Recourse Obligations The Mortgage Loan documents for each Mortgage Loan (a) provide that such Mortgage Loan becomes full recourse to the Mortgagor and guarantor (which is a natural person or persons, or an entity or entities distinct from the Mortgagor (but may be affiliated with the Mortgagor) that collectively, as of the date of origination of the related Mortgage Loan, have assets other than equity in the related Mortgaged Property that are not de minimis) in any of the following events (or negotiated provisions of substantially similar effect): (i) if any petition for bankruptcy, insolvency, dissolution or liquidation pursuant to federal bankruptcy law, or any similar federal or state law, shall be filed by, consented to, or acquiesced in by, the Mortgagor; (ii) the Mortgagor or guarantor shall have solicited or caused to be solicited petitioning creditors to cause an involuntary bankruptcy filing with respect to the Mortgagor or (iii) voluntary transfers of either the Mortgaged Property or controlling equity interests in the Mortgagor made in violation of the Mortgage Loan documents; and (b) contains provisions for recourse against the Mortgagor and guarantor (which is a natural person or persons, or an entity or entities distinct from the Mortgagor (but may be affiliated with the Mortgagor) that collectively, as of the date of origination of the related Mortgage Loan, have assets other than equity in the related Mortgaged Property that are not de minimis), for losses and damages resulting from the following (or negotiated provisions of substantially similar effect): (i) the Mortgagor’s misappropriation of rents after an event of default, security deposits, insurance proceeds, or condemnation awards; (ii) the Mortgagor’s fraud or intentional material misrepresentation; (iii) breaches of the environmental covenants in the Mortgage Loan documents; or (iv) the Mortgagor’s commission of intentional material physical waste at the Mortgaged Property (but, in some cases, only to the extent there is sufficient cash flow generated by the related Mortgaged Property to prevent such waste).
Representative Capacity; Nonrecourse Obligations A COPY OF THE DECLARATION OF TRUST OR OTHER ORGANIZATIONAL DOCUMENT OF EACH FUND IS ON FILE WITH THE SECRETARY OF THE STATE OF THE FUND'S FORMATION, AND NOTICE IS HEREBY GIVEN THAT THIS AGREEMENT IS NOT EXECUTED ON BEHALF OF THE TRUSTEES OF ANY FUND AS INDIVIDUALS, AND THE OBLIGATIONS OF THIS AGREEMENT ARE NOT BINDING UPON ANY OF THE TRUSTEES, OFFICERS, SHAREHOLDERS OR PARTNERS OF ANY FUND INDIVIDUALLY, BUT ARE BINDING ONLY UPON THE ASSETS AND PROPERTY OF EACH FUND'S RESPECTIVE PORTFOLIOS. THE CUSTODIAN AGREES THAT NO SHAREHOLDER, TRUSTEE, OFFICER OR PARTNER OF ANY FUND MAY BE HELD PERSONALLY LIABLE OR RESPONSIBLE FOR ANY OBLIGATIONS OF ANY FUND ARISING OUT OF THIS AGREEMENT.
Nonrecourse Liabilities For purposes of Treasury Regulation Section 1.752-3(a)(3), the Partners agree that Nonrecourse Liabilities of the Partnership in excess of the sum of (A) the amount of Partnership Minimum Gain and (B) the total amount of Nonrecourse Built-in Gain shall be allocated among the Partners in accordance with their respective Percentage Interests.
Non-recourse Obligations Notwithstanding anything in this Agreement or any Basic Document, the Owner Trustee agrees in its individual capacity and in its capacity as Owner Trustee for the Trust that all obligations of the Trust to the Owner Trustee individually or as Owner Trustee for the Trust shall be with recourse to the Owner Trust Estate only and specifically shall be without recourse to the assets of the Holder.
Nonrecourse Except as otherwise set forth in this Paragraph, Xxxxxx's recourse under this Note, the Guaranty, the Deed of Trust and the other Loan Documents shall be limited to the Property and the proceeds thereof, the rents and all other income arising therefrom during and after the month in which an Event of Default has occurred, the other assets of Guarantor arising out of the Property which are given as collateral for the Guaranty, and any other collateral given in writing to Holder as security for repayment of the Guaranty or this Note (all of the foregoing are collectively referred to as the "Loan Collateral"). Notwithstanding the preceding sentence:
(a) Holder may, in accordance with the terms of this Note, the Guaranty, the Deed of Trust or any of the other Loan Documents: (i) foreclose the lien of the Deed of Trust; (ii) take appropriate action to enforce the Deed of Trust, the Guaranty, this Note and any of the other Loan Documents to realize upon and/or protect the Loan Collateral; (iii) name Maker or Guarantor as a party defendant in any action brought under this Note, the Guaranty, the Deed of Trust or any of the other Loan Documents so long as the exercise of any remedy is limited to the Loan Collateral; (iv) pursue all of its rights and remedies against any guarantor or surety or master tenant whether or not a partner, member or other owner of Maker or Guarantor; and (v) pursue all of its rights and remedies against the indemnitors under that certain Environmental Indemnity Agreement of even date herewith related to the Property;
(b) Holder may seek damages or other monetary relief, to the extent of actual monetary loss, or any other remedy at law or in equity against Maker or Guarantor, and the indemnitors/guarantors, if any, under any nonrecourse exception indemnity agreements ("Nonrecourse Indemnitors") by reason of or in connection with: (i) the failure of Maker or Guarantor to pay to Holder, upon demand, all rents, issues and profits of the Property to which Holder is entitled pursuant to this Note, the Guaranty, the Deed of Trust or any of the other Loan Documents following an Event of Default; (ii) any waste of the Property or any willful act or omission by Maker or Guarantor that damages or materially reduces the value of the Property; (iii) the distribution of rents, issues and profits from the Property prior to the payment of operating expenses or the provision for reserves, if any, to be made pursuant to this Note, the Guaranty, the Deed of Trust or any of the other Loan Documents prior to any other expenditure or distribution by Maker or Guarantor; (iv) the failure to account for and to turn over security deposits (and interest required by law or agreement to be paid thereon) or prepaid rents following the occurrence of an Event of Default; (v) the failure to timely pay all real estate taxes or any regular or special assessments affecting the Property; (vi) the failure to account for and to turn over real estate tax accruals following the occurrence of an Event of Default; (vii) the failure to maintain casualty and liability insurance as required hereunder or under the other Loan Documents or to apply insurance proceeds or condemnation awards relating to the Property or other collateral in the manner required under applicable provisions of the Deed of Trust or other Loan Documents; (viii) any modification, termination or cancellation of any lease of all or any portion of the Property without Holder's prior written consent, if and to the extent such consent is required under the Loan Documents and if and to the extent such modification, termination or cancellation has a material adverse effect on the value of the Property; (ix) a default by Guarantor under any lease of all or any portion of the Property; or (x) costs and expenses, including, without limitation, attorney's fees and transfer taxes, incurred by Holder in connection with the enforcement of this Note, the Guaranty, the Deed of Trust or any of the other Loan Documents or in connection with a deed-in-lieu of foreclosure if the Event of Default giving rise to the enforcement action is one described in subsections (b) or (c) as an exception to the nonrecourse provisions, or if Maker or Guarantor or any principal of either objects to any actions taken by Holder to exercise its remedies under this Note, the Guaranty, the Deed of Trust or any of the other Loan Documents; (xi) Maker, Guarantor or any of their principals commences any lawsuit to enjoin or delay a foreclosure of the Property by Xxxxxx, or raises defenses or counterclaims to a foreclosure action; (xii) Maker or Guarantor applies for the appointment of a receiver, trustee or liquidator for it or for any of its property, or, as a debtor, files a voluntary petition in bankruptcy, or petition or answer seeking reorganization or an arrangement with creditors or takes advantage of any bankruptcy, reorganization, insolvency, readjustment of debt, dissolution or liquidation law or statute, or makes a general assignment for the benefit of creditors; (xiii) or in the event any bankruptcy or reorganization proceedings (voluntary or involuntary), Maker, Guarantor or any principal of either opposes any motion by Holder for relief from the Automatic Stay; and
(c) Maker, Guarantor, any of their general partners and the Nonrecourse Indemnitor(s), if any, shall become personally liable for payment of all the indebtedness evidenced by this Note, the Guaranty and performance of all other obligations of Maker and Guarantor under this Note, the Guaranty, the Deed of Trust and the other Loan Documents upon the occurrence of any: (i) fraud or willful misrepresentation of a material fact by Maker, Guarantor, any of their general partners, or Nonrecourse Indemnitor(s), if any, in connection with this Note, the Guaranty, the Deed of Trust, or the other Loan Documents or any request for any action or consent by Holder; (ii) a Transfer of any interest in Maker or Guarantor or all or any portion of the Property or any interest therein in violation of the terms of this Note, the Guaranty, the Deed of Trust or the other Loan Documents; or (iii) the incurrence by Maker or Guarantor of any indebtedness in violation of the terms of this Note, the Guaranty, the Deed of Trust or the other Loan Documents (whether secured or unsecured, direct or contingent), other than unsecured debt or routine trade payables incurred in the ordinary course of business in connection with the operation of the Property. In addition, Maker, Guarantor, any of their general partners and the Nonrecourse Indemnitors, if any, shall be responsible for any costs and expenses incurred by Holder in connection with the collection of any amounts for which Maker, Guarantor, any of their the general partners, if any, and the Nonrecourse Indemnitors, if any, are personally liable under this Paragraph, including attorneys' and paralegals' fees and expenses, court costs, filing fees and all other costs and expenses incurred in connection therewith.
Excess Nonrecourse Liabilities Solely for purposes of determining a Member’s proportionate share of the “excess nonrecourse liabilities” of the Company within the meaning of Section 1.752-3(a)(3) of the Regulations, the Members’ interests in the Company’s Profits are in proportion to their LLC Percentages.
Minimum Gain Chargeback (Nonrecourse Liabilities) Except as otherwise provided in Section 1.704-2(f) of the Regulations, if there is a net decrease in Partnership Minimum Gain for any Partnership fiscal year, each Partner shall be specially allocated items of Partnership income and gain for such year (and, if necessary, subsequent years) in an amount equal to such Partner’s share of the net decrease in Partnership Minimum Gain to the extent required by Section 1.704-2(f) of the Regulations. The items to be so allocated shall be determined in accordance with Sections 1.704-2(f) and (i) of the Regulations. This subparagraph 2
(a) is intended to comply with the minimum gain chargeback requirement in said section of the Regulations and shall be interpreted consistently therewith. Allocations pursuant to this subparagraph 2(a) shall be made in proportion to the respective amounts required to be allocated to each Partner pursuant hereto.
Return of Contribution Nonrecourse to Other Members Except as provided by law, upon dissolution, each member shall look solely to the assets of the Company for the return of the member's capital contribution. If the Company property remaining after the payment or discharge of the Company's debts and liabilities is insufficient to return the cash contribution of one or more members, such member or members shall have no recourse against any other member or the Board.
Member Nonrecourse Debt Minimum Gain Chargeback Except as otherwise provided in Treasury Regulations Section 1.704-2(i)(4), notwithstanding any other provision of this Article V, if there is a net decrease in Member Nonrecourse Debt Minimum Gain attributable to a Member Nonrecourse Debt during any Fiscal Year, each Member who has a share of the Member Nonrecourse Debt Minimum Gain attributable to such Member Nonrecourse Debt, determined in accordance with Treasury Regulations Section 1.704-2(i)(5), shall be specially allocated items of Company income and gain for such Fiscal Year (and, if necessary, subsequent Fiscal Years) in an amount equal to such Member’s share of the net decrease in Member Nonrecourse Debt Minimum Gain attributable to such Member Nonrecourse Debt, determined in accordance with Treasury Regulations Section 1.704-2(i)(4). Allocations pursuant to the previous sentence shall be made in proportion to the respective amounts required to be allocated to each Member pursuant thereto. The items to be so allocated shall be determined in accordance with Treasury Regulations Sections 1.704-2(i)(4) and 1.704-2(j)(2). This Section 5.04(b)(ii) is intended to comply with the minimum gain chargeback requirement in Treasury Regulations Section 1.704-2(i)(4) and shall be interpreted consistently therewith.
Non-Recourse Indebtedness Indebtedness of the Borrower, the Guarantors, their Subsidiaries or an Unconsolidated Affiliate which is secured by one or more parcels of Real Estate or interests therein or equipment and which is not a general obligation of the Borrower, such Guarantor, such Subsidiary or Unconsolidated Affiliate, the holder of such Indebtedness having recourse solely to the parcels of Real Estate, or interests therein, securing such Indebtedness, the leases thereon and the rents, profits and equity thereof or equipment, as applicable (except for recourse against the general credit of the Borrower, the Guarantors or their Subsidiaries or an Unconsolidated Affiliate for any Non-Recourse Exclusions), provided that in calculating the amount of Non-Recourse Indebtedness at any time, the amount of any Non-Recourse Exclusions which are the subject of a claim shall not be included in the Non-Recourse Indebtedness but shall constitute recourse Indebtedness. Non-Recourse Indebtedness shall also include Indebtedness of one or more Subsidiaries of Parent Company that is a special purpose entity (each a “SPE Subsidiary”) provided that all of the following conditions are satisfied to Agent’s reasonable satisfaction: (i) the Indebtedness is recourse solely to such SPE Subsidiary and, if applicable, a separate Subsidiary of Parent Company that guarantees such Indebtedness and whose sole assets are ownership of the Equity Interests in the SPE Subsidiary that is primarily liable (each a “SPE Guarantor”) (except for guaranties of customary Non-Recourse Exclusions until a claim is made with respect thereto, and then shall be included only to the extent of the amount of such claim), (ii) neither the SPE Subsidiary nor the SPE Guarantor are the Borrower, a Guarantor or the owner of any direct or indirect interest in a Guarantor, (iii) such Indebtedness is not cross-defaulted to other Indebtedness of the Borrower, the Guarantors or their respective Subsidiaries, (iv) such Indebtedness does not constitute Indebtedness of any other Person (other than such the SPE Subsidiary which is the borrower thereunder or the SPE Guarantor which is the guarantor thereunder) (except for guaranties of customary Non-Recourse Exclusions until a claim is made with respect thereto, and then shall be included only to the extent of the amount of such claim) and (v) the only collateral for such Indebtedness are the assets owned by the SPE Subsidiaries incurring such Indebtedness.
