Non-Recourse Liability. Except as hereinafter provided, the liability of Borrower with respect to the payment of principal and interest (and any other sums due except any sums due by Guarantor under the Guaranty Agreement or under the Indemnity Agreement) hereunder shall be “non-recourse,” and Lender’s source of satisfaction of the Indebtedness and Borrower’s other obligations under the Loan Documents shall be limited to the Property and Lender’s receipt of the Rents from the Property and any other security or collateral now or hereafter held by Lender. Lender shall not seek to procure payment out of other assets of Borrower, any principal, director, employee, advisor, beneficiary, shareholder, partner, manager, member, trustee, agent or Affiliate of Borrower (but specifically excluding Guarantor under the Guaranty Agreement and Indemnity Agreement) each, an “Exculpated Party” and, collectively, the “Exculpated Parties”), nor seek any judgment against Borrower or any Exculpated Parties (other than Guarantor under the Guaranty Agreement or the Indemnity Agreement) for any sums that are or may be payable under the Loan Documents, including any claim or judgment (except as hereafter provided) for any deficiency remaining after foreclosure of the Security Instrument. The above provisions shall not be deemed to be a release or impairment of the Loan evidenced by the Note or the security therefor intended by the other Loan Documents, nor be deemed to preclude Lender from exercising its rights to foreclose the Security Instrument or to enforce any of its other rights or remedies under the Loan Documents, including but not limited to the Guaranty Agreement. It is expressly understood and agreed that the aforementioned limitation on liability shall in no way affect or apply to the continued personal liability of Borrower or any Guarantor, jointly and severally, for all Enforcement Costs and any and all actual out-of-pocket costs, expenses (including Protective Advances), losses and/or damages incurred by Lender as a result of any of the following: (a) Fraud, willful misconduct or material misrepresentation made by any of the Borrower Parties in connection with the Application, any of the Loan Documents, or any other supporting or due diligence documentation provided by Borrower, Guarantor or any of the other Borrower Parties in connection therewith; (b) Failure to pay any Real Estate Taxes which accrue prior to Lender taking title to the Property, or to pay assessments, charges for labor or materials, or any other charges that could result in Liens on all or any portion of the Property (except (x) for any Permitted Encumbrances, (y) such charges that are bonded off or discharged in accordance with the terms of this Agreement, or (z) to the extent that sums sufficient to pay such amounts have been deposited into a cash collateral account with Lender for the purpose of paying such assessments and charges), provided, however, any such failure shall only trigger recourse liability if at the time of such failure, (A) Borrower had sufficient cash flow (i.e., Borrower has not made any distributions (excluding all commercially reasonable third party operating expenses) from the Property over the previous twelve month period unless Borrower has also reserved funds, on a monthly basis, in an amount that would reasonably be expected to be sufficient to pay such amounts as they become due) from the Property to pay such amounts but failed to do so; or (B) Borrower (x) had insufficient cash flow from the Property to pay such amounts, (y) failed to give Lender immediate written notice that Borrower would have insufficient cash flow from the Property to pay any amounts owed prior to their delinquency, and (z) is not cooperating in good faith with Lender in completing a deed in lieu of foreclosure, at Borrower’s sole cost and expense, to the extent Lender has requested a deed in lieu of foreclosure;
Appears in 1 contract
Non-Recourse Liability. Except as hereinafter provided, the liability of Borrower and any Guarantor with respect to the payment of principal and interest (and any other sums due except any sums due by Guarantor under the Guaranty Agreement or under the Indemnity Agreement) hereunder shall be “non-recourse,” and LenderXxxxxx’s source of satisfaction of the Indebtedness and BorrowerXxxxxxxx’s and Guarantor’s other obligations under the Loan Documents shall be limited to the Property and LenderXxxxxx’s receipt of the Rents from the Property and any other security or collateral now or hereafter held by Lender. Lender shall not seek to procure payment out of other assets of Borrower, any principal, director, employee, advisor, beneficiary, shareholder, partner, manager, member, trustee, agent Guarantor or Affiliate of Borrower (but specifically excluding Guarantor under the Guaranty Agreement and Indemnity Agreement) each, an “Exculpated Party” and, collectively, the “Exculpated Parties”)any Person comprising Borrower, nor seek any judgment against Borrower or any Exculpated Parties (other than Guarantor under the Guaranty Agreement or the Indemnity Agreementexcept as hereinafter provided) for any sums that are or may be payable under the Loan Documents, including any claim or judgment (except as hereafter provided) for any deficiency remaining after foreclosure of the Security Instrument. The above provisions shall not be deemed to be a release or impairment of the Loan evidenced by the Note or the security therefor intended by the other Loan Documents, nor be deemed to preclude Lender from exercising its rights to foreclose the Security Instrument or to enforce any of its other rights or remedies under the Loan Documents, including but not limited to the Guaranty Agreement. It is expressly understood and agreed that the aforementioned limitation on liability shall in no way affect or apply to the continued personal liability of Borrower or any Guarantor, jointly and severally, for all Enforcement Costs and any and all actual out-of-pocket costs, expenses (including Protective Advances), losses and/or damages incurred by Lender Xxxxxx as a result of any of the following:
(a) Fraud, willful misconduct or material misrepresentation made by any of the Borrower Parties in connection with the Application, any of the Loan Documents, or any other supporting or due diligence documentation provided by any Borrower, Guarantor or any of the other Borrower Parties in connection therewith;
(b) Failure to pay any Real Estate Taxes taxes which accrue prior to Lender taking title to the Property, or to pay assessments, charges for labor or materials, or any other charges that could result in Liens on all or any portion of the Property (except (x) for any Permitted Encumbrances, (y) such charges that are bonded off or discharged in accordance with the terms of this Agreement, or (z) to the extent that (i) sums sufficient to pay such amounts have been deposited into a cash collateral account with Lender for the purpose purposes of paying such assessments and charges), (ii) taxes or such other charges are contested strictly in accordance with the terms of the Loan Documents, or (iii) cash flow from the Property is not sufficient to pay such item; provided, however, any such failure set forth in (iii) shall only trigger recourse liability if at the time of such failure, (A) Borrower had sufficient cash flow (i.e., Borrower has not made any distributions (excluding all commercially reasonable third party operating expenses) from the Property over the previous twelve month period unless Borrower has also reserved funds, on a monthly basis, in an amount that would reasonably be expected to be sufficient to pay such amounts as they become dueperiod) from the Property to pay such amounts but failed to do so; or (B) Borrower (x) had insufficient cash flow from the Property to pay such amounts, (y) failed to give Lender immediate written notice that Borrower would have insufficient cash flow from the Property to pay any amounts owed prior to their delinquency, and (z) is not cooperating in good faith with Lender in completing a deed in lieu of foreclosure, at Borrower’s sole cost and expense, to the extent Lender has requested a deed in lieu of foreclosure);
(c) Misapplication or misappropriation of (including the failure to deposit with Lender, if required): (i) proceeds of insurance covering all or any portion of the Property, (ii) proceeds of the sale or condemnation of all or any portion of the Property, or (iii) rentals or other income from the Property received by or on behalf of Borrower and not applied to satisfy Borrower’s obligations hereunder and/or under the Loan Documents;
(d) Causing or knowingly permitting waste, arson or other similar damage to occur in, on or about the Property;
(e) Failure to pay to Lender all unearned advance rentals and security deposits that have been paid by tenants of the Property to the extent that such funds have not been refunded to such tenants pursuant to the express terms of such tenant leases or in violation of the Loan Documents;
(f) Any Borrower’s material amendment, modification, renewal (except as expressly provided for therein), extension, or termination of any Lease without Lender’s consent, if required pursuant to the terms hereof, and the failure to deliver to Lender any Termination Fees (if required pursuant to the terms of the Loan Documents), including any amounts paid in connection with the bankruptcies or insolvencies of such tenants, and any Borrower’s failure to assign any claims, proofs of claims or other rights relating to the future right to receive payment of such amounts;
(g) Loss by fire, casualty, acts of terrorism, or other events, not compensated by insurance proceeds collected by or remitted to Lender as a result of any Borrower’s failure to comply with Xxxxxx’s insurance requirements (including the payment of any required deductibles) pursuant to Sections 6.1(a) and (b) of this Agreement; provided, however, Borrower shall have no liability under this sub-paragraph (g) from and after the date which Borrower delivers to Lender (or an affiliate or designee of Lender) an executed deed in lieu of foreclosure agreement on Lender’s then current form of deed in lieu agreement (unless Lender determines that there are factors which would materially and adversely affect Lender’s rights or ability to obtain good and marketable title to the Property (including, without limitation, title to and the environmental condition of the Property) from a deed in lieu agreement in which case if Lender elects not to accept the deed in lieu agreement all liability under this subsection (g) shall terminate to the extent Borrower does not have sufficient cash flow to comply with the insurance requirements;
(h) Failure to return to Lender or reimburse Lender for all Security Property owned by Xxxxxxxx taken from the Property by or on behalf of any Borrower out of the ordinary course of business and not replaced by items of like or greater value than the original value of the Security Property so removed;
(i) Any breach of any representation, warranty, covenant or indemnity obligations under the Indemnity Agreement;
(j) Xxxxxxxx’s failure to timely pay any amounts payable for all state documentary stamp taxes, recording and transfer taxes, and intangible personal property taxes, if any, which may be levied or assessed against the Loan, or any of the Loan Documents, together with all interest, penalties or charges in connection therewith; and
(k) Xxxxxxxx’s failure to pay any of the following in connection with any Leases executed after the Closing Date: (i) any tenant Lease concessions, (ii) tenant improvement allowances, and (iii) leasing commissions. The obligations of Borrower in subsections (a) through (k) above shall survive (1) a sale of the Property by foreclosure under the Security Instrument (or Lender’s acceptance of a deed in lieu thereof); or (2) the satisfaction of all Obligations (including the full repayment of the Loan) under the Loan Documents, but, with respect to subsections (a) through (h) and (j) through (k) only as to claims, or matters which are based upon or arise out of circumstances or conditions which are first created or which first arise or come into existence prior to the events described in (1) and (2) above and, with respect to subsection (i), as more particularly set forth in the Indemnity Agreement.
Appears in 1 contract
Samples: Loan Agreement (Whitestone REIT)
Non-Recourse Liability. Except as hereinafter providedSubject to the provisions of Section 21.02 and notwithstanding any other provision in the Notes, the liability of Borrower with respect Security Instruments or any other Loan Documents (including provisions which are not by their terms expressly subject to the payment provisions of this Section 21.01), the personal liability (i) of the Borrowers (or any partners thereof) to pay the principal of and interest (on the Notes, and for each to pay and perform all of their other Obligations and for a breach of any other sums due except any sums due by Guarantor under the Guaranty Agreement of their representations or under the Indemnity Agreement) hereunder shall be “non-recourse,” and Lender’s source of satisfaction of the Indebtedness and Borrower’s other obligations under the Loan Documents shall be limited to the Property and Lender’s receipt of the Rents from the Property and any other security or collateral now or hereafter held by Lender. Lender shall not seek to procure payment out of other assets of Borrower, any principal, director, employee, advisor, beneficiary, shareholder, partner, manager, member, trustee, agent or Affiliate of Borrower (but specifically excluding Guarantor under the Guaranty Agreement and Indemnity Agreement) each, an “Exculpated Party” and, collectively, the “Exculpated Parties”), nor seek any judgment against Borrower or any Exculpated Parties (other than Guarantor under the Guaranty Agreement or the Indemnity Agreement) for any sums that are or may be payable warranties under the Loan Documents, including any claim or judgment (except as hereafter providedii) for any deficiency remaining after foreclosure of the Guarantors (or any partners thereof) to pay any amounts due under the Guaranties, and (iii) of each of the TC Parties to pay and perform its respective Obligations and for a breach of any of its representations or warranties under the Loan Documents, shall be limited to (a) the real and personal property described as "Property" in any Security InstrumentInstrument granted by any Owner, (b) the personal property described in and pledged under any other Loan Document executed by any TC Party (including all deposit accounts pledged under the Cap Security Agreement, the Capital Improvements Fund Pledge and Security Agreement, the Cash Management Agreement, the Replacement Reserve Agreement and this Agreement)(the "PLEDGED PROPERTY") and (c) the rents, profits, issues, products and income of the Mortgaged Property of the Owners received or collected by or on behalf of the Owners (the "RENTS AND PROFITS") to the extent such receipts are necessary, first, to pay the Operating Expenses of the Owners' Mortgaged Properties then due and payable as of the time of receipt of such Rents and Profits, and then, to pay principal and interest due under the applicable Notes, any other sums due under the Security Instruments, this Agreement or any other Loan Documents and any other Obligations then due and owing to the Lender, except to the extent that such Owner did not have the legal right, because of a bankruptcy, receivership or similar judicial proceeding, to direct the disbursement of such sums. The above provisions Except as provided in Section 21.02, the Lender shall not be deemed seek (a) any judgment for a deficiency against any TC Party or any heirs, legal representatives, successors or assigns of any TC Party, in any action to be a release enforce any right or impairment remedy under the applicable Notes or Security Instruments, this Agreement or any of the Loan evidenced by the Note or the security therefor intended by the other Loan Documents, nor be deemed to preclude Lender from exercising its rights to foreclose the Security Instrument or to enforce (b) any judgment on any of its other rights the applicable Notes or remedies the Obligations of any TC Party under the Loan Documents, including but not limited to the Guaranty Agreement. It is expressly understood and agreed that the aforementioned limitation on liability shall Documents except as may be necessary in no way affect or apply to the continued personal liability of Borrower or any Guarantor, jointly and severally, for all Enforcement Costs and any and all actual out-of-pocket costs, expenses (including Protective Advances), losses and/or damages incurred by Lender as a result of action brought under any of the following:
(a) Fraud, willful misconduct Security Instruments to enforce the Lien against the Mortgaged Property encumbered thereby or material misrepresentation made by to exercise any other remedies to realize against any of the Borrower Parties in connection with the Application, Collateral under any of the other Loan Documents, or any other supporting or due diligence documentation provided by Borrower, Guarantor or any of the other Borrower Parties in connection therewith;
(b) Failure to pay any Real Estate Taxes which accrue prior to Lender taking title to the Property, or to pay assessments, charges for labor or materials, or any other charges that could result in Liens on all or any portion of the Property (except (x) for any Permitted Encumbrances, (y) such charges that are bonded off or discharged in accordance with the terms of this Agreement, or (z) to the extent that sums sufficient to pay such amounts have been deposited into a cash collateral account with Lender for the purpose of paying such assessments and charges), provided, however, any such failure shall only trigger recourse liability if at the time of such failure, (A) Borrower had sufficient cash flow (i.e., Borrower has not made any distributions (excluding all commercially reasonable third party operating expenses) from the Property over the previous twelve month period unless Borrower has also reserved funds, on a monthly basis, in an amount that would reasonably be expected to be sufficient to pay such amounts as they become due) from the Property to pay such amounts but failed to do so; or (B) Borrower (x) had insufficient cash flow from the Property to pay such amounts, (y) failed to give Lender immediate written notice that Borrower would have insufficient cash flow from the Property to pay any amounts owed prior to their delinquency, and (z) is not cooperating in good faith with Lender in completing a deed in lieu of foreclosure, at Borrower’s sole cost and expense, to the extent Lender has requested a deed in lieu of foreclosure;.
Appears in 1 contract
Samples: Master Credit Facility Agreement (Town & Country Trust)
Non-Recourse Liability. (a) Except as hereinafter otherwise provided, Lender shall not enforce the liability of Borrower with respect Loan, Security Instrument or any other Loan Document by any action or proceeding wherein a money judgment shall be sought against Borrower, LLC General Partner or Funding Partnership, except that Lender may bring a foreclosure action, action for specific performance or other appropriate action or proceeding to enable Lender to enforce and realize upon this Agreement, the payment of principal Security Instrument or any other Loan Document, and the interest (in the Real Property Asset, the Rents, the Accounts Receivable and any other sums due except Collateral given to Lender created by this Agreement, the Security Instrument or any sums due by Guarantor under the Guaranty Agreement other Loan Document; provided, however, that any judgment in any action or under the Indemnity Agreement) hereunder proceeding shall be “non-recourse,” and Lender’s source of satisfaction of the Indebtedness and Borrower’s other obligations under the Loan Documents shall be limited enforceable against Borrower only to the extent of Borrower's interest in the Real Property Asset, in the Rents, in the Accounts Receivable and Lender’s receipt of the Rents from the Property and in any other security or collateral now or hereafter held by Collateral given to Lender. Lender Lender, by accepting this Agreement, the Security Instrument or any other Loan Document, agrees that it shall not seek to procure payment out not, except as otherwise provided in this Section 9.08 of other assets of Borrower, any principal, director, employee, advisor, beneficiary, shareholder, partner, manager, member, trustee, agent or Affiliate of Borrower (but specifically excluding Guarantor under the Guaranty this Agreement and Indemnity Agreement) each, an “Exculpated Party” and, collectively, the “Exculpated Parties”), nor seek any judgment against Borrower or any Exculpated Parties (other than Guarantor under the Guaranty Agreement or the Indemnity Agreement) for any sums that are or may be payable under the Loan Documents, including any claim or judgment (except as hereafter provided) for any deficiency remaining after foreclosure Article 15 of the Security Instrument. , sue xxx, seek or demand any deficiency judgment against Borrower in any action or proceeding, under or by reason of or in connection with this Agreement, the Security Instrument or any other Loan Document.
(b) The above provisions of this Section 9.08 shall not be deemed to be (i) constitute a waiver, release or impairment of the Loan any obligation evidenced or secured by the Note or the security therefor intended by the other Loan Documentsthis Agreement, nor be deemed to preclude Lender from exercising its rights to foreclose the Security Instrument or any other Loan Document; (ii) impair the right of Lender to name Borrower as a party defendant in any action or suit for judicial foreclosure and sale under the Security Instrument; (iii) affect the validity or enforceability of any indemnity, guaranty, master lease or similar instrument made in connection with this Agreement, the Security Instrument or any other Loan Document; (iv) impair the right of Lender to obtain the appointment of a receiver; (v) impair the enforcement of the Assignment of Leases and Rents executed in connection herewith; or (vi) impair the right of Lender to enforce any the provisions of its other rights Sections 9.01(a)(i), 9.01(c) and this 9.08 of this Agreement or remedies under Section 13.2 of the Loan Documents, including but not limited Security Instrument.
(c) Notwithstanding the provisions of Section 9.08(a) to the Guaranty Agreement. It is expressly understood and agreed that contrary, Borrower shall be personally liable to Lender for the aforementioned limitation on liability shall Losses (as defined in no way affect the Security Instrument) it incurs due to: (i) fraud or apply to the continued personal liability of intentional misrepresentation by Borrower or any Guarantor, jointly and severally, for all Enforcement Costs and any and all actual out-of-pocket costs, expenses (including Protective Advances), losses and/or damages incurred by Lender as a result of any of the following:
(a) Fraud, willful misconduct other person or material misrepresentation made by any of the Borrower Parties entity in connection with the Application, any of execution and the Loan Documents, or any other supporting or due diligence documentation provided by Borrower, Guarantor or any of the other Borrower Parties in connection therewith;
(b) Failure to pay any Real Estate Taxes which accrue prior to Lender taking title to the Property, or to pay assessments, charges for labor or materials, or any other charges that could result in Liens on all or any portion of the Property (except (x) for any Permitted Encumbrances, (y) such charges that are bonded off or discharged in accordance with the terms delivery of this Agreement, the Security Instrument or any other Loan Document; (zii) Borrower's misapplication or misappropriation of Rents received by such parties after the occurrence of a Default or Event of Default; (iii) Borrower's misappropriation of tenant security deposits or Rents collected in advance; (iv) the misapplication or the misappropriation of insurance proceeds or condemnation awards; (v) Borrower's failure to pay Taxes, Insurance Premiums (as defined in the Security Instrument), Other Charges (as defined in the Security Instrument) (except to the extent that sums sufficient to pay such amounts have been deposited into a cash collateral account in the Basic Carrying Costs Sub-Account pursuant to the terms hereof), charges for labor or materials or other charges that can create liens on the Real Property Asset; (vi) Borrower's failure to maintain, repair or restore the Real Property Asset in accordance with this Agreement, the Security Instrument or any other Loan Document; (vii) Borrower's failure to return or to reimburse Lender for all Personal Property (as defined in the purpose of paying such assessments and charges), provided, however, any such failure shall only trigger recourse liability if at the time of such failure, (ASecurity Instrument) Borrower had sufficient cash flow (i.e., Borrower has not made any distributions (excluding all commercially reasonable third party operating expenses) taken from the Real Property over Asset by or on behalf of Borrower and not replaced with Personal Property of the previous twelve month period unless same utility and of the same or greater value; (viii) any act of actual waste or arson by Borrower, or any principal, affiliate or general partner thereof; (ix) any fees or commissions paid by Borrower has also reserved fundsto any principal, on a monthly basisAffiliate or general partner of Borrower in violation of the terms of this Agreement, in an amount that would reasonably be expected to be sufficient to pay such amounts as they become due) from the Property to pay such amounts but failed to do soSecurity Instrument or any other Loan Document; or (B) Borrower (x) had insufficient cash flow from Borrower?s failure to comply with the provisions of Sections 4.12 and 5.11 of this Agreement and Sections 12.1 and 12.2 of the Security Instrument.
(d) Notwithstanding the foregoing, the agreement of Lender not to pursue recourse liability as set forth in Section 9.08(a) above SHALL BECOME NULL AND VOID and shall be of no further force and effect in the event of Borrower's Default under Sections 6.02 or 6.06 of this Agreement and Article 8 of the Security Instrument or if the Real Property Asset or any part thereof shall become an asset in a voluntary bankruptcy or insolvency proceeding.
(e) Nothing herein shall be deemed to pay such amountsbe a waiver of any right which Lender 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 (yas defined in the Security Instrument) failed secured by the Security Instrument or to give Lender immediate written notice require that Borrower would have insufficient cash flow from all Collateral shall continue to secure all of the Property Debt owing to pay any amounts owed prior to their delinquency, and (z) is not cooperating in good faith with Lender in completing a deed in lieu of foreclosureaccordance with this Agreement, at Borrower’s sole cost and expense, to the extent Lender has requested a deed in lieu of foreclosure;Security Instrument or any other Loan Document.
Appears in 1 contract
Samples: Loan Agreement (Sun Communities Inc)
Non-Recourse Liability. (a) Except as hereinafter otherwise provided, Lender shall not enforce the liability of Loan, Security Instruments or any other Loan Document by any action or proceeding wherein a money judgment shall be sought against Borrower with respect or General Partner, except that Lender may bring a foreclosure action, action for specific performance or other appropriate action or proceeding to enable Lender to enforce and realize upon this Agreement, the payment of principal Security Instruments or any other Loan Document, and the interest (in the Real Property Assets, the Rents, the Accounts Receivable and any other sums due except Collateral given to Lender created by this Agreement, the Security Instruments or any sums due by Guarantor under the Guaranty Agreement other Loan Document; provided, however, that any judgment in any action or under the Indemnity Agreement) hereunder proceeding shall be “non-recourse,” enforceable against Borrower only to the extent of Borrower's interest in the Real Property Assets, in the Rents, in the Accounts Receivable and in any other Collateral given to Lender’s source . Lender, by accepting this Agreement, the Security Instruments or any other Loan Document, agrees that it shall not, except as otherwise provided in this Section 9.08 of satisfaction this Agreement and Article 15 of the Indebtedness and Borrower’s other obligations under the Loan Documents shall be limited to the Property and Lender’s receipt of the Rents from the Property and Security Instruments, sue xxx, seek or demand any other security or collateral now or hereafter held by Lender. Lender shall not seek to procure payment out of other assets of Borrower, any principal, director, employee, advisor, beneficiary, shareholder, partner, manager, member, trustee, agent or Affiliate of Borrower (but specifically excluding Guarantor under the Guaranty Agreement and Indemnity Agreement) each, an “Exculpated Party” and, collectively, the “Exculpated Parties”), nor seek any deficiency judgment against Borrower in any action or proceeding, under or by reason of or in connection with this Agreement, the Security Instruments or any Exculpated Parties other Loan Document.
(other than Guarantor under the Guaranty Agreement or the Indemnity Agreementb) for any sums that are or may be payable under the Loan Documents, including any claim or judgment (except as hereafter provided) for any deficiency remaining after foreclosure The provisions of the Security Instrument. The above provisions this Section 9.08 shall not be deemed to be (i) constitute a waiver, release or impairment of any obligation evidenced or secured by this Agreement, the Security Instruments or any other Loan evidenced by Document; (ii) impair the Note right of Lender to obtain a deficiency judgment in any action or proceeding in order to preserve its rights and remedies, including, without limitation, an action against Borrower under the Note, foreclosure, non-judicial foreclosure, or the security therefor intended by exercise of a power of sale, under the Additional Security Instruments (as defined in the Security Instruments); however, Lender agrees that it shall not enforce such deficiency judgment against any assets of Borrower other Loan Documents, nor be deemed to preclude Lender from exercising than the Additional Properties (as defined in the Security Instruments) or in the exercise of its rights to foreclose the Security Instrument or to enforce any of its other rights or and remedies under the Loan Documents, including but not limited Additional Security Instruments; (iii) impair the right of Lender to the Guaranty Agreement. It is expressly understood and agreed that the aforementioned limitation on liability shall in no way affect or apply to the continued personal liability of name Borrower or any Guarantor, jointly and severally, for all Enforcement Costs and any and all actual out-of-pocket costs, expenses (including Protective Advances), losses and/or damages incurred by Lender as a result party defendant in any action or suit for judicial foreclosure and sale under the Security Instruments; (iv) affect the validity or enforceability of any of the following:
(a) Fraudindemnity, willful misconduct guaranty, master lease or material misrepresentation similar instrument made by any of the Borrower Parties in connection with this Agreement, the Application, any of the Loan Documents, Security Instruments or any other supporting or due diligence documentation provided by Borrower, Guarantor or any of the other Borrower Parties in connection therewith;
(b) Failure to pay any Real Estate Taxes which accrue prior to Lender taking title to the Property, or to pay assessments, charges for labor or materials, or any other charges that could result in Liens on all or any portion of the Property (except (x) for any Permitted Encumbrances, (y) such charges that are bonded off or discharged in accordance with the terms of this Agreement, or (z) to the extent that sums sufficient to pay such amounts have been deposited into a cash collateral account with Lender for the purpose of paying such assessments and charges), provided, however, any such failure shall only trigger recourse liability if at the time of such failure, (A) Borrower had sufficient cash flow (i.e., Borrower has not made any distributions (excluding all commercially reasonable third party operating expenses) from the Property over the previous twelve month period unless Borrower has also reserved funds, on a monthly basis, in an amount that would reasonably be expected to be sufficient to pay such amounts as they become due) from the Property to pay such amounts but failed to do so; or (B) Borrower (x) had insufficient cash flow from the Property to pay such amounts, (y) failed to give Lender immediate written notice that Borrower would have insufficient cash flow from the Property to pay any amounts owed prior to their delinquency, and (z) is not cooperating in good faith with Lender in completing a deed in lieu of foreclosure, at Borrower’s sole cost and expense, to the extent Lender has requested a deed in lieu of foreclosure;Loan
Appears in 1 contract
Samples: Loan Agreement (Sun Communities Inc)
Non-Recourse Liability. Except as hereinafter providedSubject to the provisions of section 4.13(b), section 4.13(c) and the Guaranty and notwithstanding any other provision in the Related Mortgage Notes, the Mortgages or any other Transaction Document, the personal liability of the Borrowers, Guarantor and their respective affiliates, shareholders, members, partners, officers, directors and employees to pay and perform the Obligations shall be limited to (i) the real and personal property described as "Property" in the Mortgages, (ii) the personal property described in and pledged under any other Mortgage Document, (iii) the rents, profits, issues, products and income of the Properties received or collected by or on behalf of any Borrower with respect (the "RENTS AND PROFITS") to the payment extent such receipts are necessary, first, to pay the Operating Expenses then due and payable as of the time of receipt of such Rents and Profits, and then, to pay principal and interest (and due under the Related Mortgage Notes, the Custodial Receipts L/C Reimbursement Agreement, any other sums due except any sums due by Guarantor under the Guaranty Agreement Mortgages or under the Indemnity Agreement) hereunder shall be “non-recourse,” and Lender’s source of satisfaction of the Indebtedness and Borrower’s any other obligations under the Loan Documents shall be limited to the Property and Lender’s receipt of the Rents from the Property Mortgage Document and any other security or collateral now or hereafter held by Lender. Lender shall not seek Obligations then due and owing to procure payment out of other assets of Borrower, any principal, director, employee, advisor, beneficiary, shareholder, partner, manager, member, trustee, agent or Affiliate of Borrower (but specifically excluding Guarantor Fannie Mae under the Guaranty Agreement and Indemnity Agreement) each, an “Exculpated Party” and, collectively, the “Exculpated Parties”), nor seek any judgment against Borrower or any Exculpated Parties (other than Guarantor under the Guaranty Agreement or the Indemnity Agreement) for any sums that are or may be payable under the Loan Documents, including any claim or judgment (except as hereafter provided) for any deficiency remaining after foreclosure of the Security Instrument. The above provisions shall not be deemed to be a release or impairment of the Loan evidenced by the Note or the security therefor intended by the other Loan Documents, nor be deemed to preclude Lender from exercising its rights to foreclose the Security Instrument or to enforce any of its other rights or remedies under the Loan Documents, including but not limited to the Guaranty Agreement. It is expressly understood and agreed that the aforementioned limitation on liability shall in no way affect or apply to the continued personal liability of Borrower or any Guarantor, jointly and severally, for all Enforcement Costs and any and all actual out-of-pocket costs, expenses (including Protective Advances), losses and/or damages incurred by Lender as a result of any of the following:
(a) Fraud, willful misconduct or material misrepresentation made by any of the Borrower Parties in connection with the Application, any of the Loan Documents, or any other supporting or due diligence documentation provided by Borrower, Guarantor or any of the other Borrower Parties in connection therewith;
(b) Failure to pay any Real Estate Taxes which accrue prior to Lender taking title to the Property, or to pay assessments, charges for labor or materials, or any other charges that could result in Liens on all or any portion of the Property (except (x) for any Permitted Encumbrances, (y) such charges that are bonded off or discharged in accordance with the terms of this Agreement, or (z) except to the extent that sums sufficient the Borrowers did not have the legal right, because of a bankruptcy, receivership or similar judicial proceeding, to pay direct the disbursement of such amounts have been deposited into a cash collateral account with Lender for the purpose of paying such assessments and chargessums. Except as provided in section 4.13(b), providedsection 4.13(c) and in the Guaranty, however, any such failure Fannie Mae shall only trigger recourse liability if at the time of such failure, not seek (A) Borrower had sufficient cash flow (i.e.any judgment for a deficiency against any of the Borrowers or Guarantor, Borrower has not made or any distributions (excluding all commercially reasonable third party operating expenses) from the Property over the previous twelve month period unless Borrower has also reserved fundsBorrower's or Guarantor's heirs, on a monthly basislegal representatives, successors or assigns, in an amount that would reasonably be expected any action to be sufficient to pay such amounts as they become due) from enforce any right or remedy under any of the Property to pay such amounts but failed to do so; Related Mortgage Notes, the Custodial Receipts L/C Reimbursement Agreement, the Mortgages, this Agreement or any other Transaction Document, or (B) Borrower (x) had insufficient cash flow from any judgment on any of the Related Mortgage Notes, the Custodial Receipts L/C Reimbursement Agreement or the Obligations except as may be necessary in any action brought under any of the Mortgages to enforce the lien against the Property encumbered thereby or to pay such amounts, (y) failed to give Lender immediate written notice that Borrower would have insufficient cash flow from the Property to pay exercise any amounts owed prior to their delinquency, and (z) is not cooperating in good faith with Lender in completing a deed in lieu of foreclosure, at Borrower’s sole cost and expense, to the extent Lender has requested a deed in lieu of foreclosure;remedies under any other Mortgage Documents.
Appears in 1 contract
Samples: Master Reimbursement Agreement (Avalon Properties Inc)
Non-Recourse Liability. Except as hereinafter provided, the liability of Borrower and any Guarantor with respect to the payment of principal and interest (and any other sums due except any sums due by Guarantor under the Guaranty Agreement or under the Indemnity Agreement) hereunder shall be “non-recourse,” and Lender’s source of satisfaction of the Indebtedness and Borrower’s and Guarantor’s other obligations under the Loan Documents shall be limited to the Property and Lender’s receipt of the Rents from the Property and any other security or collateral now or hereafter held by Lender. Lender shall not seek to procure payment out of other assets of Borrower, any principal, director, employee, advisor, beneficiary, shareholder, partner, manager, member, trustee, agent Guarantor or Affiliate of Borrower (but specifically excluding Guarantor under the Guaranty Agreement and Indemnity Agreement) each, an “Exculpated Party” and, collectively, the “Exculpated Parties”)any Person comprising Borrower, nor seek any judgment against Borrower or any Exculpated Parties (other than Guarantor under the Guaranty Agreement or the Indemnity Agreementexcept as hereinafter provided) for any sums that are or may be payable under the Loan Documents, including any claim or judgment (except as hereafter provided) for any deficiency remaining after foreclosure of the Security Instrument. The above provisions shall not be deemed to be a release or impairment of the Loan evidenced by the Note or the security therefor intended by the other Loan Documents, nor be deemed to preclude Lender from exercising its rights to foreclose Domain at Tallahassee 51 Loan No. 00-1102733 the Security Instrument or to enforce any of its other rights or remedies under the Loan Documents, including but not limited to the Guaranty Agreement. It is expressly understood and agreed that the aforementioned limitation on liability shall in no way affect or apply to the continued personal liability of Borrower or any Guarantor, jointly and severally, for all Enforcement Costs and any and all actual out-of-pocket costs, expenses (including Protective Advances), losses and/or damages incurred by Lender as a result of any of the following:
(a) Fraud, willful misconduct or material misrepresentation made by any of the Borrower Parties in connection with the Application, any of the Loan Documents, or any other supporting or due diligence documentation provided by Borrower, Guarantor or any of the other Borrower Parties in connection therewith;
(b) Failure to pay any Real Estate Taxes taxes which accrue prior to Lender taking title to the Property, or to pay assessments, charges for labor or materials, or any other charges that could result in Liens on all or any portion of the Property (except (x) for any Permitted Encumbrances, (y) such charges that are bonded off or discharged in accordance with the terms of this Agreement, or (z) to the extent that sums sufficient to pay such amounts have been deposited into a cash collateral account with Lender for the purpose of paying such assessments and charges), provided, however, any such failure shall only trigger recourse liability if at the time of such failure, (A) Borrower had sufficient cash flow (i.e., Borrower has not made any distributions (excluding all commercially reasonable third party operating expenses) from the Property over the previous twelve month period unless Borrower has also reserved funds, on a monthly basis, in an amount that would reasonably be expected to be sufficient to pay such amounts as they become due) from the Property to pay such amounts but failed to do so; or (B) Borrower (x) had insufficient cash flow from the Property to pay such amounts, (y) failed to give Lender immediate written notice that Borrower would have insufficient cash flow from the Property to pay any amounts owed prior to their delinquency, and (z) is not cooperating in good faith with Lender in completing a deed in lieu of foreclosure, at Borrower’s sole cost and expense, to the extent Lender has requested a deed in lieu of foreclosure;
Appears in 1 contract
Samples: Loan Agreement (Strategic Student & Senior Housing Trust, Inc.)
Non-Recourse Liability. Except as hereinafter providedSubject to the provisions of sections 4.14(b) and 4.14(c) and notwithstanding any other provision in the Related Mortgage Notes, the Mortgages or any other Transaction Document, the personal liability of Borrower with respect to the payment of principal and interest (Owner, QRS Partner, OP Partner and any other sums due except any sums due by Guarantor under person or entity to pay and perform the Guaranty Agreement or under the Indemnity Agreement) hereunder shall be “non-recourse,” and Lender’s source of satisfaction of the Indebtedness and Borrower’s other obligations under the Loan Documents Obligations shall be limited to (i) the Property real and Lender’s personal property described as "Property" in the Mortgages, (ii) the personal property described in and pledged under any other Mortgage Document, (iii) the rents, profits, issues, products and income of the Properties received or collected by or on behalf of Owner (the "RENTS AND PROFITS") while an Event of Default exists to the extent not used to pay Operating Expenses then due and payable as of the time of receipt of such Rents and Profits, or to pay principal and interest then due and payable under the Rents from Related Mortgage Notes, any other sums then due and payable under the Property Mortgages or any other Mortgage Document (including deposits or reserves due under any Mortgage Document) and any other security Obligations then due and owing to Xxxxxx Xxx under this Agreement, except in each case to the extent that (x) Owner did not have the legal right, because of a bankruptcy, receivership or collateral now similar judicial proceeding, to direct the disbursement of such sums or hereafter held by Lender(y) Xxxxxx Mae was unwilling to disburse such Rents and Profits from the Central Account established pursuant to the Cash Management Agreement. Lender Except as provided in sections 4.14(b) and 4.14(c), notwithstanding the terms and provisions of the Note or any other Transaction Document, Xxxxxx Xxx shall not seek to procure payment out of other assets of Borrower, any principal, director, employee, advisor, beneficiary, shareholder, partner, manager, member, trustee, agent or Affiliate of Borrower obtain (but specifically excluding Guarantor under the Guaranty Agreement and Indemnity AgreementA) each, an “Exculpated Party” and, collectively, the “Exculpated Parties”), nor seek any judgment for a deficiency or money damages against Borrower Owner, QRS Partner or OP Partner, or Owner's, QRS Partner's or OP Partner's heirs, legal representatives, successors or assigns, in any Exculpated Parties (other than Guarantor under the Guaranty Agreement or the Indemnity Agreement) for any sums that are or may be payable under the Loan Documents, including any claim or judgment (except as hereafter provided) for any deficiency remaining after foreclosure of the Security Instrument. The above provisions shall not be deemed to be a release or impairment of the Loan evidenced by the Note or the security therefor intended by the other Loan Documents, nor be deemed to preclude Lender from exercising its rights to foreclose the Security Instrument or action to enforce any of its other rights right or remedies remedy under the Loan DocumentsRelated Mortgage Notes, including but not limited to the Guaranty Agreement. It is expressly understood and agreed that the aforementioned limitation on liability shall in no way affect or apply to the continued personal liability of Borrower or any GuarantorMortgages, jointly and severally, for all Enforcement Costs and any and all actual out-of-pocket costs, expenses (including Protective Advances), losses and/or damages incurred by Lender as a result of any of the following:
(a) Fraud, willful misconduct or material misrepresentation made by any of the Borrower Parties in connection with the Application, any of the Loan Documents, or any other supporting or due diligence documentation provided by Borrower, Guarantor this Agreement or any of the other Borrower Parties in connection therewith;
(b) Failure to pay any Real Estate Taxes which accrue prior to Lender taking title to the PropertyTransaction Documents, or to pay assessments, charges for labor or materials, or any other charges that could result in Liens on all or any portion of the Property (except (x) for any Permitted Encumbrances, (y) such charges that are bonded off or discharged in accordance with the terms of this Agreement, or (z) to the extent that sums sufficient to pay such amounts have been deposited into a cash collateral account with Lender for the purpose of paying such assessments and charges), provided, however, any such failure shall only trigger recourse liability if at the time of such failure, (A) Borrower had sufficient cash flow (i.e., Borrower has not made any distributions (excluding all commercially reasonable third party operating expenses) from the Property over the previous twelve month period unless Borrower has also reserved funds, on a monthly basis, in an amount that would reasonably be expected to be sufficient to pay such amounts as they become due) from the Property to pay such amounts but failed to do so; or (B) Borrower (x) had insufficient cash flow from any judgment on any of the Related Mortgage Notes, the Mortgages, this Agreement, any of the other Transaction Documents or the Obligations except as may be necessary in any action brought under any of the Mortgages to enforce the lien against the Property encumbered thereby or to pay such amountsexercise any remedies under any other Mortgage Documents, (y) failed so long as no judgment, order, decree or other relief in the nature of a personal or deficiency judgment is sought to give Lender immediate written notice that Borrower would have insufficient cash flow from the Property to pay be enforced against Owner, QRS Partner, OP Partner or any amounts owed prior to their delinquency, and (z) is not cooperating in good faith with Lender in completing a deed in lieu of foreclosure, at Borrower’s sole cost and expense, to the extent Lender has requested a deed in lieu of foreclosure;other Person.
Appears in 1 contract
Samples: Master Reimbursement Agreement (Erp Operating LTD Partnership)
Non-Recourse Liability. Except as hereinafter providedSubject to the provisions of subsections 3.11(b) and 3.11(c) and notwithstanding any other provision in the Related Mortgage Notes, the Mortgages or any other Transaction Document, the personal liability of Borrower with respect Owner, General Partner, each Guarantor and their respective affiliates, shareholders, members, partners, officers, director's and employees to pay the payment of principal and interest on the debt evidenced by the Related Mortgage Notes and to perform the other Obligations shall be limited to (i) the real and personal property described as "Property" in the Mortgages, (ii) the personal property described in and pledged under any other Mortgage Document, (iii) the rents, profits, issues, products and income of the Properties received or collected by or on behalf of Owner (the "RENTS AND PROFITS") to the extent such receipts are necessary, first, to pay the Operating Expenses then due and payable as of the time of receipt of such Rents and Profits, and then, to pay principal and interest due under the Related Mortgage Notes, any other sums due except any sums due by Guarantor under the Guaranty Agreement Mortgages or under the Indemnity Agreement) hereunder shall be “non-recourse,” and Lender’s source of satisfaction of the Indebtedness and Borrower’s any other obligations under the Loan Documents shall be limited to the Property and Lender’s receipt of the Rents from the Property Mortgage Document and any other security Obligations then due and owning to Xxxxxx Xxx under this Agreement, except to the extent that Owner did not have the legal right, because of a bankruptcy, receivership or collateral now or hereafter held by Lendersimilar judicial proceeding, to direct the disbursement of such sums. Lender Except as provided in sections 3.11(b) and (c), Xxxxxx Mae shall not seek to procure payment out of other assets of Borrower, any principal, director, employee, advisor, beneficiary, shareholder, partner, manager, member, trustee, agent or Affiliate of Borrower (but specifically excluding Guarantor under the Guaranty Agreement and Indemnity AgreementA) each, an “Exculpated Party” and, collectively, the “Exculpated Parties”), nor seek any judgment for a deficiency against Borrower or any Exculpated Parties (other than Guarantor under the Guaranty Agreement or the Indemnity Agreement) for any sums that are or may be payable under the Loan DocumentsOwner, including any claim or judgment (except as hereafter provided) for any deficiency remaining after foreclosure of the Security Instrument. The above provisions shall not be deemed to be a release or impairment of the Loan evidenced by the Note or the security therefor intended by the other Loan Documents, nor be deemed to preclude Lender from exercising its rights to foreclose the Security Instrument or to enforce any of its other rights or remedies under the Loan Documents, including but not limited to the Guaranty Agreement. It is expressly understood and agreed that the aforementioned limitation on liability shall in no way affect or apply to the continued personal liability of Borrower General Partner or any Guarantor, jointly and severallyor Owner's, for all Enforcement Costs and General Partner's or any and all actual out-of-pocket costsGuarantor's heirs, expenses (including Protective Advances)legal representatives, losses and/or damages incurred by Lender as a result of successors or assigns, in any action to enforce any right or remedy under any of the following:
(a) FraudRelated Mortgage Notes, willful misconduct or material misrepresentation made by any of the Borrower Parties in connection with the ApplicationMortgages, any of the Loan Documents, this Agreement or any other supporting or due diligence documentation provided by BorrowerTransaction Document, Guarantor or any of the other Borrower Parties in connection therewith;
(b) Failure to pay any Real Estate Taxes which accrue prior to Lender taking title to the Property, or to pay assessments, charges for labor or materials, or any other charges that could result in Liens on all or any portion of the Property (except (x) for any Permitted Encumbrances, (y) such charges that are bonded off or discharged in accordance with the terms of this Agreement, or (z) to the extent that sums sufficient to pay such amounts have been deposited into a cash collateral account with Lender for the purpose of paying such assessments and charges), provided, however, any such failure shall only trigger recourse liability if at the time of such failure, (A) Borrower had sufficient cash flow (i.e., Borrower has not made any distributions (excluding all commercially reasonable third party operating expenses) from the Property over the previous twelve month period unless Borrower has also reserved funds, on a monthly basis, in an amount that would reasonably be expected to be sufficient to pay such amounts as they become due) from the Property to pay such amounts but failed to do so; or (B) Borrower (x) had insufficient cash flow from any judgment on any of the Related Mortgage Notes or the Obligations except as may be necessary in any action brought under any of the Mortgages to enforce the lien against the Property encumbered thereby or to pay such amounts, (y) failed to give Lender immediate written notice that Borrower would have insufficient cash flow from the Property to pay exercise any amounts owed prior to their delinquency, and (z) is not cooperating in good faith with Lender in completing a deed in lieu of foreclosure, at Borrower’s sole cost and expense, to the extent Lender has requested a deed in lieu of foreclosure;remedies under any other Mortgage Documents.
Appears in 1 contract
Samples: Reimbursement Agreement (Apartment Investment & Management Co)
Non-Recourse Liability. Except as hereinafter provided, the liability of Borrower and any Guarantor with respect to the payment of principal and interest (and any other sums due except any sums due by Guarantor under the Guaranty Agreement or under the Indemnity Agreement) hereunder shall be “non-recourse,” and Lender’s source of satisfaction of the Indebtedness and Borrower’s and Guarantor’s other obligations under the Loan Documents shall be limited to the Property and Lender’s receipt of the Rents from the Property and any other security or collateral now or hereafter held by Lender. Lender shall not seek to procure payment out of other assets of Borrower, any principal, director, employee, advisor, beneficiary, shareholder, partner, manager, member, trustee, agent Guarantor or Affiliate of Borrower (but specifically excluding Guarantor under the Guaranty Agreement and Indemnity Agreement) each, an “Exculpated Party” and, collectively, the “Exculpated Parties”)any Person comprising Borrower, nor seek any judgment against Borrower or any Exculpated Parties (other than Guarantor under the Guaranty Agreement or the Indemnity Agreementexcept as hereinafter provided) for any sums that are or may be payable under the Loan Documents, including any claim or judgment (except as hereafter provided) for any deficiency remaining after foreclosure of the Security Instrument. The above provisions shall not be deemed to be a release or impairment of the Loan evidenced by the Note or the security therefor intended by the other Loan Documents, nor be deemed to preclude Lender from exercising its rights to foreclose the Security Instrument or to enforce any of its other rights or remedies under the Loan Documents, including but not limited to the Guaranty Agreement. It is expressly understood and agreed that the aforementioned limitation on liability shall in no way affect or apply to the continued personal liability of Borrower or any Guarantor, jointly and severally, for all Enforcement Costs and any and all actual out-of-pocket costs, expenses (including Protective Advances), losses and/or damages incurred by Lender as a result of any of the followingof:
(ai) Fraud, willful misconduct or material misrepresentation made by any of the Borrower Parties or Guarantor in connection with the Application, any of the Loan Documents, or any other supporting or due diligence documentation provided by Borrower, Borrower or Guarantor or any of the other Borrower Parties in connection therewith;
(bii) Failure to pay any Real Estate Taxes taxes which accrue prior to Lender taking title to the PropertyProperty (except to the extent that Lender is holding impounds for the same), or to pay assessments, charges for labor or materials, or any other charges that could result in Liens on all or any portion of the Property (except (x) for any Permitted Encumbrances, (y) such charges that are bonded off or discharged in accordance with the terms of this Agreement, or (z) to the extent that sums sufficient to pay such amounts have been deposited into a cash collateral account with Lender for the purpose of paying such assessments and charges), in each case, only to the extent there is sufficient net cash flow to pay such amounts; Xxx Xxxxx xx Xxxxx Xxxx, Xxxxxx, Xxxxxxx Loan No. 00-1102522
(iii) Misapplication or misappropriation of: (A) proceeds of insurance covering all or any portion of the Property, (B) proceeds of the sale or condemnation of all or any portion of the Property, or (C) rentals or other income from the Property received by or on behalf of Borrower and not applied to satisfy Borrower’s obligations hereunder and/or under the Loan Documents;
(iv) Causing or permitting waste, arson or other similar damage to occur in, on or about the Property;
(v) Following an Event of Default, failure to pay to Lender all unearned advance rentals and security deposits that have been paid by tenants of the Property to the extent that such funds have not been refunded to such tenants;
(vi) Borrower’s material amendment, modification, renewal, extension or termination of any Lease (except as expressly provided for therein), without Lender’s consent, if required pursuant to the terms hereof, and the failure to deliver to Lender any Termination Fees (if required pursuant to the terms of the Loan Documents), including any amounts paid in connection with the bankruptcies or insolvencies of such tenants, and Borrower’s failure to assign any claims, proofs of claims or other rights relating to the future right to receive payment of such amounts;
(vii) Loss by fire, casualty, acts of terrorism, or other events, not compensated by insurance proceeds collected by or remitted to Lender as a result of Borrower’s failure to comply with Lender’s insurance requirements (including the payment of any required deductibles);
(viii) Failure to return to Lender or reimburse Lender for all Security Property owned by Borrower taken from the Property by or on behalf of Borrower out of the ordinary course of business and not replaced by items of like or greater value than the original value of the Security Property so removed;
(ix) Any breach of any representation, warranty, covenant or indemnity obligations under the Indemnity Agreement;
(x) Borrower’s failure to timely pay any amounts payable for all state documentary stamp taxes, recording and transfer taxes, and intangible personal property taxes, if any, which may be levied or assessed against the Loan, or any of the Loan Documents, together with all interest, penalties or charges in connection therewith. The obligations of Borrower in subsections (i) through (x) above shall survive the repayment of the Loan and satisfaction of the Security Instrument; provided, however, the survival of subsection (ix) above shall be terminated contemporaneously with any such failure shall only trigger recourse liability if at termination of obligations under Section 6.12 of the time of such failure, (A) Borrower had sufficient cash flow (i.e., Borrower has not made any distributions (excluding all commercially reasonable third party operating expenses) from the Property over the previous twelve month period unless Borrower has also reserved funds, on a monthly basis, in an amount that would reasonably be expected to be sufficient to pay such amounts as they become due) from the Property to pay such amounts but failed to do so; or (B) Borrower (x) had insufficient cash flow from the Property to pay such amounts, (y) failed to give Lender immediate written notice that Borrower would have insufficient cash flow from the Property to pay any amounts owed prior to their delinquency, and (z) is not cooperating in good faith with Lender in completing a deed in lieu of foreclosure, at Borrower’s sole cost and expense, to the extent Lender has requested a deed in lieu of foreclosure;Indemnity Agreement.
Appears in 1 contract
Non-Recourse Liability. Except as hereinafter provided, the liability of Borrower and any Guarantor with respect to the payment of principal and interest (and any other sums due except any sums due by Guarantor under the Guaranty Agreement or under the Indemnity Agreement) hereunder shall be “non-recourse,” and Lender’s source of satisfaction of the Indebtedness and Borrower’s and Guarantor’s other obligations under the Loan Documents shall be limited to the Property and Lender’s receipt of the Rents from the Property and any other security or collateral now or hereafter held by Lender. Lender shall not seek to procure payment out of other assets of Borrower, any principal, director, employee, advisor, beneficiary, shareholder, partner, manager, member, trustee, agent Guarantor or Affiliate of Borrower (but specifically excluding Guarantor under the Guaranty Agreement and Indemnity Agreement) each, an “Exculpated Party” and, collectively, the “Exculpated Parties”)any Person comprising Borrower, nor seek any judgment against Borrower or any Exculpated Parties (other than Guarantor under the Guaranty Agreement or the Indemnity Agreementexcept as hereinafter provided) for any sums that are or may be payable under the Loan Documents, including any claim or judgment (except as hereafter provided) for any deficiency remaining after foreclosure of the Security Instrument. The above provisions shall not be deemed to be a release or impairment of the Loan evidenced by the Note or the security therefor intended by the other Loan Documents, nor be deemed to preclude Lender from exercising its rights to foreclose the Security Instrument or to enforce any of its other rights or remedies under the Loan Documents, including but not limited to the Guaranty Agreement. It is expressly understood and agreed that the aforementioned limitation on liability shall in no way affect or apply to the continued personal liability of Borrower or any Guarantor, jointly and severally, for all Enforcement Costs and any and all actual out-of-pocket costs, expenses (including Protective Advances), losses and/or damages incurred (other than consequential, punitive, special, or exemplary damages) by Lender as a result of any of the following:: Providence Square 55 Loan No. 00-1103028 4813-0380-2520, v. 3
(a) Fraud, willful misconduct or material misrepresentation made by any of the either Borrower Parties or Carveout Guarantor in connection with the Application, any of the Loan Documents, or any other supporting or due diligence documentation provided by Borrower, Borrower or Carveout Guarantor or any of the other Borrower Parties in connection therewith;
(b) Failure to pay any Real Estate Taxes taxes which accrue prior to Lender taking title to the PropertyProperty (except to the extent Lender is holding impounds for the same), or to pay assessments, charges for labor or materials, or any other charges that could result in Liens on all or any portion of the Property (except (x) for any Permitted Encumbrances, (y) such charges that are bonded off or discharged in accordance with the terms of this Agreement, or (z) to the extent that sums sufficient to pay such amounts have been deposited into a cash collateral an escrow account with Lender for the purpose purposes of paying such assessments and charges), ; provided, however, any such failure shall only trigger recourse liability if at the time of such failure, (A) Borrower had sufficient cash flow (i.e., Borrower has not made any distributions (excluding all commercially reasonable third party operating expenses) from the Property over the previous twelve month period unless Borrower has also reserved funds, on a monthly basis, in an amount that would reasonably be expected to be sufficient to pay such amounts as they become dueperiod) from the Property to pay such amounts but failed to do so; or (B) Borrower (x) had insufficient cash flow from the Property to pay such amounts, (y) failed to give Lender immediate written notice that Borrower would have insufficient cash flow from the Property to pay any amounts owed prior to their delinquency, and (z) is not cooperating in good faith with Lender in completing a deed in lieu of foreclosure, at Borrower’s sole cost and expense, to the extent Lender has requested a deed in lieu of foreclosure;
(c) Misapplication or misappropriation in violation of the Loan Documents of: (i) proceeds of insurance covering all or any portion of the Property, (ii) proceeds of the sale or condemnation of all or any portion of the Property, or (iii) rentals or other income from the Property received by or on behalf of Borrower and not applied to satisfy Borrower’s obligations hereunder and/or under the Loan Documents;
(d) Causing or permitting physical waste, arson or other similar damage to occur in, on or about the Property;
(e) Following an Event of Default, failure to pay to Lender all unearned advance rentals and security deposits that have been paid by tenants of the Property to the extent that such funds have not been refunded to such tenants;
(f) Borrower’s material amendment, modification, renewal, extension, or termination of any Lease (except as expressly provided for therein), without Lender’s consent, if required pursuant to the terms hereof, and the failure to deliver to Lender any Termination Fees (if required pursuant to the terms of the Loan Documents), including any amounts paid in connection with the bankruptcies or insolvencies of such tenants, and Borrower’s failure to assign any claims, proofs of claims or other rights relating to the future right to receive payment of such amounts;
(g) Loss by fire, casualty, acts of terrorism, or other events, not compensated by insurance proceeds collected by or remitted to Lender as a result of Borrower’s failure to comply with Lender’s insurance requirements (including the payment of any required deductibles);
(h) Failure to return to Lender or reimburse Lender for all Security Property owned by Borrower taken from the Property by or on behalf of Borrower out of the ordinary course of business and not replaced by items of like or greater value than the original value of the Security Property so removed; Providence Square 56 Loan No. 00-1103028 4813-0380-2520, v. 3
(i) Any breach of any representation, warranty, covenant or indemnity obligations under the Indemnity Agreement; and
(j) Borrower’s failure to timely pay any amounts payable for all state documentary stamp taxes, recording and transfer taxes, and intangible personal property taxes, if any, which may be levied or assessed against the Loan, or any of the Loan Documents, together with all interest, penalties or charges in connection therewith. The obligations of Borrower and Carveout Guarantor in subsections (a) through (j) above shall survive (1) foreclosure under the Security Instrument (or Lender’s acceptance of a deed in lieu thereof); or (2) the satisfaction of all Obligations (including the full repayment of the Loan) under the Loan Documents, but only as to claims, or matters which are based upon or arise out of circumstances or conditions which are first created or which first arise or come into existence prior to the events described in (1) and (2) above. Notwithstanding the foregoing, the obligations in subsection (i) above shall be deemed terminated upon the termination of the corresponding obligations pursuant to Section 6.12 of the Indemnity Agreement.
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Non-Recourse Liability. Except as hereinafter provided, the liability of Borrower and any Guarantor with respect to the payment of principal and interest (and any other sums due except any sums due by Guarantor under the Guaranty Agreement or under the Indemnity Agreement) hereunder shall be “non-recourse,” and LenderXxxxxx’s source of satisfaction of the Indebtedness and BorrowerXxxxxxxx’s and Guarantor’s other obligations under the Loan Documents shall be limited to the Property and LenderXxxxxx’s receipt of the Rents from the Property and any other security or collateral now or hereafter held by Lender. Lender shall not seek to procure payment out of other assets of Borrower, any principal, director, employee, advisor, beneficiary, shareholder, partner, manager, member, trustee, agent Guarantor or Affiliate of Borrower (but specifically excluding Guarantor under the Guaranty Agreement and Indemnity Agreement) each, an “Exculpated Party” and, collectively, the “Exculpated Parties”)any Person comprising Borrower, nor seek any judgment against Borrower or any Exculpated Parties (other than Guarantor under the Guaranty Agreement or the Indemnity Agreementexcept as hereinafter provided) for any sums that are or may be payable under the Loan Documents, including any claim or judgment (except as hereafter provided) for any deficiency remaining after foreclosure of the Security Instrument. The above provisions shall not be deemed to be a release or impairment of the Loan evidenced by the Note or the security therefor intended by the other Loan Documents, nor be deemed to preclude Lender from exercising its rights to foreclose the Security Instrument or to enforce any of its other rights or remedies under the Loan Documents, including but not limited to the Guaranty Agreement. It is expressly understood and agreed that the aforementioned limitation on liability shall in no way affect or apply to the continued personal liability of Borrower or any Guarantor, jointly and severally, for all Enforcement Costs and any and all actual out-of-pocket costs, expenses (including Protective Advances), losses and/or damages incurred (other than consequential, punitive, special or exemplary damages) by Lender Xxxxxx as a result of any of the following:
(a) Fraud, willful misconduct or material misrepresentation made by any of the either Borrower Parties or Guarantor in connection with the Application, any of the Loan Documents, or any other supporting or due diligence documentation provided by Borrower, Borrower or Guarantor or any of the other Borrower Parties in connection therewith;
(b) Failure to pay any Real Estate Taxes taxes which accrue prior to Lender taking title to the Property, or to pay assessments, charges for labor or materials, or any other charges that could result in Liens on all or any portion of the Property (except (x) for any Permitted Encumbrances, (y) such charges that are bonded off or discharged in accordance with the terms of this Agreement, or (z) to the extent that sums sufficient to pay such amounts have been deposited into a cash collateral an escrow account with Lender for the purpose purposes of paying such assessments and charges), ; provided, however, any such failure shall only trigger recourse liability if at the time of such failure, (A) Borrower had sufficient cash flow (i.e., Borrower has not made any distributions (excluding all commercially reasonable third party operating expenses) from the Property over the previous twelve (12) month period unless Borrower has also reserved funds, on a monthly basis, in an amount that would reasonably be expected to be sufficient to pay such amounts as they become dueperiod) from the Property to pay such amounts but failed to Flats at Carrs Hill 52 Loan No. 00-1103560 30367245 do so; or (B) Borrower (x) had insufficient cash flow from the Property to pay such amounts, (y) failed to give Lender immediate written notice that Borrower would have insufficient cash flow from the Property to pay any amounts owed prior to their delinquency, and (z) is not cooperating in good faith with Lender Xxxxxx in completing a deed in lieu of foreclosure, at Borrower’s sole cost and expense, to the extent Lender has requested a deed in lieu of foreclosure;
(c) Misapplication or misappropriation in violation of the Loan Documents of (including the failure to deposit with Lender, if required): (i) proceeds of insurance covering all or any portion of the Property, (ii) proceeds of the sale or condemnation of all or any portion of the Property, or (iii) rentals or other income from the Property received by or on behalf of Borrower and not applied to satisfy Borrower’s obligations hereunder and/or under the Loan Documents;
(d) Causing or permitting physical waste, arson or other similar damage to occur in, on or about the Property;
(e) Following an Event of Default, failure to pay to Lender all unearned advance rentals and security deposits that have been paid by tenants of the Property to the extent that such funds have not been refunded to such tenants pursuant to the express terms of such tenant Leases or in violation of the Loan Documents;
(f) Intentionally Deleted
(g) Loss by fire, casualty, acts of terrorism, or other events, not compensated by insurance proceeds collected by or remitted to Lender as a result of Borrower’s failure to comply with Xxxxxx’s insurance requirements (including the payment of any required deductibles) pursuant to Sections 6.1(a) and (b) of this Agreement;
(h) Failure to return to Lender or reimburse Lender for all Security Property owned by Xxxxxxxx taken from the Property by or on behalf of Borrower out of the ordinary course of business and not replaced by items of like or greater value than the original value of the Security Property so removed;
(i) Any breach of any representation, warranty, covenant or indemnity obligations under the Indemnity Agreement; and
(j) Xxxxxxxx’s failure to timely pay any amounts payable for all state documentary stamp taxes, recording and transfer taxes, and intangible personal property taxes, if any, which may be levied or assessed against the Loan, or any of the Loan Documents, together with all interest, penalties or charges in connection therewith. The obligations of Borrower and Guarantor in subsections (a) through (j) above shall survive (1) foreclosure under the Security Instrument (or Lender’s acceptance of a deed in lieu thereof); or (2) the satisfaction of all Obligations (including the full repayment of the Loan) under the Loan Documents, but, with respect to subsections (a) through (h) and (j) only as to claims, or matters which are based upon or arise out of circumstances or conditions which are first created or which first arise or come into existence prior to the events described in (1) and (2) above and, with respect to subsection (i), as more particularly set forth in the Indemnity Agreement. Flats at Carrs Hill 53 Loan No. 00-1103560
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