Additional Indemnitor Waivers. To the extent California law applies, in addition to and not in lieu of any other provisions of this Agreement, each Indemnitor represents, warrants and covenants as follows: (i) The obligations of each Indemnitor under this Agreement shall be performed without demand by Indemnitee and shall be unconditional irrespective of the genuineness, validity, regularity or enforceability of any of the Operating Agreement or any of the other Transaction Documents, and without regard to any other circumstance which might otherwise constitute a legal or equitable discharge of a surety or a guarantor. Each Indemnitor hereby waives any and all benefits and defenses under California Civil Code Section 2810 and agrees that by doing so such Indemnitor shall be liable even if neither the Company nor the Class B Member had no liability at the time of execution of the Transaction Documents, or thereafter ceases to be liable. Each Indemnitor hereby waives any and all benefits and defenses under California Civil Code Section 2809 and agrees that by doing so such Indemnitor’s liability may be larger in amount and more burdensome than that of the Class B Member, the Company or any of the Subsidiaries. Each Indemnitor hereby waives the benefit of all principles or provisions of law, statutory or otherwise, which are or might be in conflict with the terms of this Agreement and agrees that such Indemnitor’s obligations shall not be affected by any circumstances, whether or not referred to in this Agreement which might otherwise constitute a legal or equitable discharge of a surety or a guarantor. Each Indemnitor hereby waives the benefits of any right of discharge under any and all statutes or other laws relating to guarantors or sureties and any other rights of sureties and guarantors thereunder. (ii) In accordance with Section 2856 of the California Civil Code, each Indemnitor hereby waives all rights and defenses arising out of an election of remedies by Indemnitee even though that election of remedies, such as a nonjudicial foreclosure with respect to security for guaranteed obligations, has destroyed or otherwise impaired such Indemnitor’s rights of subrogation and reimbursement against the principal by the operation of Section 580d of the California Code of Civil Procedure or otherwise. Each Indemnitor hereby authorizes and empowers Indemnitee to exercise, in its sole and absolute discretion, any right or remedy, or any combination thereof, which may then be available, since it is the intent and purpose of each Indemnitor that the obligations under this Agreement shall be absolute, independent and unconditional under any and all circumstances. Specifically, and without in any way limiting the foregoing, each Indemnitor hereby waives any rights of subrogation, indemnification, contribution or reimbursement arising under Sections 2846, 2847, 2848 and 2849 of the California Civil Code or any other right of recourse to or with respect to the Class B Member, the Company or any of the Subsidiaries, any general partner, member or other constituent of the Class B Member, the Company or any of the Subsidiaries, any other person obligated to Indemnitee with respect to the matters set forth herein, or the assets or property of any of the foregoing until the Redemption Price has been paid in full and all obligations of the Class B Member, the Company and its Affiliates under the Transaction Documents have been fully performed, and there has expired the maximum possible period thereafter during which any payment made by the Company or others to Indemnitee with respect to such obligations could be deemed a preference under the United States Bankruptcy Code. In connection with the foregoing, subject to the foregoing limitations, each Indemnitor expressly waives any and all rights of subrogation against the Company and each of its Subsidiaries, and each Indemnitor hereby waives any rights to enforce any remedy which Indemnitee may have against the Company or any of its Subsidiaries. (iii) In addition to and without in any way limiting the foregoing, each Indemnitor hereby subordinates any and all indebtedness of the Class B Member, the Company and each Subsidiary now or hereafter owed to any Indemnitor to all the indebtedness of the Class B Member and the Company to Indemnitee and agrees with Indemnitee that until the Redemption Price has been paid in full and all obligations owed to Indemnitee under the Transaction Documents have been fully performed, and there has expired the maximum possible period thereafter during which any payment made by the Company or others to Indemnitee with respect to such obligations could be deemed a preference under the United States Bankruptcy Code, no Indemnitor shall demand or accept any payment of principal or interest from the Class B Member, the Company or any of the Subsidiaries or claim any offset or other reduction of any Indemnitor’s obligations hereunder because of any such indebtedness. If any amount shall nevertheless be paid to an Indemnitor by the Class B Member, the Company or any Subsidiary or another guarantor prior to payment in full of the Redemption Price, such amount shall be held in trust for the benefit of Indemnitee and shall forthwith be paid to Indemnitee to be credited and applied to the Unrecovered Capital. Further, no Indemnitor shall have any right of recourse against Indemnitee by reason of any action Indemnitee may take or omit to take under the provisions of this Agreement or under the provisions of any of the Transaction Documents. Without limiting the generality of the foregoing, each Indemnitor hereby waives, to the fullest extent permitted by law, diligence in collecting the obligations owed to Indemnitee under the Transaction Documents, presentment, demand for payment, protest, all notices with respect to the Operating Agreement, this Agreement, or any other Transaction Document which may be required by statute, rule of law or otherwise to preserve Indemnitee’s rights against such Indemnitor under this Agreement, including, but not limited to, notice of acceptance, notice of any amendment of the Transaction Documents, notice of the occurrence of any default, notice of intent to accelerate, notice of acceleration, notice of dishonor, notice of foreclosure, notice of protest, and notice of the incurring by the Class B Member, the Company or any of the Subsidiaries of any obligation or indebtedness. (iv) Without limiting the foregoing, but subject to the same limitations set forth above, each Indemnitor waives (i) all rights of subrogation, reimbursement, indemnification, and contribution and any other rights and defenses that are or may become available to any Indemnitor by reason of California Civil Code Sections 2787 to 2855, inclusive, including any and all rights or defenses such Indemnitor may have by reason of protection afforded to the Class B Member, the Company or any of the Subsidiaries with respect to any of the obligations of any Indemnitor under this Agreement by reason of a nonjudicial foreclosure or pursuant to the antideficiency or other laws of the State of California limiting or discharging the obligations of the Class B Member, the Company or any of the Subsidiaries. Without limiting the generality of the foregoing, each Indemnitor hereby expressly waives any and all benefits under California Code of Civil Procedure Section 726 (which Section, if such Indemnitor had not given this waiver, among other things, would otherwise require Indemnitee to exhaust all of its security before a personal judgment could be obtained for a deficiency). (v) Likewise, each Indemnitor waives (i) any and all rights and defenses available to such Indemnitor under California Civil Code Sections 2899 and 3433; and (ii) any rights or defenses such Indemnitor may have with respect to its obligations as a guarantor by reason of any election of remedies by Indemnitee. These rights and defenses include, but are not limited to, any rights or defenses based upon Section 580a, 580b, 580d, or 726 of the California Code of Civil Procedure.
Appears in 6 contracts
Samples: Environmental Indemnity Agreement (W2007 Grace Acquisition I Inc), Environmental Indemnity Agreement (American Realty Capital Hospitality Trust, Inc.), Environmental Indemnity Agreement (American Realty Capital Hospitality Trust, Inc.)
Additional Indemnitor Waivers. To the extent California law applies, in addition to and not in lieu of any other provisions of this Agreement, each Indemnitor represents, warrants and covenants as follows:
(i) The obligations of each Indemnitor under this Agreement shall be performed without demand by Indemnitee and shall be unconditional irrespective of the genuineness, validity, regularity or enforceability of any of the Operating Agreement or any of the other Transaction Loan Documents, and without regard to any other circumstance which might otherwise constitute a legal or equitable discharge of a surety or a guarantor. Each Indemnitor hereby waives any and all benefits and defenses under California Civil Code Section 2810 and agrees that by doing so such Indemnitor shall be liable even if neither any one or more of the Company nor the Class B Member Borrowers had no liability at the time of execution of the Transaction Loan Documents, or thereafter ceases to be liable. Each Indemnitor hereby waives any and all benefits and defenses under California Civil Code Section 2809 and agrees that by doing so such Indemnitor’s liability may be larger in amount and more burdensome than that of the Class B Member, the Company any one or any more of the SubsidiariesBorrowers. Each Indemnitor hereby waives the benefit of all principles or provisions of law, statutory or otherwise, which are or might be in conflict with the terms of this Agreement and agrees that such Indemnitor’s obligations shall not be affected by any circumstances, whether or not referred to in this Agreement which might otherwise constitute a legal or equitable discharge of a surety or a guarantor. Each Indemnitor hereby waives the benefits of any right of discharge under any and all statutes or other laws relating to guarantors or sureties and any other rights of sureties and guarantors thereunder.
(ii) In accordance with Section 2856 of the California Civil Code, each Indemnitor hereby waives all rights and defenses arising out of an election of remedies by Indemnitee even though that election of remedies, such as a nonjudicial foreclosure with respect to security for guaranteed obligations, has destroyed or otherwise impaired such Indemnitor’s rights of subrogation and reimbursement against the principal by the operation Environmental Indemnity Agreement Berkadia Loan No. 00-0000000 & 00-0000000 117611427_7 of Section 580d of the California Code of Civil Procedure or otherwise. Each Indemnitor hereby authorizes and empowers Indemnitee to exercise, in its sole and absolute discretion, any right or remedy, or any combination thereof, which may then be available, since it is the intent and purpose of each Indemnitor that the obligations under this Agreement shall be absolute, independent and unconditional under any and all circumstances. Specifically, and without in any way limiting the foregoing, each Indemnitor hereby waives any rights of subrogation, indemnification, contribution or reimbursement arising under Sections 2846, 2847, 2848 and 2849 of the California Civil Code or any other right of recourse to or with respect to any Borrower (unless a Permitted Direct Assumption shall have occurred in accordance with the Class B Member, the Company or any of the SubsidiariesLoan Agreement), any general partner, member or other constituent of any Borrower (unless a Permitted Direct Assumption shall have occurred in accordance with the Class B Member, the Company or any of the SubsidiariesLoan Agreement), any other person obligated to Indemnitee with respect to the matters set forth herein, or the assets or property of any of the foregoing (unless a Permitted Direct Assumption shall have occurred in accordance with the Loan Agreement) or to any collateral for the Loan until the Redemption Price has Obligations have been indefeasibly paid and satisfied in full and full, all obligations of the Class B Member, the Company and its Affiliates owed to Indemnitee under the Transaction Loan Documents have been fully performed, and Indemnitee has released, transferred or disposed of all its right, title and interest in such collateral or security, and there has expired the maximum possible period thereafter during which any payment made by the Company any Borrower or others to Indemnitee with respect to such obligations the Obligations could be deemed a preference under the United States Bankruptcy Code. In connection with the foregoing, subject to the foregoing limitations, each Indemnitor expressly waives any and all rights of subrogation against the Company and each of its SubsidiariesBorrower, and each Indemnitor hereby waives any rights to enforce any remedy which Indemnitee may have against any Borrower and any right to participate in any collateral for the Company Loan. Each Indemnitor recognizes that, pursuant to Section 580d of the California Code of Civil Procedure, Indemnitee’s realization through nonjudicial foreclosure upon any real property constituting security for any Borrower’s obligations under the Loan Documents could terminate any right of Indemnitee to recover a deficiency judgment against one or more of the Borrowers, thereby terminating subrogation rights which such parties otherwise might have against such Borrower or Borrowers. In the absence of an adequate waiver, such a termination of subrogation rights could create a defense to enforcement of this Agreement against such parties. Each Indemnitor hereby unconditionally and irrevocably waives any of its Subsidiariessuch defense.
(iii) In addition to and without in any way limiting the foregoing, each Indemnitor hereby subordinates any and all indebtedness of the Class B Member, the Company and each Subsidiary Borrower now or hereafter owed to any Indemnitor to all the indebtedness of the Class B Member and the Company Borrowers to Indemnitee and agrees with Indemnitee that until the Redemption Price either (x) a Permitted Direct Assumption has been consummated in accordance with the Loan Agreement or (y) the Obligations have been indefeasibly paid and satisfied in full and full, all obligations owed to Indemnitee under the Transaction Loan Documents have been fully performed, and Indemnitee has released, transferred or disposed of all its right, title and interest in such collateral or security, and there has expired the maximum possible period thereafter during which any payment made by the Company any Borrower or others to Indemnitee with respect to such obligations the Obligations could be deemed a preference under the United States Bankruptcy Code, no Indemnitor shall demand or accept any payment of principal or interest Environmental Indemnity Agreement Berkadia Loan No. 00-0000000 & 00-0000000 117611427_7 from the Class B Memberany Borrower, the Company or any of the Subsidiaries or claim any offset or other reduction of any Indemnitor’s obligations hereunder because of any such indebtednessindebtedness and shall not (even following a Permitted Direct Assumption) take any action to obtain any of the collateral for the Loan. If any amount shall nevertheless be paid to an Indemnitor by the Class B Member, the Company or any Subsidiary Borrower or another guarantor prior to payment in full of the Redemption PriceGuaranteed Obligations (as defined in the Guaranty), such amount shall be held in trust for the benefit of Indemnitee and shall forthwith be paid to Indemnitee to be credited and applied to the Unrecovered CapitalGuaranteed Obligations, whether matured or unmatured. Further, no Indemnitor shall have any right of recourse against Indemnitee by reason of any action Indemnitee may take or omit to take under the provisions of this Agreement or under the provisions of any of the Transaction Loan Documents. Without limiting the generality of the foregoing, each Indemnitor hereby waives, to the fullest extent permitted by law, diligence in collecting the obligations owed to Indemnitee under the Transaction DocumentsObligations, presentment, demand for payment, protest, all notices with respect to the Operating AgreementNote, this Agreement, or any other Transaction Loan Document which may be required by statute, rule of law or otherwise to preserve Indemnitee’s rights against such Indemnitor under this Agreement, including, but not limited to, notice of acceptance, notice of any amendment of the Transaction Loan Documents, notice of the occurrence of any default, notice of intent to accelerate, notice of acceleration, notice of dishonor, notice of foreclosure, notice of protest, and notice of the incurring by the Class B Member, the Company or any of the Subsidiaries Borrower of any obligation or indebtedness.
(iv) Without limiting the foregoing, but subject to the same limitations set forth above, each Indemnitor waives (i) all rights of subrogation, reimbursement, indemnification, and contribution and any other rights and defenses that are or may become available to any Indemnitor by reason of California Civil Code Sections 2787 to 2855, inclusive, including any and all rights or defenses such Indemnitor may have by reason of protection afforded to the Class B Member, the Company or any of the Subsidiaries Borrower with respect to any of the obligations of any Indemnitor under this Agreement by reason of a nonjudicial foreclosure or pursuant to the antideficiency or other laws of the State of California limiting or discharging the obligations of the Class B Member, the Company or any of the Subsidiariessuch Borrower’s Obligations. Without limiting the generality of the foregoing, each Indemnitor hereby expressly waives any and all benefits under (i) California Code of Civil Procedure Section 580a (which Section, if such Indemnitor had not given this waiver, would otherwise limit such Indemnitor’s liability after a nonjudicial foreclosure sale to the difference between the obligations of such Indemnitor under this Agreement and the fair market value of the property or interests sold at such nonjudicial foreclosure sale), (ii) California Code of Civil Procedure Sections 580b and 580d (which Sections, if such Indemnitor had not given this waiver, would otherwise limit Indemnitee’s right to recover a deficiency judgment with respect to purchase money obligations and after a nonjudicial foreclosure sale, respectively), and (iii) California Code of Civil Procedure Section 726 (which Section, if such Indemnitor had not given this waiver, among other things, would otherwise require Indemnitee to exhaust all of its security before a personal judgment could be obtained for a deficiency).. Notwithstanding any foreclosure of the lien of the Mortgage, whether by the exercise of the power of sale contained therein, by an action for judicial foreclosure or by Indemnitee’s acceptance of a deed in lieu of foreclosure, each Indemnitor shall remain bound under this Agreement (other than as set forth in Section 9 or Section 10. Environmental Indemnity Agreement Berkadia Loan No. 00-0000000 & 00-0000000 117611427_7
(v) Likewise, each Indemnitor waives (i) any and all rights and defenses available to such Indemnitor under California Civil Code Sections 2899 and 3433; and (ii) any rights or defenses such Indemnitor may have with respect to its obligations as a guarantor by reason of any election of remedies by Indemnitee; and (iii) all rights and defenses that such Indemnitor may have because Borrowers’ debt is secured by real property. This means, among other things, that Indemnitee may collect from Indemnitors without first foreclosing on any real or personal property collateral pledged by any Borrower, and that if Indemnitee forecloses on any real property collateral pledged by any Borrower (A) the amount of the debt may be reduced only by the price for which that collateral is sold at the foreclosure sale, even if the collateral is worth more than the sale price, and (B) Indemnitee may collect from Indemnitors even if Indemnitee, by foreclosing on the real property collateral, has destroyed any rights Indemnitors may have to collect from such Borrower or Borrowers. This is an unconditional and irrevocable waiver of any rights and defenses any Indemnitor may have because Borrowers’ debt evidenced by the Note is secured by real property. These rights and defenses include, but are not limited to, any rights or defenses based upon Section 580a, 580b, 580d, or 726 of the California Code of Civil Procedure. The provisions of this Section 29(b) shall survive any satisfaction and discharge of any one or more of the Borrowers by virtue of any payment, court order or any applicable law, except the indefeasible payment in full of the Debt.
Appears in 1 contract
Samples: Environmental Indemnity Agreement (American Realty Capital Hospitality Trust, Inc.)
Additional Indemnitor Waivers. To the extent California law applies, in addition to and not in lieu of any other provisions of this Agreement, each Indemnitor represents, warrants and covenants as follows:
(i) The obligations of each Indemnitor under this Agreement shall be performed without demand by Indemnitee and shall be unconditional irrespective of the genuineness, validity, regularity or enforceability of any of the Operating Agreement or any of the other Transaction Documents, and without regard to any other circumstance which might otherwise constitute a legal or equitable discharge of a surety or a guarantor. Each Indemnitor Indemnitors hereby waives any and all benefits and defenses under California Civil Code Section 2810 and agrees that by doing so such Indemnitor shall be liable even if neither the Company nor the Class B Member had no liability at the time of execution of the Transaction Documents, or thereafter ceases to be liable. Each Indemnitor hereby waives any and all benefits and defenses under California Civil Code Section 2809 and agrees that by doing so such Indemnitor’s liability may be larger in amount and more burdensome than that of the Class B Member, the Company or any of the Subsidiaries. Each Indemnitor hereby waives the benefit of all principles or provisions of law, statutory or otherwise, which are or might be in conflict with the terms of this Agreement and agrees that such Indemnitor’s obligations shall not be affected by any circumstances, whether or not referred to in this Agreement which might otherwise constitute a legal or equitable discharge of a surety or a guarantor. Each Indemnitor hereby waives the benefits of any right of discharge under any and all statutes or other laws relating to guarantors or sureties and any other rights of sureties and guarantors thereunder.
(ii) In accordance with Section 2856 of the California Civil Code, each Indemnitor hereby waives waive all rights and defenses arising out of an election of remedies by Indemnitee Indemnified Parties even though that election of remedies, such as a nonjudicial foreclosure with respect to security for guaranteed obligations, has destroyed or otherwise impaired such Indemnitor’s Indemnitors’ rights of subrogation and reimbursement against the principal by the operation of Section 580d of the California Code of Civil Procedure or otherwise. Each Indemnitor hereby authorizes and empowers Indemnitee to exercise, in its sole and absolute discretion, any right or remedy, or any combination thereof, which may then be available, since it is the intent and purpose of each Indemnitor that the obligations under this Agreement shall be absolute, independent and unconditional under any and all circumstances. Specifically, and without in any way limiting the foregoing, Indemnitors each Indemnitor hereby waives waive any rights of subrogation, indemnification, contribution or reimbursement arising under Sections 2846, 2847, 2848 and 2849 of the California Civil Code or any other right of recourse to or with respect to the Class B Member, the Company or any of the Subsidiaries, any general partner, member or other constituent of the Class B Member, the Company or any of the Subsidiaries, any other person obligated to Indemnitee with respect to the matters set forth herein, Indemnified Parties or the assets or property of Borrowers or to any of collateral for the foregoing until the Redemption Price has been paid in full and all obligations of the Class B Member, the Company and its Affiliates under the Transaction Documents have been fully performed, and there has expired the maximum possible period thereafter during which any payment made by the Company or others to Indemnitee with respect to such obligations could be deemed a preference under the United States Bankruptcy CodeLoan. In connection with the foregoing, subject to the foregoing limitations, Indemnitors each Indemnitor expressly waives waive any and all rights of subrogation against the Company and each of its SubsidiariesBorrowers, and Indemnitors each Indemnitor hereby waives waive any rights to enforce any remedy which Indemnitee Indemnified Parties may have against Borrowers and any right to participate in any collateral for the Company or Loan. Indemnitors recognize that, pursuant to Section 580d of the California Code of Civil Procedure, Indemnified Parties’ realization through nonjudicial foreclosure upon any real property constituting security for Borrowers’ obligations under the Loan Documents could terminate any right of its Subsidiaries.
(iii) Indemnified Parties to recover a deficiency judgment against Borrowers, thereby terminating subrogation rights which such parties otherwise might have against Borrowers. In the absence of an adequate waiver, such a termination of subrogation rights could create a defense to enforcement of this Agreement against such parties. Indemnitors each hereby unconditionally and irrevocably waive any such defense. In addition to and without in any way limiting the foregoing, each Indemnitor Indemnitors hereby subordinates subordinate any and all indebtedness of the Class B Member, the Company and each Subsidiary Borrowers now or hereafter owed to any Indemnitor to all the indebtedness of the Class B Member and the Company Borrowers to Indemnitee Indemnified Parties and agrees with Indemnitee Indemnified Parties that until the Redemption Price has been paid in full and all obligations owed to Indemnitee under the Transaction Documents such time as Indemnified Parties may have been fully performed, and there has expired the maximum possible period thereafter during which any payment made by the Company or others to Indemnitee with respect to such obligations could be deemed a preference under the United States Bankruptcy Codeno further claim against Borrowers, no Indemnitor shall demand or accept any payment of principal or interest from the Class B MemberBorrowers, the Company or any of the Subsidiaries or claim any offset or other reduction of any Indemnitor’s Indemnitors’ obligations hereunder because of any such indebtedness. If indebtedness and shall not take any amount shall nevertheless be paid action to an Indemnitor by the Class B Member, the Company or obtain any Subsidiary or another guarantor prior to payment in full of the Redemption Price, such amount shall be held in trust collateral for the benefit of Indemnitee and shall forthwith be paid to Indemnitee to be credited and applied to the Unrecovered CapitalLoan. Further, no Indemnitor Indemnitors shall not have any right of recourse against Indemnitee Indemnified Parties by reason of any action Indemnitee Indemnified Parties may take or omit to take under the provisions of this Agreement or under the provisions of any of the Transaction Loan Documents. Without limiting If any amount shall nevertheless be paid to either Indemnitors by Borrowers or another indemnitor prior to payment in full of Indemnitors’ obligations hereunder, such amount shall be held in trust for the generality benefit of Indemnified Parties and shall forthwith be paid to Indemnified Parties to be credited and applied to such obligations, whether matured or unmatured. The provisions of this paragraph shall survive any satisfaction and discharge of Borrowers by virtue of any payment, court order or any applicable law, except payment in full of the foregoing, each Indemnitor hereby waives, to the fullest extent permitted by law, diligence in collecting the Indemnitors’ obligations owed to Indemnitee under the Transaction Documents, presentment, demand for payment, protest, all notices with respect to the Operating Agreement, this Agreement, or any other Transaction Document which may be required by statute, rule of law or otherwise to preserve Indemnitee’s rights against such Indemnitor under this Agreement, including, but not limited to, notice of acceptance, notice of any amendment of the Transaction Documents, notice of the occurrence of any default, notice of intent to accelerate, notice of acceleration, notice of dishonor, notice of foreclosure, notice of protest, and notice of the incurring by the Class B Member, the Company or any of the Subsidiaries of any obligation or indebtedness.
(iv) hereunder. Without limiting the foregoing, but subject to the same limitations set forth above, Indemnitors each Indemnitor waives waive (i) all rights of subrogation, reimbursement, indemnification, and contribution and any other rights and defenses that are or may become available to any Indemnitor Indemnitors by reason of California Civil Code Sections 2787 to 2855, inclusive, including any and all rights or defenses such Indemnitor may have by reason of protection afforded to the Class B Member, the Company or any of the Subsidiaries with respect to any of the obligations of any Indemnitor under this Agreement by reason of a nonjudicial foreclosure or pursuant to the antideficiency or other laws of the State of California limiting or discharging the obligations of the Class B Member, the Company or any of the Subsidiaries. Without limiting the generality of the foregoing, each Indemnitor hereby expressly waives any and all benefits under California Code of Civil Procedure Section 726 (which Section, if such Indemnitor had not given this waiver, among other things, would otherwise require Indemnitee to exhaust all of its security before a personal judgment could be obtained for a deficiency).
(v) Likewise, each Indemnitor waives (i) any and all rights and defenses available to such Indemnitor under California Civil Code Sections 2899 and 3433; and (ii) any rights or defenses such Indemnitor Indemnitors may have with respect to its obligations as a guarantor guarantor/indemnitor by reason of any election of remedies by IndemniteeIndemnified Parties; and (iii) all rights and defenses that Indemnitors may have because Xxxxxxxxx’ debt is secured by real property. This 49303604 means, among other things, that Indemnified Parties may collect from Indemnitors without first foreclosing on any real or personal property collateral pledged by Borrowers, and that if Indemnified Parties forecloses on any real property collateral pledged by Borrowers (A) the amount of the debt may be reduced only by the price for which that collateral is sold at the foreclosure sale, even if the collateral is worth more than the sale price, and (B) Indemnified Parties may collect from Indemnitors even if Indemnified Parties, by foreclosing on the real property collateral, has destroyed any rights Indemnitors may have to collect from Borrowers. This is an unconditional and irrevocable waiver of any rights and defenses Indemnitors may have because Borrowers’ debt evidenced by the Note is secured by real property. These rights and defenses include, but are not limited to, any rights or defenses based upon Section 580a, 580b, 580d, 580d or 726 of the California Code of Civil Procedure.. 49303604
Appears in 1 contract
Samples: Environmental Indemnity Agreement (Creative Media & Community Trust Corp)
Additional Indemnitor Waivers. To the extent California law applies, in addition to and not in lieu of any other provisions of this Agreement, each Indemnitor represents, warrants and covenants as follows:
(i) The obligations of each Indemnitor under this Agreement shall be performed without demand by Indemnitee and shall be unconditional irrespective of the genuineness, validity, regularity or enforceability of any of the Operating Agreement or any of the other Transaction Loan Documents, and without regard to any other circumstance which might otherwise constitute a legal or equitable discharge of a surety or a guarantor. Each Indemnitor hereby waives any and all benefits and defenses under California Civil Code Section 2810 and agrees that by doing so such Indemnitor shall be liable even if neither the Company nor the Class B Member Borrower had no liability at the time of execution of the Transaction Loan Documents, or thereafter ceases to be liable. Each Indemnitor hereby waives any and all benefits and defenses under California Civil Code Section 2809 and agrees that by doing so such Indemnitor’s liability may be larger in amount and more burdensome than that of the Class B Member, the Company or any of the SubsidiariesBorrower. Each Indemnitor hereby waives the benefit of all principles or provisions of law, statutory or otherwise, which are or might be in conflict with the terms of this Agreement and agrees that such Indemnitor’s obligations shall not be affected by any circumstances, whether or not referred to in this Agreement which might otherwise constitute a legal or equitable discharge of a surety or a guarantor. Each Indemnitor hereby waives the benefits of any right of discharge under any and all statutes or other laws relating to guarantors or sureties and any other rights of sureties and guarantors thereunder.. 22 Environmental Indemnity Agreement (Mezzanine Loan)
(ii) In accordance with Section 2856 of the California Civil Code, each Indemnitor hereby waives all rights and defenses arising out of an election of remedies by Indemnitee even though that election of remedies, such as a nonjudicial foreclosure with respect to security for guaranteed obligations, has destroyed or otherwise impaired such Indemnitor’s rights of subrogation and reimbursement against the principal by the operation of Section 580d of the California Code of Civil Procedure or otherwise. Each Indemnitor hereby authorizes and empowers Indemnitee to exercise, in its sole and absolute discretion, any right or remedy, or any combination thereof, which may then be available, since it is the intent and purpose of each Indemnitor that the obligations under this Agreement shall be absolute, independent and unconditional under any and all circumstances. Specifically, and without in any way limiting the foregoing, each Indemnitor hereby waives any rights of subrogation, indemnification, contribution or reimbursement arising under Sections 2846, 2847, 2848 and 2849 of the California Civil Code or any other right of recourse to or with respect to Borrower (unless a Permitted Direct Assumption shall have occurred in accordance with the Class B Member, the Company or any of the SubsidiariesLoan Agreement), any general partner, member or other constituent of Borrower (unless a Permitted Direct Assumption shall have occurred in accordance with the Class B Member, the Company or any of the SubsidiariesLoan Agreement), any other person obligated to Indemnitee with respect to the matters set forth herein, or the assets or property of any of the foregoing (unless a Permitted Direct Assumption shall have occurred in accordance with the Loan Agreement) or to any collateral for the Loan until the Redemption Price has Obligations have been indefeasibly paid and satisfied in full and full, all obligations of the Class B Member, the Company and its Affiliates owed to Indemnitee under the Transaction Loan Documents have been fully performed, and Indemnitee has released, transferred or disposed of all its right, title and interest in such collateral or security, and there has expired the maximum possible period thereafter during which any payment made by the Company Borrower or others to Indemnitee with respect to such obligations the Obligations could be deemed a preference under the United States Bankruptcy Code. In connection with the foregoing, subject to the foregoing limitations, each Indemnitor expressly waives any and all rights of subrogation against the Company and each of its SubsidiariesBorrower, and each Indemnitor hereby waives any rights to enforce any remedy which Indemnitee may have against Borrower and any right to participate in any collateral for the Company or Loan. Each Indemnitor recognizes that, pursuant to Section 580d of the California Code of Civil Procedure, Indemnitee’s realization through nonjudicial foreclosure upon any real property constituting security for Borrower’s obligations under the Loan Documents could terminate any right of its Subsidiaries.Indemnitee to recover a deficiency judgment against Borrower, thereby terminating subrogation rights which such parties otherwise might have against Borrower. In the absence of an adequate waiver, such a termination of subrogation rights could create a defense to enforcement of this Agreement against such parties. Each Indemnitor hereby unconditionally and irrevocably waives any such defense. 23 Environmental Indemnity Agreement (Mezzanine Loan)
(iii) In addition to and without in any way limiting the foregoing, each Indemnitor hereby subordinates any and all indebtedness of the Class B Member, the Company and each Subsidiary Borrower now or hereafter owed to any Indemnitor to all the indebtedness of the Class B Member and the Company Borrower to Indemnitee and agrees with Indemnitee that until the Redemption Price either (x) a Permitted Direct Assumption has been consummated in accordance with the Loan Agreement or (y) the Obligations have been indefeasibly paid and satisfied in full and full, all obligations owed to Indemnitee under the Transaction Loan Documents have been fully performed, and Indemnitee has released, transferred or disposed of all its right, title and interest in such collateral or security, and there has expired the maximum possible period thereafter during which any payment made by the Company Borrower or others to Indemnitee with respect to such obligations the Obligations could be deemed a preference under the United States Bankruptcy Code, no Indemnitor shall demand or accept any payment of principal or interest from the Class B MemberBorrower, the Company or any of the Subsidiaries or claim any offset or other reduction of any Indemnitor’s obligations hereunder because of any such indebtednessindebtedness and shall not (even following a Permitted Direct Assumption) take any action to obtain any of the collateral for the Loan. If any amount shall nevertheless be paid to an Indemnitor by the Class B Member, the Company or any Subsidiary Borrower or another guarantor prior to payment in full of the Redemption PriceGuaranteed Obligations (as defined in the Guaranty), such amount shall be held in trust for the benefit of Indemnitee and shall forthwith be paid to Indemnitee to be credited and applied to the Unrecovered CapitalGuaranteed Obligations, whether matured or unmatured. Further, no Indemnitor shall have any right of recourse against Indemnitee by reason of any action Indemnitee may take or omit to take under the provisions of this Agreement or under the provisions of any of the Transaction Loan Documents. Without limiting the generality of the foregoing, each Indemnitor hereby waives, to the fullest extent permitted by law, diligence in collecting the obligations owed to Indemnitee under the Transaction DocumentsObligations, presentment, demand for payment, protest, all notices with respect to the Operating AgreementNote, this Agreement, or any other Transaction Loan Document which may be required by statute, rule of law or otherwise to preserve Indemnitee’s rights against such Indemnitor under this Agreement, including, but not limited to, notice of acceptance, notice of any amendment of the Transaction Loan Documents, notice of the occurrence of any default, notice of intent to accelerate, notice of acceleration, notice of dishonor, notice of foreclosure, notice of protest, and notice of the incurring by the Class B Member, the Company or any of the Subsidiaries Borrower of any obligation or indebtedness.. 24 Environmental Indemnity Agreement (Mezzanine Loan)
(iv) Without limiting the foregoing, but subject to the same limitations set forth above, each Indemnitor waives (i) all rights of subrogation, reimbursement, indemnification, and contribution and any other rights and defenses that are or may become available to any Indemnitor by reason of California Civil Code Sections 2787 to 2855, inclusive, including any and all rights or defenses such Indemnitor may have by reason of protection afforded to the Class B Member, the Company or any of the Subsidiaries Borrower with respect to any of the obligations of any Indemnitor under this Agreement by reason of a nonjudicial foreclosure or pursuant to the antideficiency or other laws of the State of California limiting or discharging the obligations of the Class B Member, the Company or any of the SubsidiariesBorrower’s Obligations. Without limiting the generality of the foregoing, each Indemnitor hereby expressly waives any and all benefits under (i) California Code of Civil Procedure Section 580a (which Section, if such Indemnitor had not given this waiver, would otherwise limit such Indemnitor’s liability after a nonjudicial foreclosure sale to the difference between the obligations of such Indemnitor under this Agreement and the fair market value of the property or interests sold at such nonjudicial foreclosure sale), (ii) California Code of Civil Procedure Sections 580b and 580d (which Sections, if such Indemnitor had not given this waiver, would otherwise limit Indemnitee’s right to recover a deficiency judgment with respect to purchase money obligations and after a nonjudicial foreclosure sale, respectively), and (iii) California Code of Civil Procedure Section 726 (which Section, if such Indemnitor had not given this waiver, among other things, would otherwise require Indemnitee to exhaust all of its security before a personal judgment could be obtained for a deficiency). Notwithstanding any foreclosure of the lien of the Pledge Agreement or any mortgage, deed of trust or other security instrument that may now or hereafter be executed by Borrower for the benefit of Lender, each Indemnitor shall remain bound under this Agreement (other than as set forth in Section 9 or Section 10).
(v) Likewise, each Indemnitor waives (i) any and all rights and defenses available to such Indemnitor under California Civil Code Sections 2899 and 3433; and (ii) any rights or defenses such Indemnitor may have with respect to its obligations as a guarantor by reason of any election of remedies by Indemnitee; and (iii) all rights and defenses that such Indemnitor may have because Borrower’s debt is secured by any real property. This means, among other things, that Indemnitee may collect from Indemnitors without first foreclosing on any real or personal property collateral pledged by Borrower or any Mortgage Borrower, and that if Indemnitee forecloses on any real property collateral pledged by Borrower (A) the amount of the debt may be reduced only by the price for which that collateral is sold at the foreclosure sale, even if the collateral is worth more than the sale price, and (B) Indemnitee may collect from Indemnitors even if Indemnitee, by foreclosing on the real property collateral, has destroyed any rights Indemnitors may have to collect from Borrower. This is an unconditional and irrevocable waiver of any rights and defenses any Indemnitor may have because Borrower’s debt is secured by any real property. These rights and defenses include, but are not limited to, any rights or defenses based upon Section 580a, 580b, 580d, or 726 of the California Code of Civil Procedure.. The provisions of this Section 29(b) shall survive any satisfaction and discharge of Borrower by virtue of any payment, court order or any applicable law, except the indefeasible payment in full of the Debt. 25 Environmental Indemnity Agreement (Mezzanine Loan)
Appears in 1 contract
Samples: Real Estate Sale Agreement (American Realty Capital Hospitality Trust, Inc.)
Additional Indemnitor Waivers. To the extent California law applies, in addition to and not in lieu of any other provisions of this Agreement, each Indemnitor represents, warrants and covenants as follows:
(i) The obligations of each Indemnitor under this Agreement shall be performed without demand by Indemnitee and shall be unconditional irrespective of the genuineness, validity, regularity or enforceability of any of the Operating Agreement or any of the other Transaction Loan Documents, and without regard to any other circumstance which might otherwise constitute a legal or equitable discharge of a surety or a guarantor. Each Indemnitor hereby waives any and all benefits and defenses under California Civil Code Section 2810 and agrees that by doing so such Indemnitor shall be liable even if neither any one or more of the Company nor the Class B Member Borrowers had no liability at the time of execution of the Transaction Loan Documents, or thereafter ceases to be liable. Each Indemnitor hereby waives any and all benefits and defenses under California Civil Code Section 2809 and agrees that by doing so such Indemnitor’s liability may be larger in amount and more burdensome than that of the Class B Member, the Company any one or any more of the SubsidiariesBorrowers. Each Indemnitor hereby waives the benefit of all principles or provisions of law, statutory or otherwise, which are or might be in conflict with the terms of this Agreement and agrees that such Indemnitor’s obligations shall not be affected by any circumstances, whether or not referred to in this Agreement which might otherwise constitute a legal or equitable discharge of a surety or a guarantor. Each Indemnitor hereby waives the benefits of any right of discharge under any and all statutes or other laws relating to guarantors or sureties and any other rights of sureties and guarantors thereunder.
(ii) In accordance with Section 2856 of the California Civil Code, each Indemnitor hereby waives all rights and defenses arising out of an election of remedies by Indemnitee even though that election of remedies, such as a nonjudicial foreclosure with respect to security for guaranteed obligations, has destroyed or otherwise impaired such Indemnitor’s rights of subrogation and reimbursement against the principal by the operation of Section 580d of the California Code of Civil Procedure or otherwise. Each Indemnitor hereby authorizes and empowers Indemnitee to exercise, in its sole and absolute discretion, any right or remedy, or any combination thereof, which may then be available, since it is the intent and purpose of each Indemnitor that the obligations under this Agreement shall be absolute, independent and unconditional under any and all circumstances. Specifically, and without in any way limiting the foregoing, each Indemnitor hereby waives any rights of subrogation, indemnification, contribution or reimbursement arising under Sections 2846, 2847, 2848 and 2849 of the California Civil Code or any other right of recourse to or with respect to the Class B Member, the Company or any of the Subsidiaries, any general partner, member or other constituent of the Class B Member, the Company or any of the Subsidiaries, any other person obligated to Indemnitee with respect to the matters set forth herein, or the assets or property of any of the foregoing until the Redemption Price has been paid in full and all obligations of the Class B Member, the Company and its Affiliates under the Transaction Documents have been fully performed, and there has expired the maximum possible period thereafter during which any payment made by the Company or others to Indemnitee with respect to such obligations could be deemed a preference under the United States Bankruptcy Code. In connection with the foregoing, subject to the foregoing limitations, each Indemnitor expressly waives any and all rights of subrogation against the Company and each of its Subsidiaries, and each Indemnitor hereby waives any rights to enforce any remedy which Indemnitee may have against the Company or any of its Subsidiaries.
(iii) In addition to and without in any way limiting the foregoing, each Indemnitor hereby subordinates any and all indebtedness of the Class B Member, the Company and each Subsidiary now or hereafter owed to any Indemnitor to all the indebtedness of the Class B Member and the Company to Indemnitee and agrees with Indemnitee that until the Redemption Price has been paid in full and all obligations owed to Indemnitee under the Transaction Documents have been fully performed, and there has expired the maximum possible period thereafter during which any payment made by the Company or others to Indemnitee with respect to such obligations could be deemed a preference under the United States Bankruptcy Code, no Indemnitor shall demand or accept any payment of principal or interest from the Class B Member, the Company or any of the Subsidiaries or claim any offset or other reduction of any Indemnitor’s obligations hereunder because of any such indebtedness. If any amount shall nevertheless be paid to an Indemnitor by the Class B Member, the Company or any Subsidiary or another guarantor prior to payment in full of the Redemption Price, such amount shall be held in trust for the benefit of Indemnitee and shall forthwith be paid to Indemnitee to be credited and applied to the Unrecovered Capital. Further, no Indemnitor shall have any right of recourse against Indemnitee by reason of any action Indemnitee may take or omit to take under the provisions of this Agreement or under the provisions of any of the Transaction Documents. Without limiting the generality of the foregoing, each Indemnitor hereby waives, to the fullest extent permitted by law, diligence in collecting the obligations owed to Indemnitee under the Transaction Documents, presentment, demand for payment, protest, all notices with respect to the Operating Agreement, this Agreement, or any other Transaction Document which may be required by statute, rule of law or otherwise to preserve Indemnitee’s rights against such Indemnitor under this Agreement, including, but not limited to, notice of acceptance, notice of any amendment of the Transaction Documents, notice of the occurrence of any default, notice of intent to accelerate, notice of acceleration, notice of dishonor, notice of foreclosure, notice of protest, and notice of the incurring by the Class B Member, the Company or any of the Subsidiaries of any obligation or indebtedness.
(iv) Without limiting the foregoing, but subject to the same limitations set forth above, each Indemnitor waives (i) all rights of subrogation, reimbursement, indemnification, and contribution and any other rights and defenses that are or may become available to any Indemnitor by reason of California Civil Code Sections 2787 to 2855, inclusive, including any and all rights or defenses such Indemnitor may have by reason of protection afforded to the Class B Member, the Company or any of the Subsidiaries with respect to any of the obligations of any Indemnitor under this Agreement by reason of a nonjudicial foreclosure or pursuant to the antideficiency or other laws of the State of California limiting or discharging the obligations of the Class B Member, the Company or any of the Subsidiaries. Without limiting the generality of the foregoing, each Indemnitor hereby expressly waives any and all benefits under California Code of Civil Procedure Section 726 (which Section, if such Indemnitor had not given this waiver, among other things, would otherwise require Indemnitee to exhaust all of its security before a personal judgment could be obtained for a deficiency).
(v) Likewise, each Indemnitor waives (i) any and all rights and defenses available to such Indemnitor under California Civil Code Sections 2899 and 3433; and (ii) any rights or defenses such Indemnitor may have with respect to its obligations as a guarantor by reason of any election of remedies by Indemnitee. These rights and defenses include, but are not limited to, any rights or defenses based upon Section 580a, 580b, 580d, or 726 of the California Code of Civil Procedure.
Appears in 1 contract
Samples: Real Estate Sale Agreement (American Realty Capital Hospitality Trust, Inc.)
Additional Indemnitor Waivers. To the extent California law applies, in addition to and not in lieu of any other provisions of this Agreement, each Indemnitor represents, warrants and covenants as follows:
(i) The obligations of each Indemnitor under this Agreement shall be performed without demand by Indemnitee and shall be unconditional irrespective of the genuineness, validity, regularity or enforceability of any of the Operating Agreement or any of the other Transaction Loan Documents, and without regard to any other circumstance which might otherwise constitute a legal or equitable discharge of a surety or a guarantor. Each Indemnitor hereby waives any and all benefits and defenses under California Civil Code Section 2810 and agrees that by doing so such Indemnitor shall be liable even if neither any one or more of the Company nor the Class B Member Borrowers had no liability at the time of execution of the Transaction Loan Documents, or thereafter ceases to be liable. Each Indemnitor hereby waives any and all benefits and defenses under California Civil Code Section 2809 and agrees that by doing so such Indemnitor’s liability may be larger in amount and more burdensome than that of the Class B Member, the Company any one or any more of the SubsidiariesBorrowers. Each Indemnitor hereby waives the benefit of all principles or provisions of law, statutory or otherwise, which are or might be in conflict with the terms of this Agreement and agrees that such Indemnitor’s obligations shall not be affected by any circumstances, whether or not referred to in this Agreement which might otherwise constitute a legal or equitable discharge of a surety or a guarantor. Each Indemnitor hereby waives the benefits of any right of discharge under any and all statutes or other laws relating to guarantors or sureties and any other rights of sureties and guarantors thereunder.
(ii) In accordance with Section 2856 of the California Civil Code, each Indemnitor hereby waives all rights and defenses arising out of an election of remedies by Indemnitee even though that election of remedies, such as a nonjudicial foreclosure with respect to security for guaranteed obligations, has destroyed or otherwise impaired such Indemnitor’s rights of subrogation and reimbursement against the principal by the operation of Section 580d of the California Code of Civil Procedure or otherwise. Each Indemnitor hereby authorizes and empowers Indemnitee to exercise, in its sole and absolute discretion, any right or remedy, or any combination thereof, which may then be available, since it is the intent and purpose of each Indemnitor that the obligations under this Agreement shall be absolute, independent and unconditional under any and all circumstances. Specifically, and without in any way limiting the foregoing, each Indemnitor hereby waives any rights of subrogation, indemnification, contribution or reimbursement arising under Sections 2846, 2847, 2848 and 2849 of the California Civil Code or any other right of recourse to or with respect to any Borrower (unless a Permitted Direct Assumption shall have occurred in accordance with the Class B Member, the Company or any of the SubsidiariesLoan Agreement), any general partner, member or other constituent of any Borrower (unless a Permitted Direct Assumption shall have occurred in accordance with the Class B Member, the Company or any of the SubsidiariesLoan Agreement), any other person obligated to Indemnitee with respect to the matters set forth herein, or the assets or property of any of the foregoing (unless a Permitted Direct Assumption shall have occurred in accordance with the Loan Agreement) or to any collateral for the Loan until the Redemption Price has Obligations have been indefeasibly paid and satisfied in full and full, all obligations of the Class B Member, the Company and its Affiliates owed to Indemnitee under the Transaction Loan Documents have been fully performed, and Indemnitee has released, transferred or disposed of all its right, title and interest in such collateral or security, and there has expired the maximum possible period thereafter during which any payment made by the Company any Borrower or others to Indemnitee with respect to such obligations the Obligations could be deemed a preference under the United States Bankruptcy Code. In connection with the foregoing, subject to the foregoing limitations, each Indemnitor expressly waives any and all rights of subrogation against the Company and each of its SubsidiariesBorrower, and each Indemnitor hereby waives any rights to enforce any remedy which Indemnitee may have against any Borrower and any right to participate in any collateral for the Company Loan. Each Indemnitor recognizes that, pursuant to Section 580d of the California Code of Civil Procedure, Indemnitee’s realization through nonjudicial foreclosure upon any real property constituting security for any Borrower’s obligations under the Loan Documents could terminate any right of Indemnitee to recover a deficiency judgment against one or more of the Borrowers, thereby terminating subrogation rights which such parties otherwise might have against such Borrower or Borrowers. In the absence of an adequate waiver, such a termination of subrogation rights could create a defense to enforcement of this Agreement against such parties. Each Indemnitor hereby unconditionally and irrevocably waives any of its Subsidiariessuch defense.
(iii) In addition to and without in any way limiting the foregoing, each Indemnitor hereby subordinates any and all indebtedness of the Class B Member, the Company and each Subsidiary Borrower now or hereafter owed to any Indemnitor to all the indebtedness of the Class B Member and the Company Borrowers to Indemnitee and agrees with Indemnitee that until the Redemption Price either (x) a Permitted Direct Assumption has been consummated in accordance with the Loan Agreement or (y) the Obligations have been indefeasibly paid and satisfied in full and full, all obligations owed to Indemnitee under the Transaction Loan Documents have been fully performed, and Indemnitee has released, transferred or disposed of all its right, title and interest in such collateral or security, and there has expired the maximum possible period thereafter during which any payment made by the Company any Borrower or others to Indemnitee with respect to such obligations the Obligations could be deemed a preference under the United States Bankruptcy Code, no Indemnitor shall demand or accept any payment of principal or interest from the Class B Memberany Borrower, the Company or any of the Subsidiaries or claim any offset or other reduction of any Indemnitor’s obligations hereunder because of any such indebtednessindebtedness and shall not (even following a Permitted Direct Assumption) take any action to obtain any of the collateral for the Loan. If any amount shall nevertheless be paid to an Indemnitor by the Class B Member, the Company or any Subsidiary Borrower or another guarantor prior to payment in full of the Redemption PriceGuaranteed Obligations (as defined in the Guaranty), such amount shall be held in trust for the benefit of Indemnitee and shall forthwith be paid to Indemnitee to be credited and applied to the Unrecovered CapitalGuaranteed Obligations, whether matured or unmatured. Further, no Indemnitor shall have any right of recourse against Indemnitee by reason of any action Indemnitee may take or omit to take under the provisions of this Agreement or under the provisions of any of the Transaction Loan Documents. Without limiting the generality of the foregoing, each Indemnitor hereby waives, to the fullest extent permitted by law, diligence in collecting the obligations owed to Indemnitee under the Transaction DocumentsObligations, presentment, demand for payment, protest, all notices with respect to the Operating AgreementNote, this Agreement, or any other Transaction Loan Document which may be required by statute, rule of law or otherwise to preserve Indemnitee’s rights against such Indemnitor under this Agreement, including, but not limited to, notice of acceptance, notice of any amendment of the Transaction Loan Documents, notice of the occurrence of any default, notice of intent to accelerate, notice of acceleration, notice of dishonor, notice of foreclosure, notice of protest, and notice of the incurring by the Class B Member, the Company or any of the Subsidiaries Borrower of any obligation or indebtedness.
(iv) Without limiting the foregoing, but subject to the same limitations set forth above, each Indemnitor waives (i) all rights of subrogation, reimbursement, indemnification, and contribution and any other rights and defenses that are or may become available to any Indemnitor by reason of California Civil Code Sections 2787 to 2855, inclusive, including any and all rights or defenses such Indemnitor may have by reason of protection afforded to the Class B Member, the Company or any of the Subsidiaries Borrower with respect to any of the obligations of any Indemnitor under this Agreement by reason of a nonjudicial foreclosure or pursuant to the antideficiency or other laws of the State of California limiting or discharging the obligations of the Class B Member, the Company or any of the Subsidiariessuch Borrower’s Obligations. Without limiting the generality of the foregoing, each Indemnitor hereby expressly waives any and all benefits under (i) California Code of Civil Procedure Section 580a (which Section, if such Indemnitor had not given this waiver, would otherwise limit such Indemnitor’s liability after a nonjudicial foreclosure sale to the difference between the obligations of such Indemnitor under this Agreement and the fair market value of the property or interests sold at such nonjudicial foreclosure sale), (ii) California Code of Civil Procedure Sections 580b and 580d (which Sections, if such Indemnitor had not given this waiver, would otherwise limit Indemnitee’s right to recover a deficiency judgment with respect to purchase money obligations and after a nonjudicial foreclosure sale, respectively), and (iii) California Code of Civil Procedure Section 726 (which Section, if such Indemnitor had not given this waiver, among other things, would otherwise require Indemnitee to exhaust all of its security before a personal judgment could be obtained for a deficiency). Notwithstanding any foreclosure of the lien of the Mortgage, whether by the exercise of the power of sale contained therein, by an action for judicial foreclosure or by Indemnitee’s acceptance of a deed in lieu of foreclosure, each Indemnitor shall remain bound under this Agreement (other than as set forth in Section 9 or Section 10.
(v) Likewise, each Indemnitor waives (i) any and all rights and defenses available to such Indemnitor under California Civil Code Sections 2899 and 3433; and (ii) any rights or defenses such Indemnitor may have with respect to its obligations as a guarantor by reason of any election of remedies by Indemnitee; and (iii) all rights and defenses that such Indemnitor may have because Borrowers’ debt is secured by real property. This means, among other things, that Indemnitee may collect from Indemnitors without first foreclosing on any real or personal property collateral pledged by any Borrower, and that if Indemnitee forecloses on any real property collateral pledged by any Borrower (A) the amount of the debt may be reduced only by the price for which that collateral is sold at the foreclosure sale, even if the collateral is worth more than the sale price, and (B) Indemnitee may collect from Indemnitors even if Indemnitee, by foreclosing on the real property collateral, has destroyed any rights Indemnitors may have to collect from such Borrower or Borrowers. This is an unconditional and irrevocable waiver of any rights and defenses any Indemnitor may have because Borrowers’ debt evidenced by the Note is secured by real property. These rights and defenses include, but are not limited to, any rights or defenses based upon Section 580a, 580b, 580d, or 726 of the California Code of Civil Procedure. The provisions of this Section 29(b) shall survive any satisfaction and discharge of any one or more of the Borrowers by virtue of any payment, court order or any applicable law, except the indefeasible payment in full of the Debt.
Appears in 1 contract
Samples: Real Estate Sale Agreement (W2007 Grace Acquisition I Inc)
Additional Indemnitor Waivers. To the extent California law applies, in addition to and not in lieu of any other provisions of this Agreement, each Indemnitor represents, warrants and covenants as follows:
(i) The obligations of each Indemnitor under this Agreement shall be performed without demand by Indemnitee and shall be unconditional irrespective of the genuineness, validity, regularity or enforceability of any of the Operating Agreement or any of the other Transaction Loan Documents, and without regard to any other circumstance which might otherwise constitute a legal or equitable discharge of a surety or a guarantor. Each Indemnitor hereby waives any and all benefits and defenses under California Civil Code Section 2810 and agrees that by doing so such Indemnitor shall be liable even if neither the Company nor the Class B Member Borrower had no liability at the time of execution of the Transaction Loan Documents, or thereafter ceases to be liable. Each Indemnitor hereby waives any and all benefits and defenses under California Civil Code Section 2809 and agrees that by doing so such Indemnitor’s liability may be larger in amount and more burdensome than that of the Class B Member, the Company or any of the SubsidiariesBorrower. Each Indemnitor hereby waives the benefit of all principles or provisions of law, statutory or otherwise, which are or might be in conflict with the terms of this Agreement and agrees that such Indemnitor’s obligations shall not be affected by any circumstances, whether or not referred to in this Agreement which might otherwise constitute a legal or equitable discharge of a surety or a guarantor. Each Indemnitor hereby waives the benefits of any right of discharge under any and all statutes or other laws relating to guarantors or sureties and any other rights of sureties and guarantors thereunder.. 23 Environmental Indemnity Agreement (Mezzanine Loan)
(ii) In accordance with Section 2856 of the California Civil Code, each Indemnitor hereby waives all rights and defenses arising out of an election of remedies by Indemnitee even though that election of remedies, such as a nonjudicial foreclosure with respect to security for guaranteed obligations, has destroyed or otherwise impaired such Indemnitor’s rights of subrogation and reimbursement against the principal by the operation of Section 580d of the California Code of Civil Procedure or otherwise. Each Indemnitor hereby authorizes and empowers Indemnitee to exercise, in its sole and absolute discretion, any right or remedy, or any combination thereof, which may then be available, since it is the intent and purpose of each Indemnitor that the obligations under this Agreement shall be absolute, independent and unconditional under any and all circumstances. Specifically, and without in any way limiting the foregoing, each Indemnitor hereby waives any rights of subrogation, indemnification, contribution or reimbursement arising under Sections 2846, 2847, 2848 and 2849 of the California Civil Code or any other right of recourse to or with respect to Borrower (unless a Permitted Direct Assumption shall have occurred in accordance with the Class B Member, the Company or any of the SubsidiariesLoan Agreement), any general partner, member or other constituent of Borrower (unless a Permitted Direct Assumption shall have occurred in accordance with the Class B Member, the Company or any of the SubsidiariesLoan Agreement), any other person obligated to Indemnitee with respect to the matters set forth herein, or the assets or property of any of the foregoing (unless a Permitted Direct Assumption shall have occurred in accordance with the Loan Agreement) or to any collateral for the Loan until the Redemption Price has Obligations have been indefeasibly paid and satisfied in full and full, all obligations of the Class B Member, the Company and its Affiliates owed to Indemnitee under the Transaction Loan Documents have been fully performed, and Indemnitee has released, transferred or disposed of all its right, title and interest in such collateral or security, and there has expired the maximum possible period thereafter during which any payment made by the Company Borrower or others to Indemnitee with respect to such obligations the Obligations could be deemed a preference under the United States Bankruptcy Code. In connection with the foregoing, subject to the foregoing limitations, each Indemnitor expressly waives any and all rights of subrogation against the Company and each of its SubsidiariesBorrower, and each Indemnitor hereby waives any rights to enforce any remedy which Indemnitee may have against Borrower and any right to participate in any collateral for the Company or Loan. Each Indemnitor recognizes that, pursuant to Section 580d of the California Code of Civil Procedure, Indemnitee’s realization through nonjudicial foreclosure upon any real property constituting security for Borrower’s obligations under the Loan Documents could terminate any right of its Subsidiaries.Indemnitee to recover a deficiency judgment against Borrower, thereby terminating subrogation rights which such parties otherwise might have against Borrower. In the absence of an adequate waiver, such a termination of subrogation rights could create a defense to enforcement of this Agreement against such parties. Each Indemnitor hereby unconditionally and irrevocably waives any such defense. 24 Environmental Indemnity Agreement (Mezzanine Loan)
(iii) In addition to and without in any way limiting the foregoing, each Indemnitor hereby subordinates any and all indebtedness of the Class B Member, the Company and each Subsidiary Borrower now or hereafter owed to any Indemnitor to all the indebtedness of the Class B Member and the Company Borrower to Indemnitee and agrees with Indemnitee that until the Redemption Price either (x) a Permitted Direct Assumption has been consummated in accordance with the Loan Agreement or (y) the Obligations have been indefeasibly paid and satisfied in full and full, all obligations owed to Indemnitee under the Transaction Loan Documents have been fully performed, and Indemnitee has released, transferred or disposed of all its right, title and interest in such collateral or security, and there has expired the maximum possible period thereafter during which any payment made by the Company Borrower or others to Indemnitee with respect to such obligations the Obligations could be deemed a preference under the United States Bankruptcy Code, no Indemnitor shall demand or accept any payment of principal or interest from the Class B MemberBorrower, the Company or any of the Subsidiaries or claim any offset or other reduction of any Indemnitor’s obligations hereunder because of any such indebtednessindebtedness and shall not (even following a Permitted Direct Assumption) take any action to obtain any of the collateral for the Loan. If any amount shall nevertheless be paid to an Indemnitor by the Class B Member, the Company or any Subsidiary Borrower or another guarantor prior to payment in full of the Redemption PriceGuaranteed Obligations (as defined in the Guaranty), such amount shall be held in trust for the benefit of Indemnitee and shall forthwith be paid to Indemnitee to be credited and applied to the Unrecovered CapitalGuaranteed Obligations, whether matured or unmatured. Further, no Indemnitor shall have any right of recourse against Indemnitee by reason of any action Indemnitee may take or omit to take under the provisions of this Agreement or under the provisions of any of the Transaction Loan Documents. Without limiting the generality of the foregoing, each Indemnitor hereby waives, to the fullest extent permitted by law, diligence in collecting the obligations owed to Indemnitee under the Transaction DocumentsObligations, presentment, demand for payment, protest, all notices with respect to the Operating AgreementNote, this Agreement, or any other Transaction Loan Document which may be required by statute, rule of law or otherwise to preserve Indemnitee’s rights against such Indemnitor under this Agreement, including, but not limited to, notice of acceptance, notice of any amendment of the Transaction Loan Documents, notice of the occurrence of any default, notice of intent to accelerate, notice of acceleration, notice of dishonor, notice of foreclosure, notice of protest, and notice of the incurring by the Class B Member, the Company or any of the Subsidiaries Borrower of any obligation or indebtedness.
(iv) Without limiting the foregoing, but subject to the same limitations set forth above, each Indemnitor waives (i) all rights of subrogation, reimbursement, indemnification, and contribution and any other rights and defenses that are or may become available to any Indemnitor by reason of California Civil Code Sections 2787 to 2855, inclusive, including any and all rights or defenses such Indemnitor may have by reason of protection afforded to the Class B Member, the Company or any of the Subsidiaries Borrower with respect to any of the obligations of any Indemnitor under this Agreement by reason of a nonjudicial foreclosure or pursuant to the antideficiency or other laws of the State of California limiting or discharging the obligations of the Class B Member, the Company or any of the SubsidiariesBorrower’s Obligations. Without limiting the generality of the foregoing, each Indemnitor hereby expressly waives any and all benefits under (i) California Code of Civil Procedure Section 580a (which Section, if such Indemnitor had not given this waiver, would otherwise limit such Indemnitor’s liability after a nonjudicial foreclosure sale to the difference between the obligations of such Indemnitor under this Agreement and the fair market value of the property or interests sold at such nonjudicial foreclosure sale), (ii) California Code of Civil Procedure Sections 580b and 580d (which Sections, if such Indemnitor had not given this waiver, would otherwise limit Indemnitee’s right to recover a deficiency judgment with respect to purchase money obligations and after a nonjudicial foreclosure sale, respectively), and (iii) California Code of Civil Procedure Section 726 (which Section, if such Indemnitor had not given this waiver, among other things, would otherwise require Indemnitee to exhaust all of its security before a personal judgment could be obtained for a deficiency). Notwithstanding any foreclosure of the lien of the Pledge Agreement or any mortgage, deed of trust or other security instrument that may now or hereafter be executed by Borrower for the benefit of Lender, each Indemnitor shall remain bound under this Agreement (other than as set forth in Section 9 or Section 10).
(v) Likewise, each Indemnitor waives (i) any and all rights and defenses available to such Indemnitor under California Civil Code Sections 2899 and 3433; and (ii) any rights or defenses such Indemnitor may have with respect to its obligations as a guarantor by reason of any election of remedies by Indemnitee; and (iii) all rights and defenses that such Indemnitor may have because Borrower’s debt is secured by any real property. This means, among other things, that Indemnitee may collect from Indemnitors without first foreclosing on any real or personal property collateral pledged by Borrower or any Mortgage Borrower, and that if Indemnitee forecloses on any real property collateral pledged by Borrower (A) the amount of the debt may be reduced only by the price for which that collateral is sold at the foreclosure sale, even if the collateral is worth more than the sale price, and (B) Indemnitee may collect from Indemnitors even if Indemnitee, by foreclosing on the real property collateral, has destroyed any rights Indemnitors may have to collect from Borrower. This is an unconditional and irrevocable waiver of any rights and defenses any Indemnitor may have because Borrower’s debt is secured by any real property. These rights and defenses include, but are not limited to, any rights or defenses based upon Section 580a, 580b, 580d, or 726 of the California Code of Civil Procedure. The provisions of this Section 29(b) shall survive any satisfaction and discharge of Borrower by virtue of any payment, court order or any applicable law, except the indefeasible payment in full of the Debt.
Appears in 1 contract
Samples: Real Estate Sale Agreement (W2007 Grace Acquisition I Inc)
Additional Indemnitor Waivers. To the extent California law applies, in addition to and not in lieu of any other provisions of this Agreement, each Indemnitor represents, warrants and covenants as follows:
(i) The obligations of each Indemnitor under this Agreement shall be performed without demand by Indemnitee and shall be unconditional irrespective of the genuineness, validity, regularity or enforceability of any of the Operating Agreement or any of the other Transaction Loan Documents, and without regard to any other circumstance which might otherwise constitute a legal or equitable discharge of a surety or a guarantor. Each Indemnitor hereby waives any and all benefits and defenses under California Civil Code Section 2810 and agrees that by doing so such Indemnitor shall be liable even if neither the Company nor the Class B Member Borrower had no liability at the time of execution of the Transaction Loan Documents, or thereafter ceases to be liable. Each Indemnitor hereby waives any and all benefits and defenses under California Civil Code Section 2809 and agrees that by doing so such Indemnitor’s liability may be larger in amount and more burdensome than that of the Class B Member, the Company or any of the SubsidiariesBorrower. Each Indemnitor hereby waives the benefit of all principles or provisions of law, statutory or otherwise, which are or might be in conflict with the terms of this Agreement and agrees that such Indemnitor’s obligations shall not be affected by any circumstances, whether or not referred to in this Agreement which might otherwise constitute a legal or equitable discharge of a surety or a guarantor. Each Indemnitor hereby waives the benefits of any right of discharge under any and all statutes or other laws relating to guarantors or sureties and any other rights of sureties and guarantors thereunder.
(ii) In accordance with Section 2856 of the California Civil Code, each Indemnitor hereby waives all rights and defenses arising out of an election of remedies by Indemnitee even though that election of remedies, such as a nonjudicial foreclosure with respect to security for guaranteed obligations, has destroyed or otherwise impaired such Indemnitor’s rights of subrogation and reimbursement against the principal by the operation of Section 580d of the California Code of Civil Environmental Indemnity Agreement (Mezzanine) Berkadia Loan No. 00-0000000 & 00-0000000 117473511_7 Procedure or otherwise. Each Indemnitor hereby authorizes and empowers Indemnitee to exercise, in its sole and absolute discretion, any right or remedy, or any combination thereof, which may then be available, since it is the intent and purpose of each Indemnitor that the obligations under this Agreement shall be absolute, independent and unconditional under any and all circumstances. Specifically, and without in any way limiting the foregoing, each Indemnitor hereby waives any rights of subrogation, indemnification, contribution or reimbursement arising under Sections 2846, 2847, 2848 and 2849 of the California Civil Code or any other right of recourse to or with respect to Borrower (unless a Permitted Direct Assumption shall have occurred in accordance with the Class B Member, the Company or any of the SubsidiariesLoan Agreement), any general partner, member or other constituent of Borrower (unless a Permitted Direct Assumption shall have occurred in accordance with the Class B Member, the Company or any of the SubsidiariesLoan Agreement), any other person obligated to Indemnitee with respect to the matters set forth herein, or the assets or property of any of the foregoing (unless a Permitted Direct Assumption shall have occurred in accordance with the Loan Agreement) or to any collateral for the Loan until the Redemption Price has Obligations have been indefeasibly paid and satisfied in full and full, all obligations of the Class B Member, the Company and its Affiliates owed to Indemnitee under the Transaction Loan Documents have been fully performed, and Indemnitee has released, transferred or disposed of all its right, title and interest in such collateral or security, and there has expired the maximum possible period thereafter during which any payment made by the Company Borrower or others to Indemnitee with respect to such obligations the Obligations could be deemed a preference under the United States Bankruptcy Code. In connection with the foregoing, subject to the foregoing limitations, each Indemnitor expressly waives any and all rights of subrogation against the Company and each of its SubsidiariesBorrower, and each Indemnitor hereby waives any rights to enforce any remedy which Indemnitee may have against Borrower and any right to participate in any collateral for the Company or Loan. Each Indemnitor recognizes that, pursuant to Section 580d of the California Code of Civil Procedure, Indemnitee’s realization through nonjudicial foreclosure upon any real property constituting security for Borrower’s obligations under the Loan Documents could terminate any right of its SubsidiariesIndemnitee to recover a deficiency judgment against Borrower, thereby terminating subrogation rights which such parties otherwise might have against Borrower. In the absence of an adequate waiver, such a termination of subrogation rights could create a defense to enforcement of this Agreement against such parties. Each Indemnitor hereby unconditionally and irrevocably waives any such defense.
(iii) In addition to and without in any way limiting the foregoing, each Indemnitor hereby subordinates any and all indebtedness of the Class B Member, the Company and each Subsidiary Borrower now or hereafter owed to any Indemnitor to all the indebtedness of the Class B Member and the Company Borrower to Indemnitee and agrees with Indemnitee that until the Redemption Price either (x) a Permitted Direct Assumption has been consummated in accordance with the Loan Agreement or (y) the Obligations have been indefeasibly paid and satisfied in full and full, all obligations owed to Indemnitee under the Transaction Loan Documents have been fully performed, and Indemnitee has released, transferred or disposed of all its right, title and interest in such collateral or security, and there has expired the maximum possible period thereafter during which any payment made by the Company Borrower or others to Indemnitee with respect to such obligations the Obligations Environmental Indemnity Agreement (Mezzanine) Berkadia Loan No. 00-0000000 & 00-0000000 117473511_7 could be deemed a preference under the United States Bankruptcy Code, no Indemnitor shall demand or accept any payment of principal or interest from the Class B MemberBorrower, the Company or any of the Subsidiaries or claim any offset or other reduction of any Indemnitor’s obligations hereunder because of any such indebtednessindebtedness and shall not (even following a Permitted Direct Assumption) take any action to obtain any of the collateral for the Loan. If any amount shall nevertheless be paid to an Indemnitor by the Class B Member, the Company or any Subsidiary Borrower or another guarantor prior to payment in full of the Redemption PriceGuaranteed Obligations (as defined in the Guaranty), such amount shall be held in trust for the benefit of Indemnitee and shall forthwith be paid to Indemnitee to be credited and applied to the Unrecovered CapitalGuaranteed Obligations, whether matured or unmatured. Further, no Indemnitor shall have any right of recourse against Indemnitee by reason of any action Indemnitee may take or omit to take under the provisions of this Agreement or under the provisions of any of the Transaction Loan Documents. Without limiting the generality of the foregoing, each Indemnitor hereby waives, to the fullest extent permitted by law, diligence in collecting the obligations owed to Indemnitee under the Transaction DocumentsObligations, presentment, demand for payment, protest, all notices with respect to the Operating AgreementNote, this Agreement, or any other Transaction Loan Document which may be required by statute, rule of law or otherwise to preserve Indemnitee’s rights against such Indemnitor under this Agreement, including, but not limited to, notice of acceptance, notice of any amendment of the Transaction Loan Documents, notice of the occurrence of any default, notice of intent to accelerate, notice of acceleration, notice of dishonor, notice of foreclosure, notice of protest, and notice of the incurring by the Class B Member, the Company or any of the Subsidiaries Borrower of any obligation or indebtedness.
(iv) Without limiting the foregoing, but subject to the same limitations set forth above, each Indemnitor waives (i) all rights of subrogation, reimbursement, indemnification, and contribution and any other rights and defenses that are or may become available to any Indemnitor by reason of California Civil Code Sections 2787 to 2855, inclusive, including any and all rights or defenses such Indemnitor may have by reason of protection afforded to the Class B Member, the Company or any of the Subsidiaries Borrower with respect to any of the obligations of any Indemnitor under this Agreement by reason of a nonjudicial foreclosure or pursuant to the antideficiency or other laws of the State of California limiting or discharging the obligations of the Class B Member, the Company or any of the SubsidiariesBorrower’s Obligations. Without limiting the generality of the foregoing, each Indemnitor hereby expressly waives any and all benefits under (i) California Code of Civil Procedure Section 580a (which Section, if such Indemnitor had not given this waiver, would otherwise limit such Indemnitor’s liability after a nonjudicial foreclosure sale to the difference between the obligations of such Indemnitor under this Agreement and the fair market value of the property or interests sold at such nonjudicial foreclosure sale), (ii) California Code of Civil Procedure Sections 580b and 580d (which Sections, if such Indemnitor had not given this waiver, would otherwise limit Indemnitee’s right to recover a deficiency judgment with respect to purchase money obligations and after a nonjudicial foreclosure sale, respectively), and (iii) California Code of Civil Procedure Section 726 (which Section, if such Indemnitor had not given this waiver, among other things, would otherwise require Indemnitee to exhaust all of its security before a personal judgment could be obtained for a deficiency). Notwithstanding any foreclosure of Environmental Indemnity Agreement (Mezzanine) Berkadia Loan No. 00-0000000 & 00-0000000 117473511_7 the lien of the Pledge Agreement or any mortgage, deed of trust or other security instrument that may now or hereafter be executed by Borrower for the benefit of Lender, each Indemnitor shall remain bound under this Agreement (other than as set forth in Section 9 or Section 10).
(v) Likewise, each Indemnitor waives (i) any and all rights and defenses available to such Indemnitor under California Civil Code Sections 2899 and 3433; and (ii) any rights or defenses such Indemnitor may have with respect to its obligations as a guarantor by reason of any election of remedies by Indemnitee; and (iii) all rights and defenses that such Indemnitor may have because Borrower’s debt is secured by any real property. This means, among other things, that Indemnitee may collect from Indemnitors without first foreclosing on any real or personal property collateral pledged by Borrower or any Mortgage Borrower, and that if Indemnitee forecloses on any real property collateral pledged by Borrower (A) the amount of the debt may be reduced only by the price for which that collateral is sold at the foreclosure sale, even if the collateral is worth more than the sale price, and (B) Indemnitee may collect from Indemnitors even if Indemnitee, by foreclosing on the real property collateral, has destroyed any rights Indemnitors may have to collect from Borrower. This is an unconditional and irrevocable waiver of any rights and defenses any Indemnitor may have because Borrower’s debt is secured by any real property. These rights and defenses include, but are not limited to, any rights or defenses based upon Section 580a, 580b, 580d, or 726 of the California Code of Civil Procedure. The provisions of this Section 29(b) shall survive any satisfaction and discharge of Borrower by virtue of any payment, court order or any applicable law, except the indefeasible payment in full of the Debt.
Appears in 1 contract
Samples: Environmental Indemnity Agreement (American Realty Capital Hospitality Trust, Inc.)
