GUARANTOR, JOINTLY AND SEVERALLY, SHALL BE FULLY LIABLE FOR AND SHALL INDEMNIFY PAYEE FOR ANY OR ALL LOSS, COST, LIABILITY, JUDGMENT, CLAIM, DAMAGE OR EXPENSE SUSTAINED, SUFFERED OR INCURRED BY PAYXX (XNCLUDING, WITHOUT LIMITATION, PAYEE'S ATTORNEYS' FEES) ARISING OUT OF OR ATTRIBUTABLE OR RELATING TO:
(i) the payment of principalFRAUD OR MISREPRESENTATION BY MAKER GROUP OR GUARANTOR IN CONNECTION WITH THE LOAN;
(ii) THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF MAKER GROUP OR GUARANTOR, interestTHEIR RESPECTIVE AGENTS OR EMPLOYEES (NOT INCLUDING LESSEES OR PROPERTY MANAGERS), Defeasance DepositsOR PHYSICAL WASTE OF THE PROPERTY BY MAKER OR GUARANTOR;
(iii) THE BREACH OF PROVISIONS IN THE DEED OF TRUST OR THE ENVIRONMENTAL AGREEMENT CONCERNING ENVIRONMENTAL LAWS, Yield Maintenance Payments HAZARDOUS SUBSTANCES AND ASBESTOS (AS EACH SUCH TERM IS DEFINED IN THE DEED OF TRUST), AND ANY INDEMNIFICATION OF PAYEE IN THE DEED OF TRUST OR ANY OTHER LOAN DOCUMENT WITH RESPECT TO SUCH ENVIRONMENTAL LAWS, HAZARDOUS SUBSTANCES AND ASBESTOS;
(iv) THE REMOVAL OR DISPOSAL OF ANY PORTION OF THE PROPERTY AFTER DEFAULT UNDER THIS NOTE, THE DEED OF TRUST, THE ENVIRONMENTAL AGREEMENT, THE GUARANTY OR ANY OTHER LOAN DOCUMENT;
(v) THE MISAPPLICATION OR CONVERSION BY MAKER OR GUARANTOR OF: (A) ANY INSURANCE PROCEEDS PAID BY REASON OF ANY LOSS, DAMAGE OR DESTRUCTION TO THE PROPERTY; (B) ANY AWARDS OR OTHER AMOUNTS RECEIVED IN CONNECTION WITH THE CONDEMNATION OF ALL OR A PORTION OF THE PROPERTY; OR (C) RENTS, ISSUES, PROFITS, PROCEEDS, ACCOUNTS OR OTHER AMOUNTS RECEIVED BY MAKER OR GUARANTOR (IN THE CASE OF CLAUSE (C) FOLLOWING AN EVENT OF DEFAULT UNDER THIS NOTE, THE DEED OF TRUST, THE ENVIRONMENTAL AGREEMENT, THE GUARANTY OR ANY OTHER LOAN DOCUMENT);
(vi) Maker's failure to pay taxes, assessments, charges for labor or materials or other charges hereunder or for that may result in liens on any other amount that is or may become due and owing to Holder by Maker under this Mortgage Note or any portion of the other Loan Documents Property; provided, however, that Maker's and Guarantor's liability hereunder shall cease with respect to such amounts incurred from and after such time, if any, that Payee forecloses the Deed of Trust or (ii) the performance or discharge accepts a deed in lieu of any covenant or undertaking hereunder or under the other Loan Documents, and in the event of any Event of Default hereunder or thereunder, Holdxx xxxees to proceed solely against the Collateral and any other property given as security for payment of this Mortgage Note, and Holder shall not seek or claim recourse against Maker or any Member (other than against the Collateral and any other property given as security for payment of this Mortgage Note) for any deficiency or for any personal judgment after a foreclosure of the lien Deed of the Mortgage or other Security Documents or for the performance or discharge of any covenants or undertakings of Maker hereunder or under any other Loan Documents Trust;
(except that Maker may be made a party to a proceeding to the extent legally necessary for the conduct of a foreclosure or the exercise of other similar remedies under the Mortgage or other Security Documents). vii) MAKER'S FAILURE TO PAY INSURANCE DEDUCTIBLES OR PREMIUMS IN RESPECT OF ANY INSURANCE REQUIRED UNDER THE LOAN DOCUMENTS TO BE MAINTAINED IN RESPECT OF THE PROPERTY; PROVIDED, HOWEVER, THAT MAKER'S AND GUAXXXXXX'X LIABILITY HEREUNDER SHALL CEASE WITH RESPECT TO SUCH AMOUNTS INCURRED FROM AND AFTER SUCH TIME, IF ANY, THAT PAYEE FORECLOSES THE DEED OF TRUST OR ACCEPTS A DEED IN LIEU OF FORECLOSURE OF THE DEED OF TRUST;
(viii) THE DEDUCTIBLE AMOUNT OF ANY INSURANCE MAINTAINED IN RESPECT OF THE PROPERTY;
(ix) THE COSTS INCURRED BY PAYXX (XNCLUDING ATTORNEYS' FEES) IN CONNECTION WITH THE COLLECTION OR ENFORCEMENT OF THE DEBT;
(x) MAKER'S FAILURE TO MAKE THE PROPERTY REPAIRS OR ALTERATIONS REQUIRED UNDER THE LOAN DOCUMENTS, INCLUDING, WITHOUT LIMITATION, ALTERATIONS REQUIRED IN ORDER TO COMPLY WITH THE AMERICANS WITH DISABILITIES ACT;
(xi) MAKER'S FAILURE TO PERMIT ON-SITE INSPECTIONS OF THE PROPERTY OR TO PROVIDE FINANCIAL REPORTS AND INFORMATION PERTAINING TO THE PROPERTY AS REQUIRED BY THE DEED OF TRUST, UNLESS, IN EITHER CASE, SUCH FAILURE IS THE RESULT OF A GOOD FAITH ERROR AND IS CURED WITHIN TEN (10) DAYS AFTER NOTICE;
(xii) ANY SECURITY DEPOSITS OR ADVANCE DEPOSITS COLLECTED WITH RESPECT TO THE PROPERTY WHICH ARE NOT DELIVERED TO PAYEE UPON A FORECLOSURE OF THE PROPERTY OR ACTION IN LIEU THEREOF;
(xiii) MAKER FAILS TO OBTAIN PAYXX'X WRITTEN CONSENT TO ANY SUBORDINATE FINANCING;
(xiv) MAKER'S FAILURE TO OBTAIN PAYXX'X PRIOR WRITTEN CONSENT TO ANY TRANSFER OF THE PROPERTY OR OF ANY OWNERSHIP INTEREST IN MAKER; AND
(xv) MAKER FAILS TO COMPLY WITH THE PROVISIONS OF SECTION 11 OF THE DEED OF TRUST PERTAINING TO ITS SINGLE-PURPOSE ENTITY STATUS.
(d) Notwithstanding the foregoing, nothing contained the agreement of Payee not to pursue recourse liability as set forth in this SECTION 5 subsection (a) above SHALL BE AND BECOME NULL AND VOID and shall relieve be of no further force or effect if: (i) any financial information concerning Maker or any Member of any personal liability for any loss, cost, expense, damage Guarantor provided by Maker or liability arising or resulting from (A) any breach of any representation or warranty made in the Loan Agreement that was materially incorrect when made and that was made with fraudulent intent, (B) any amount paid or distributed to the Members, the Manager Guarantor or any Affiliate of their respective employees or agents is fraudulent in any respect, contains any fraudulent information or misrepresents in any material respect the financial condition of Maker or such Guarantor; (ii) a voluntary bankruptcy or insolvency proceeding is commenced by Maker or Maker’s managing member/general partner; or (iii) an involuntary bankruptcy or insolvency proceeding is commenced by any party against Maker or Maker’s managing member/general partner and is not unconditionally dismissed within ninety (90) days of filing. Upon the occurrence of any of them in violation of the provisions of foregoing events, Maker and Guarantor shall have full joint and several recourse liability for all sums due under the Loan Documents.
(e) Nothing in this Section shall be interpreted or construed to impair, (C) fraud limit the liability of or breach otherwise affect the terms, conditions, requirements and obligations of trust, including misapplication of Loan proceeds Guarantor under the Guaranty or any Insurance Proceeds or Awards or other sums that are part of the Collateral that may come into the possession or control of Maker or a Member or any Affiliate of any of them, (D) liability Guarantor under the Environmental Indemnity Agreement or (E)Agreement.
Appears in 1 contract
Samples: Deed of Trust Note (Equity Inns Inc)
Limitations on Recourse. Notwithstanding any contrary provision in this Mortgage Note or any of the Loan Documents, it is hereby expressly agreed that, except as otherwise provided in this SECTION 5 or in any section of any Loan Document that is substantially similar to this SECTION 5, there shall be no recourse to the assets of Maker or any of its Members (other than against the Collateral and any other property given as security for the payment of this Mortgage Note) for (i) the payment of principal, interest, Defeasance Deposits, Yield Maintenance Payments or other charges hereunder or for any other amount that is or may become due and owing to Holder by Maker under this Mortgage Note or any of the other Loan Documents or (ii) the performance or discharge of any covenant or undertaking hereunder or under the other Loan Documents, and in the event of any Event of Default hereunder or thereunder, Holdxx xxxees to proceed solely against the Collateral and any other property given as security for payment of this Mortgage Note, and Holder shall not seek or claim recourse against Maker or any Member (other than against the Collateral and any other property given as security for payment of this Mortgage Note) for any deficiency or for any personal judgment after a foreclosure of the lien of the Mortgage or other Security Documents or for the performance or discharge of any covenants or undertakings of Maker hereunder or under any other Loan Documents (except that Maker may be made a party to a proceeding to the extent legally necessary for the conduct of a foreclosure or the exercise of other similar remedies under the Mortgage or other Security Documents). Notwithstanding the foregoing, nothing contained in this SECTION 5 shall relieve Maker or any Member of any personal liability for any loss, cost, expense, damage or liability arising or resulting from (A) any breach of any representation or warranty made in the Loan Agreement that was materially incorrect when made and that was made with fraudulent intent, (B) any amount paid or distributed to the Members, the Manager or any Affiliate of any of them in violation of the provisions of the Loan Documents, (C) fraud or breach of trust, including misapplication of Loan proceeds or any Insurance Proceeds or Awards or other sums that are part of the Collateral that may come into the possession or control of Maker or a Member or any Affiliate of any of them, (D) liability under the Environmental Indemnity Agreement or (E)) following the occurrence of a Lockbox Event, the willful failure of Maker to instruct Tenants of the Mortgaged Properties to make payments of Rents into the Lockbox Account or the failure of Maker or the Manager to deposit payments of Rents received by Maker or Manager into the Lockbox Account promptly upon receipt thereof. It is hereby expressly agreed that no director, officer, shareholder, partner, member or employee of Maker or any Member, nor the legal or personal representative, successor or assign of any of the foregoing, nor any other principal of Maker or any Member, whether disclosed or undisclosed, shall have any personal liability under the Loan Agreement or any of the other Loan Documents, except as personal liability may be specifically imposed upon a signatory to any of the Loan Documents. It is the intention of the parties hereto that this SECTION 5 shall govern every other provision of the Loan Documents and that the absence of explicit reference to this SECTION 5 in any provision of the Loan Documents or the absence of any Section similar to this SECTION 5 in any Loan Document shall not be construed to deny the application of this SECTION 5 to such provision, notwithstanding the presence of explicit reference to this SECTION 5 in other provisions of the Loan Documents.
Appears in 1 contract
Samples: Mortgage Note (Arden Realty Inc)
Limitations on Recourse. Notwithstanding Subject to the provisions of this Article, and notwithstanding any contrary provision of the Loan Documents other than this Article, no personal liability shall be asserted, sought or obtained by Lender or enforceable against (i) any Borrower Party, (ii) any Affiliate of any Borrower Party, (iii) any Person owning, directly or indirectly, any legal or beneficial interest in any Borrower Party or any Affiliate of any Borrower Party or (iv) any partner, member, principal, officer, controlling person, beneficiary, trustee, advisor, shareholder, employee, agent, Affiliate or director of any Persons described in clauses (i) through (iv) above (collectively, the "Exculpated Parties") by Lender in respect of the Obligations, this Loan Agreement, the Mortgage, the Note, the Property or any other Loan Document, or the making, issuance or transfer thereof, all such liability, if any, being expressly waived by Lender and each successive holder of the Note and the Mortgage shall accept the Note and the Mortgage upon the express condition that Lender's sole recourse for the Obligations and the performance and observance of the obligations contained in this Loan Agreement, the Note, the Mortgage and the other Loan Documents shall be to exercise any or all of its rights and remedies with respect to the Property, the Rents and other Collateral including, without limitation, any or all of the following:
(i) Foreclosure of the lien of the Mortgage in accordance with the terms and provisions set forth in the Mortgage;
(ii) Action against any other security at any time given to secure the payment of the Note and under the other Loan Documents;
(iii) Exercise of any other remedy set forth in this Loan Agreement, the Mortgage or any other Loan Document. Notwithstanding anything to the contrary in this Loan Agreement, the Mortgage or any of the Loan Documents, it is hereby expressly agreed thatLender shall not be deemed to have waived any right which Lender may have under Section 506(a), except as otherwise provided in this SECTION 5 or in any section of any Loan Document that is substantially similar to this SECTION 5506(b), there shall be no recourse to the assets of Maker 1111(b) or any other provisions of its Members (other than against the Collateral and any other property given as security Bankruptcy Code to file a claim for the payment of this Mortgage Note) for (i) the payment of principal, interest, Defeasance Deposits, Yield Maintenance Payments or other charges hereunder or for any other full amount that is or may become due and owing to Holder by Maker under this Mortgage Note or any of the other Loan Documents or (ii) the performance or discharge of any covenant or undertaking hereunder or under the other Loan Documents, and in the event of any Event of Default hereunder or thereunder, Holdxx xxxees to proceed solely against the Collateral and any other property given as security for payment of this Mortgage Note, and Holder shall not seek or claim recourse against Maker or any Member (other than against the Collateral and any other property given as security for payment of this Mortgage Note) for any deficiency or for any personal judgment after a foreclosure of the lien of Obligations secured by the Mortgage or other Security Documents or for the performance or discharge of any covenants or undertakings of Maker hereunder or under any other Loan Documents (except to require that Maker may be made a party all collateral shall continue to a proceeding to the extent legally necessary for the conduct of a foreclosure or the exercise of other similar remedies under the Mortgage or other Security Documents). Notwithstanding the foregoing, nothing contained in this SECTION 5 shall relieve Maker or any Member of any personal liability for any loss, cost, expense, damage or liability arising or resulting from (A) any breach of any representation or warranty made in the Loan Agreement that was materially incorrect when made and that was made with fraudulent intent, (B) any amount paid or distributed to the Members, the Manager or any Affiliate of any of them in violation secure all of the provisions of Obligations owing to Lender in accordance with the Loan Documents, (C) fraud or breach of trust, including misapplication of Loan proceeds or any Insurance Proceeds or Awards or other sums that are part of the Collateral that may come into the possession or control of Maker or a Member or any Affiliate of any of them, (D) liability under the Environmental Indemnity Agreement or (E).
Appears in 1 contract
Samples: Loan and Security Agreement (HRPT Properties Trust)
Limitations on Recourse. Notwithstanding any contrary provision in this Mortgage Note or any of the Loan Documents, it is hereby expressly agreed that, except as otherwise provided in this SECTION 5 or in any section of any Loan Document that is substantially similar to this SECTION 5, there shall be no recourse to the assets of Maker or any either of its Members Partners (other than against the Collateral and any other property given as security for the payment of this Mortgage Note) for (i) the payment of principal, interest, Defeasance Deposits, Yield Maintenance Payments or other charges hereunder or for any other amount that is or may become due and owing to Holder by Maker under this Mortgage Note or any of the other Loan Documents or (ii) the performance or discharge of any covenant or undertaking hereunder or under the other Loan Documents, and in the event of any Event of Default hereunder or thereunder, Holdxx xxxees Holder agrees to proceed solely against the Collateral and any other property given as security for payment of this Mortgage Note, and Holder shall not seek or claim recourse against Maker or any Member the General Partner (other than against the Collateral and any other property given as security for payment of this Mortgage Note) for any deficiency or for any personal judgment after a foreclosure of the lien of the Mortgage or other Security Documents or for the performance or discharge of any covenants or undertakings of Maker hereunder or under any other Loan Documents (except that Maker may be made a party to a proceeding to the extent legally necessary for the conduct of a foreclosure or the exercise of other similar remedies under the Mortgage or other Security Documents). Notwithstanding the foregoing, nothing contained in this SECTION 5 shall relieve Maker or any Member the General Partner of any personal liability for any loss, cost, expense, damage or liability arising or resulting from (A) any breach of any representation or warranty made in the Loan Agreement that was materially incorrect when made and that was made with fraudulent intent, (B) any amount paid or distributed to the MembersPartners, the Manager or any Affiliate of any of them in violation of the provisions of the Loan Documents, (C) fraud or breach of trust, including misapplication of Loan proceeds or any Insurance Proceeds or Awards or other sums that are part of the Collateral that may come into the possession or control of Maker or a Member the General Partner or any Affiliate of any of them, (D) liability under the Environmental Indemnity Agreement or (E) following the occurrence of a Lockbox Event, the willful failure of Maker to instruct Tenants of the Mortgaged Properties to make payments of Rents into the Lockbox Account or the failure of Borrower or the Manager to deposit payments of Rents received by Borrower or Manager into the Lockbox Account promptly upon receipt thereof. It is hereby expressly agreed that neither the General Partner nor any director, officer, shareholder, partner or employee of Maker or the General Partner, nor the legal or personal representative, successor or assign of any of the foregoing, nor any other principal of Maker or the General Partner, whether disclosed or undisclosed, shall have any personal liability under the Loan Agreement or any of the other Loan Documents, except as personal liability may be specifically imposed upon the General Partner in accordance with clauses (A), (B), (C), (D) or (E) of this SECTION 5, and in no event shall any limited partner of Maker have any liability whatsoever with respect to the Loan or any monetary obligations with respect thereto, or any of the matters described in clause (A), (B), (C), (D) or (E) above. It is the intention of the parties hereto that this SECTION 5 shall govern every other provision of the Loan Documents and that the absence of explicit reference to this SECTION 5 in any provision of the Loan Documents or the absence of any Section similar to this SECTION 5 in any Loan Document shall not be construed to deny the application of this SECTION 5 to such provision, notwithstanding the presence of explicit reference to this SECTION 5 in other provisions of the Loan Documents.
Appears in 1 contract
Samples: Loan Agreement (Arden Realty Inc)
Limitations on Recourse. Notwithstanding any contrary provision in Payee agrees that, for payment of this Mortgage Note or any of the Loan DocumentsNote, it is hereby expressly agreed that, except as otherwise provided in this SECTION 5 or in any section of any Loan Document that is substantially similar to this SECTION 5, there shall be no recourse will look solely to the Mortgaged Property and such other collateral, if any, as may now or hereafter be given to secure the payment of this Note, and no other property or assets of Maker or any of its Members other person, firm or entity, disclosed or undisclosed (each an "Exculpated Party"), other than against a person, firm or entity who or which has expressly guaranteed some or all of the Collateral and Maker's obligations under this Note or any other property given as security Loan Document to the extent of such guaranty (each a "Guarantor"), shall be subject to levy, execution or other enforcement procedure for the satisfaction of the remedies of Payee, or for any payment required to be made under this Note or any other Loan Document or for the performance of any of the covenants or warranties contained herein or therein; provided, however, that the foregoing provisions of this Mortgage Note) for paragraph shall not (i) the payment constitute a waiver of principal, interest, Defeasance Deposits, Yield Maintenance Payments any obligation evidenced by this Note or other charges hereunder or for secured by any other amount that is or may become due and owing to Holder by Maker under this Mortgage Note or any of the other Loan Documents or Document, (ii) limit the performance right of Payee to name Maker, any Exculpated Party or discharge of any covenant Guarantor as a party defendant in any action or undertaking hereunder suit for judicial or non-judicial foreclosure and sale or any other action or suit under the Mortgage, Assignment of Leases or any other Loan DocumentsDocument, and in the event of any Event of Default hereunder (iii) release or thereunder, Holdxx xxxees to proceed solely against the Collateral and any other property given as security for payment of impair this Mortgage Note, and Holder shall not seek Note or claim recourse against Maker or any Member (other than against the Collateral and any other property given as security for payment of this Mortgage Note) for any deficiency or for any personal judgment after a foreclosure of the lien of the Mortgage or other Security Documents or for the performance or discharge of any covenants or undertakings of Maker hereunder or under any other Loan Documents Document or, (except iv) release, impair or affect in any way the validity or enforceability of any guaranty (whether of payment, performance and/or otherwise) (a "Guaranty") or indemnity agreement given to Payee in connection with the loan evidenced hereby; and provided, further that Maker may if Maker, any one or more of the Exculpated Parties, any one or more of the Guarantors or any other person or entity (all of the foregoing are collectively referred to as "Persons and Entities") (i) commits any act of fraud in connection with the transactions contemplated by this Note or any other Loan Document, (ii) makes a material adverse misrepresentation of any facts or circumstances related to the Mortgaged Property, Maker, any Exculpated Party or any Guarantor, or any constituent or sub-constituent (including, without limitation, a shareholder, partner, principal, trustee or beneficiary) of any of the foregoing, (iii) is obligated to pay, but fails to pay or cause to be made a party paid any taxes assessed or payable with respect to a proceeding the Mortgaged Property (to the extent legally necessary for the conduct of a foreclosure that escrowed funds held or the exercise of other similar remedies under the Mortgage or other Security Documentscontrolled by Payee are not available therefor). Notwithstanding the foregoing, nothing contained in this SECTION 5 shall relieve Maker or any Member of any personal liability for any loss, cost, expense, damage or liability arising or resulting from (A) any breach of any representation or warranty made in the Loan Agreement that was materially incorrect when made and that was made with fraudulent intent, (Biv) commits or (as to any amount paid Person or distributed Entity having title to the Members, the Manager or any Affiliate of any of them in violation of the provisions of the Loan Documents, (C) fraud or breach of trust, including misapplication of Loan proceeds or any Insurance Proceeds or Awards or other sums that are part of the Collateral that may come into the possession or control of Maker the Mortgaged Property) suffers to exist, any waste with respect to the Mortgaged Property or a Member (v) misapplies (a) any revenues received from the Mortgaged Property by failing to apply the same solely to the expenses of the Mortgaged Property and/or to amounts due under the Loan Documents after the occurrence and during the continuance of any Event of Default under this Note or any Affiliate other Loan Document, (b) insurance proceeds or condemnation awards received with respect to the Mortgaged Property, or (c) tax deposits or security deposits by tenants relating to the Mortgaged Property or any portion thereof, the Person or Entity committing such fraud, misrepresentation or failure to pay taxes, or so misapplying the aforesaid funds, shall be personally liable from his, her or its separate assets to Payee for any loss or damage resulting therefrom up to the value of the misapplied funds and any interest chargeable thereto (and in this regard, (I) any act by an employee or agent authorized to handle funds for any Person or Entity shall be deemed to be the act of such Person or Entity, and (II) any representation made or deemed made by Maker with respect to facts or circumstances that are particularly susceptible to the control or knowledge, directly or indirectly, of any constituent shareholder, partner, principal, trustee or beneficiary of themMaker, (D) liability or any affiliate of same, shall be deemed to be the representation of such partner, shareholder, principal, trustee, beneficiary or affiliate). Nothing in this paragraph shall be deemed to be a waiver of any right which the Payee may have under any provision of the Environmental Indemnity Agreement Bankruptcy Act of 1986, as amended, or (E)any successor legislation, to file a claim for the full amount of indebtedness owed by Maker to Payee or to require that the Mortgaged Property shall continue to secure all of the indebtedness owed by Maker to Payee in accordance with the Mortgage and the other Loan Documents.
Appears in 1 contract
Samples: Loan Agreement (Sepracor Inc /De/)
Limitations on Recourse. Notwithstanding any contrary provision (a) Subject to the qualifications set forth in this Mortgage Note or any of the Loan DocumentsSection, it is hereby expressly agreed that, except as otherwise provided in this SECTION 5 or in any section of any Loan Document that is substantially similar to this SECTION 5, there Agreement shall be no non-recourse against SRA, and S&W shall not enforce the liability and obligations to perform and observe the assets of Maker or any of its Members (other than against obligations contained in the Collateral and any other property given as security for the payment of Note, this Mortgage Note) for (i) the payment of principal, interest, Defeasance Deposits, Yield Maintenance Payments or other charges hereunder or for any other amount that is or may become due and owing to Holder by Maker under this Mortgage Note Agreement or any of the other Loan Documents by any action or (ii) proceeding wherein a money judgment shall be sought against SRA except that the S&W may bring a foreclosure action, an action for specific performance or discharge of any covenant other appropriate action or undertaking hereunder or under proceeding to enable S&W to enforce and realize upon the Note, this Agreement and the other Loan Documents, and its interest in the event of any Event of Default hereunder or thereunder, Holdxx xxxees to proceed solely against the Collateral Property and any other property collateral given to S&W pursuant to this Agreement and the other Loan Documents; provided, however, that, except as security for payment specifically provided herein, any judgment in any such action or proceeding shall be enforceable against SRA only to the extent of this Mortgage SRA's interest in the Property and in any other collateral given to S&W, and S&W, by accepting the Note, and Holder shall not seek or claim recourse against Maker or any Member (other than against the Collateral this Agreement and any other property given as security for payment Loan Document, agrees that it shall not xxx for, seek or demand any deficiency judgment against SRA, in any such action or proceeding, under or by reason of or in connection with the Note, this Agreement or any of the other Loan Documents.
(b) Notwithstanding anything contained herein to the contrary, the provisions of this Mortgage NoteSection shall not (A) for any deficiency constitute a waiver, release or for any personal judgment after a foreclosure of the lien of the Mortgage or other Security Documents or for the performance or discharge impairment of any covenants obligation evidenced or undertakings secured by the Note, this Agreement or the other Loan Documents; (B) impair the right of Maker hereunder S&W to name SRA as a party defendant in any action or suit for foreclosure and sale under this Agreement; (C) affect the validity or enforceability of any guaranty or indemnity made in connection with the Note, this Agreement, or the other Loan Documents; (D) impair the right of S&W to obtain the appointment of a receiver; (E) impair the enforcement of any other Loan Document; or (F) impair the right of S&W to bring suit with respect to fraud or misrepresentation by SRA, any guarantor or any other person or entity in connection with the Loan, the Note, this Agreement, or the other Loan Documents.
(c) Nothing set forth in this Agreement shall be deemed to be a waiver of any right which S&W may have under Section 506(a), 506(b), 1111(b) or any other provisions of the U.S. Bankruptcy Code to file a claim for the full amount of the Indebtedness (as defined in the Mortgage) or to require that all collateral shall continue to secure all of the Indebtedness.
(d) Notwithstanding any provision in the Note, this Agreement or the other Loan Documents (except that Maker may be made a party to a proceeding to the extent legally necessary contrary, SRA shall be fully liable for the conduct of a foreclosure or the exercise of other similar remedies under the Mortgage or other Security Documents). Notwithstanding the foregoing, nothing contained in this SECTION 5 and shall relieve Maker or any Member of any personal liability indemnify S&W for any or all loss, cost, expenseliability, judgment, claim, damage or liability expense sustained, suffered or incurred by S&W (including, without limitation, S&W's reasonable attorneys' fees) arising out of or resulting from attributable or relating to (collectively and inclusive of (A) any breach of any representation through (D) hereof):
(A) fraud, intentional misrepresentation or warranty made criminal acts by SRA or its members, officers, directors, principals, agents, employees or affiliates in connection with the Loan Agreement that was materially incorrect when made and that was made with fraudulent intent, Indebtedness;
(B) any amount paid or distributed to the Members, the Manager or any Affiliate of any of them in violation physical waste of the provisions Property caused by the gross negligence or willful misconduct of SRA or its members, officers, directors, principals, agents, employees or affiliates in failing to perform SRA's obligations to S&W under the Loan Documents, ;
(C) fraud misapplication or breach conversion by SRA of trust(1) any insurance proceeds paid by reason of any loss, including misapplication of Loan proceeds damage or destruction to the Property; (2) any Insurance Proceeds or Awards awards or other sums that are part amounts received in connection with the condemnation of all or a portion of the Collateral that may come into Property; or (3) rents, income, accounts receivable, issues, profits, proceeds from the possession sale of the Property or control of Maker otherwise, accounts or a Member or any Affiliate of any of them, other amounts received by SRA in connection with the Property; or
(D) liability under the Environmental Indemnity Agreement costs incurred by S&W (including reasonable attorneys' fees) in connection with the collection or (E)enforcement of this Agreement, the Note or the other Loan Documents.
Appears in 1 contract
Samples: Environmental Agreement (Smith & Wesson Holding Corp)
Limitations on Recourse. Notwithstanding any contrary provision (a) Subject to the qualifications set forth in this Mortgage Section, neither Maker nor Guarantor nor any partner, member, shareholder, officer or director of either of them shall be personally liable either at law or in equity for the repayment of the Debt or the failure of performance of any other obligation evidenced by this Note or contained in the Deed of Trust or the Other Security Documents, and Payee will satisfy any judgments, orders or decrees on account of the failure to repay such Debt and/or the failure to perform any such obligation, from the Property and any other real or personal property, tangible or intangible, as Maker, Guarantor or any other entity shall have pledged or assigned to secure this Note by any of the Loan Documents, it is hereby expressly agreed except that Payee may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Payee to enforce and realize upon this Note, the Deed of Trust, the Other Security Documents, and the interests in the Property and any other collateral given to Payee pursuant to the Deed of Trust and the Other Security Documents; provided, however, that, except as otherwise specifically provided in this SECTION 5 Section, any judgment in any such action or proceeding shall be enforceable against Maker only to the extent of Maker’s interest in the Property and in any other collateral given to Payee. Xxxxx, by accepting this Note, the Deed of Trust and the Other Security Documents, agrees that it shall not sue for, seek or demand any deficiency judgment against Maker in any such action or proceeding, under, by reason of or in any section connection with the Deed of Trust, the Other Security Documents or this Note. The provisions of this Section shall not, however: (i) constitute a waiver, release or impairment of any Loan Document that is substantially similar obligation evidenced or secured by the Deed of Trust, the Environmental Agreement, the Guaranty or the Other Security Documents or this Note; (ii) impair the right of Payee to name Maker as a party defendant in any action or suit for foreclosure and sale under the Deed of Trust; (iii) affect the validity or enforceability of any guaranty or indemnity made in connection with the Deed of Trust, this SECTION 5Note or the Other Security Documents; (iv) impair the right of Payee to obtain the appointment of a receiver; (v) impair the right of Payee to bring suit with respect to fraud or misrepresentation by Maker in connection with the Deed of Trust, there shall be no recourse to this Note, the assets Environmental Agreement, the Guaranty or the Other Security Documents; (vi) affect the validity or enforceability of the Environmental Agreement or limit the liability of Maker or Guarantor thereunder; or (vii) affect the validity or enforceability of the Guaranty or limit the liability of Guarantor thereunder.
(b) Nothing herein shall be deemed to be a waiver of any of its Members (other than against the Collateral and right which Payee may have under Section 506(a), 506(b), 1111(b) or any other property given as security provisions of the U.S. Bankruptcy Code to file a claim for the payment full amount of the Debt secured by the Deed of Trust or to require that all collateral shall continue to secure all of the debt owing to Payee in accordance with this Note, the Deed of Trust, the Environmental Agreement, the Guaranty and the Other Security Documents.
(c) Notwithstanding the foregoing provisions of this Mortgage NoteSection or any other provision in the Loan Documents, Maker and Guarantor, jointly and severally, shall be fully liable for and shall indemnify Payee for any or all loss, cost, liability, judgment, claim, damage or expense sustained, suffered or incurred by Payee (including, without limitation, Payee’s attorneys’ fees) for arising out of or attributable or relating to:
(i) fraud or material misrepresentation by Grantor or Guarantor in connection with the payment Loan;
(ii) the gross negligence or willful misconduct of principalGrantor or Guarantor, interesttheir respective agents or employees, Defeasance Deposits, Yield Maintenance Payments or other charges hereunder or for any other amount that is or may become due and owing to Holder by Maker under this Mortgage Note physical waste of the Property;
(iii) the breach of provisions in the Deed of Trust or any of the other Loan Documents concerning Environmental Laws, Hazardous Substances and Asbestos (as each such terms are defined in the Deed of Trust), and any indemnification of Payee in the Deed of Trust or any of the other Loan Documents with respect to such Environmental Laws, Hazardous Substances and Asbestos;
(iv) the removal or disposal of any portion of the Property while an Event of Default exists;
(v) the conversion by Grantor or Guarantor of: (A) any insurance proceeds paid by reason of any loss, damage or destruction to the Property; (B) any awards or other amounts received in connection with the condemnation of all or a portion of the Property; or (iiC) rents, issues, profits, proceeds, accounts or other amounts received by Grantor or Guarantor (in the performance case of clause (C), following an Event of Default under this Note, the Deed of Trust, the Environmental Agreement, the Guaranty or discharge any of any covenant or undertaking hereunder or under the other Loan Documents);
(vi) Grantor’s failure to pay taxes, assessments, charges for labor or materials or other charges that may result in liens on any portion of the Property or Grantor’s failure to pay on a current basis the Taxes, Insurance Premiums and in Other Charges pursuant to the event terms of Section 6 of the Deed of Trust;
(vii) Grantor’s failure to pay the deductible amount of any Event insurance maintained in respect of Default hereunder the Property;
(viii) Grantor’s failure to comply materially with the Americans With Disabilities Act;
(ix) criminal acts resulting in forfeiture of any of the Property;
(x) any security deposits, advance deposits or thereunder, Holdxx xxxees retained rents and profits collected with respect to proceed solely against the Collateral and any other property given as security for payment of this Mortgage Note, and Holder shall Property which are not seek or claim recourse against Maker or any Member (other than against the Collateral and any other property given as security for payment of this Mortgage Note) for any deficiency or for any personal judgment after delivered to Payee upon a foreclosure of the lien Property or action in lieu thereof;
(xi) Grantor fails to obtain Xxxxx’s prior written consent if consent is required under the Loan Documents to any subordinate financing;
(xii) Grantor’s failure to obtain Xxxxx’s prior written consent if consent is required under the Loan Documents to any transfer of the Mortgage Property or other Security Documents or for the performance or discharge of any covenants or undertakings ownership interest in Grantor; and
(xiii) Grantor fails to comply with the provisions of Maker hereunder or under any other Loan Documents Section 11 of the Deed of Trust pertaining to their single purpose/single asset entity status (except that Maker may be made a party the “SPE Covenants”);
(xiv) Grantor’s failure to a proceeding provide financial reports and information pertaining to the extent legally necessary for Property as required by the conduct Deed of Trust unless such failure is the result of a foreclosure good faith error and is cured within ten (10) days after notice;
(xv) Grantor’s failure to comply with the PIP (as defined in the Deed of Trust) as agreed to by Operator and Franchisor from time to time, beyond the expiration of any notice or cure periods provided for in the PIP;
(xvi) default or breach under the Operating Lease (as defined in the Deed of Trust) beyond any applicable grace or cure period provided for therein; and/or
(xvii) a judicial decision is rendered that is adverse to Grantor or the exercise Property in connection with the Pending Litigation (as defined in the Deed of other similar remedies under Trust) and materially and adversely affects the Mortgage value of the Property or other Security Documents). the operation of the Property as a hotel.
(d) Notwithstanding the foregoing, nothing contained the agreement of Payee not to pursue recourse liability as set forth in this SECTION 5 subsection (a) above SHALL BE AND BECOME NULL AND VOID and shall relieve Maker be of no further force or any Member of any personal liability for any loss, cost, expense, damage or liability arising or resulting from effect if: (Ai) any financial information concerning Grantor or Guarantor is fraudulent in any respect, contains any fraudulent information with respect to the financial condition of Grantor or Guarantor; (ii) a voluntary bankruptcy or insolvency proceeding is commenced by Grantor or a managing member of Grantor; or (iii) an involuntary bankruptcy or insolvency proceeding is commenced by any party against Grantor or a managing member of Grantor and is not unconditionally dismissed within ninety (90) days of filing and either (1) at the time of the filing of such proceeding Grantor was in breach of any representation the SPE Covenants, or warranty made in (2) Payee is able to prove collusion between Grantor or either of their Affiliates and the Loan Agreement that was materially incorrect when made and that was made with fraudulent intent, (B) any amount paid or distributed to party commencing such action. Upon the Members, the Manager or any Affiliate occurrence of any of them in violation of the provisions of foregoing events, Grantor and Guarantor shall have full joint and several recourse liability for all sums due under the Loan Documents.
(e) Nothing in this Section shall be interpreted or construed to impair, (C) fraud limit the liability of or breach otherwise affect the terms, conditions, requirements and obligations of trust, including misapplication of Loan proceeds Guarantor under the Guaranty or any Insurance Proceeds or Awards or other sums that are part of the Collateral that may come into the possession or control of Maker or a Member or any Affiliate of any of them, (D) liability Guarantor under the Environmental Indemnity Agreement or (E)Agreement.
Appears in 1 contract
Limitations on Recourse. Notwithstanding The parties hereto agree that the Lessor ----------------------- shall have no personal liability whatsoever to the Lessee or its respective successors and assigns for any contrary provision claim based on or in respect of this Mortgage Note Lease or any of the Loan other Operative Documents or arising in any way from the transactions contemplated hereby or thereby; provided, however, that the Lessor shall be -------- ------- liable in its individual capacity (a) for its own willful misconduct or gross negligence (or negligence in the handling of funds), (b) for liabilities that may result from the incorrectness of any representation or warranty expressly made by it in Section 8.1 of the Participation Agreement or (c) for any Taxes based on or measured by any fees, commission or compensation received by it for acting as the Lessor as contemplated by the Operative Documents, it . It is hereby expressly understood and agreed that, except as otherwise provided in this SECTION 5 or in any section of any Loan Document that is substantially similar to this SECTION 5, there shall be no recourse to the assets of Maker or any of its Members (other than against the Collateral and any other property given as security for the payment of this Mortgage Note) for preceding proviso: (i) the payment of principal, interest, Defeasance Deposits, Yield Maintenance Payments or other charges hereunder or for any other amount that is or may become due and owing to Holder by Maker Lessor shall have no personal liability under this Mortgage Note or any of the other Loan Operative Documents or as a result of acting pursuant to and consistent with any of the Operative Documents; (ii) all obligations of the performance or discharge of any covenant or undertaking hereunder or under Lessor to the other Loan Documents, Lessee are solely nonrecourse obligations except to the extent that it has received payment from others and in the event of any Event of Default hereunder or thereunder, Holdxx xxxees to proceed are enforceable solely against the Collateral Lessor's interest in the Property; and any other property given (iii) all such personal liability of the Lessor is expressly waived and released as security for payment a condition of, and as consideration for, the execution and delivery of the Operative Documents by the Lessor. Notwithstanding anything contained herein, the restriction stated in the preceding provisions of this Mortgage Note, and Holder Section 31.7 shall not seek or claim recourse against Maker or any Member (other than against the Collateral and any other property given as security for payment of this Mortgage Note) for any deficiency or for any personal judgment after a foreclosure apply to liability of the lien ------------ Lessor arising because of a breach of the Mortgage Lessor's obligation to remove Lessor Liens or other Security Documents because of its receiving Advances and failing to disburse Advances to Lessee in accordance with the Operative Documents, or for the performance or discharge of any covenants or undertakings of Maker hereunder or under any other Loan Documents (except that Maker may be made a party failure to a proceeding to the extent legally necessary for the conduct of a foreclosure or the exercise of other similar remedies under the Mortgage or other Security Documents). Notwithstanding the foregoing, nothing contained in this SECTION 5 shall relieve Maker or any Member of any personal liability for any loss, cost, expense, damage or liability arising or resulting disburse proceeds from (A) any breach of any representation or warranty made in the Loan Agreement that was materially incorrect when made and that was made with fraudulent intent, (B) any amount paid or distributed to the Members, the Manager or any Affiliate of any of them in violation sale of the provisions of the Loan Documents, (C) fraud or breach of trust, including misapplication of Loan proceeds or any Insurance Proceeds or Awards or other sums that are part of the Collateral that may come into the possession or control of Maker or a Member or any Affiliate of any of them, (D) liability under the Environmental Indemnity Agreement or (E)Property in accordance with this Lease.
Appears in 1 contract
Samples: Participation Agreement (Vitesse Semiconductor Corp)
Limitations on Recourse. Notwithstanding any contrary provision (a) Subject to the qualifications set forth in this Mortgage Section, neither Maker nor Guarantor nor any partner, member, shareholder, officer or director of either of them (collectively, the "Maker Group") shall be personally liable either at law or in equity for the repayment of the Debt or the failure of performance of any other obligation evidenced by the Note or contained in the Deed of Trust or the Other Security Documents, and Pxxxx will satisfy any judgments, orders or decrees on account of the failure to repay such Debt and/or the failure to perform any such obligation, from the Property and any other real or personal property, tangible or intangible, as Maker, Guarantor or any other entity shall have pledged or assigned to secure this Note by any of the Loan Documents, it is hereby expressly agreed except that Payee may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Payee to enforce and realize upon this Note, the Deed of Trust, the Other Security Documents, and the interests in the Property and any other collateral given to Payee pursuant to the Deed of Trust and the Other Security Documents; provided, however, that, except as otherwise specifically provided in this SECTION 5 Section, any judgment in any such action or proceeding shall be enforceable against Maker Group only to the extent of Maker Group's interest in the Property and in any other collateral given to Payee. Pxxxx, by accepting this Note, the Deed of Trust and the Other Security Documents, agrees that it shall not sue for, seek or demand any deficiency judgment against Maker Group in any such action or proceeding, under, by reason of or in any section connection with the Deed of Trust, the Other Security Documents or this Note. The provisions of this Section shall not, however: (i) constitute a waiver, release or impairment of any Loan Document that is substantially similar obligation evidenced or secured by the Deed of Trust, the Environmental Agreement, the Guaranty or the Other Security Documents or this Note; (ii) impair the right of Payee to name Maker as a party defendant in any action or suit for foreclosure and sale under the Deed of Trust; (iii) affect the validity or enforceability of any guaranty or indemnity made in connection with the Deed of Trust, this SECTION 5Note or the Other Security Documents; (iv) impair the right of Payee to obtain the appointment of a receiver; (v) impair the right of Payee to bring suit with respect to fraud or misrepresentation by Maker or Maker's Group in connection with the Deed of Trust, there shall be no recourse to this Note, the assets Environmental Agreement, the Guaranty or the Other Security Documents; (vi) affect the validity or enforceability of the Environmental Agreement or limit the liability of Maker or Guarantor thereunder; or (vii) affect the validity or enforceability of the Guaranty or limit the liability of Guarantor thereunder.
(b) Nothing herein shall be deemed to be a waiver of any of its Members (other than against the Collateral and right which Payee may have under Section 506(a), 506(b), 1111(b) or any other property given as security provisions of the U.S. Bankruptcy Code to file a claim for the payment full amount of the Debt secured by the Deed of Trust or to require that all collateral shall continue to secure all of the debt owing to Payee in accordance with this Note, the Deed of Trust, the Environmental Agreement, the Guaranty and the Other Security Documents.
(c) Notwithstanding the foregoing provisions of this Mortgage NoteSection or any other provision in the Loan Documents, Maker and Guarantor, jointly and severally, shall be fully liable for and shall indemnify Payee for any or all loss, cost, liability, judgment, claim, damage or expense sustained, suffered or incurred by Payee (including, without limitation, Payee's attorneys' fees) for arising out of or attributable or relating to:
(i) fraud or misrepresentation by Maker's Group or Guarantor in connection with the payment of principal, interest, Defeasance Deposits, Yield Maintenance Payments or other charges hereunder or for any other amount that is or may become due and owing to Holder by Maker under this Mortgage Note or any of the other Loan Documents or Loan;
(ii) the performance gross negligence or discharge willful misconduct of Maker's Group or Guarantor, their respective agents or employees (not including lessees or property managers), or physical waste of the Property by Maker or Guarantor;
(iii) the breach of provisions in the Deed of Trust or the Environmental Agreement concerning Environmental Laws, Hazardous Substances and Asbestos (as each such term is defined in the Deed of Trust), and any indemnification of Payee in the Deed of Trust or any other Loan Document with respect to such Environmental Laws, Hazardous Substances and Asbestos;
(iv) the removal or disposal of any covenant portion of the Property after default under this Note, the Deed of Trust, the Environmental Agreement, the Guaranty or undertaking any other Loan Document;
(v) the misapplication or conversion by Maker or Guarantor of: (A) any insurance proceeds paid by reason of any loss, damage or destruction to the Property; (B) any awards or other amounts received in connection with the condemnation of all or a portion of the Property; or (C) rents, issues, profits, proceeds, accounts or other amounts received by Maker or Guarantor (in the case of clause (C) following an Event of Default under this Note, the Deed of Trust, the Environmental Agreement, the Guaranty or any other Loan Document);
(vi) Maker's failure to pay taxes, assessments, charges for labor or materials or other charges that may result in liens on any portion of the Property; provided, however, that Maker's and Guarantor's liability hereunder shall cease with respect to such amounts incurred from and after such time, if any, that Payee forecloses the Deed of Trust or accepts a deed in lieu of foreclosure of the Deed of Trust;
(vii) Maker's failure to pay insurance deductibles or premiums in respect of any insurance required under the other Loan Documents to be maintained in respect of the Property; provided, however, that Maker's and Guarantor's liability hereunder shall cease with respect to such amounts incurred from and after such time, if any, that Payee forecloses the Deed of Trust or accepts a deed in lieu of foreclosure of the Deed of Trust;
(viii) the deductible amount of any insurance maintained in respect of the Property;
(ix) the costs incurred by Pxxxx (including attorneys' fees) in connection with the collection or enforcement of the Debt;
(x) Maker's failure to make the Property repairs or alterations required under the Loan Documents, including, without limitation, alterations required in order to comply with the Americans With Disabilities Act;
(xi) Maker's failure to permit on-site inspections of the Property or to provide financial reports and information pertaining to the Property as required by the Deed of Trust, unless, in either case, such failure is the event result of a good faith error and is cured within ten (10) days after notice;
(xii) any Event of Default hereunder security deposits or thereunder, Holdxx xxxees advance deposits collected with respect to proceed solely against the Collateral and any other property given as security for payment of this Mortgage Note, and Holder shall Property which are not seek or claim recourse against Maker or any Member (other than against the Collateral and any other property given as security for payment of this Mortgage Note) for any deficiency or for any personal judgment after delivered to Payee upon a foreclosure of the lien Property or action in lieu thereof;
(xiii) Maker fails to obtain Pxxxx's written consent to any subordinate financing;
(xiv) Maker's failure to obtain Pxxxx's prior written consent to any transfer of the Mortgage Property or other Security Documents or for the performance or discharge of any covenants or undertakings ownership interest in Maker; and
(xv) Maker fails to comply with the provisions of Maker hereunder or under any other Loan Documents Section 11 of the Deed of Trust pertaining to its single-purpose entity status.
(except that Maker may be made a party to a proceeding to the extent legally necessary for the conduct of a foreclosure or the exercise of other similar remedies under the Mortgage or other Security Documents). d) Notwithstanding the foregoing, nothing contained the agreement of Payee not to pursue recourse liability as set forth in this SECTION 5 subsection (a) above SHALL BE AND BECOME NULL AND VOID and shall relieve be of no further force or effect if: (i) any financial information concerning Maker or any Member of any personal liability for any loss, cost, expense, damage Guarantor provided by Maker or liability arising or resulting from (A) any breach of any representation or warranty made in the Loan Agreement that was materially incorrect when made and that was made with fraudulent intent, (B) any amount paid or distributed to the Members, the Manager Guarantor or any Affiliate of their respective employees or agents is fraudulent in any respect, contains any fraudulent information or misrepresents in any material respect the financial condition of Maker or such Guarantor; (ii) a voluntary bankruptcy or insolvency proceeding is commenced by Maker or Maker’s managing member/general partner; or (iii) an involuntary bankruptcy or insolvency proceeding is commenced by any party against Maker or Maker’s managing member/general partner and is not unconditionally dismissed within ninety (90) days of filing. Upon the occurrence of any of them in violation of the provisions of foregoing events, Maker and Guarantor shall have full joint and several recourse liability for all sums due under the Loan Documents.
(e) Nothing in this Section shall be interpreted or construed to impair, (C) fraud limit the liability of or breach otherwise affect the terms, conditions, requirements and obligations of trust, including misapplication of Loan proceeds Guarantor under the Guaranty or any Insurance Proceeds or Awards or other sums that are part of the Collateral that may come into the possession or control of Maker or a Member or any Affiliate of any of them, (D) liability Guarantor under the Environmental Indemnity Agreement or (E)Agreement.
Appears in 1 contract
Samples: Deed of Trust Note (Equity Inns Inc)
Limitations on Recourse. The Borrower hereby agrees that, except ----------------------- as hereinafter set forth, any claim or liability under this Agreement, the Notes, the Letters of Credit or the Collateral Security Documents asserted against the Owner Trustee by it shall be limited to satisfaction out of, and enforcement against, the Trust Estate (as defined in the Trust Agreement). Notwithstanding anything to the contrary contained herein or in any contrary provision in this Mortgage Note other document, certificate or instrument executed by the Owner Trustee pursuant hereto or thereto, the Borrower hereby acknowledges and agrees that neither the Owner Trustee, Linden Owner Partnership nor any officer, employee, partner, servant, controlling Person, manager, agent, authorized representative or Affiliate of the Owner Trustee or Linden Owner Partnership (collectively, the "Non-Recourse Persons") shall have any liability -------------------- to the Borrower or the General Partner (such liability, including such as may arise by operation of law, being hereby expressly waived) for the performance of any of the Loan obligations of the Owner Trustee contained herein or therein or shall otherwise be liable or responsible with respect thereto, except as hereinafter set forth. If any claim of the Borrower against the Owner Trustee or alleged liability to the Borrower of the Owner Trustee shall be asserted under this Agreement or the Collateral Security Documents, it is hereby expressly agreed the Borrower agrees that, except as otherwise provided in this SECTION 5 hereinafter set forth, it shall not have the right to proceed directly or in any section of any Loan Document that is substantially similar to this SECTION 5, there shall be no recourse to indirectly against the Non-Recourse Persons or against their respective properties and assets of Maker or any of its Members (other than against the Collateral and any other property given as security Trust Estate) for the payment satisfaction of this Mortgage Noteany such claim or liability (except to the extent enforceable out of the Trust Estate) for (i) the payment in respect of principal, interest, Defeasance Deposits, Yield Maintenance Payments any such claim or other charges hereunder or for any other amount that is or may become due and owing to Holder by Maker under this Mortgage Note or liability. Notwithstanding any of the other Loan Documents or (ii) the performance or discharge of any covenant or undertaking hereunder or under the other Loan Documents, and in the event of any Event of Default hereunder or thereunder, Holdxx xxxees to proceed solely against the Collateral and any other property given as security for payment of this Mortgage Note, and Holder shall not seek or claim recourse against Maker or any Member (other than against the Collateral and any other property given as security for payment of this Mortgage Note) for any deficiency or for any personal judgment after a foreclosure of the lien of the Mortgage or other Security Documents or for the performance or discharge of any covenants or undertakings of Maker hereunder or under any other Loan Documents (except that Maker may be made a party to a proceeding to the extent legally necessary for the conduct of a foreclosure or the exercise of other similar remedies under the Mortgage or other Security Documents). Notwithstanding the foregoing, it is expressly understood and agreed, however, that nothing contained in this SECTION 5 subsection 9.16 shall relieve Maker in any manner or any Member way (a) affect or diminish any obligation, covenant or agreement of any personal liability for Non-Recourse Person made expressly in its individual capacity under any loss, cost, expense, damage certificate executed by such Non- Recourse Person on its own behalf or liability arising any right or resulting from (A) any breach benefit of any representation party hereto under any such certificate or warranty made in the Loan Agreement that was materially incorrect when made and that was made with fraudulent intent, (Bb) affect or diminish any amount paid or distributed to the Members, the Manager or any Affiliate rights of any of them in violation of the provisions of the Loan Documents, (C) fraud Person against any other Person arising from misappropriation or breach of trust, including misapplication of Loan proceeds any funds or for such other Person's fraud, gross negligence or willful misconduct. The foregoing acknowledgements, agreements and waivers shall survive the termination of this Agreement and shall be enforceable by any Insurance Proceeds or Awards or other sums that are part of the Collateral that may come into the possession or control of Maker or a Member or any Affiliate of any of them, (D) liability under the Environmental Indemnity Agreement or (E)Non-Recourse Person.
Appears in 1 contract
Limitations on Recourse. Notwithstanding anything contained herein to the contrary, each Lender and each Agent agree that (a) in an action to collect any contrary provision amounts due under, or otherwise in respect of, this Mortgage Agreement, any Second-Lien Note or any of the other Second-Lien Loan Document, no future, current or former Holdings Partner (except, if any such Holdings Partner is a Loan Party or is otherwise a party to any Second-Lien Loan Documents, it is hereby expressly agreed that, except for such person's obligations as otherwise provided a Loan Party under such Second-Lien Loan Documents) in this SECTION 5 or in its capacity as such will be personally liable for any section of any Loan Document that is substantially similar to this SECTION 5, there shall be no recourse to the assets of Maker amounts due or any of its Members (other than against the Collateral and any other property given as security for the payment of this Mortgage Note) for (i) the payment of principal, interest, Defeasance Deposits, Yield Maintenance Payments or other charges hereunder or for any other amount that is or may become due and owing to Holder by Maker liability under this Mortgage Agreement, any Second-Lien Note or any other Second-Lien Loan Document, and no deficiency or personal judgment will be sought against any such Holdings Partner in its capacity as such for payment of the Indebtedness evidenced by this Agreement, any Second-Lien Note or any other Second-Lien Loan Documents Document and (b) no property or (ii) the performance or discharge assets of any covenant such future, current or undertaking hereunder former Holdings Partner (except, if any such Holdings Partner is a Loan Party or under the other is otherwise a party to any Second-Lien Loan Documents, and for such person's obligations under such Second-Lien Loan Documents) in the event of its capacity as such shall be sold, levied upon or otherwise used to satisfy any Event of Default hereunder or thereunder, Holdxx xxxees judgment rendered in connection with any action brought with respect to proceed solely against the Collateral and any other property given as security for payment of this Mortgage Note, and Holder shall not seek or claim recourse against Maker Agreement or any Member (other than against the Collateral and any other property given as security for payment of this Mortgage Second-Lien Note) for any deficiency or for any personal judgment after a foreclosure of the lien of the Mortgage or other Security Documents or for the performance or discharge of any covenants or undertakings of Maker hereunder or under any other Loan Documents (except ; provided, however, that Maker may be made a party to a proceeding to the extent legally necessary for the conduct of a foreclosure or the exercise of other similar remedies under the Mortgage or other Security Documents). Notwithstanding the foregoing, nothing contained in this SECTION 5 Section 9.19 shall relieve Maker (i) impair the validity of the Indebtedness evidenced by this Agreement or the Second-Lien Notes, (ii) prevent the taking of any action permitted by law against the Borrower or any Member other Loan Party or the assets of the Borrower or any other Loan Party or the proceeds of such assets or (iii) in any way affect or impair the right of any personal liability for Agent or any loss, cost, expense, damage or liability arising or resulting from (A) Lender to take any breach of action permitted by law to realize upon any representation or warranty made in the Loan Agreement that was materially incorrect when made and that was made with fraudulent intent, (B) any amount paid or distributed to the MembersMortgaged Property, the Manager Collateral or any Affiliate of other security which may secure any of them in violation of the provisions of the Loan Documents, (C) fraud or breach of trust, including misapplication of Loan proceeds or any Insurance Proceeds or Awards or other sums that are part of the Collateral that may come into the possession or control of Maker or a Member or any Affiliate of any of them, (D) liability under the Environmental Indemnity Agreement or (E)Party's obligations.
Appears in 1 contract
Samples: Second Lien Credit Agreement (Graham Packaging Holdings Co)
Limitations on Recourse. Notwithstanding any contrary provision Except as hereinafter in this Mortgage Note or any Section and ----------------------- in Section 40 of the Loan DocumentsMortgage specifically provided, it is hereby expressly agreed that, except as otherwise provided in this SECTION 5 or in any section of any Loan Document that is substantially similar to this SECTION 5, there shall be no recourse to the assets of Maker or any of its Members Maker. Marriott Hanover Hotel Corporation (other than against the Collateral "MHHC") and any other property given as security partners of the Maker shall not be personally liable for the payment of this Mortgage Note) for (i) the payment of principal, interest, Defeasance Deposits, Yield Maintenance Payments or other charges any sums due hereunder or for any other amount that is or may become due and owing to Holder by Maker under this Mortgage Note or any of the other Loan Documents or (ii) the performance or discharge of any covenant or undertaking hereunder or under the other Loan Documents, and in the event of any Event of Default hereunder or thereunder, Holdxx xxxees to proceed solely against the Collateral and any other property given as security for payment of this Mortgage Note, and Holder shall not seek or claim recourse against Maker or any Member (other than against the Collateral and any other property given as security for payment of this Mortgage Note) for any deficiency or for any personal judgment after a foreclosure of the lien of the Mortgage or other Security Documents or for the performance or discharge of any covenants or undertakings obligations of Maker hereunder or under any other Loan Documents (except that Maker may be made a party to a proceeding to the extent legally necessary Document. No judgment for the conduct repayment of a foreclosure the Indebtedness and no action to foreclose the Mortgage, or to collect any amount payable under the exercise Loan Documents, or to satisfy any other claim relating thereto will be enforced against Maker or MHHC or any other partner of Maker personally or any property of Maker or MHHC or any other similar remedies partner of Maker other than the Security and any other security furnished under the Loan Documents in any action to foreclose the Mortgage or other Security to otherwise realize upon any security furnished under the Loan Documents or to collect any amount payable under the Loan Documents). Notwithstanding the foregoing:
(a) Nothing herein contained shall be construed as prohibiting Holder from exercising any and all remedies which the Loan Documents permit, nothing contained including the right to bring actions or proceedings against Maker and/or MHHC and/or any other general partner of Maker and to enter a judgment against Maker and/or any other general partner in this SECTION 5 shall relieve Maker or any Member Maker, so long as the exercise of any personal liability for any loss, cost, expense, damage remedy does not extend to execution against or liability arising or resulting from (A) any breach recovery out of any representation or warranty made in property of Maker and/or MHHC and/or any other partner other than the Loan Agreement that was materially incorrect when made and that was made with fraudulent intent, (B) any amount paid or distributed to the Members, the Manager or any Affiliate of any of them in violation of the provisions of security furnished under the Loan Documents;
(b) Maker and MHHC and any other general partner of Maker, but not any limited partner of Maker who is not also a general partner, shall be fully and personally jointly and severally personally liable for (i) misapplying any condemnation proceeds or insurance proceeds attributable to the Real Property, to the full extent of such proceeds so misapplied, (Cii) fraud or breach misapplying any security deposits attributable to the Real Property, to the full extent of trust, including misapplication of Loan proceeds or any Insurance Proceeds or Awards or other sums that are part of the Collateral that may come into the possession or control of Maker or a Member or any Affiliate of any of them, (D) liability under the Environmental Indemnity Agreement or (E)such deposits so misapplied.
Appears in 1 contract
Samples: Assignment of Hotel Management Agreement (Hanover Marriott Limited Partnership)
Limitations on Recourse. Notwithstanding any contrary provision in Payee agrees that, for payment of this Mortgage Note or any of the Loan DocumentsNote, it is hereby expressly agreed that, except as otherwise provided in this SECTION 5 or in any section of any Loan Document that is substantially similar to this SECTION 5, there shall be no recourse will look solely to the Mortgaged Property and such other collateral, if any, as may now or hereafter be given to secure the payment of this Note, and no other property or assets of Maker or any of its Members other person, firm or entity, disclosed or undisclosed (each an "Exculpated Party"), other than against a person, firm or entity who or which has expressly guaranteed some or all of the Collateral and Maker's obligations under this Note or any other property given as security Loan Document to the extent of such guaranty (each a "Guarantor"), shall be subject to levy, execution or other enforcement procedure for the satisfaction of the remedies of Payee, or for any payment required to be made under this Note or any other Loan Document or for the performance of any of the covenants or warranties contained herein or therein; provided, however, that the foregoing provisions of this Mortgage Note) for paragraph shall not (i) the payment constitute a waiver of principal, interest, Defeasance Deposits, Yield Maintenance Payments any obligation evidenced by this Note or other charges hereunder or for secured by any other amount Loan Document, (ii) limit the right of Payee to name Maker, any Exculpated Party or any Guarantor as a party defendant in any action or suit for judicial or non-judicial foreclosure and sale or any other action or suit under the Second Mortgage, Assignment of Leases or any other Loan Document, (iii) release or impair this Note or the lien of the Second Mortgage or any other Loan Document or, (iv) release, impair or affect in any way the validity or enforceability of any guaranty (whether of payment, performance and/or otherwise) (a "Guaranty") or indemnity agreement given to Payee in connection with the loan evidenced hereby; and provided, further that is if Maker, any one or may become due more of the Exculpated Parties, any one or more of the Guarantors or any other person or entity (all of the foregoing are collectively referred to as "Persons and owing to Holder Entities") (i) commits any act of fraud in connection with the transactions contemplated by Maker under this Mortgage Note or any of the other Loan Documents or Document, (ii) the performance or discharge makes a material adverse misrepresentation of any covenant facts or undertaking hereunder circumstances related to the Mortgaged Property, Maker, any Exculpated Party or any Guarantor, or any constituent or sub-constituent (including, without limitation, a shareholder, partner, principal, trustee or beneficiary) of any of the foregoing, (iii) is obligated to pay, but fails to pay or cause to be paid any taxes assessed or payable with respect to the Mortgaged Property (to the extent that escrowed funds held or controlled by Payee are not available therefor), (iv) commits or (as to any Person or Entity having title to or control of the Mortgaged Property) suffers to exist, any waste with respect to the Mortgaged Property or (v) misapplies (a) any revenues received from the Mortgaged Property by failing to apply the same solely to the expenses of the Mortgaged Property and/or to amounts due under the other Loan Documents, Documents after the occurrence and in during the event continuance of any Event of Default hereunder under this Note or thereunder, Holdxx xxxees to proceed solely against the Collateral and any other property given as security for payment of this Mortgage Note, and Holder shall not seek or claim recourse against Maker or any Member (other than against the Collateral and any other property given as security for payment of this Mortgage Note) for any deficiency or for any personal judgment after a foreclosure of the lien of the Mortgage or other Security Documents or for the performance or discharge of any covenants or undertakings of Maker hereunder or under any other Loan Documents Document, (except that Maker may be made a party to a proceeding b) insurance proceeds or condemnation awards received with respect to the extent legally necessary Mortgaged Property, or (c) tax deposits or security deposits by tenants relating to the Mortgaged Property or any portion thereof, the Person or Entity committing such fraud, misrepresentation or failure to pay taxes, or so misapplying the aforesaid funds, shall be personally liable from his, her or its separate assets to Payee for any loss or damage resulting therefrom up to the value of the misapplied funds and any interest chargeable thereto (and in this regard, (I) any act by an employee or agent authorized to handle funds for any Person or Entity shall be deemed to be the act of such Person or Entity, and (II) any representation made or deemed made by Maker with respect to facts or circumstances that are particularly susceptible to the control or knowledge, directly or indirectly, of any constituent shareholder, partner, principal, trustee or beneficiary of Maker, or any affiliate of same, shall be deemed to be the representation of such partner, shareholder, principal, trustee, beneficiary or affiliate). Nothing in this paragraph shall be deemed to be a waiver of any right which the Payee may have under any provision of the Bankruptcy Act of 1986, as amended, or any successor legislation, to file a claim for the conduct full amount of a foreclosure indebtedness owed by Maker to Payee or to require that the exercise of other similar remedies under the Mortgage or other Security Documents). Notwithstanding the foregoing, nothing contained in this SECTION 5 Mortgaged Property shall relieve Maker or any Member of any personal liability for any loss, cost, expense, damage or liability arising or resulting from (A) any breach of any representation or warranty made in the Loan Agreement that was materially incorrect when made and that was made with fraudulent intent, (B) any amount paid or distributed continue to the Members, the Manager or any Affiliate of any of them in violation secure all of the provisions of indebtedness owed by Maker to Payee in accordance with the Second Mortgage and the other Loan Documents, (C) fraud or breach of trust, including misapplication of Loan proceeds or any Insurance Proceeds or Awards or other sums that are part of the Collateral that may come into the possession or control of Maker or a Member or any Affiliate of any of them, (D) liability under the Environmental Indemnity Agreement or (E).
Appears in 1 contract
Samples: Note (Sepracor Inc /De/)
