Limitations on Recourse (a) Notwithstanding anything in the Loan Documents to the contrary, but subject to the qualifications and other provisions in clauses (b), (c) and (d) of this Section 12 below, Lender and Borrower agree that: (i) Borrower shall be liable upon the Debt and for the other obligations arising under the Loan Documents to the full extent (but only to the extent) of the security therefor, the same being all properties (whether real or personal), rights, estates and interests now or at any time hereafter securing the payment of the Debt and/or the other obligations of Borrower under the Loan Documents; (ii) if a default occurs in the timely and proper payment of all or any part of the Debt, any judicial proceedings brought by Lxxxxx against Borrower shall be limited to the preservation, enforcement and foreclosure, or any thereof, of the liens, security titles, estates, assignments, rights and security interests now or at any time hereafter securing the payment of the Debt and/or the other obligations of Borrower under the Loan Documents, and no attachment, execution or other writ of process shall be sought, issued or levied upon any assets, properties or funds of Borrower other than the Property; and (iii) in the event of a foreclosure of such liens, security titles, estates, assignments, rights or security interests securing the payment of the Debt, no judgment for any deficiency upon the Debt shall be sought or obtained by Lender against Borrower.
(b) Nothing contained in this Section 12 shall (A) be deemed to be a release or impairment of the Debt or the lien of the Loan Documents upon the Property, (B) preclude Lender from foreclosing under the Loan Documents in case of any default or from enforcing any of the other rights of Lender, including naming Borrower as a party defendant in any action or suit for foreclosure and sale under the Mortgage, or obtaining the appointment of a receiver or prohibit Lender from obtaining a personal judgment against Borrower on the Debt to the extent (but only to the extent) such judgment may be required in order to enforce the liens, security titles, estates, assignments, rights and security interests securing payment of the Debt, (C) limit or impair in any way whatsoever the Guaranty (the “Guaranty”) of even date executed and delivered in connection with the indebtedness evidenced by this Note or release, relieve, reduce, waive or impair in any way whatsoever, any obligation of any party to the Guaranty, or (D) release, relieve, reduce, waive or impair in any way whatsoever any obligations of any person other than Borrower which is a party to any of the other Loan Documents.
(c) In the event of fraud or material misrepresentation by Borrower or Guarantor or any of their agents, affiliates, officers or employees in connection with the Loan Documents or the documents delivered by any of them, or if the first full monthly installment on this Note is not paid when due, or if any petition or proceeding for bankruptcy, reorganization or arrangement pursuant to federal bankruptcy law, or any similar federal or state law, shall be filed by Borrower (or if any such petition or proceeding was not so filed by Borrower, but Borrower or Guarantor or their respective agents, affiliates, officers or employees consented to, acquiesced in, arranged or otherwise participated in bringing about the institution of such petition or proceeding), or if there shall occur any material breach or default under the provisions of Section 9 of the Mortgage (entitled “Single-Purpose Entity/Separateness”) or Section 12 of the Mortgage (entitled “Transfer or Encumbrance of the Property”), the limitations on recourse set forth in this Section 12, including the provisions of this Section 12(a) above, will be null and void and completely inapplicable, and this Note shall be full recourse to Borrower.
(d) Nothing contained herein shall in any manner or way release, affect or impair the right of Lender to recover, and Borrower shall be fully and personally liable and subject to legal action, for any loss, cost, expense, damage, claim or other obligation (including without limitation reasonable attorneys’ fees and court costs) incurred or suffered by Lender arising out of or in connection with the following:
(i) any breach of the Environmental Liabilities Agreement executed by Bxxxxxxx and Guarantor for the benefit of Lender, dated on or about the date hereof, including the indemnification provisions contained therein;
(ii) any failure to comply with the provisions of the Loan Documents prohibiting subordinate financing or the sale, transfer or encumbrance of the Property or any direct or indirect ownership interest in Borrower;
(iii) any application in violation of the Loan Documents or other misapplication by Borrower, its agents, affiliates, officers or employees of any funds derived from the Property, including security deposits, insurance proceeds and condemnation awards;
(iv) after the occurrence of an Event of Default or otherwise to the extent the Loan Documents require such application, Borrower’s failure to apply proceeds of rents (including rents collected in advance) or any other receipts in respect of the leases (lease termination and modification payments and recoveries upon defaulted leases) and other income or funds derived from the Property or any other collateral when received to the costs of maintenance and operation of the Property and to the payment of taxes, lien claims, insurance premiums, monthly payments of principal and interest or escrow payments or other payments due under the Loan Documents;
(v) Borrower, Guarantor or any Affiliate contests or in any way interferes with, directly or indirectly, any foreclosure action or sale commenced by Lender or with any other enforcement of Lender’s rights, powers or remedies under any of the Loan Documents or under any document evidencing, securing or otherwise relating to the Property or any other collateral for the Debt (whether by making any motion, bringing any counterclaim, claiming any defense, seeking any injunction or other restraint, commencing any action seeking to consolidate any such foreclosure or other enforcement with any other action, or otherwise), other than contests brought in good faith by Borrower upon which such Bxxxxxxx ultimately prevails through a favorable court order in favor of Bxxxxxxx;
(vi) the seizure or forfeiture of the Property, or any portion thereof, or Lxxxxx’s interest therein, resulting from criminal wrongdoing by Borrower, its agents, affiliates, officers or employees;
(vii) in the event Lender has waived (or Borrower has failed to pay or the Mortgage does not require) the monthly collection for real and personal property taxes, assessments, insurance premiums, or ground rents, then failure by Borrower to pay any or all such taxes, assessments, premiums and rents;
(viii) waste of the Property;
(ix) any failure by Borrower to insure the Property in accordance with the Loan Documents;
(x) the removal or disposal of any portion of the Property after an Event of Default to the extent such Property is necessary to the operation, preservation or protection of the Property in Lender’s reasonable discretion and is not replaced by Borrower with like property of equivalent value, function and design;
(xi) any payments made by Borrower to any affiliated property manager or other Affiliate of Borrower after the occurrence and during the continuance of an Event of Default;
(xii) Bxxxxxxx’s collection of Rents more than one month in advance or entering into or modifying Leases, or receipt of monies by Borrower or its Affiliates in connection with the modification of any Leases, in violation of the Mortgage; and
(xiii) any documentary stamp, intangibles tax, mortgage recording tax or other transfer or mortgage or mortgage debt taxes or fees or other similar taxes or fees charged upon any transfer of the Property to or by Borrower or upon the making of the loan evidenced by the Note or upon the Note or Mortgage or the recording or acceptance thereof, and any brokerage commission or finder’s fees claimed in connection with the transactions contemplated by the Loan Documents. Borrower shall additionally be personally liable for (and the provisions of Section 12(a) above shall not be applied to limit or otherwise affect Borrower’s personal liability for) and shall pay to Lender upon demand any and all fees, costs and expenses, including without limitation legal fees and expenses, incurred by Lender and its servicers in connection with the enforcement by Lender of any obligations of Borrower for which Borrower is personally liable hereunder and under the Environmental Liabilities Agreement, together with interest accrued for any such unpaid obligations at the Default Rate.
Limitations on Remedies 7.1 IN NO EVENT WHATSOEVER SHALL SELLER OR ANY OF THE TEKNI-PLEX COMPANIES OR ANY OF ITS OR THEIR EMPLOYEES, AGENTS OR SUPPLIERS HAVE ANY LIABILITY, WHETHER BASED ON BREACH OF CONTRACT, WARRANTY, BREACH OF STATUTORY DUTY, NEGLIGENCE, TORT, STRICT LIABILITY OR OTHERWISE, IN AN AMOUNT IN EXCESS OF THE AMOUNT ACTUALLY RECEIVED BY SELLER FROM BUYER AS PURCHASE PRICE FOR THE PRODUCTS OR SERVICES WHICH ARE THE SUBJECT OF A CLAIM OR SERIES OF RELATED CLAIMS. IN NO EVENT WHATSOEVER SHALL SELLER OR ANY OF ITS EMPLOYEES, AGENTS OR SUPPLIERS HAVE ANY LIABILITY FOR ANY LOSS OF INCOME, LOSS OF ACTUAL OR ANTICIPATED PROFITS, LOSS OF BUSINESS, LOSS OF CONTRACTS, LOSS OF GOODWILL OR REPUTATION, LOSS OF ANTICIPATED SAVINGS, LOSS OF, DAMAGE TO OR CORRUPTION OF DATA, BUYER’S ATTORNEY FEES OR ANY OTHER TYPE OF LUCRUM CESSANS OR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, STATUTORY, PUNITIVE OR EXEMPLARY DAMAGES, EVEN IF SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING BUT NOT LIMITED TO ANY DAMAGES ARISING FROM OR RELATING TO ANY INJURY TO PERSONS; LOSS OF VALUE OR USE (INCLUDING WITHOUT LIMITATION, DIMINUTION IN VALUE OR STIGMA DAMAGES); LOSS OF ANTICIPATED REVENUE OR PROFIT; COST OF CAPITAL; DAMAGE TO OR LOSS OF OTHER PROPERTY OR EQUIPMENT; CLAIMS MADE BY END-USERS; OR COST OF SUBSTITUTE SUPPLIES, FACILITIES OR SERVICES, WHETHER BASED IN TORT, CONTRACT, BREACH OF STATUTORY DUTY, NEGLIGENCE, STRICT LIABILITY OR ANY OTHER LEGAL THEORY.
7.2 Without prejudice to any other provisions of this Agreement (including, but not limited to Section
Limitations on Review Obligations The Asset Representations Reviewer may rely on the information in any Review Notice, the list(s) of the Subject Receivables provided by the Servicer, and the accuracy and completeness of the Review Materials. The Asset Representations Reviewer will have no obligation:
(a) to determine whether a Delinquency Trigger has occurred or whether the required percentage of Noteholders has voted to direct an Asset Representations Review under the Indenture;
(b) to determine which Receivables are Subject Receivables;
(c) to confirm the validity of the Review Materials; or
(d) to take any action or cause any other party to take any action under any of the Basic Documents or otherwise to enforce any remedies against any Person for breaches of representations or warranties about the Subject Receivables.
Restrictions on Lobbying The subrecipient shall not use funds made available to it under this Agreement to pay for, influence, or seek to influence any officer or employee of a State or Federal government.
Limitations on Amounts A Letter of Credit shall be issued, amended, renewed or extended only if (and upon issuance, amendment, renewal or extension of each Letter of Credit the Borrower shall be deemed to represent and warrant that), after giving effect to such issuance, amendment, renewal or extension (i) the aggregate LC Exposure of the Issuing Bank (determined for these purposes without giving effect to the participations therein of the Lenders pursuant to paragraph (e) of this Section) shall not exceed $25,000,000, (ii) the total Multicurrency Credit Exposures shall not exceed the aggregate Multicurrency Commitment and (iii) the total Covered Debt Amount shall not exceed the Borrowing Base then in effect.
Limitation on Duty to Collect Custodian shall not be required to enforce collection, by legal means or otherwise, of any money or property due and payable with respect to Securities held for the Fund if such Securities are in default or payment is not made after due demand or presentation.
Limitations on Amount (a) Xx. Xxxxxx and Seller will have no liability (for indemnification or otherwise) with respect to the matters described in clauses (a) and (b) of Section 9.02 until the total of all Damages with respect to such matters exceeds $100,000 and then only to the extent all such Damages exceed in the aggregate $100,000. Notwithstanding the foregoing, the aggregate liability of Xx. Xxxxxx and Seller under this Article IX (other than Section 9.03) shall not exceed $1,500,000; provided, however that this limit will not apply to the representations and warranties in Sections 3.01, 3.02, and 3.13 or any fraudulent acts or omissions or intentional material misrepresentations on the part of Xx. Xxxxxx or Seller.
(b) Buyer shall not have any liability (for indemnification or otherwise) with respect to the matters described in clauses (a) and (b) of Section 9.04 until the total of all Damages with respect to such matters exceeds $100,000 and then only to the extent all such Damages exceed in the aggregate $100,000. Notwithstanding the foregoing, the aggregate liability of Buyer under Article IX shall not exceed $1,500,000, provided, however that this limit will not apply to the representations and warranties in Section 4.02 or any fraudulent acts or omissions or intentional material misrepresentations on the part of Buyer.
(c) No indemnitor will have any liability (for indemnification or otherwise) for any Damages (i) for punitive, exemplary or special damages of any nature, (ii) for indirect or consequential damages, including damages for lost profit, lost business opportunity or damage to business reputation, or (iii) that, at the time written notice thereof is delivered to any indemnitor, are contingent, speculative or unquantified.
(d) [Reserved]
(e) [Reserved]
(f) The amount of Damages for which the Buyer Indemnified Persons or Codina Indemnified Persons may be entitled to seek indemnification under this Agreement will be reduced by the amount of any insurance proceeds or other payment from a third party received or receivable by any Buyer Indemnified Person or Codina Indemnified Person, as applicable, with respect to such Damages and the amount of any deduction, credit or other Tax benefit that any Buyer Indemnified Person or Codina Indemnified Person is entitled to with respect to such Damages (taking into account the time at which such benefit is expected to be actually realized). If a Buyer Indemnified Person or Codina Indemnified Person, after having received any indemnification payment pursuant to this Agreement with respect to any Damages, subsequently receives any insurance proceeds or other payment or recognizes any deduction, credit or other Tax benefit with respect to such Damages, Buyer or Xx. Xxxxxx and Seller, as the case may be, will promptly refund and pay to the Buyer Indemnified Persons or Codina Indemnified Persons, as the case may be, an amount equal to such insurance proceeds, payment or benefit.
(g) Buyer will, and will use commercially reasonable efforts to cause each of the other Buyer Indemnified Persons to, use commercially reasonable efforts to mitigate any Damages with respect to which it may be entitled to seek indemnification pursuant to this Agreement. Buyer will, and will use commercially reasonable efforts to cause each of the other Buyer Indemnified Persons to, use commercially reasonable efforts to obtain all insurance proceeds or other payments from third parties, and all Tax refunds or other Tax benefits, that may be available with respect to any Damages with respect to which it may be entitled to indemnification under this Agreement.
(h) If any indemnitor is indemnified for any Damages pursuant to this Agreement with respect to any claim by a third party, the indemnitor shall consider in good faith a request for subrogation on the part of the indemnitee.
Limitations on Actions Any action brought under this Contract, except an action for breach of warranty, shall be brought within the shorter of the statutory limitations period and the period of three years from the date of final payment without any tolling of this statutory limitations period for any reason whatsoever.
Summary of Policy and Prohibitions on Procurement Lobbying Pursuant to State Finance Law §139-j and §139-k, this Contract includes and imposes certain restrictions on communications between OGS and a Vendor during the procurement process. A Vendor is restricted from making contacts from the earliest notice of intent to solicit offers/bids through final award and approval of the Procurement Contract by OGS and, if applicable, the Office of the State Comptroller (“restricted period”) to other than designated staff unless it is a contact that is included among certain statutory exceptions set forth in State Finance Law §139-j(3)(a). Designated staff, as of the date hereof, is identified in Appendix G, Contractor and OGS Information, or as otherwise indicated by OGS. OGS employees are also required to obtain certain information when contacted during the restricted period and make a determination of the responsibility of the Vendor pursuant to these two statutes. Certain findings of non-responsibility can result in rejection for contract award and in the event of two findings within a four-year period; the Vendor is debarred from obtaining governmental Procurement Contracts. Further information about these requirements can be found on the OGS website: xxxx://xxx.xxx.xx.xxx/aboutOgs/regulations/defaultSFL_139j-k.asp.
Limitations on Damages Neither Party shall be liable for any consequential, special or indirect losses or damages suffered by the other Party, whether or not the likelihood of such losses or damages was known by the Party.