Common use of Merger Not Intended Clause in Contracts

Merger Not Intended. The Borrower and the Guarantor Parties each acknowledges and agrees that: (a) Notwithstanding the conveyance of the Loan Collateral to the Designee and the execution and delivery of the Conveyance Documents, the Lender's liens on and security interests in the Loan Collateral or any other assets or equity interests subject to the security interests of the Lender, including, without implied limitation, the liens and security interests granted under the Deed of Trust, are NOT RELEASED or RELINQUISHED in any manner or respect whatsoever. All liens on and security interests in the Loan Collateral or any other assets or equity interests subject to the security interests of the Lender in favor of the Lender shall remain valid and continuous and in full force and effect, unless and until released by written instrument (a “Release by Xxxxxx”) executed or authorized by the Lender, or its successors and assigns, and in the case of the real property recorded in the real property records of the Stanislaus County Recorder's Office, California, which Release by Lender may be made as, if and when the Lender, or its successors and assigns, shall determine in the exercise of its sole discretion. (b) Neither the Lender nor the Borrower or the Guarantor Parties intend that there shall be, and there shall not in any event be, a merger of any liens benefiting the Lender against the Loan Collateral with the title or other interest of the Lender in the Loan Collateral by virtue of the conveyance to be evidenced by the Conveyance Documents and the parties expressly provide that the liens against the Loan Collateral in favor of the Lender on the one hand and title on the other, shall be and remain at all times SEPARATE and DISTINCT. (c) For purposes of priority as between (i) intervening or inferior liens and encumbrances, if any, on or against the Loan Collateral, and (ii) the liens against the Loan Collateral in favor of the Lender, any and all rights of the Lender to exercise its remedies of foreclosure by private power of sale pursuant to non-judicial foreclosure or by judicial foreclosure and all other remedies are expressly preserved hereby and for purposes of limitations and any other applicable time bar defense, are expressly reserved, reaffirmed, acknowledged and extended as evidenced by this instrument. (d) The priority of the liens against the Loan Collateral in favor of the Lender is intended to be and shall remain in full force and effect and nothing herein or in any instrument executed in connection herewith shall be construed to subordinate the priority of such liens to any other liens or encumbrances whatsoever. (e) If (i) the conveyance of the Loan Collateral from the Borrower or Guarantor to the Designee is voided, avoided or set aside for any reason whatsoever on account of any action taken or caused to be taken by the Borrower or any Guarantor Party or anyone claiming by, through, or under the Borrower or any Guarantor Party, (ii) if the Lender determines in its sole discretion that the conditions set forth in Section 3.2, Section 3.3 or Section 3.4 cannot or will not be satisfied, (iii) the Lender determines that the Borrower or any Guarantor Party is in material breach of this Agreement, or (iv) the Lender otherwise decides not to proceed with Closing in its sole discretion, then: (x) the Lender shall have the right to foreclose the liens and security interests and take such other action as is permitted under the Loan Documents and applicable law; and (y) all costs incurred by the Lender in connection with this Agreement and any other cost of enforcement of the rights and remedies of the Lender (and the Designee) shall be deemed a part of the Obligations secured by the Loan Documents and shall be due and payable by the Borrower and the Guarantor Parties. (f) All Loan Documents shall continue to be in full force and effect following the conveyance of the Loan Collateral contemplated herein and shall not be affected by such conveyance.

Merger Not Intended. The Borrower and the Guarantor Parties each Mortgagor further acknowledges and agrees that: (a1) Notwithstanding the conveyance of the Loan Collateral to the Designee The Conveyance Documents are being executed and delivered and the execution conveyances effected thereby are accepted in lieu of a foreclosure upon the Property and delivery the exercise of additional rights under the Conveyance Mortgage Loan Documents, the Additional Interest Documents and the Equity Loan Documents. The Conveyance Documents shall be interpreted and construed the same as a foreclosure and the exercise of such rights, and as an absolute conveyance to Lender of the Property, including specifically but without limitation, any equity or rights of redemption of Mortgagor therein or thereto. (2) Until payment of the Settlement Amount as provided herein, Lender's and AMAC's liens on and security interests in the Loan Collateral or any other assets or equity interests subject to the security interests of the LenderProperty, including, without implied limitation, the liens First Lien and security interests granted under the Deed of Trust, Second Mortgage lien are NOT RELEASED or RELINQUISHED or SATISFIED in any manner or respect whatsoever. All liens on the Property benefitting Lender and security interests in the Loan Collateral or any other assets or equity interests subject to the security interests of the Lender in favor of the Lender AMAC shall remain valid and continuous and in full force and effect. Upon payment of the Settlement Amount, unless and until all such liens on the Property shall be released by written instrument (a “Release by Xxxxxx”the "Release") executed by Lender or authorized by the LenderAMAC, or its their successors and assigns, and in the case of the real property recorded in the real property records Register of the Stanislaus County Recorder's OfficeDeeds Offices of Richland and Lexington Counties, California, which Release by Lender may be made as, if and when the Lender, or its successors and assigns, shall determine in the exercise of its sole discretionSouth Carolina. (b3) Neither the Lender Lender, nor the Borrower or the Guarantor Parties AMAC nor Mortgagor intend that there shall be, and there shall not in any event be, a merger of any liens benefiting the benefitting Lender or AMAC against the Loan Collateral Property with the title or other interest of the Lender AMAC or its designee in the Loan Collateral Property by virtue of the conveyance to be evidenced by the Conveyance Documents and the parties expressly provide that the liens against the Loan Collateral in favor of the Property benefitting Lender or AMAC on the one hand and title to the Property on the other, shall be and remain at all times SEPARATE and DISTINCT. (c4) For purposes of priority as between (i) intervening or inferior liens and encumbrances, if any, on or against the Loan CollateralProperty, and (ii) the liens against the Loan Collateral in favor of the LenderProperty benefitting Lender or AMAC, any and all rights of the Lender or AMAC to exercise its their remedies of foreclosure by private power of sale pursuant to non-judicial foreclosure or by judicial foreclosure and all other remedies are expressly preserved hereby and for purposes of limitations and any other applicable time bar defense, are expressly reserved, reaffirmed, acknowledged and extended as evidenced by this instrumentAgreement. (d5) The priority of the liens against the Loan Collateral in favor of the Property benefitting Lender or AMAC is intended to be and shall remain in full force and effect and nothing herein or in any instrument executed in connection herewith shall be construed to subordinate the priority of such those liens to any other liens or encumbrances whatsoever. (e6) If (i) the conveyance of the Loan Collateral Property from the Borrower Mortgagor to AMAC or Guarantor to the Designee its designee is voided, avoided or set aside for any reason whatsoever on account of any action taken or caused to be taken by the Borrower or any Guarantor Party Mortgagor or anyone claiming by, through, or under Mortgagor, (i) the Borrower indebtedness and liens evidenced by the Mortgage Loan Documents, the Additional Interest Documents and the Equity Loan Documents will be automatically revived and reinstated as if the same shall not have been previously released, in whole or any Guarantor Partyin part, by Lender or AMAC; (ii) if the Lender determines in its sole discretion that the conditions set forth in Section 3.2, Section 3.3 or Section 3.4 cannot or will not be satisfied, (iii) the Lender determines that the Borrower or any Guarantor Party is in material breach of this Agreement, or (iv) the Lender otherwise decides not to proceed with Closing in its sole discretion, then: (x) the Lender and AMAC shall have the right to foreclose the liens and security interests and take such other action as is permitted under the Mortgage Loan Documents, the Additional Interest Documents and the Equity Loan Documents and applicable law; and (yiii) all costs incurred by the Lender and AMAC in connection with this Agreement and any other cost of enforcement of the rights and remedies of the Lender (and the Designee) shall AMAC may, at Lender's and AMAC's sole discretion, be deemed a part of the Obligations indebtedness evidenced and secured by the Mortgage Loan Documents, the Additional Interest Documents and the Equity Loan Documents and shall be due and payable by the Borrower Mortgagor and the Guarantor Partiesupon demand of Lender and AMAC. (f) All Loan Documents shall continue to be in full force and effect following the conveyance of the Loan Collateral contemplated herein and shall not be affected by such conveyance.

Merger Not Intended. a. The Borrower City shall take title to the Transferred Assets subject to the Mortgage and the Guarantor Parties each acknowledges and agrees that: (a) Notwithstanding the conveyance of the Loan Collateral to the Designee and the execution and delivery of the Conveyance DocumentsTrustee’s valid, the Lender's first-priority, perfected liens on and security interests in the Loan Collateral or any other assets or equity interests subject to Mortgaged Property. The Mortgage and the security interests of the Lender, including, without implied limitation, the liens and security interests granted under the Deed of Trust, are NOT RELEASED or RELINQUISHED in any manner or respect whatsoever. All Trustee’s liens on and security interests in the Loan Collateral Mortgaged Property shall not be released or relinquished in any manner by virtue of the transfers and conveyances provided for herein or any other assets documents or equity interests subject to the security interests of the Lender matters in favor of the Lender connection with such transfers and conveyances, but shall remain valid and continuous valid, continuing, and in full force and effect. b. The City shall take title to the Transferred Assets subject to the Security Agreement and DEO’s valid, unless first-priority, perfected liens on and until security interests in the Separately Secured Property. The Security Agreement and DEO’s liens on and security interests in the Separately Secured Property shall not be released by written instrument (a “Release by Xxxxxx”) executed or authorized by the Lenderrelinquished in any manner, or its successors and assignsbut shall remain valid, continuing, and in full force and effect; provided, however, DEO’s liens on and security interests in the case Separately Secured Property shall be subject to the agreements of the real property recorded in City and DEO as memorialized by, and the real property records of limitations thereon as set forth in, the Stanislaus County Recorder's Office, California, which Release by Lender may be made as, if Term Sheet and when the Lender, or its successors and assigns, shall determine in the exercise of its sole discretionOrder. (b) Neither the Lender nor the Borrower or the Guarantor c. The Parties do not intend that there shall to be, and there shall will not in any event be, a merger of any liens benefiting the Lender against the Loan Collateral Mortgage with the title or other interest of the Lender in the Loan Collateral City by virtue of the conveyance of the Transferred Assets to be evidenced by the Conveyance Documents and the parties expressly provide City. The Parties agree that the liens against the Loan Collateral in favor of the Lender on the one hand and title on the other, shall be and Mortgage will remain at all times SEPARATE separate and DISTINCTdistinct from title to the Premises. (c) For purposes of priority as between (i) intervening or inferior liens and encumbrances, if any, on or against the Loan Collateral, and (ii) the liens against the Loan Collateral in favor of the Lender, any and all rights of the Lender to exercise its remedies of foreclosure by private power of sale pursuant to non-judicial foreclosure or by judicial foreclosure and all other remedies are expressly preserved hereby and for purposes of limitations and any other applicable time bar defense, are expressly reserved, reaffirmed, acknowledged and extended as evidenced by this instrument. (d) d. The priority of the liens against the Loan Collateral in favor of the Lender Mortgage is intended to be and shall will remain in full force and effect effect, and nothing herein in this Agreement or in any instrument executed in connection herewith shall with this Agreement will be construed to subordinate the priority of such liens the Mortgage to any other liens or encumbrances whatsoeverencumbrances. (e) If (i) the conveyance of the Loan Collateral from the Borrower or Guarantor e. Except with respect to the Designee is voided, avoided or set aside for any reason whatsoever on account of any action taken or caused to be taken liens held by the Borrower or Trustee, the City, EDA, and DEO, any Guarantor Party or anyone claiming by, through, or under other recorded encumbrances reflected on the Borrower or any Guarantor Party, (ii) if the Lender determines in its sole discretion that the conditions set forth in Section 3.2, Section 3.3 or Section 3.4 cannot or will not be satisfied, (iii) the Lender determines that the Borrower or any Guarantor Party is in material breach of this Agreement, or (iv) the Lender otherwise decides not to proceed with Closing in its sole discretion, then: (x) the Lender shall have the right to foreclose the liens and security interests and take such other action as is permitted under the Loan Documents and applicable law; and (y) all costs incurred title insurance policy obtained by the Lender City in connection with this Agreement the Asset Transfer, the super-priority liens, charges, and any other cost of enforcement indemnities, obligations, and liabilities provided under Section 25.z of the rights and remedies of Order (but subject to the Lender (terms thereof); and the Designee) Trustee’s right under this Agreement to receive all Net Proceeds and Net Recoveries (as such terms are defined herein), the Transferred Assets shall be deemed a part transferred to the City free and clear of the Obligations secured by the Loan Documents all liens, claims, and shall be due and payable by the Borrower and the Guarantor Partiesencumbrances of any kind. (f) All Loan Documents shall continue to be in full force and effect following the conveyance of the Loan Collateral contemplated herein and shall not be affected by such conveyance.