Nonrecourse. Except as otherwise set forth in this Section, and subject to Section 3.12 hereof, Mortgagee's recourse under this Mortgage, the Note and the Related Agreements shall be limited to and satisfied from the Property and the proceeds thereof, the rents and all other income a rising therefrom during and after the month in which an Event of Default has occurred, the other assets of Mortgagor arising out of the Property which are given as collateral for the Note, and any other collateral given in writing to Mortgagee as security for repayment of the Note (all of the foregoing are collectively referred to as the "Loan Collateral"). Notwithstanding the preceding sentence: (A) Mortgagee may, in accordance with the terms of this Mortgage, the Note or any Related Agreement: (1) foreclose the lien of this Mortgage; (2) take appropriate action to enforce this Mortgage, the Note and the Related Agreements to realize upon and/or protect the Loan Collateral; (3) name Mortgagor as a party defendant in any action brought under this Mortgage, the Note or the Related Agreements so long as the exercise of any remedy is limited to the Loan Collateral; (4) 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 Mortgagor; and (5) pursue all of its rights and remedies against Mortgagor and the indemnitors under that certain Environmental Indemnity Agreement of even date herewith and that certain Terrorism Insurance Indemnity Agreement of even date herewith; (B) Mortgagee may seek damages or other monetary relief, to the extent of actual monetary loss, or any other remedy at law or in equity against Mortgagor, and the indemnitors/guarantors, if any, under any nonrecourse exception indemnity agreements ("Nonrecourse Indemnitors") by reason of or in connection with: (1) the failure of Mortgagor to pay to Mortgagee, upon demand, all rents, issues and profits of the Property to which Mortgagee is entitled pursuant to this Mortgage, the Note or the Related Agreements following an Event of Default; (2) any waste of the Property or any willful act or omission by Mortgagor which damages or materially reduces the value of the Property; (3) 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 Mortgage, the Note or the Related Agreement prior to any other expenditure or distribution by Mortgagor; (4) 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 under this Mortgage, the Note or any Related Agreements; (5) the failure to timely pay all real estate taxes or any regular or special assessments affecting the Property; (6) the failure to account for and to turn over real estate tax accruals following the occurrence of an Event of Default under this Mortgage, the Note or any Related Agreements; (7) the failure to maintain casualty and liability insurance as required under the Note or the Related Agreements or to apply insurance proceeds or condemnation awards relating to the Property or other collateral in the manner required under applicable provisions of this Mortgage, the Note or any Related Agreements; (8) any modification, termination or cancellation of any lease of all or any portion of the Property without Mortgagee's prior written consent, if and to the extent such consent is required under the Note or the Related Agreements and if and to the extent such modification, termination or cancellation has a material adverse affect on the value of the Property; (9) a default by Mortgagor under any lease of all or any portion of the Property; or (10) costs and expenses, including, without limitation, attorneys' and paralegals' fees and transfer taxes, incurred by Mortgagee in connection with the enforcement of this Mortgage, the Note or the Related Agreements 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 the Mortgagor or any principal of Mortgagor objects to any actions taken by Mortgagee to exercise its remedies under this Mortgage, the Note or the Related Agreements; Mortgagor or principal of Mortgagor commences any lawsuit to enjoin or delay a foreclosure of the Property by Mortgagee, or raises defenses or counterclaims to a foreclosure action; Mortgagor 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; or in the event any bankruptcy or reorganization proceedings (voluntary or involuntary), the Mortgagor or any principal of Mortgagor opposes any motion by Mortgagee for relief from the Automatic Stay; and (C) Mortgagor, any general partners of Mortgagor and the Nonrecourse Indemnitor(s), if any, shall become personally liable for payment of all the indebtedness evidenced by the Note and performance of all other obligations of Mortgagor under this Mortgage, the Note and Related Agreements upon the occurrence of any: (i) fraud or willful misrepresentation of a material fact by Mortgagor, any general partners of Mortgagor, or Nonrecourse Indemnitor(s), if any, in connection with this Mortgage, the Note, the Related Agreements or any request for any action or consent by Mortgagee; (ii) a Transfer of any interest in Mortgagor or all or any portion of the Property or any interest therein in violation of the terms of this Mortgage, the Note or the Related Agreements; or (iii) the incurrence by Mortgagor of any indebtedness in violation of the terms of this Mortgage, the Note or Related Agreements (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, Mortgagor, any general partners of Mortgagor and the Nonrecourse Indemnitors, if any, shall be responsible for any costs and expenses incurred by Mortgagee in connection with the collection of any amounts for which Mortgagor, its general partners, if any, and the Nonrecourse Indemnitors, if any, are personally liable under this Section 3.11, including attorneys' and paralegals' fees and expenses, court costs, filing fees and all other costs and expenses incurred in connection therewith.
Appears in 1 contract
Nonrecourse. Except as otherwise set forth in this Section, and subject to Section 3.12 hereofsection 3.12, Mortgagee's ’s recourse under this Mortgage, the Note and the Related Agreements shall be limited to and satisfied from the Property and the proceeds thereof, the rents Rents and all other income a rising therefrom during and after the month in which an Event of Default has occurredProfits arising therefrom, the other assets of Mortgagor arising out of the Property which are given as collateral for the Note, and any other collateral given in writing to Mortgagee as security for repayment of the Note (all of the foregoing are collectively referred to as the "“Loan Collateral"”). Notwithstanding the preceding sentence:
(A) Mortgagee may, in accordance with the terms of the Note, this Mortgage, the Note Mortgage or any Related Agreement: (1i) foreclose the lien of this Mortgage; (2ii) take appropriate action to enforce the Note, this Mortgage, the Note Mortgage and the Related Agreements to realize upon and/or protect the Loan Collateral; (3iii) name Mortgagor as a party defendant in any action brought under the Note, this Mortgage, the Note Mortgage or the any Related Agreements Agreement so long as the exercise of any remedy is limited to the Loan Collateral; (4iv) pursue all of its rights and remedies against any guarantor or surety or master tenant tenant, whether or not such guarantor, including any guarantor of the Loan, or any surety or master tenant is a partner, member or other owner of Mortgagor; and (5v) pursue all of its rights and remedies against Mortgagor and the indemnitors other indemnitor under that certain Environmental Indemnity Agreement of even date herewith and that certain Terrorism Insurance Indemnity Agreement (“Environmental Indemnitors”) of even date herewith;
(B) Mortgagee may seek damages or other monetary relief, relief to the extent of actual monetary loss, or injunctive relief against ▇▇▇▇▇▇▇▇▇, any other remedy at law or in equity against Mortgagor, general partner of Mortgagor and the indemnitorsindemnitor/guarantors, if any, guarantor under any nonrecourse exception indemnity agreements that certain Nonrecourse Exception Indemnity and Guaranty Agreement of even date herewith ("“Nonrecourse Indemnitors"Exception Guarantor”) by reason of or in connection with, and to the extent caused by: (1i) the failure of Mortgagor to pay to Mortgagee, upon demand, all rents, issues and profits of the Property to which Mortgagee is entitled pursuant to the Note, this Mortgage, the Note Mortgage or the Related Agreements following during the continuance of an Event of Default; (2ii) any physical waste of the Property or any caused by the willful act or omission by Mortgagor which damages or materially reduces the value of the Property; (3iii) the distribution of failure to apply all rents, issues and profits from the Property prior to the payment of operating expenses or expenses, real estate taxes, insurance, capital repair items, and the provision for reservespayment of sums due and owing under the Note, if any, to be made pursuant to this Mortgage, the Note Mortgage or the Related Agreement Agreements prior to any other expenditure or distribution by MortgagorMortgagor and Mortgagor shall have failed to remedy such breach within thirty (30) days after Mortgagee notifies Mortgagor of same in writing; (4iv) the failure to account for and to turn over security deposits (and interest required by law or agreement to be paid thereon) ), prepaid rents, or prepaid rents following lease termination payments during the occurrence continuance of an Event of Default under this Mortgage, the Note or any Related AgreementsDefault; (5v) the failure to timely pay all real estate taxes or any regular or special assessments affecting the PropertyProperty (unless sufficient sums are in escrow with Mortgagee to make payment); (6vi) the failure to account for and to turn over real estate tax accruals following during the occurrence continuance of an Event of Default under the Note, this Mortgage, Mortgage or the Note or any Related Agreements; (7vii) the failure to maintain casualty and liability insurance as required under the Note this Mortgage or the Related Agreements (unless the failure to maintain is due to the Mortgagee’s failure to apply amounts available in escrow to make payment) or to apply insurance proceeds or condemnation awards relating to the Property or other collateral to the extent actually received by Mortgagor in the manner required under applicable provisions of this Mortgage, Mortgage or the Note or any Related Agreements; (8) viii) any modification, termination or cancellation of any lease of all or any portion of the Property without Mortgagee's ’s prior written consent, if and to the extent such consent is required under the Note this Mortgage or any of the Related Agreements and if and to the extent such modification, termination or cancellation has a material adverse affect effect on the value of the Property; (9ix) a default by Mortgagor under any lease of all or any portion of the Property; or (10x) failure of Mortgagor to pay costs and expenses, including, without limitation, attorneys' and paralegals' attorney’s fees and transfer taxes, incurred by Mortgagee in connection with the enforcement of the Note, this Mortgage, the Note or the Related Agreements 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 the Mortgagor or any principal of Mortgagor objects to any actions taken by Mortgagee to exercise its remedies under this Mortgage, the Note Mortgage or the Related Agreements; Mortgagor or principal of Mortgagor commences any lawsuit to enjoin or delay a foreclosure of the Property by Mortgagee, or raises defenses or counterclaims to a foreclosure action; Mortgagor applies for the appointment deed in lieu 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; or in the event any bankruptcy or reorganization proceedings (voluntary or involuntary), the Mortgagor or any principal of Mortgagor opposes any motion by Mortgagee for relief from the Automatic Stay; andforeclosure;
(C) Mortgagor▇▇▇▇▇▇▇▇▇, any general partners partner of Mortgagor ▇▇▇▇▇▇▇▇▇ and the Nonrecourse Indemnitor(s), if any, Exception Guarantor shall become be personally liable for payment of all the entire indebtedness evidenced by the Note and performance the costs of performing all other obligations of Mortgagor under the Note, this Mortgage, Mortgage and the Note and Related Agreements upon (all of the occurrence foregoing collectively referred to as the “Full Recourse Obligations”) provided, however, Mortgagee will not enforce such payment of anythe Full Recourse Obligations against any assets other than the Loan Collateral unless and until one of the following occurs: (i) fraud or willful misrepresentation of a material fact made by Mortgagor▇▇▇▇▇▇▇▇▇, any general partners the managing member or manager of Mortgagor, or the Nonrecourse Indemnitor(s), if any, Indemnitor in connection with this Mortgage, the Note, this Mortgage or the Related Agreements or in connection with any request for any action or consent by Mortgageeon the part of Mortgagee under the Note, this Mortgage or any Related Agreement; (ii) a Transfer of any interest in the Mortgagor or all or any portion of the Property or any interest therein in violation of the terms of the Note, this Mortgage, the Note Mortgage or the Related Agreements; or (iii) the incurrence by Mortgagor of any indebtedness in violation of the terms of the Note, this Mortgage, the Note Mortgage or any Related Agreements Agreement (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; (iv) any attempt by ▇▇▇▇▇▇▇▇▇ to unjustly delay or enjoin the enforcement of any remedies provided to Holder under the Note, this Mortgage or any Related Agreement, raise defenses or counterclaims in connection with any such enforcement action, or otherwise object (in bad faith) to any actions taken by Mortgagee to exercise any remedies under the Note, this Mortgage or any Related Agreement; (v) any petition for bankruptcy, reorganization or arrangement pursuant to federal bankruptcy law or any similar federal or state law, shall be filed by, consented to, or acquiesced in by Mortgagor, any general partner of Mortgagor, or the Nonrecourse Indemnitor; or (vi) any action is taken by ▇▇▇▇▇▇▇▇▇, any general partner of Mortgagor, or the Nonrecourse Indemnitor to oppose any motion by Mortgagee for relief from the automatic stay in connection with any bankruptcy, reorganization or arrangement filed by, consented to, or acquiesced by ▇▇▇▇▇▇▇▇▇. In addition, Mortgagor, any general partners of Mortgagor ▇▇▇▇▇▇▇▇▇ and the Nonrecourse Indemnitors, if any, Exception Guarantor shall be responsible for any costs and expenses incurred by Mortgagee in connection with the collection of any amounts for which Mortgagor, its general partners, if any, and the or Nonrecourse Indemnitors, if any, Exception Guarantor are personally liable under this Section 3.11section, including attorneys' and paralegals' ’ fees and expenses, court costs, filing fees fees, and all other costs and expenses incurred in connection therewith.
Appears in 1 contract
Sources: Mortgage Agreement (GTJ REIT, Inc.)
Nonrecourse. Except as otherwise set forth in this SectionParagraph, and subject to Section 3.12 hereof, Mortgagee▇▇▇▇▇▇'s recourse under this MortgageNote, the Note AIC Note, the Mortgage and the Related Agreements shall be limited to and satisfied from the Property and the proceeds thereof, the rents and all other income a rising arising therefrom during and after the month in which an Event of Default has occurred, the other assets of Mortgagor Maker arising out of the Property which are given as collateral for this Note and the Note, AIC Note and any other collateral given in writing to Mortgagee Holder as security for repayment of the this Note (all of the foregoing are collectively referred to as the "Loan Collateral"). Notwithstanding the preceding sentence:
(Aa) Mortgagee Holder may, in accordance with the terms of this MortgageNote, the Note AIC Note, the Mortgage or any Related Agreement: (1i) foreclose the lien of this the Mortgage; (2ii) take appropriate action to enforce this MortgageNote, the Note AIC Note, the Mortgage and the Related Agreements to realize upon and/or protect the Loan Collateral; (3iii) name Mortgagor Maker as a party defendant in any action brought under this MortgageNote, the Note AIC Note, the Mortgage or the Related Agreements so long as the exercise of any remedy is limited to the Loan Collateral; (4iv) 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 MortgagorMaker; and (5v) pursue all of its rights and remedies against Mortgagor Maker and the indemnitors under that certain Environmental Indemnity Agreement of even date herewith and that certain Terrorism Insurance Indemnity Agreement of even date herewith;
(Bb) Mortgagee 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 MortgagorMaker, and the indemnitors/guarantors, if any, under any nonrecourse exception indemnity agreements ("Nonrecourse Indemnitors") by reason of or in connection with: (1i) the failure of Mortgagor Maker to pay to MortgageeHolder, upon demand, all rents, issues and profits of the Property to which Mortgagee Holder is entitled pursuant to this MortgageNote, the Note AIC Note, the Mortgage or the Related Agreements following an Event of Default; (2ii) any waste of the Property or any willful act or omission by Mortgagor Maker which damages or materially reduces the value of the Property; (3iii) 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 MortgageNote, the Note AIC Note, the Mortgage or the Related Agreement Agreements prior to any other expenditure or distribution by MortgagorMaker; (4iv) 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 under this MortgageNote, the Note AIC Note, the Mortgage or any Related Agreements; (5v) the failure to timely pay all real estate taxes or any regular or special assessments affecting the Property; (6vi) the failure to account for and to turn over real estate tax accruals following the occurrence of an Event of Default under this MortgageNote, the Note AIC Note, the Mortgage or any Related Agreements; (7vii) the failure to maintain casualty and liability insurance as required under the Note Mortgage or the Related Agreements or to apply insurance proceeds or condemnation awards relating to the Property or other collateral in the manner required under applicable provisions of this MortgageNote, the Note AIC Note, the Mortgage or any Related AgreementsAgreement; (8) viii) any modification, termination or cancellation of any lease of all or any portion of the Property without MortgageeHolder's prior written consent, if and to the extent such consent is required under the Note Mortgage or the Related Agreements and if and to the extent such modification, termination or cancellation has a material adverse affect on the value of the Property; (9ix) a default by Mortgagor Maker under any lease of all or any portion of the Property; or (10x) costs and expenses, including, without limitation, attorneys' and paralegals' attorney's fees and transfer taxes, incurred by Mortgagee Holder in connection with the enforcement of this MortgageNote, the Note AIC Note, the Mortgage or the Related Agreements 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 (Bb) or (Cc) as an exception to the nonrecourse provisions, or if the Mortgagor Maker or any principal of Mortgagor Maker objects to any actions taken by Mortgagee Holder to exercise its remedies under this Mortgage, the Note or the Related AgreementsLoan Documents; Mortgagor Maker or principal of Mortgagor Maker commences any lawsuit to enjoin or delay a foreclosure of the Property by Mortgagee▇▇▇▇▇▇, or raises defenses or counterclaims to a foreclosure action; Mortgagor Maker 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; or in the event any bankruptcy or reorganization proceedings (voluntary or involuntary), the Mortgagor Maker or any principal of Mortgagor Maker opposes any motion by Mortgagee Holder for relief from the Automatic Stay; and
(Cc) MortgagorMaker, any its sole member or general partners of Mortgagor and the Nonrecourse Indemnitor(s), if any, shall become personally liable for payment of all the indebtedness evidenced by this Note or the AIC Note and performance of all other obligations of Mortgagor Maker under this MortgageNote, the Note AIC Note, the Mortgage and Related Agreements upon the occurrence of anyany of the following: (i) fraud or willful misrepresentation of a material fact by MortgagorMaker, any its sole or general partners of Mortgagorpartners, or Nonrecourse Indemnitor(s), if any, in connection with this MortgageNote, the AIC Note, the Mortgage, the Related Agreements or any request for any action or consent by MortgageeHolder; (ii) a Transfer of any interest in Mortgagor Maker or all or any portion of the Property or any interest therein in violation of the terms of this MortgageNote, the Note AIC Note, the Mortgage or the Related Agreements; or (iii) the incurrence by Mortgagor Maker of any indebtedness in violation of the terms of this MortgageNote, the Note AIC Note, the Mortgage or Related Agreements (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, MortgagorMaker, any its sole member or general partners of Mortgagor and the Nonrecourse Indemnitors, if any, shall be responsible for any costs and expenses incurred by Mortgagee Holder in connection with the collection of any amounts for which MortgagorMaker, its sole member or general partners, if any, and the Nonrecourse Indemnitors, if any, are personally liable under this Section 3.11Paragraph 17, including attorneys' and paralegals' fees and expenses, court costs, filing fees and all other costs and expenses incurred in connection therewith.
Appears in 1 contract
Sources: Mortgage Note (Inland Western Retail Real Estate Trust Inc)
Nonrecourse. Except as otherwise set forth in this Section, and subject to Section 3.12 hereof, Mortgagee's recourse under this Mortgage, the Note and the Related Agreements shall be limited to and satisfied from the Property and the proceeds thereof, the rents and all other income a rising arising therefrom during and after the month in which an Event of Default has occurred, the other assets of Mortgagor arising out of the Property which are given as collateral for the Note, and any other collateral given in writing to Mortgagee as security for repayment of 36 the Note (all of the foregoing are collectively referred to as the "Loan Collateral"). Notwithstanding the preceding sentence:
(A) Mortgagee may, in accordance with the terms of this Mortgage, the Note or any Related Agreement: (1) foreclose the lien of this Mortgage; (2) take appropriate action to enforce this Mortgage, the Note and the Related Agreements to realize upon and/or protect the Loan Collateral; (3) name Mortgagor as a party defendant in any action brought under this Mortgage, the Note or the Related Agreements so long as the exercise of any remedy is limited to the Loan Collateral; (4) 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 Mortgagor; and (5) pursue all of its rights and remedies against Mortgagor and the indemnitors under that certain Environmental Indemnity Agreement of even date herewith and that certain Terrorism Insurance Indemnity Agreement of even date herewith;
(B) Mortgagee may seek damages or other monetary relief, to the extent of actual monetary loss, or any other remedy at law or in equity against Mortgagor, and the indemnitors/guarantors, if any, under any nonrecourse exception indemnity agreements ("Nonrecourse Indemnitors") by reason of or in connection with: (1) the failure of Mortgagor to pay to Mortgagee, upon demand, all rents, issues and profits of the Property to which Mortgagee is entitled pursuant to this Mortgage, the Note or the Related Agreements following an Event of Default; (2) any waste of the Property or any willful act or omission by Mortgagor which damages or materially reduces the value of the Property; (3) 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 Mortgage, the Note or the Related Agreement prior to any other expenditure or distribution by Mortgagor; (4) 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 under this Mortgage, the Note or any Related Agreements; (5) the failure to timely pay all real estate taxes or any regular or special assessments affecting the Property; (6) the failure to account for and to turn over real estate tax accruals following the occurrence of an Event of Default under this Mortgage, the Note or any Related Agreements; (7) the failure to maintain casualty and liability insurance as required under the Note or the Related Agreements or to apply insurance proceeds or condemnation awards relating to the Property or other collateral in the manner required under applicable provisions of this Mortgage, the Note or any Related Agreements; (8) any modification, termination or cancellation of any lease of all or any portion of the Property without Mortgagee's prior written consent, if and to the extent such consent is required under the Note or the Related Agreements and if and to the extent such modification, termination or cancellation has a material adverse affect on the value of the Property; (9) a default by Mortgagor under any lease of all or any portion of the Property; or (10) costs and expenses, including, without limitation, attorneys' and paralegals' fees and transfer taxes, incurred by Mortgagee in connection with the enforcement of this Mortgage, the Note or the Related Agreements 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 the Mortgagor or any principal of Mortgagor objects to any actions taken by Mortgagee to exercise its remedies under this Mortgage, the Note or the Related Agreements; Mortgagor or principal of Mortgagor commences any lawsuit to enjoin or delay a foreclosure of the Property by Mortgagee, or raises defenses or counterclaims to a foreclosure action; Mortgagor applies for the appointment of a 37 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; or in the event any bankruptcy or reorganization proceedings (voluntary or involuntary), the Mortgagor or any principal of Mortgagor opposes any motion by Mortgagee for relief from the Automatic Stay; and
(C) Mortgagor, any general partners of Mortgagor and the Nonrecourse Indemnitor(s), if any, shall become personally liable for payment of all the indebtedness evidenced by the Note and performance of all other obligations of Mortgagor under this Mortgage, the Note and Related Agreements upon the occurrence of any: (i) fraud or willful misrepresentation of a material fact by Mortgagor, any general partners of Mortgagor, or Nonrecourse Indemnitor(s), if any, in connection with this Mortgage, the Note, the Related Agreements or any request for any action or consent by Mortgagee; (ii) a Transfer of any interest in Mortgagor or all or any portion of the Property or any interest therein in violation of the terms of this Mortgage, the Note or the Related Agreements; or (iii) the incurrence by Mortgagor of any indebtedness in violation of the terms of this Mortgage, the Note or Related Agreements (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, Mortgagor, any general partners of Mortgagor and the Nonrecourse Indemnitors, if any, shall be responsible for any costs and expenses incurred by Mortgagee in connection with the collection of any amounts for which Mortgagor, its general partners, if any, and the Nonrecourse Indemnitors, if any, are personally liable under this Section 3.11, including attorneys' and paralegals' fees and expenses, court costs, filing fees and all other costs and expenses incurred in connection therewith.
Appears in 1 contract
Nonrecourse. Except as otherwise set forth in this SectionParagraph, and subject to Section 3.12 hereof, Mortgagee▇▇▇▇▇▇'s recourse under this MortgageNote, the Note AIC Phase II Note, the Deed of Trust and the Related Agreements shall be limited to and satisfied from the Property and the proceeds thereof, the rents and all other income a rising arising therefrom during and after the month in which an Event of Default has occurred, the other assets of Mortgagor Maker arising out of the Property which are given as collateral for this Note and the Note, AIC Phase II Note and any my other collateral given in writing to Mortgagee Holder as security for repayment of the this Note (all of the foregoing are collectively referred to as the "Loan Collateral"). Notwithstanding the preceding sentence:
(Aa) Mortgagee Holder may, in accordance with the terms of this MortgageNote, the Note AIC Phase II Note, the Deed of Trust or any Related Agreement: (1i) foreclose the lien of this Mortgagethe Deed of Trust; (2ii) take appropriate action to enforce this MortgageNote, the Note AIC Phase II Note, the Deed of Trust and the Related Agreements to realize upon and/or protect the Loan Collateral; (3iii) name Mortgagor Maker as a party defendant in any action brought under this MortgageNote, the Note AIC Phase II Note, the Deed of Trust or the Related Agreements so long as the exercise of any remedy is limited to the Loan Collateral; (4iv) 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 MortgagorMaker; and (5v) pursue all of its rights and remedies against Mortgagor Maker and the indemnitors under that certain Environmental Indemnity Agreement of even date herewith and that certain Terrorism Insurance Indemnity Agreement of even date herewith;
(Bb) Mortgagee 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 MortgagorMaker, and the indemnitors/guarantors, if any, under any nonrecourse exception indemnity agreements ("Nonrecourse Indemnitors") by reason of or in connection with: (1i) the failure of Mortgagor Maker to pay to MortgageeHolder, upon demand, all rents, issues and profits of the Property to which Mortgagee Holder is entitled pursuant to this MortgageNote, the Note AIC Phase II Note, the Deed of Trust or the Related Agreements following an Event of Default; (2ii) any waste of the Property or any willful act or omission by Mortgagor Maker which damages or materially reduces the value of the Property; (3iii) 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 MortgageNote, the Note AIC Phase II Note, the Deed of Trust or the Related Agreement prior to any other expenditure or distribution by MortgagorMaker; (4iv) 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 under this MortgageNote, the Note AIC Phase II Note, the Deed of Trust or any Related Agreements; (5v) the failure to timely pay all real estate taxes or any regular or special assessments affecting the Property; (6vi) the failure to account for and to turn over real estate tax accruals following the occurrence of an Event of Default under this MortgageNote, the Note AIC Phase II Note, the Deed of Trust or any Related Agreements; (7vii) the failure to maintain casualty and liability insurance as required under the Note Deed of Trust or the Related Agreements or to apply insurance proceeds or condemnation awards relating to the Property or other collateral in the manner required under applicable provisions of this MortgageNote, the Note AIC Phase II Note, the Deed of Trust or any Related Agreements; (8) viii) any modification, termination or cancellation of any lease of all or any portion of the Property without MortgageeHolder's prior written consent, if and to the extent such consent is required under the Note Deed of Trust or the Related Agreements and if and to the extent such modification, termination or cancellation has a material adverse affect on the value of the Property; (9ix) a default by Mortgagor Maker under any lease of all or any portion of the Property; (x) all transfer, recordation or other taxes imposed at any time by the State of Tennessee, Madison County, Tennessee or other governmental authority with jurisdiction over the Property relating to this Note, the AIC Phase II Note, the Deed of Trust or any Related Agreement; or (10xi) costs and expenses, including, without limitation, attorneys' and paralegals' attorney's fees and transfer taxes, incurred by Mortgagee Holder in connection with the enforcement of this MortgageNote, the Note AIC Phase II Note, the Deed of Trust or the Related Agreements 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 (Bb) or (Cc) as an exception to the nonrecourse provisions, or if the Mortgagor Maker or any principal of Mortgagor Maker objects to any actions taken by Mortgagee Holder to exercise its remedies under this Mortgage, the Note or the Related AgreementsLoan Documents; Mortgagor Maker or principal of Mortgagor Maker commences any lawsuit to enjoin or delay a foreclosure of the Property by Mortgagee▇▇▇▇▇▇, or raises defenses or counterclaims to a foreclosure action; Mortgagor Maker 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; or in the event any bankruptcy or reorganization proceedings (voluntary or involuntary), the Mortgagor Maker or any principal of Mortgagor Maker opposes any motion by Mortgagee ▇▇▇▇▇▇ for relief from the Automatic Stay; and
(Cc) MortgagorMaker, any general partners of Mortgagor Maker and the Nonrecourse Indemnitor(s), if any, shall become personally liable for payment of all the indebtedness evidenced by this Note or the AIC Phase II Note and performance of all other obligations of Mortgagor Maker under this MortgageNote, the Note AIC Phase II Note, the Deed of Trust and Related Agreements upon the occurrence of anyany of the following: (i) fraud or willful misrepresentation of a material fact by MortgagorMaker, any general partners of MortgagorMaker, or Nonrecourse Indemnitor(s), if any, in connection with this MortgageNote, the AIC Phase II Note, the Deed of Trust, the Related Agreements or any request for any action or consent by MortgageeHolder; (ii) a Transfer of any interest in Mortgagor Maker or all or any portion of the Property or any interest therein in violation of the terms of this MortgageNote, the Note AIC Phase II Note, the Deed of Trust or the Related Agreements; or (iii) the incurrence by Mortgagor Maker of any indebtedness in violation of the terms of this MortgageNote, the Note AIC Phase II Note, the Deed of Trust or Related Agreements (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, MortgagorMaker, any general partners of Mortgagor Maker and the Nonrecourse Indemnitors, if any, shall be responsible for any costs and expenses incurred by Mortgagee Holder in connection with the collection of any amounts for which MortgagorMaker, its general partners, if any, and the Nonrecourse Indemnitors, if any, are personally liable under this Section 3.11Paragraph 17, including attorneys' and paralegals' fees and expenses, court costs, filing fees and all other costs and expenses incurred in connection therewith.
Appears in 1 contract
Sources: Mortgage Note (Inland Western Retail Real Estate Trust Inc)
Nonrecourse. Except as otherwise set forth in this SectionParagraph, and subject to Section 3.12 hereof, Mortgagee▇▇▇▇▇▇'s recourse under this MortgageNote, the Note Mortgage and the Related Agreements shall be limited to and satisfied from the Property and the proceeds thereof, the rents and all other income a rising arising therefrom during and after the month in which an Event of Default has occurred, the other assets of Mortgagor Maker arising out of the Property which are given as collateral for this Note or the ▇▇▇▇ Note, and any other collateral given in writing to Mortgagee Holder as security for repayment of this Note or the ▇▇▇▇ Note (all of the foregoing are collectively referred to as the "Loan Collateral"). Notwithstanding the preceding sentence:
(Aa) Mortgagee Holder may, in accordance with the terms of this MortgageNote, the Note ▇▇▇▇ Note, the Mortgage or any Related Agreement: (1i) foreclose the lien of this the Mortgage; (2ii) take appropriate action to enforce this MortgageNote, the Note ▇▇▇▇ Note, the Mortgage and the Related Agreements to realize upon and/or protect the Loan Collateral; (3iii) name Mortgagor Maker as a party defendant in any action brought under this MortgageNote, the Note ▇▇▇▇ Note, the Mortgage or the Related Agreements so long as the exercise of any remedy is limited to the Loan Collateral; (4iv) 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 MortgagorMaker; and (5v) pursue all of its rights and remedies against Mortgagor Maker and the indemnitors under 7 that certain Environmental Indemnity Agreement of even date herewith and that certain Terrorism Insurance Indemnity Agreement of even date herewith;
(Bb) Mortgagee 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 MortgagorMaker, and the indemnitors/guarantors, if any, under any nonrecourse exception indemnity agreements ("Nonrecourse Indemnitors") by reason of or in connection with: (1i) the failure of Mortgagor Maker to pay to MortgageeHolder, upon demand, all rents, issues and profits of the Property to which Mortgagee Holder is entitled pursuant to this MortgageNote, the Note ▇▇▇▇ Note, the Mortgage or the Related Agreements following an Event of Default; (2ii) any waste of the Property or any willful act or omission by Mortgagor Maker which damages or materially reduces the value of the Property; (3iii) 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 MortgageNote, the Note ▇▇▇▇ Note, the Mortgage or the Related Agreement prior to any other expenditure or distribution by MortgagorMaker; (4iv) 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 under this MortgageNote, the Note Mortgage or any Related Agreements; (5v) the failure to timely pay all real estate taxes or any regular or special assessments affecting the Property; (6vi) the failure to account for and to turn over real estate tax accruals following the occurrence of an Event of Default under this MortgageNote, the Note Mortgage or any Related Agreements; (7vii) the failure to maintain casualty and liability insurance as required under the Note Mortgage or the Related Agreements or to apply insurance proceeds or condemnation awards relating to the Property or other collateral in the manner required under applicable provisions of this MortgageNote, the Note ▇▇▇▇ Note, the Mortgage or any Related Agreements; (8) viii) any modification, termination or cancellation of any lease of all or any portion of the Property without MortgageeHolder's prior written consent, if and to the extent such consent is required under the Note Mortgage or the Related Agreements and if and to the extent such modification, termination or cancellation has a material adverse affect on the value of the Property; (9ix) a default by Mortgagor Maker under any lease of all or any portion of the Property; or (10x) costs and expenses, including, without limitation, attorneys' and paralegals' attorney's fees and transfer taxes, incurred by Mortgagee Holder in connection with the enforcement of this MortgageNote, the Note ▇▇▇▇ Note, the Mortgage or the Related Agreements 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 (Bb) or (Cc) as an exception to the nonrecourse provisions, or if the Mortgagor Maker or any principal of Mortgagor Maker objects to any actions taken by Mortgagee Holder to exercise its remedies under this Mortgage, the Note or the Related AgreementsLoan Documents; Mortgagor Maker or principal of Mortgagor Maker commences any lawsuit to enjoin or delay a foreclosure of the Property by Mortgagee▇▇▇▇▇▇, or raises defenses or counterclaims to a foreclosure action; Mortgagor Maker 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; or in the event any bankruptcy or reorganization proceedings (voluntary or involuntary), the Mortgagor Maker or any principal of Mortgagor Maker opposes any motion by Mortgagee Holder for relief from the Automatic Stay; and
(Cc) MortgagorMaker, any general partners of Mortgagor Maker and the Nonrecourse Indemnitor(s), if any, shall become personally liable for payment of all the indebtedness evidenced by this Note or the ▇▇▇▇ Note and performance of all other obligations of Mortgagor Maker under this MortgageNote, the Note ▇▇▇▇ Note, the Mortgage and Related Agreements upon the occurrence of anyany of the following: (i) fraud or willful misrepresentation of a material fact by MortgagorMaker, any general partners of MortgagorMaker, or Nonrecourse Indemnitor(s), if any, in connection with this MortgageNote, the ▇▇▇▇ Note, the Mortgage, the Related Agreements or any request for any action or consent by MortgageeHolder; (ii) a Transfer of any interest in Mortgagor Maker or all or any portion of the Property or any interest therein in violation of the terms of this MortgageNote, the Note ▇▇▇▇ Note, the Mortgage or the Related Agreements; or (iii) the incurrence by Mortgagor Maker of any indebtedness in violation of the terms of this MortgageNote, the Note ▇▇▇▇ Note, the Mortgage or Related Agreements (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, MortgagorMaker, any general partners of Mortgagor Maker and the Nonrecourse Indemnitors, if any, shall be responsible for any costs and expenses incurred by Mortgagee Holder in connection with the collection of any amounts for which MortgagorMaker, its general partners, if any, and the Nonrecourse Indemnitors, if any, are personally liable under this Section 3.11Paragraph 17, including attorneys' and paralegals' fees and expenses, court costs, filing fees and all other costs and expenses incurred in connection therewith.
Appears in 1 contract
Sources: Mortgage Note (Inland Western Retail Real Estate Trust Inc)
Nonrecourse. Except as otherwise set forth in this SectionParagraph, and subject to Section 3.12 hereof, Mortgagee▇▇▇▇▇▇'s recourse under this MortgageNote, the Note Guaranty, the Deed of Trust and the Related Agreements other Loan Documents shall be limited to and satisfied from the Property and the proceeds thereof, the rents and all other income a rising arising therefrom during and after the month in which an Event of Default has occurred, the other assets of Mortgagor Guarantor arising out of the Property which are given as collateral for the NoteGuaranty, and any other collateral given in writing to Mortgagee 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:
(Aa) Mortgagee Holder may, in accordance with the terms of this MortgageNote, the Note Guaranty, the Deed of Trust or any Related Agreement: of the other Loan Documents; (1i) foreclose the lien of this Mortgagethe Deed of Trust; (2ii) take appropriate action to enforce this Mortgagethe Deed of Trust, the Guaranty, this Note and any of the Related Agreements other Loan Documents to realize upon and/or protect the Loan Collateral; (3iii) name Mortgagor Maker or Guarantor as a party defendant in any action brought under this MortgageNote, the Note Guaranty, the Deed of Trust or any of the Related Agreements other Loan Documents so long as the exercise of any remedy is limited to the Loan Collateral; (4iv) 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 MortgagorMaker or Guarantor; and (5v) pursue all of its rights and remedies against Mortgagor and the indemnitors under that certain Environmental Indemnity Agreement of even date herewith and that certain Terrorism Insurance Indemnity Agreement of even date herewithrelated to the Property;
(Bb) Mortgagee 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 MortgagorMaker or Guarantor, and the indemnitors/guarantors, if any, under any nonrecourse exception indemnity agreements ("Nonrecourse Indemnitors") by reason of or in connection with: (1i) the failure of Mortgagor Maker or Guarantor to pay to MortgageeHolder, upon demand, all rents, issues and profits of the Property to which Mortgagee Holder is entitled pursuant to this MortgageNote, the Note Guaranty, the Deed of Trust or any of the Related Agreements other Loan Documents following an Event of Default; (2ii) any waste of the Property or any willful act or omission by Mortgagor which Maker or Guarantor that damages or materially reduces the value of the Property; (3iii) 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 MortgageNote, the Note Guaranty, the Deed of Trust or any of the Related Agreement other Loan Documents prior to any other expenditure or distribution by MortgagorMaker or Guarantor; (4iv) 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 under this Mortgage, the Note or any Related AgreementsDefault; (5v) the failure to timely pay all real estate taxes or any regular or special assessments affecting the Property; (6vi) the failure to account for and to turn over real estate tax accruals following the occurrence of an Event of Default under this Mortgage, the Note or any Related AgreementsDefault; (7vii) the failure to maintain casualty and liability insurance as required hereunder or under the Note or the Related Agreements 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 this Mortgage, the Note Deed of Trust or any Related Agreementsother Loan Documents; (8) viii) any modification, termination or cancellation of any lease of all or any portion of the Property without MortgageeHolder's prior written consent, if and to the extent such consent is required under the Note or the Related Agreements Loan Documents and if and to the extent such modification, termination or cancellation has a material adverse affect effect on the value of the Property; (9ix) a default by Mortgagor Guarantor under any lease of all or any portion of the Property; or (10x) costs and expenses, including, without limitation, attorneys' and paralegals' attorney's fees and transfer taxes, incurred by Mortgagee Holder in connection with the enforcement of this MortgageNote, the Note Guaranty, the Deed of Trust or any of the Related Agreements 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 (Bb) or (Cc) as an exception to the nonrecourse provisions, or if the Mortgagor Maker or Guarantor or any principal of Mortgagor either objects to any actions taken by Mortgagee Holder to exercise its remedies under this MortgageNote, the Note Guaranty, the Deed of Trust or any of the Related Agreementsother Loan Documents; Mortgagor (xi) Maker, Guarantor or principal any of Mortgagor their principals commences any lawsuit to enjoin or delay a foreclosure of the Property by MortgageeHolder, or raises defenses or counterclaims to a foreclosure action; Mortgagor (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; or (xiii) in the event any bankruptcy or reorganization proceedings (voluntary or involuntary), the Mortgagor Maker, Guarantor or any principal of Mortgagor either opposes any motion by Mortgagee Holder for relief from the Automatic Stay; and
(Cc) MortgagorMaker, Guarantor, any of their general partners of Mortgagor and the Nonrecourse Indemnitor(s), if any, shall become personally liable for payment of all the indebtedness evidenced by this Note, the Note Guaranty and performance of all other obligations of Mortgagor Maker and Guarantor under this MortgageNote, the Note Guaranty, the Deed of Trust and Related Agreements the other Loan Documents upon the occurrence of any: (i) fraud or willful misrepresentation of a material fact by MortgagorMaker, Guarantor, any of their general partners of Mortgagorpartners, or Nonrecourse Indemnitor(s), if any, in connection with this Mortgage, the Note, the Related Agreements Guaranty, the Deed of Trust, or the other Loan Documents or any request for any action or consent by MortgageeHolder; (ii) a Transfer of any interest in Mortgagor Maker or Guarantor or all or any portion of the Property or any interest therein in violation of the terms of this MortgageNote, the Note Guaranty, the Deed of Trust or the Related Agreementsother Loan Documents; or (iii) the incurrence by Mortgagor Maker or Guarantor of any indebtedness in violation of the terms of this MortgageNote, the Note Guaranty, the Deed of Trust or Related Agreements 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, MortgagorMaker, Guarantor, any of their general partners of Mortgagor and the Nonrecourse Indemnitors, if any, shall be responsible for any costs and expenses incurred by Mortgagee Holder in connection with the collection of any amounts for which MortgagorMaker, its Guarantor, any of their the general partners, if any, and the Nonrecourse Indemnitors, if any, are personally liable under this Section 3.11Paragraph, including attorneys' and paralegals' fees and expenses, court costs, filing fees and all other costs and expenses incurred in connection therewith.
Appears in 1 contract
Sources: Mortgage Note (Inland Western Retail Real Estate Trust Inc)
Nonrecourse. Except as otherwise set forth in this SectionParagraph, and subject to Section 3.12 hereof, Mortgagee▇▇▇▇▇▇'s recourse under this MortgageNote, the Note Guaranty, the Deed of Trust and the Related Agreements other Loan Documents shall be limited to and satisfied from the Property and the proceeds thereof, the rents and all other income a rising arising therefrom during and after the month in which an Event of Default has occurred, the other assets of Mortgagor Guarantor arising out of the Property which are given as collateral for the NoteGuaranty, and any other collateral given in writing to Mortgagee 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:
(Aa) Mortgagee Holder may, in accordance with the terms of this MortgageNote, the Note Guaranty, the Deed of Trust or any Related Agreementof the other Loan Documents: (1i) foreclose the lien of this Mortgagethe Deed of Trust; (2ii) take appropriate action to enforce this Mortgagethe Deed of Trust, the Guaranty, this Note and any of the Related Agreements other Loan Documents to realize upon and/or protect the Loan Collateral; (3iii) name Mortgagor Maker or Guarantor as a party defendant in any action brought under this MortgageNote, the Note Guaranty, the Deed of Trust or any of the Related Agreements other Loan Documents so long as the exercise of any remedy is limited to the Loan Collateral; (4iv) 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 MortgagorMaker or Guarantor; and (5v) pursue all of its rights and remedies against Mortgagor and the indemnitors under that certain Environmental Indemnity Agreement of even date herewith and that certain Terrorism Insurance Indemnity Agreement of even date herewithrelated to the Property;
(Bb) Mortgagee 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 MortgagorMaker or Guarantor, and the indemnitors/guarantors, if any, under any nonrecourse exception indemnity agreements ("Nonrecourse Indemnitors") by reason of or in connection with: (1i) the failure of Mortgagor Maker or Guarantor to pay to MortgageeHolder, upon demand, all rents, issues and profits of the Property to which Mortgagee Holder is entitled pursuant to this MortgageNote, the Note Guaranty, the Deed of Trust or any of the Related Agreements other Loan Documents following an Event of Default; (2ii) any waste of the Property or any willful act or omission by Mortgagor which Maker or Guarantor that damages or materially reduces the value of the Property; (3iii) 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 MortgageNote, the Note Guaranty, the Deed of Trust or any of the Related Agreement other Loan Documents prior to any other expenditure or distribution by MortgagorMaker or Guarantor; (4iv) 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 under this Mortgage, the Note or any Related AgreementsDefault; (5v) the failure to timely pay all real estate taxes or any regular or special assessments affecting the Property; (6vi) the failure to account for and to turn over real estate tax accruals following the occurrence of an Event of Default under this Mortgage, the Note or any Related AgreementsDefault; (7vii) the failure to maintain casualty and liability insurance as required hereunder or under the Note or the Related Agreements 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 this Mortgage, the Note Deed of Trust or any Related Agreementsother Loan Documents; (8) viii) any modification, termination or cancellation of any lease of all or any portion of the Property without MortgageeHolder's prior written consent, if and to the extent such consent is required under the Note or the Related Agreements Loan Documents and if and to the extent such modification, termination or cancellation has a material adverse affect effect on the value of the Property; (9ix) a default by Mortgagor Guarantor under any lease of all or any portion of the Property; or (10x) costs and expenses, including, without limitation, attorneys' and paralegals' attorney's fees and transfer taxes, incurred by Mortgagee Holder in connection with the enforcement of this MortgageNote, the Note Guaranty, the Deed of Trust or any of the Related Agreements 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 (Bb) or (Cc) as an exception to the nonrecourse provisions, or if the Mortgagor Maker or Guarantor or any principal of Mortgagor either objects to any actions taken by Mortgagee Holder to exercise its remedies under this MortgageNote, the Note Guaranty, the Deed of Trust or any of the Related Agreementsother Loan Documents; Mortgagor (xi) Maker, Guarantor or principal any of Mortgagor their principals commences any lawsuit to enjoin or delay a foreclosure of the Property by MortgageeHolder, or raises defenses or counterclaims to a foreclosure action; Mortgagor (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; or (xiii) in the event any bankruptcy or reorganization proceedings (voluntary or involuntary), the Mortgagor Maker, Guarantor or any principal of Mortgagor either opposes any motion by Mortgagee Holder for relief from the Automatic Stay; and
(Cc) MortgagorMaker, Guarantor, any of their general partners of Mortgagor and the Nonrecourse Indemnitor(s), if any, shall become personally liable for payment of all the indebtedness evidenced by this Note, the Note Guaranty and performance of all other obligations of Mortgagor Maker and Guarantor under this MortgageNote, the Note Guaranty, the Deed of Trust and Related Agreements the other Loan Documents upon the occurrence of any: (i) fraud or willful misrepresentation of a material fact by MortgagorMaker, Guarantor, any of their general partners of Mortgagorpartners, or Nonrecourse Indemnitor(s), if any, in connection with this Mortgage, the Note, the Related Agreements Guaranty, the Deed of Trust, or the other Loan Documents or any request for any action or consent by MortgageeHolder; (ii) a Transfer of any interest in Mortgagor Maker or Guarantor or all or any portion of the Property or any interest therein in violation of the terms of this MortgageNote, the Note Guaranty, the Deed of Trust or the Related Agreementsother Loan Documents; or (iii) the incurrence by Mortgagor Maker or Guarantor of any indebtedness in violation of the terms of this MortgageNote, the Note Guaranty, the Deed of Trust or Related Agreements 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, MortgagorMaker, Guarantor, any of their general partners of Mortgagor and the Nonrecourse Indemnitors, if any, shall be responsible for any costs and expenses incurred by Mortgagee Holder in connection with the collection of any amounts for which MortgagorMaker, its Guarantor, any of their the general partners, if any, and the Nonrecourse Indemnitors, if any, are personally liable under this Section 3.11Paragraph, including attorneys' and paralegals' fees and expenses, court costs, filing fees and all other costs and expenses incurred in connection therewith.
Appears in 1 contract
Sources: Mortgage Note (Inland Western Retail Real Estate Trust Inc)
Nonrecourse. Except as otherwise set forth in this SectionParagraph, and subject to Section 3.12 hereof, Mortgagee▇▇▇▇▇▇'s recourse under this MortgageNote, the Note ▇▇▇▇ Phase II Note, the Deed of Trust and the Related Agreements shall be limited to and satisfied from the Property and the proceeds thereof, the rents and all other income a rising arising therefrom during and after the month in which an Event of Default has occurred, the other assets of Mortgagor Maker arising out of the Property which are given as collateral for this Note and the Note, ▇▇▇▇ Phase II Note and any other collateral given in writing to Mortgagee Holder as security for repayment of the this Note (all of the foregoing are collectively referred to as the "Loan Collateral"). Notwithstanding the preceding sentence:;
(Aa) Mortgagee Holder may, in accordance with the terms of this MortgageNote, the Note ▇▇▇▇ Phase II Note, the Deed of Trust or any Related Agreement: (1i) foreclose the lien of this Mortgagethe Deed of Trust; (2ii) take appropriate action to enforce this MortgageNote, the Note ▇▇▇▇ Phase II Note, the Deed of Trust and the Related Agreements to realize upon and/or protect the Loan Collateral; (3iii) name Mortgagor Maker as a party defendant in any action brought under this MortgageNote, the Note ▇▇▇▇ Phase II Note, the Deed of Trust or the Related Agreements so long as the exercise of any remedy is limited to the Loan Collateral; (4iv) 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 MortgagorMaker; and (5v) pursue all of its rights and remedies against Mortgagor Maker and the indemnitors under that certain Environmental Indemnity Agreement of even date herewith and that certain Terrorism Insurance Indemnity Agreement of even date herewith;
(Bb) Mortgagee 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 MortgagorMaker, and the indemnitors/guarantors, if any, under any nonrecourse exception indemnity agreements ("Nonrecourse Indemnitors") by reason of or in connection with: (1i) the failure of Mortgagor Maker to pay to MortgageeHolder, upon demand, all rents, issues and profits of the Property to which Mortgagee Holder is entitled pursuant to this MortgageNote, the Note ▇▇▇▇ Phase II Note, the Deed of Trust or the Related Agreements following an Event of Default; (2ii) any waste of the Property or any willful act or omission by Mortgagor Maker which damages or materially reduces the value of the Property; (3iii) 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 MortgageNote, the Note ▇▇▇▇ Phase II Note, the Deed of Trust or the Related Agreement prior to any other expenditure or distribution by MortgagorMaker; (4iv) 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 under this MortgageNote, the Note ▇▇▇▇ Phase II Note, the Deed of Trust or any Related Agreements; (5v) the failure to timely pay all real estate taxes or any regular or special assessments affecting the Property; (6vi) the failure to account for and to turn over real estate tax accruals following the occurrence of an Event of Default under this MortgageNote, the Note ▇▇▇▇ Phase II Note, the Deed of Trust or any Related Agreements; (7vii) the failure to maintain casualty and liability insurance as required under the Note Deed of Trust or the Related Agreements or to apply insurance proceeds or condemnation awards relating to the Property or other collateral in the manner required under applicable provisions of this MortgageNote, the Note ▇▇▇▇ Phase II Note, the Deed of Trust or any Related Agreements; (8) viii) any modification, termination or cancellation of any lease of all or any portion of the Property without MortgageeHolder's prior written consent, if and to the extent such consent is required under the Note Deed of Trust or the Related Agreements and if and to the extent such modification, termination or cancellation has a material adverse affect on the value of the Property; (9ix) a default by Mortgagor Maker under any lease of all or any portion of the Property; (x) all transfer, recordation or other taxes imposed at any time by the State of Tennessee, Madison County, Tennessee or other governmental authority with jurisdiction over the Property relating to this Note, the ▇▇▇▇ Phase II Note, the Deed of Trust or any Related Agreement; or (10xi) costs and expenses, including, without limitation, attorneys' and paralegals' attorney's fees and transfer taxes, incurred by Mortgagee Holder in connection with the enforcement of this MortgageNote, the Note ▇▇▇▇ Phase II Note, the Deed of Trust or the Related Agreements 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 (Bb) or (Cc) as an exception to the nonrecourse provisions, or if the Mortgagor Maker or any principal of Mortgagor Maker objects to any actions taken by Mortgagee Holder to exercise its remedies under this Mortgage, the Note or the Related AgreementsLoan Documents; Mortgagor Maker or principal of Mortgagor Maker commences any lawsuit to enjoin or delay a foreclosure of the Property by Mortgagee▇▇▇▇▇▇, or raises defenses or counterclaims to a foreclosure action; Mortgagor Maker 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; or in the event any bankruptcy or reorganization proceedings (voluntary or involuntary), the Mortgagor Maker or any principal of Mortgagor Maker opposes any motion by Mortgagee ▇▇▇▇▇▇ for relief from the Automatic Stay; and
(Cc) MortgagorMaker, any general partners of Mortgagor Maker and the Nonrecourse Indemnitor(s), if any, shall become personally liable for payment of all the indebtedness evidenced by this Note or the ▇▇▇▇ Phase II Note and performance of all other obligations of Mortgagor Maker under this MortgageNote, the Note ▇▇▇▇ Phase II Note, the Deed of Trust and Related Agreements upon the occurrence of anyany of the following: (i) fraud or willful misrepresentation of a material fact by MortgagorMaker, any general partners of MortgagorMaker, or Nonrecourse Indemnitor(s), if any, in connection with this MortgageNote, the ▇▇▇▇ Phase II Note, the Deed of Trust, the Related Agreements or any request for any action or consent by MortgageeHolder; (ii) a Transfer of any interest in Mortgagor Maker or all or any portion of the Property or any interest therein in violation of the terms of this MortgageNote, the Note ▇▇▇▇ Phase II Note, the Deed of Trust or the Related Agreements; or (iii) the incurrence by Mortgagor Maker of any indebtedness in violation of the terms of this MortgageNote, the Note ▇▇▇▇ Phase II Note, the Deed of Trust or Related Agreements (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, MortgagorMaker, any general partners of Mortgagor Maker and the Nonrecourse Indemnitors, if any, shall be responsible for any costs and expenses incurred by Mortgagee Holder in connection with the collection of any amounts for which MortgagorMaker, its general partners, if any, and the Nonrecourse Indemnitors, if any, are personally liable under this Section 3.11Paragraph 17, including attorneys' and paralegals' fees and expenses, court costs, filing fees and all other costs and expenses incurred in connection therewith.
Appears in 1 contract
Sources: Mortgage Note (Inland Western Retail Real Estate Trust Inc)
Nonrecourse. Except as otherwise set forth in this SectionParagraph, and subject to Section 3.12 hereof, Mortgagee▇▇▇▇▇▇'s recourse under this MortgageNote, the Note AIC Note, the Deed of Trust and the Related Agreements shall be limited to and satisfied from the Property and the proceeds thereof, the rents and all other income a rising arising therefrom during and after the month in which an Event of Default has occurred, the other assets of Mortgagor Maker arising out of the Property which are given as collateral for this Note and the Note, AIC Note and any other collateral given in writing to Mortgagee Holder as security for repayment of the this Note (all of the foregoing are collectively referred to as the "Loan Collateral"). Notwithstanding the preceding sentence:
(Aa) Mortgagee Holder may, in accordance with the terms of this MortgageNote, the Note AIC Note, the Deed of Trust or any Related Agreement: (1i) foreclose the lien of this Mortgagethe Deed of Trust; (2ii) take appropriate action to enforce this MortgageNote, the Note AIC Note, the Deed of Trust and the Related Agreements to realize upon and/or protect the Loan Collateral; (3iii) name Mortgagor Maker as a party defendant in any action brought under this MortgageNote, the Note AIC Note, the Deed of Trust or the Related Agreements so long as the exercise of any remedy is limited to the Loan Collateral; (4iv) 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 MortgagorMaker; and (5v) pursue all of its rights and remedies against Mortgagor Maker and the indemnitors under that certain Environmental Indemnity Agreement of even date herewith and that certain Terrorism Insurance Indemnity Agreement of even date herewith;
(Bb) Mortgagee 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 MortgagorMaker, and the indemnitors/guarantors, if any, under any nonrecourse exception indemnity agreements ("Nonrecourse Indemnitors") by reason of or in connection with: (1i) the failure of Mortgagor Maker to pay to MortgageeHolder, upon demand, all rents, issues and profits of the Property to which Mortgagee Holder is entitled pursuant to this MortgageNote, the Note AIC Note, the Deed of Trust or the Related Agreements following an Event of Default; (2ii) any waste of the Property or any willful act or omission by Mortgagor Maker which damages or materially reduces the value of the Property; (3iii) 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 MortgageNote, the Note AIC Note, the Deed of Trust or the Related Agreement prior to any other expenditure or distribution by MortgagorMaker; (4iv) 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 under this MortgageNote, the Note AIC Note, the Deed of Trust or any Related Agreements; (5v) the failure to timely pay all real estate taxes or any regular or special assessments affecting the Property; (6vi) the failure to account for and to turn over real estate tax accruals following the occurrence of an Event of Default under this MortgageNote, the Note AIC Note, the Deed of Trust or any Related Agreements; (7vii) the failure to maintain casualty and liability insurance as required under the Note Deed of Trust or the Related Agreements or to apply insurance proceeds or condemnation awards relating to the Property or other collateral in the manner required under applicable provisions of this MortgageNote, the Note AIC Note, the Deed of Trust or any Related Agreements; (8) viii) any modification, termination or cancellation of any lease of all or any portion of the Property without MortgageeHolder's prior written consent, if and to the extent such consent is required under the Note Deed of Trust or the Related Agreements and if and to the extent such modification, termination or cancellation has a material adverse affect on the value of the Property; (9ix) a default by Mortgagor Maker under any lease of all or any portion of the Property; (x) all transfer, recordation or other taxes imposed at any time by the State of Tennessee, Madison County, Tennessee or other governmental authority with jurisdiction over the Property relating to this Note, the AIC Note, the Deed of Trust or any Related Agreement; or (10xi) costs and expenses, including, without limitation, attorneys' and paralegals' attorney's fees and transfer taxes, incurred by Mortgagee Holder in connection with the enforcement of this MortgageNote, the Note AIC Note, the Deed of Trust or the Related Agreements 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 (Bb) or (Cc) as an exception to the nonrecourse provisions, or if the Mortgagor Maker or any principal of Mortgagor Maker objects to any actions taken by Mortgagee Holder to exercise its remedies under this Mortgage, the Note or the Related AgreementsLoan Documents; Mortgagor Maker or principal of Mortgagor Maker commences any lawsuit to enjoin or delay a foreclosure of the Property by MortgageeHolder, or raises defenses or counterclaims to a foreclosure action; Mortgagor Maker 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; or in the event any bankruptcy or reorganization proceedings (voluntary or involuntary), the Mortgagor Maker or any principal of Mortgagor Maker opposes any motion by Mortgagee ▇▇▇▇▇▇ for relief from the Automatic Stay; and
(Cc) MortgagorMaker, any general partners of Mortgagor Maker and the Nonrecourse Indemnitor(s), if any, shall become personally liable for payment of all the indebtedness evidenced by this Note or the AIC Note and performance of all other obligations of Mortgagor Maker under this MortgageNote, the Note AIC Note, the Deed of Trust and Related Agreements upon the occurrence of anyany of the following: (i) fraud or willful misrepresentation of a material fact by MortgagorMaker, any general partners of MortgagorMaker, or Nonrecourse Indemnitor(s), if any, in connection with this MortgageNote, the AIC Note, the Deed of Trust, the Related Agreements or any request for any action or consent by MortgageeHolder; (ii) a Transfer of any interest in Mortgagor Maker or all or any portion of the Property or any interest therein in violation of the terms of this MortgageNote, the Note AIC Note, the Deed of Trust or the Related Agreements; or (iii) the incurrence by Mortgagor Maker of any indebtedness in violation of the terms of this MortgageNote, the Note AIC Note, the Deed of Trust or Related Agreements (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, MortgagorMaker, any general partners of Mortgagor Maker and the Nonrecourse Indemnitors, if any, shall be responsible for any costs and expenses incurred by Mortgagee Holder in connection with the collection of any amounts for which MortgagorMaker, its general partners, if any, and the Nonrecourse Indemnitors, if any, are personally liable under this Section 3.11Paragraph 17, including attorneys' and paralegals' fees and expenses, court costs, filing fees and all other costs and expenses incurred in connection therewith.
Appears in 1 contract
Sources: Mortgage Note (Inland Western Retail Real Estate Trust Inc)
Nonrecourse. Except as otherwise set forth in this Section, and subject to Section 3.12 hereof, Mortgagee's recourse under this Mortgageparagraph, the Note liability of Mortgagor and the general partners of Mortgagor, if any, under the Note, this Mortgage and the Related Agreements shall be limited to to, and satisfied from from, the Property and the proceeds thereof, the rents Rents and Profits and all other income a rising therefrom during and after the month in which an Event of Default has occurredarising therefrom, the other assets of Mortgagor arising out of the Property which are given as collateral for the Note, and any other collateral given in writing to Mortgagee as security for repayment of the Note (all of the foregoing are collectively referred to as the "Loan Collateral"). Notwithstanding the preceding sentence:
; provided, however, that nothing contained in this section shall (A) preclude Mortgagee may, in accordance with the terms of this Mortgage, the Note or any Related Agreement: (1) foreclose from foreclosing the lien of this Mortgage; Mortgage or from enforcing any of its rights or remedies in law or in equity against Mortgagor except as stated in this section, (2B) take appropriate action to enforce this Mortgage, constitute a waiver of any obligation evidenced by the Note and or secured by this Mortgage or any Related Agreements, (C) limit the Related Agreements right of Mortgagee to realize upon and/or protect the Loan Collateral; (3) name Mortgagor as a party defendant in any action brought under this Mortgage, the Note or the any Related Agreements so long as the exercise of any remedy is limited to the Loan Collateral; Agreements, (4D) pursue prohibit Mortgagee from pursuing all of its rights and remedies against any guarantor or surety or master tenant surety, whether or not such guarantor or surety is a partner, member or other owner partner of Mortgagor; and , (5E) pursue all limit the personal liability of its rights and remedies against Mortgagor or any shareholder of Mortgagor, or any general partner of Mortgagor, or of any member of Mortgagor, to Mortgagee, for misappropriation or misapplication of funds, fraud, waste, willful misrepresentation or willful damage to the Property, or (F) preclude Mortgagee from recovering from Mortgagor and the indemnitors other Indemnitors under that certain Environmental Indemnity Agreement of even date herewith and that certain Terrorism Insurance Indemnity Agreement of even date herewith;
(B) Mortgagee may seek damages or other monetary relief, to the extent of actual monetary loss, or any other remedy at law or in equity against Mortgagor, and the indemnitors/guarantors, if any, under any nonrecourse exception indemnity agreements ("Nonrecourse Indemnitors") by reason of or in connection with: (1) the failure of Mortgagor to pay to Mortgagee, upon demand, all rents, issues and profits of the Property to which Mortgagee is entitled pursuant to this Mortgage, the Note or the Related Agreements following an Event of Default; (2) any waste of the Property or any willful act or omission by Mortgagor which damages or materially reduces the value of the Property; (3) 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 Mortgage, the Note or the Related Agreement prior to any other expenditure or distribution by Mortgagor; (4) 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 under this Mortgage, the Note or any Related Agreements; (5) the failure to timely pay all real estate taxes or any regular or special assessments affecting the Property; (6) the failure to account for and to turn over real estate tax accruals following the occurrence of an Event of Default under this Mortgage, the Note or any Related Agreements; (7) the failure to maintain casualty and liability insurance as required under the Note or the Related Agreements or to apply insurance proceeds or condemnation awards relating to the Property or other collateral in the manner required under applicable provisions of this Mortgage, the Note or any Related Agreements; (8) any modification, termination or cancellation of any lease of all or any portion of the Property without Mortgagee's prior written consent, if and to the extent such consent is required under the Note or the Related Agreements and if and to the extent such modification, termination or cancellation has a material adverse affect on the value of the Property; (9) a default by Mortgagor under any lease of all or any portion of the Property; or (10) costs and expenses, including, without limitation, attorneys' and paralegals' fees and transfer taxes, incurred by Mortgagee in connection with the enforcement of this Mortgage, the Note or the Related Agreements 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 the Mortgagor or any principal of Mortgagor objects to any actions taken by Mortgagee to exercise its remedies under this Mortgage, the Note or the Related Agreements; Mortgagor or principal of Mortgagor commences any lawsuit to enjoin or delay a foreclosure of the Property by Mortgagee, or raises defenses or counterclaims to a foreclosure action; Mortgagor 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; or in the event any bankruptcy or reorganization proceedings (voluntary or involuntary), the Mortgagor or any principal of Mortgagor opposes any motion by Mortgagee for relief from the Automatic Stay; and
(C) Mortgagor, any general partners of Mortgagor and the Nonrecourse Indemnitor(s), if any, shall become personally liable for payment of all the indebtedness evidenced by the Note and performance of all other obligations of Mortgagor under this Mortgage, the Note and Related Agreements upon the occurrence of any: (i) fraud or willful misrepresentation of a material fact by Mortgagor, any general partners of Mortgagor, or Nonrecourse Indemnitor(s), if any, in connection with this Mortgage, the Note, the Related Agreements or any request for any action or consent by Mortgagee; (ii) a Transfer of any interest in Mortgagor or all or any portion of the Property or any interest therein in violation of the terms of this Mortgage, the Note or the Related Agreements; or (iii) the incurrence by Mortgagor of any indebtedness in violation of the terms of this Mortgage, the Note or Related Agreements (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, Mortgagor, any general partners of Mortgagor and the Nonrecourse Indemnitors, if any, shall be responsible for any costs and expenses incurred by Mortgagee in connection with the collection of any amounts for which Mortgagor, its general partners, if any, and the Nonrecourse Indemnitors, if any, are personally liable under this Section 3.11, including attorneys' and paralegals' fees and expenses, court costs, filing fees and all other costs and expenses incurred in connection therewith.
Appears in 1 contract
Nonrecourse. Except as otherwise set forth in this Section, and subject to Section 3.12 hereof, Mortgagee's ’s recourse under this Mortgage, the Note and the Related Agreements shall be limited to and satisfied from the Property and the proceeds thereof, the rents and all other income a rising arising therefrom during and after the month in which an Event of Default has occurred, the other assets of Mortgagor arising out of the Property which are given as collateral for the Note, and any other collateral given in writing to Mortgagee as security for repayment of the Note (all of the foregoing are collectively referred to as the "“Loan Collateral"”). Notwithstanding the preceding sentence:
(A) Mortgagee may, in accordance with the terms of this Mortgage, the Note or any Related Agreement: (1) foreclose the lien of this Mortgage; (2) take appropriate action to enforce this Mortgage, the Note and the Related Agreements to realize upon and/or protect the Loan Collateral; (3) name Mortgagor as a party defendant in any action brought under this Mortgage, the Note or the Related Agreements so long as the exercise of any remedy is limited to the Loan Collateral; (4) 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 Mortgagor; and (5) pursue all of its rights and remedies against Mortgagor and the indemnitors under that certain Environmental Indemnity Agreement of even date herewith and that certain Terrorism Insurance Indemnity Agreement of even date herewith;
(B) Mortgagee may seek damages or other monetary relief, to the extent of actual monetary loss, or any other remedy at law or in equity against Mortgagor, and the indemnitors/guarantors, if any, under any nonrecourse exception indemnity agreements ("“Nonrecourse Indemnitors"”) by reason of or in connection with: (1) the failure of Mortgagor to pay to Mortgagee, upon demand, all rents, issues and profits of the Property to which Mortgagee is entitled pursuant to this Mortgage, the Note or the Related Agreements following an Event of Default; (2) any waste of the Property or any willful act or omission by Mortgagor which damages or materially reduces the value of the Property; (3) 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 Mortgage, the Note or the Related Agreement prior to any other expenditure or distribution by Mortgagor; (4) 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 under this Mortgage, the Note or any Related Agreements; (5) the failure to timely pay all real estate taxes or any regular or special assessments affecting the Property; (6) the failure to account for and to turn over real estate tax accruals following the occurrence of an Event of Default under this Mortgage, the Note or any Related Agreements; (7) the failure to maintain casualty and liability insurance as required under the Note or the Related Agreements or to apply insurance proceeds or condemnation awards relating to the Property or other collateral in the manner required under applicable provisions of this Mortgage, the Note or any Related Agreements; (8) any modification, termination or cancellation of any lease of all or any portion of the Property without Mortgagee's ’s prior written consent, if and to the extent such consent is required under the Note or the Related Agreements and if and to the extent such modification, termination or cancellation has a material adverse affect on the value of the Property; (9) a default by Mortgagor under any lease of all or any portion of the Property; or (10) costs and expenses, including, without limitation, reasonable attorneys' ’ and paralegals' ’ fees and transfer taxes, incurred by Mortgagee in connection with the enforcement of this Mortgage, the Note or the Related Agreements 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 the Mortgagor or any principal of Mortgagor objects to any actions taken by Mortgagee to exercise its remedies under this Mortgage, the Note or the Related Agreements; Mortgagor or principal of Mortgagor commences any lawsuit to enjoin or delay a foreclosure of the Property by Mortgagee, or raises defenses or counterclaims to a foreclosure action; Mortgagor 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; or in the event any bankruptcy or reorganization proceedings (voluntary or involuntary), the Mortgagor or any principal of Mortgagor opposes any motion by Mortgagee for relief from the Automatic Stay; and
(C) Mortgagor, any general partners of Mortgagor and the Nonrecourse Indemnitor(s), if any, shall become personally liable for payment of all the indebtedness evidenced by the Note and performance of all other obligations of Mortgagor under this Mortgage, the Note and Related Agreements upon the occurrence of any: (i) fraud or willful misrepresentation of a material fact by Mortgagor, any general partners of Mortgagor, or Nonrecourse Indemnitor(s), if any, in connection with this Mortgage, the Note, the Related Agreements or any request for any action or consent by Mortgagee; (ii) a Transfer of any interest in Mortgagor or all or any portion of the Property or any interest therein in violation of the terms of this Mortgage, the Note or the Related Agreements; or (iii) the incurrence by Mortgagor of any indebtedness in violation of the terms of this Mortgage, the Note or Related Agreements (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, Mortgagor, any general partners of Mortgagor and the Nonrecourse Indemnitors, if any, shall be responsible for any costs and expenses incurred by Mortgagee in connection with the collection of any amounts for which Mortgagor, its general partners, if any, and the Nonrecourse Indemnitors, if any, are personally liable under this Section 3.11, including reasonable attorneys' ’ and paralegals' ’ fees and expenses, court costs, filing fees and all other costs and expenses incurred in connection therewith.
Appears in 1 contract
Nonrecourse. Except as otherwise set forth in this SectionParagraph, and subject to Section 3.12 hereof, Mortgagee▇▇▇▇▇▇'s recourse under this MortgageNote, the Note AIC Note, the Mortgage and the Related Agreements shall be limited to and satisfied from the Property and the proceeds thereof, the rents and all other income a rising arising therefrom during and after the month in which an Event of Default has occurred, the other assets of Mortgagor Maker arising out of the Property which are given as collateral for this Note and the Note, AIC Note and any other collateral given in writing to Mortgagee Holder as security for repayment of the this Note (all of the foregoing are collectively referred to as the "Loan Collateral"). Notwithstanding the preceding sentence:
(Aa) Mortgagee Holder may, in accordance with the terms of this MortgageNote, the Note AIC Note, the Mortgage or any Related Agreement: (1i) foreclose the lien of this the Mortgage; (2ii) take appropriate action to enforce this MortgageNote, the Note AIC Note, the Mortgage and the Related Agreements to realize upon and/or protect the Loan Collateral; (3iii) name Mortgagor Maker as a party defendant in any action brought under this MortgageNote, the Note AIC Note, the Mortgage or the Related Agreements so long as the exercise of any remedy is limited to the Loan Collateral; (4iv) 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 MortgagorMaker; and (5v) pursue all of its rights and remedies against Mortgagor Maker and the indemnitors under that certain Environmental Indemnity Agreement of even date herewith and that certain Terrorism Insurance Indemnity Agreement of even date herewith;
(Bb) Mortgagee 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 MortgagorMaker, and the indemnitors/guarantors, if any, under any nonrecourse exception indemnity agreements ("Nonrecourse Indemnitors") by reason of or in connection with: (1i) the failure of Mortgagor Maker to pay to MortgageeHolder, upon demand, all rents, issues and profits of the Property to which Mortgagee Holder is entitled pursuant to this MortgageNote, the Note AIC Note, the Mortgage or the Related Agreements following an Event of Default; (2ii) any waste of the Property or any willful act or omission by Mortgagor Maker which damages or materially reduces the value of the Property; (3iii) 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 MortgageNote, the Note AIC Note, the Mortgage or the Related Agreement Agreements prior to any other expenditure or distribution by MortgagorMaker; (4iv) 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 under this MortgageNote, the Note AIC Note, the Mortgage or any Related Agreements; (5v) the failure to timely pay all real estate taxes or any regular or special assessments affecting the Property; (6vi) the failure to account for and to turn over real estate tax accruals following the occurrence of an Event of Default under this MortgageNote, the Note AIC Note, the Mortgage or any Related Agreements; (7vii) the failure to maintain casualty and liability insurance as required under the Note Mortgage or the Related Agreements or to apply insurance proceeds or condemnation awards relating to the Property or other collateral in the manner required under applicable provisions of this MortgageNote, the Note AIC Note, the Mortgage or any Related AgreementsAgreement; (8) viii) any modification, termination or cancellation of any lease of all or any portion of the Property without MortgageeHolder's prior written consent, if and to the extent such consent is required under the Note Mortgage or the Related Agreements and if and to the extent such modification, termination or cancellation has a material adverse affect on the value of the Property; (9ix) a default by Mortgagor Maker under any lease of all or any portion of the Property; or (10x) costs and expenses, including, without limitation, attorneys' and paralegals' attorney's fees and transfer taxes, incurred by Mortgagee Holder in connection connection, with the enforcement of this MortgageNote, the Note AIC Note, the Mortgage or the Related Agreements 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 (Bb) or (Cc) as an exception to the nonrecourse provisions, or if the Mortgagor Maker or any principal of Mortgagor Maker objects to any actions taken by Mortgagee Holder to exercise its remedies under this Mortgage, the Note or the Related AgreementsLoan Documents; Mortgagor Maker or principal of Mortgagor Maker commences any lawsuit to enjoin or delay a foreclosure of the Property by MortgageeHolder, or raises defenses or counterclaims to a foreclosure action; Mortgagor Maker 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 lakes 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; or in the event any bankruptcy or reorganization proceedings (voluntary or involuntary), the Mortgagor Maker or any principal of Mortgagor Maker opposes any motion by Mortgagee Holder for relief from the Automatic Stay; and
(Cc) MortgagorMaker, any its sole member or general partners of Mortgagor and the Nonrecourse Indemnitor(s), if any, shall become personally liable for payment of all the indebtedness evidenced by this Note or the AIC Note and performance of all other obligations of Mortgagor Maker under this MortgageNote, the Note AIC Note, the Mortgage and Related Agreements upon the occurrence of anyany of the following: (i) fraud or willful misrepresentation of a material fact by MortgagorMaker, any its sole or general partners of Mortgagorpartners, or Nonrecourse Indemnitor(s), if any, in connection with this MortgageNote, the AIC Note, the Mortgage, the Related Agreements or any request for any action or consent by MortgageeHolder; (ii) a Transfer of any interest in Mortgagor Maker or all or any portion of the Property or any interest therein in violation of the terms of this MortgageNote, the Note AIC Note, the Mortgage or the Related Agreements; or (iii) the incurrence by Mortgagor Maker of any indebtedness in violation of the terms of this MortgageNote, the Note AIC Note, the Mortgage or Related Agreements (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, MortgagorMaker, any its sole member or general partners of Mortgagor and the Nonrecourse Indemnitors, if any, shall be responsible for any costs and expenses incurred by Mortgagee Holder in connection with the collection of any amounts for which MortgagorMaker, its sole member or general partners, if any, and the Nonrecourse Indemnitors, if any, are personally liable under this Section 3.11Paragraph 17, including attorneys' and paralegals' fees and expenses, court costs, filing fees and all other costs and expenses incurred in connection therewith.
Appears in 1 contract
Sources: Mortgage Note (Inland Western Retail Real Estate Trust Inc)
Nonrecourse. Except as otherwise set forth in this SectionParagraph, and subject to Section 3.12 hereof, Mortgagee▇▇▇▇▇▇'s recourse under this MortgageNote, the Note ▇▇▇▇ Note, the Deed of Trust and the Related Agreements shall be limited to and satisfied from the Property and the proceeds thereof, the rents and all other income a rising arising therefrom during and after the month in which an Event of Default has occurred, the other assets of Mortgagor Maker arising out of the Property which are given as collateral for this Note and the Note, ▇▇▇▇ Note and any other collateral given in writing to Mortgagee Holder as security for repayment of the this Note (all of the foregoing are collectively referred to as the "Loan Collateral"). Notwithstanding the preceding sentence:
(Aa) Mortgagee Holder may, in accordance with the terms of this MortgageNote, the Note ▇▇▇▇ Note, the Deed of Trust or any Related Agreement: (1i) foreclose the lien of this Mortgagethe Deed of Trust; (2ii) take appropriate action to enforce this MortgageNote, the Note ▇▇▇▇ Note, the Deed of Trust and the Related Agreements to realize upon and/or protect the Loan Collateral; (3iii) name Mortgagor Maker as a party defendant in any action brought under this MortgageNote, the Note ▇▇▇▇ Note, the Deed of Trust or the Related Agreements so long as the exercise of any remedy is limited to the Loan Collateral; (4iv) 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 MortgagorMaker; and (5v) pursue all of its rights and remedies against Mortgagor Maker and the indemnitors under that certain Environmental Indemnity Agreement of even date herewith and that certain Terrorism Insurance Indemnity Agreement of even date herewith;
(Bb) Mortgagee 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 MortgagorMaker, and the indemnitors/guarantors, if any, under any nonrecourse exception indemnity agreements ("Nonrecourse IndemnitorsIndemnities") by reason of or in connection with: (1i) the failure of Mortgagor Maker to pay to MortgageeHolder, upon demand, all rents, issues and profits of the Property to which Mortgagee Holder is entitled pursuant to this MortgageNote, the Note ▇▇▇▇ Note, the Deed of Trust or the Related Agreements following an Event of Default; (2ii) any waste of the Property or any willful act or omission by Mortgagor Maker which damages or materially reduces the value of the Property; (3iii) 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 MortgageNote, the Note ▇▇▇▇ Note, the Deed of Trust or the Related Agreement prior to any other expenditure or distribution by MortgagorMaker; (4iv) 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 under this MortgageNote, the Note ▇▇▇▇ Note, the Deed of Trust or any Related Agreements; (5v) the failure to timely pay all real estate taxes or any regular or special assessments affecting the Property; (6vi) the failure to account for and to turn over real estate tax accruals following the occurrence of an Event of Default under this MortgageNote, the Note ▇▇▇▇ Note, the Deed of Trust or any Related Agreements; (7vii) the failure to maintain casualty and liability insurance as required under the Note Deed of Trust or the Related Agreements or to apply insurance proceeds or condemnation awards relating to the Property or other collateral in the manner required under applicable provisions of this MortgageNote, the Note ▇▇▇▇ Note, the Deed of Trust or any Related Agreements; (8) viii) any modification, termination or cancellation of any lease of all or any portion of the Property without MortgageeHolder's prior written consent, if and to the extent such consent is required under the Note Deed of Trust or the Related Agreements and if and to the extent such modification, termination or cancellation has a material adverse affect on the value of the Property; (9ix) a default by Mortgagor Maker under any lease of all or any portion of the Property; (x) all transfer, recordation or other taxes imposed at any time by the State of Tennessee, Madison County, Tennessee or other governmental authority with jurisdiction over the Property relating to this Note, the ▇▇▇▇ Note, the Deed of Trust or any Related Agreement; or (10xi) costs and expenses, including, without limitation, attorneys' and paralegals' attorney's fees and transfer taxes, incurred by Mortgagee Holder in connection with the enforcement of this MortgageNote, the Note ▇▇▇▇ Note, the Deed of Trust or the Related Agreements 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 (Bb) or (Cc) as an exception to the nonrecourse provisions, or if the Mortgagor Maker or any principal of Mortgagor Maker objects to any actions taken by Mortgagee Holder to exercise its remedies under this Mortgage, the Note or the Related AgreementsLoan Documents; Mortgagor Maker or principal of Mortgagor Maker commences any lawsuit to enjoin or delay a foreclosure of the Property by MortgageeHolder, or raises defenses or counterclaims to a foreclosure action; Mortgagor Maker 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; or in the event any bankruptcy or reorganization proceedings (voluntary or involuntary), the Mortgagor Maker or any principal of Mortgagor Maker opposes any motion by Mortgagee Holder for relief from the Automatic Stay; and
(Cc) MortgagorMaker, any general partners of Mortgagor Maker and the Nonrecourse Indemnitor(s), if any, shall become personally liable for payment of all the indebtedness evidenced by this Note or the ▇▇▇▇ Note and performance of all other obligations of Mortgagor Maker under this MortgageNote, the Note ▇▇▇▇ Note, the Deed of Trust and Related Agreements upon the occurrence of anyany of the following: (i) fraud or willful misrepresentation of a material fact by MortgagorMaker, any general partners of MortgagorMaker, or Nonrecourse Indemnitor(s), if any, in connection with this MortgageNote, the ▇▇▇▇ Note, the Deed of Trust, the Related Agreements or any request for any action or consent by MortgageeHolder; (ii) a Transfer of any interest in Mortgagor Maker or all or any portion of the Property or any interest therein in violation of the terms of this MortgageNote, the Note ▇▇▇▇ Note, the Deed of Trust or the Related Agreements; or (iii) the incurrence by Mortgagor Maker of any indebtedness in violation of the terms of this MortgageNote, the Note ▇▇▇▇ Note, the Deed of Trust or Related Agreements (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, MortgagorMaker, any general partners of Mortgagor Maker and the Nonrecourse IndemnitorsIndemnities, if any, shall be responsible for any costs and expenses incurred by Mortgagee Holder in connection with the collection of any amounts for which MortgagorMaker, its general partners, if any, and the Nonrecourse Indemnitors, if any, are personally liable under this Section 3.11Paragraph 17, including attorneys' and paralegals' fees and expenses, court costs, filing fees and all other costs and expenses incurred in connection therewith.
Appears in 1 contract
Sources: Mortgage Note (Inland Western Retail Real Estate Trust Inc)
Nonrecourse. Except Notwithstanding anything to the contrary contained herein or in any of the other Loan Documents, the Lenders agree that the constituent shareholders, members, directors, officers, managers and employees of the Borrower or the Guarantors (the "Nonrecourse Parties") shall not be personally liable for the payment of the Obligations, except as otherwise set forth in this SectionSection 10.14. If an Event of Default should occur hereunder or under the other Loan Documents, and subject each Lender agrees that its rights, as to Section 3.12 hereofthe Nonrecourse Parties, Mortgagee's recourse under this Mortgage, the Note and the Related Agreements shall be limited to and satisfied from proceeding against the Property Borrower and the proceeds thereofsecurity for the Obligations, against any Guarantor (including, without limitation, any Nonrecourse Party that is a Guarantor) or against any party other than the rents Nonrecourse Parties and all other income a rising therefrom during and after that it shall have no right to proceed directly against the month in which an Event Nonrecourse Parties for the satisfaction of Default has occurred, any Obligations owed to Lenders hereunder or under the other assets of Mortgagor arising out Loan Documents. It is expressly understood and agreed that nothing contained in this Section 10.14 shall in any manner or way constitute or be deemed a release of the Property which are given as collateral for Borrower, any Guarantor or the Note, and debt evidenced by the Notes or otherwise affect or impair the enforceability against the Borrower or any Guarantor of the Liens of the Loan Documents securing the Obligations or any other collateral given instrument or agreement evidencing, securing or related to the Obligations. Nothing in writing to Mortgagee as security for repayment of this Section 10.14 shall: (a) preclude the Note (all of the foregoing are collectively referred to as the "Loan Collateral"). Notwithstanding the preceding sentence:
(A) Mortgagee may, in accordance with the terms of this Mortgage, the Note Agent or any Related Agreement: (1) foreclose the lien of this Mortgage; (2) take appropriate action to enforce this Mortgage, the Note and the Related Agreements to realize upon and/or protect the Loan Collateral; (3) name Mortgagor as a party defendant in Lender from enforcing any action brought under this Mortgage, the Note or the Related Agreements so long as the exercise of any remedy is limited to the Loan Collateral; (4) pursue all of its rights and or remedies against any guarantor or surety or master tenant whether or not a partner, member or other owner of Mortgagor; and (5) pursue all of its rights and remedies against Mortgagor and the indemnitors under that certain Environmental Indemnity Agreement of even date herewith and that certain Terrorism Insurance Indemnity Agreement of even date herewith;
(B) Mortgagee may seek damages or other monetary relief, to the extent of actual monetary loss, or any other remedy at in law or in equity against Mortgagor, and the indemnitors/guarantors, if any, under any nonrecourse exception indemnity agreements Borrower or its assets ("Nonrecourse Indemnitors") by reason of or in connection with: (1) the failure of Mortgagor to pay to Mortgagee, upon demand, all rents, issues and profits of the Property to which Mortgagee is entitled pursuant to this Mortgage, the Note or the Related Agreements following an Event of Default; (2) any waste of the Property or any willful act or omission by Mortgagor which damages or materially reduces the value of the Property; (3) 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 Mortgage, the Note or the Related Agreement prior to any other expenditure or distribution by Mortgagor; (4) 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 under this Mortgage, the Note or any Related Agreements; (5) the failure to timely pay all real estate taxes or any regular or special assessments affecting the Property; (6) the failure to account for and to turn over real estate tax accruals following the occurrence of an Event of Default under this Mortgage, the Note or any Related Agreements; (7) the failure to maintain casualty and liability insurance as required under the Note or the Related Agreements or to apply insurance proceeds or condemnation awards relating to the Property or other collateral in the manner required under applicable provisions of this Mortgage, the Note or any Related Agreements; (8) any modification, termination or cancellation of any lease of all or any portion of the Property without Mortgagee's prior written consent, if and to the extent such consent is required under the Note or the Related Agreements and if and to the extent such modification, termination or cancellation has a material adverse affect on the value of the Property; (9) a default by Mortgagor under any lease of all or any portion of the Property; or (10) costs and expenses, including, without limitation, attorneys' and paralegals' fees and transfer taxesany or all of the Collateral) except as stated in this Section 10.14; (b) impair, incurred by Mortgagee in connection with any manner, any right, remedy or recourse the enforcement of this Mortgage, the Note or the Related Agreements 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 the Mortgagor Agent or any principal of Mortgagor objects to Lender may have against the Borrower or against any actions taken by Mortgagee to exercise its remedies under this MortgageGuarantor (including, the Note or the Related Agreements; Mortgagor or principal of Mortgagor commences any lawsuit to enjoin or delay a foreclosure of the Property by Mortgagee, or raises defenses or counterclaims to a foreclosure action; Mortgagor 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; or in the event any bankruptcy or reorganization proceedings (voluntary or involuntary), the Mortgagor or any principal of Mortgagor opposes any motion by Mortgagee for relief from the Automatic Stay; and
(C) Mortgagorwithout limitation, any general partners of Mortgagor and the Nonrecourse Indemnitor(sParty that is a Guarantor), if any, shall become personally liable for payment of all the indebtedness evidenced by the Note and performance of all other obligations of Mortgagor under this Mortgage, the Note and Related Agreements upon the occurrence of any: (i) fraud or willful misrepresentation of a material fact by Mortgagor, any general partners of Mortgagor, or Nonrecourse Indemnitor(s), if any, in connection with this Mortgage, the Note, the Related Agreements or any request for any action or consent by Mortgagee; (ii) a Transfer of any interest in Mortgagor or all or any portion of the Property or any interest therein in violation of the terms of this Mortgage, the Note or the Related Agreements; or (iiic) the incurrence by Mortgagor of impair, in any indebtedness in violation of the terms of this Mortgage, the Note or Related Agreements (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, Mortgagormanner, any general partners of Mortgagor and right, remedy or recourse the Agent or any Lender may have against the Nonrecourse Indemnitors, if any, shall be responsible Parties for any costs and expenses incurred by Mortgagee in connection with the collection fraud or for fraudulent misapplication of any amounts for which Mortgagor, its general partners, if any, and the Nonrecourse Indemnitors, if any, are personally liable under this Section 3.11, including attorneys' and paralegals' fees and expenses, court costs, filing fees and all other costs and expenses incurred in connection therewithinsurance proceeds or condemnation awards.
Appears in 1 contract
Nonrecourse. Except Notwithstanding any provision in this Note, the Mortgage, or Related Agreements, except as otherwise set forth in this Sectionparagraph, the liability of Maker and subject to Section 3.12 hereofthe general partners of Maker, Mortgagee's recourse if any, under this MortgageNote, the Note Mortgage and the Related Agreements shall be limited to to, and satisfied from the Subject Property and the proceeds thereof, the rents and all other income a rising therefrom during and after the month in which an Event of Default has occurredarising therefrom, the other assets of Mortgagor Maker arising out of the Subject Property which are given as collateral for the this Note, and any other collateral given in writing to Mortgagee Holder as security for repayment of the this Note (all of the foregoing are collectively referred to as the "Loan Collateral"). Notwithstanding ; provided, however, that nothing contained in this paragraph shall (i) preclude Holder from foreclosing the preceding sentence:
lien of the Mortgage or from enforcing any of its rights or remedies in law or inequity against Maker except as stated in this paragraph, (Aii) Mortgagee may, in accordance with constitute a waiver of any obligation evidenced by this Note or secured by the terms of this Mortgage, the Note Mortgage or any Related Agreement: Agreements, (1iii) foreclose limit the lien right of this Mortgage; (2) take appropriate action Holder to enforce this Mortgage, the Note and the Related Agreements to realize upon and/or protect the Loan Collateral; (3) name Mortgagor Maker as a party defendant in any action brought under this MortgageNote, the Note Mortgage or the any Related Agreements Agreements, so long as the exercise of execution on any remedy judgment is limited to the Loan Collateral; , (4iv) pursue prohibit Holder from pursuing all of its rights and remedies against any guarantor or surety or master tenant surety, whether or not such guarantor or surety is a partnerpartner of Maker, member (v) limit the personal liability of Maker, or other owner any shareholder of Mortgagor; and Maker, or any general partner of Maker to Holder for misappropriation or misappropriation of funds, fraud, waste, willful misrepresentation or willful damage to the Subject Property or (5vi) pursue all of its rights and remedies against Mortgagor preclude Holder from recovering from Maker and the indemnitors under that certain Environmental Indemnity Agreement of even date herewith and that certain Terrorism Insurance Indemnity Agreement of even date herewith;
(B) Mortgagee may seek damages or other monetary relief, to the extent of actual monetary loss, or any other remedy at law or in equity against Mortgagor, and the indemnitors/guarantors, if any, under any nonrecourse exception indemnity agreements ("Nonrecourse Indemnitors") by reason of or in connection with: (1) the failure of Mortgagor to pay to Mortgagee, upon demand, all rents, issues and profits of the Property to which Mortgagee is entitled pursuant to this Mortgage, the Note or the Related Agreements following an Event of Default; (2) any waste of the Property or any willful act or omission by Mortgagor which damages or materially reduces the value of the Property; (3) 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 Mortgage, the Note or the Related Agreement prior to any other expenditure or distribution by Mortgagor; (4) 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 under this Mortgage, the Note or any Related Agreements; (5) the failure to timely pay all real estate taxes or any regular or special assessments affecting the Property; (6) the failure to account for and to turn over real estate tax accruals following the occurrence of an Event of Default under this Mortgage, the Note or any Related Agreements; (7) the failure to maintain casualty and liability insurance as required under the Note or the Related Agreements or to apply insurance proceeds or condemnation awards relating to the Property or other collateral in the manner required under applicable provisions of this Mortgage, the Note or any Related Agreements; (8) any modification, termination or cancellation of any lease of all or any portion of the Property without Mortgagee's prior written consent, if and to the extent such consent is required under the Note or the Related Agreements and if and to the extent such modification, termination or cancellation has a material adverse affect on the value of the Property; (9) a default by Mortgagor under any lease of all or any portion of the Property; or (10) costs and expenses, including, without limitation, attorneys' and paralegals' fees and transfer taxes, incurred by Mortgagee in connection with the enforcement of this Mortgage, the Note or the Related Agreements 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 the Mortgagor or any principal of Mortgagor objects to any actions taken by Mortgagee to exercise its remedies under this Mortgage, the Note or the Related Agreements; Mortgagor or principal of Mortgagor commences any lawsuit to enjoin or delay a foreclosure of the Property by Mortgagee, or raises defenses or counterclaims to a foreclosure action; Mortgagor 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; or in the event any bankruptcy or reorganization proceedings (voluntary or involuntary), the Mortgagor or any principal of Mortgagor opposes any motion by Mortgagee for relief from the Automatic Stay; and
(C) Mortgagor, any general partners of Mortgagor and the Nonrecourse Indemnitor(s), if any, shall become personally liable for payment of all the indebtedness evidenced by the Note and performance of all other obligations of Mortgagor under this Mortgage, the Note and Related Agreements upon the occurrence of any: (i) fraud or willful misrepresentation of a material fact by Mortgagor, any general partners of Mortgagor, or Nonrecourse Indemnitor(s), if any, in connection with this Mortgage, the Note, the Related Agreements or any request for any action or consent by Mortgagee; (ii) a Transfer of any interest in Mortgagor or all or any portion of the Property or any interest therein in violation of the terms of this Mortgage, the Note or the Related Agreements; or (iii) the incurrence by Mortgagor of any indebtedness in violation of the terms of this Mortgage, the Note or Related Agreements (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, Mortgagor, any general partners of Mortgagor and the Nonrecourse Indemnitors, if any, shall be responsible for any costs and expenses incurred by Mortgagee in connection with the collection of any amounts for which Mortgagor, its general partners, if any, and the Nonrecourse Indemnitors, if any, are personally liable under this Section 3.11, including attorneys' and paralegals' fees and expenses, court costs, filing fees and all other costs and expenses incurred in connection therewith.
Appears in 1 contract
Sources: Mortgage Note (Kranzco Realty Trust)
Nonrecourse. Except as otherwise set forth in this SectionParagraph, and subject to Section 3.12 hereof, Mortgagee▇▇▇▇▇▇'s recourse under this MortgageNote, the Note Mortgage and the Related Agreements shall be limited to and satisfied from the Property and the proceeds thereof, the rents and all other income a rising arising therefrom during and after the month in which an Event of Default has occurred, the other assets of Mortgagor Maker arising out of the Property which are given as collateral for this Note or the AIC Note, and any other collateral given in writing to Mortgagee Holder as security for repayment of this Note or the AIC Note (all of the foregoing are collectively referred to as the "Loan Collateral"). Notwithstanding the preceding sentence:
(Aa) Mortgagee Holder may, in accordance with the terms of this MortgageNote, the Note AIC Note, the Mortgage or any Related Agreement: (1i) foreclose the lien of this the Mortgage; (2ii) take appropriate action to enforce this MortgageNote, the Note AIC Note, the Mortgage and the Related Agreements to realize upon and/or protect the Loan Collateral; (3iii) name Mortgagor Maker as a party defendant in any action brought under this MortgageNote, the Note AIC Note, the Mortgage or the Related Agreements so long as the exercise of any remedy is limited to the Loan Collateral; (4iv) 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 MortgagorMaker; and (5v) pursue all of its rights and remedies against Mortgagor Maker and the indemnitors under 7 that certain Environmental Indemnity Agreement of even date herewith and that certain Terrorism Insurance Indemnity Agreement of even date herewith;
(Bb) Mortgagee 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 MortgagorMaker, and the indemnitors/guarantors, if any, under any nonrecourse exception indemnity agreements ("Nonrecourse Indemnitors") by reason of or in connection with: (1i) the failure of Mortgagor Maker to pay to MortgageeHolder, upon demand, all rents, issues and profits of the Property to which Mortgagee Holder is entitled pursuant to this MortgageNote, the Note AIC Note, the Mortgage or the Related Agreements following an Event of Default; (2ii) any waste of the Property or any willful act or omission by Mortgagor Maker which damages or materially reduces the value of the Property; (3iii) 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 MortgageNote, the Note AIC Note, the Mortgage or the Related Agreement prior to any other expenditure or distribution by MortgagorMaker; (4iv) 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 under this MortgageNote, the Note Mortgage or any Related Agreements; (5v) the failure to timely pay all real estate taxes or any regular or special assessments affecting the Property; (6vi) the failure to account for and to turn over real estate tax accruals following the occurrence of an Event of Default under this MortgageNote, the Note Mortgage or any Related Agreements; (7vii) the failure to maintain casualty and liability insurance as required under the Note Mortgage or the Related Agreements or to apply insurance proceeds or condemnation awards relating to the Property or other collateral in the manner required under applicable provisions of this MortgageNote, the Note AIC Note, the Mortgage or any Related Agreements; (8) viii) any modification, termination or cancellation of any lease of all or any portion of the Property without MortgageeHolder's prior written consent, if and to the extent such consent is required under the Note Mortgage or the Related Agreements and if and to the extent such modification, termination or cancellation has a material adverse affect on the value of the Property; (9ix) a default by Mortgagor Maker under any lease of all or any portion of the Property; or (10x) costs and expenses, including, without limitation, attorneys' and paralegals' attorney's fees and transfer taxes, incurred by Mortgagee Holder in connection with the enforcement of this MortgageNote, the Note AIC Note, the Mortgage or the Related Agreements 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 (Bb) or (Cc) as an exception to the nonrecourse provisions, or if the Mortgagor Maker or any principal of Mortgagor Maker objects to any actions taken by Mortgagee Holder to exercise its remedies under this Mortgage, the Note or the Related AgreementsLoan Documents; Mortgagor Maker or principal of Mortgagor Maker commences any lawsuit to enjoin or delay a foreclosure of the Property by Mortgagee▇▇▇▇▇▇, or raises defenses or counterclaims to a foreclosure action; Mortgagor Maker 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; or in the event any bankruptcy or reorganization proceedings (voluntary or involuntary), the Mortgagor Maker or any principal of Mortgagor Maker opposes any motion by Mortgagee Holder for relief from the Automatic Stay; and
(Cc) MortgagorMaker, any general partners of Mortgagor Maker and the Nonrecourse Indemnitor(s), if any, shall become personally liable for payment of all the indebtedness evidenced by this Note or the AIC Note and performance of all other obligations of Mortgagor Maker under this MortgageNote, the Note AIC Note, the Mortgage and Related Agreements upon the occurrence of anyany of the following: (i) fraud or willful misrepresentation of a material fact by MortgagorMaker, any general partners of MortgagorMaker, or Nonrecourse Indemnitor(s), if any, in connection with this MortgageNote, the AIC Note, the Mortgage, the Related Agreements or any request for any action or consent by MortgageeHolder; (ii) a Transfer of any interest in Mortgagor Maker or all or any portion of the Property or any interest therein in violation of the terms of this MortgageNote, the Note AIC Note, the Mortgage or the Related Agreements; or (iii) the incurrence by Mortgagor Maker of any indebtedness in violation of the terms of this MortgageNote, the Note AIC Note, the Mortgage or Related Agreements (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, MortgagorMaker, any general partners of Mortgagor Maker and the Nonrecourse Indemnitors, if any, shall be responsible for any costs and expenses incurred by Mortgagee Holder in connection with the collection of any amounts for which MortgagorMaker, its general partners, if any, and the Nonrecourse Indemnitors, if any, are personally liable under this Section 3.11Paragraph 17, including attorneys' and paralegals' fees and expenses, court costs, filing fees and all other costs and expenses incurred in connection therewith.
Appears in 1 contract
Sources: Mortgage Note (Inland Western Retail Real Estate Trust Inc)
Nonrecourse. Except as otherwise set forth in this Sectionsection, and subject to Section 3.12 hereof, Mortgagee's Beneficiary’s recourse under the Note, this Mortgage, the Note Deed of Trust and the Related Agreements shall be limited to and satisfied from the Property and the proceeds thereof, the rents Rents and Profits and all other income a rising therefrom during and after the month in which an Event of Default has occurredarising therefrom, the other assets of Mortgagor Trustor arising out of the Property which are given as collateral for the Note, and any other collateral given in writing to Mortgagee Beneficiary as security for repayment of the Note (all of the foregoing are collectively referred to as the "“Loan Collateral"”). Notwithstanding the preceding sentence:
(A) Mortgagee Beneficiary may, in accordance with the terms of the Note, this Mortgage, the Note Deed of Trust or any Related Agreement: (1i) foreclose the lien of this Mortgagethe Deed of Trust; (2ii) take appropriate action to enforce the Note, this Mortgage, the Note Deed of Trust and the Related Agreements to realize upon and/or protect the Loan Collateral; (3iii) name Mortgagor Trustor as a party defendant in any action brought under the Note, this Mortgage, the Note Deed of Trust or the Related Agreements so long as the exercise of any remedy is limited to the Loan Collateral; (4iv) pursue all of its rights and remedies against any guarantor or surety or master tenant tenant, whether or not such guarantor or surety or master tenant is a partner, member or other owner of MortgagorTrustor; and (5v) pursue all of its rights and remedies against Mortgagor Trustor and the indemnitors under that certain Environmental Indemnity Agreement of even date herewith and that certain Terrorism Insurance Indemnity Agreement of even date herewith;
(B) Mortgagee Beneficiary may seek damages or other monetary relief, relief (to the extent of actual monetary loss, ) or any other remedy at law or in equity against MortgagorTrustor, any general partner of Trustor and the indemnitors/guarantors, if any, guarantors under any nonrecourse exception indemnity agreements that certain Nonrecourse Exception Indemnity Agreement of even date herewith ("“Nonrecourse Indemnitors"”) by reason of or in connection with: with (1i) the failure of Mortgagor Trustor to pay to Mortgagee, Beneficiary upon demand, all rents, issues Rents and profits Profits of the Property to which Mortgagee Beneficiary is entitled pursuant to the Note, this Mortgage, the Note Deed of Trust or the Related Agreements following an Event of DefaultDefault under the Note, this Deed of Trust or the Related Agreements; (2ii) any waste of the Property or any willful act or omission by Mortgagor Trustor which damages or materially reduces the value of the Property; (3iii) the distribution of rents, issues failure to apply all Rents and profits Profits from the Property prior to the payment of operating expenses or expenses, real estate taxes, insurance, capital repair items, and the provision for reservespayment of sums due and owing under the Note, if any, to be made pursuant to this Mortgage, the Note Deed of Trust or the Related Agreement Agreements prior to any other expenditure or distribution by Mortgagor; Trustor, (4iv) 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 under the Note, this Mortgage, the Note Deed of Trust or any Related Agreements; (5v) the failure to timely pay all real estate taxes or any regular or special assessments affecting the Property; , (6vi) the failure to account for and to turn over real estate tax accruals following the occurrence of an Event of Default under the Note, this Mortgage, the Note Deed of Trust or any Related Agreements; , (7vii) the failure to maintain casualty and liability insurance as required under the Note this Deed of Trust or the Related Agreements or to apply insurance proceeds Insurance Proceeds or condemnation awards Condemnation Proceeds relating to the Property or other collateral in the manner required under applicable provisions of the Note, this Mortgage, the Note Deed of Trust or any Related Agreements; , (8) viii) any modification, termination or cancellation of any lease Lease of all or any portion of the Property without Mortgagee's Beneficiary’s prior written consent, if and to the extent such consent is required under the Note this Deed of Trust or the Related Agreements and and, if and to the extent such modification, termination or cancellation has a material adverse affect effect on the value of the Property; , (9ix) a default by Mortgagor Trustor under any lease of all or any portion of the Property; or (10x) costs and expenses, including, including without limitation, limitation attorneys' and paralegals' ’ fees and transfer taxes, incurred by Mortgagee Beneficiary in connection with the enforcement of the Note, this MortgageDeed of Trust, the Note or the and any Related Agreements 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 the Mortgagor or any principal of Mortgagor objects to any actions taken by Mortgagee to exercise its remedies under this Mortgage, the Note or the Related Agreements; Mortgagor or principal of Mortgagor commences any lawsuit to enjoin or delay a foreclosure of the Property by Mortgagee, or raises defenses or counterclaims to a foreclosure action; Mortgagor 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; or in the event any bankruptcy or reorganization proceedings (voluntary or involuntary), the Mortgagor or any principal of Mortgagor opposes any motion by Mortgagee for relief from the Automatic Stayforeclosure; and,
(C) MortgagorTrustor, any general partners of Mortgagor Trustor and the Nonrecourse Indemnitor(s), if any, ) shall become personally liable for payment of all the indebtedness evidenced by the Note and performance of all other obligations of Mortgagor Trustor under the Note, this Mortgage, Deed of Trust and the Note and Related Agreements upon the occurrence of anyany of the following: (i) fraud or willful misrepresentation of a material fact by MortgagorTrustor, any general partners partner, shareholder or manager of MortgagorTrustor, or the Nonrecourse Indemnitor(s), if any, ) in connection with this Mortgage, the Note, this Deed of Trust or the Related Agreements or in connection with any request by Trustor for any action or consent by Mortgagee; on the part of Beneficiary, (ii) a Transfer of any interest in Mortgagor the Trustor or all or any portion of the Property or any interest therein in violation of the terms of the Note, this Mortgage, the Note Deed of Trust or the any Related Agreements; , or (iii) the incurrence by Mortgagor Trustor of any indebtedness in violation of the terms of the Note, this Mortgage, the Note Deed of Trust or any Related Agreements (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, MortgagorTrustor, any general partners partner of Mortgagor Trustor and the Nonrecourse Indemnitors, if any, Indemnitor(s) shall be responsible for any costs and expenses incurred by Mortgagee Beneficiary in connection with the collection of any amounts for which MortgagorTrustor, its general partners, if any, and the Nonrecourse Indemnitors, if any, Indemnitor(s) are personally liable under this Section 3.11section, including attorneys' and paralegals' ’ fees and expenses, court costs, filing fees fees, and all other costs and expenses incurred in connection therewith.
Appears in 1 contract
Sources: Deed of Trust (KBS Strategic Opportunity REIT, Inc.)